Full text
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000
Fax: +1 617 523 1231
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N Street, NW
Washington, DC 20036
Tel.: +1 202 346 4000
Fax: +1 202 346 4444
Attorneys for Defendant
BANK OF AMERICA, N.A.
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
IN RE: BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 21-MD-02992-GPC-MSB
DEFENDANT BANK OF AMERICA,
N.A.’S NOTICE AND MOTION TO
SEAL DOCUMENTS FILED IN ITS
REPLY IN SUPPORT OF ITS
MOTION FOR PARTIAL SUMMARY
JUDGMENT (ECF 589)
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59115 Page
1 of 10
1
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 79.2(c),
Defendant Bank of America, N.A. (BANA) hereby submits this Notice and Motion
to Seal (Motion to Seal) certain documents and portions of other documents in
connection with BANA’s Reply in Support of Its Motion for Partial Summary
Judgment (Reply). In particular, BANA seeks to seal certain Brys Declaration
Exhibits1 in their entirety and portions of certain Brys Declaration Exhibits because
compelling reasons supports sealing of the identified documents, as well as any
references to those exhibits in BANA’s Reply, BANA’s Response to Plaintiffs’
Additional Statement of Facts in Opposition to Its Motion for Partial Summary
Judgment (RAF), and BANA’s Response to Plaintiffs’ Objections to Evidence to Its
Motion for Partial Summary Judgment (RO). Consistent with the Court’s prior
sealing Orders finding compelling reasons to seal certain exhibits filed with both
BANA’s Motion for Partial Summary Judgment (ECF 603), as well as Plaintiffs’
Opposition to BANA’s Motion for Partial Summary Judgment (MSJ Opp.) (ECF
639, 654), BANA also seeks to seal references within its Reply, RAF, and RO to the
contents of those already-filed and sealed Brys and Chan Declaration Exhibits.2
As previously stated in BANA’s motions to seal submitted in connection with
class certification briefing and argument (ECF 328, 337, 344, 347, 383, 418, 451)
and BANA’s motions to seal submitted in connection with summary judgment
briefing (ECF 577, 579, 581, 583, 585, 587), the public’s right to inspect and copy
1 The exhibits submitted in support of BANA’s Reply are appended to the Brys
Declaration (Brys Decl.) and shall be referred to as “DX” or “Brys Declaration
Exhibits” in this Motion and the forthcoming Reply and supporting documents. DX
1-184 are exhibits to the Declaration of Laura G. Brys (ECF 591) in Support of
BANA’s Mot. for Partial Summary Judgment (MSJ) (ECF 589). DX 185-192 are
exhibits to the Declaration of Laura G. Brys in Support of the Reply. Plaintiffs’
Exhibits to the Declaration of Connie K. Chan in Opposition to BANA’s MSJ (ECF
634-1) shall be referred to as “PX” in the forthcoming Reply and supporting
documents.
2 BANA incorporates by reference its Motion to File Documents Under Seal (ECF
587) in connection with its Motion for Partial Summary Judgment (ECF 589) and
Plaintiffs’ Motion to File Documents Under Seal (ECF 630, 650) in connection with
Plaintiffs’ Opposition to BANA’s Motion for Partial Summary Judgment (ECF 652).
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59116 Page
2 of 10
2
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
judicial records is not absolute, and a party faced with the disclosure of confidential
or proprietary information may seek to file the documents under seal to avoid
disclosure of business information that might result in competitive harm or be used
for improper purposes. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
(1978) (denying disclosure); Local Civ. R. 79.2(c). A party seeking to seal documents
filed in connection with a motion for summary judgment, a dispositive motion, must
show “compelling reasons” to seal documents. Kamakana v. City & Cnty. of
Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006); see also Pintos v. Pacific Creditors
Ass’n, 605 F.3d 665, 678-79 (9th Cir. 2010) (determining “compelling reasons”
standard applies to motion to seal documents attached to cross-motion for summary
judgment); EpicentRx, Inc. v. Carter, 2023 WL 4336695, *1 (S.D. Cal. May 16,
2023) (applying “compelling reasons” standard to request to seal certain exhibits
associated with motions for summary judgment).
Courts, including this Court, consistently seal documents where disclosure of
confidential business information risks competitive harm to the litigant or improper
use of the information such as to commit fraud. See, e.g., ECF 603; E.W. Bank v.
Shanker, 2021 WL 3112452, *18-19 (N.D. Cal. July 22, 2021) (finding compelling
reasons to seal confidential onboarding processes, verification of customer identities,
and fraud prevention measures); Soria v. U.S. Bank N.A., 2019 WL 8167925, at *4
(C.D. Cal. Apr. 25, 2019) (finding compelling reasons to seal internal fraud
investigation procedures because there was a “significant danger that someone could
improperly use this information to commit fraud and avoid detection.”). Indeed, this
Court largely granted the Parties’ prior motions to seal, finding good cause or
compelling reasons to seal documents concerning the same topics that BANA now
seeks to seal, including BANA’s fraud detection and prevention policies and
strategies (including the fraud filter), discussions or analyses of its state prepaid
unemployment program operations, including call center operations, prepaid fraud
losses, and cardholder complaints and escalations, among other topics. See ECF 266,
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59117 Page
3 of 10
3
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
293, 365, 381, 390, 391, 397, 421, 466, 467, 548, 598, 599, 600, 601, 602, 603 (the
Sealing Orders). Those prior rulings are sufficient grounds alone to grant sealing
here. See Lundstrom v. Young, 2022 WL 15524624, *17 (S.D. Cal. Oct. 27, 2022)
(Curiel, J.) (considering prior sealing of exhibits when granting motion to seal);
Workplace Techs. Rsch., Inc. v. Project Mgmt. Inst., Inc., 2021 WL 6091272, *3
(S.D. Cal. Oct. 20, 2021) (sealing references to document that court already granted
sealing of).
Consistent with this Court’s Sealing Orders, there are compelling reasons to
seal the confidential documents, declaration and testimony at issue here (or
references thereto), as well as substantive discussions of already sealed exhibits filed
in connection with BANA’s MSJ and Plaintiffs’ MSJ Opp., because each reflects
topics that are likely to cause particularized competitive harm to BANA and which
could potentially enable future fraud, and thus pose a danger to BANA’s business
and the public. See, e.g., EWB, 2021 WL 3112452, *18-19 (finding compelling
reasons to seal where public disclosure of EWB’s confidential onboarding processes,
verification of customer identities and fraud prevention measures would “harm [the
bank’s] competitive standing”); Soria, 2019 WL 8167925, *4 (finding compelling
reasons to seal bank’s internal procedures for investigating fraud because there was
a “significant danger that someone could improperly use this information to commit
fraud and avoid detection”). Each document was also properly designated as
“Confidential” or “Highly Confidential – Attorneys’ Eyes Only” under the Protective
Order entered by this Court. See BAE Systems, 670 F. Supp. 3d at 1069 (finding good
cause to seal certain exhibits filed in connection with an apex discovery dispute
because “information in the exhibits fits within ‘confidential information’ in the
protective order”).
Specifically, the Confidential documents, declaration and testimony that
BANA seeks to seal include, but are not limited to, the following categories of
documents and information, for which this Court has already found compelling
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59118 Page
4 of 10
4
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
reasons to seal:
DX 186, 187, and 189 reflect confidential BANA fraud detection and
prevention strategies and policies, including the Claim Fraud Filter, and
other current and former fraud strategies that could be misused by
fraudsters to perpetrate future fraud or could be used by another
financial institution to BANA’s competitive disadvantage (see
Amended Sealing Order (ECF 365) at 5-6, 12; Sealing Order (ECF
603));
DX 188 reflects confidential BANA claims review policies and
strategies and the implementation thereof, including reviewing
complaint escalations and issuing provisional credits in compliance with
regulations that could also be misused by fraudsters to perpetrate fraud
or could be used by another financial institution to BANA’s competitive
disadvantage (see Amended Sealing Order (ECF 365) at 5-6, 12; Sealing
Order (ECF 603));
DX 191 and 192 reflect BANA’s confidential analyses of its state
prepaid unemployment program operations, including but not limited to,
contractual negotiations, fraud volume, claims and call center
operations, and operational risks and losses (see Amended Sealing
Order (ECF 365) at 10-13, n.14; Sealing Order (ECF 603));
DX 192 reflects confidential BANA fraud and operational losses in
connection with the unemployment insurance prepaid programs which
could be misused by fraudsters to perpetrate future fraud or could be
used by another financial institution to BANA’s competitive
disadvantage (see Amended Sealing Order (ECF 365) at 10-13, n.14;
Sealing Order (ECF 603));
DX 185 reflects an expert witness’s sworn declaration discussing
confidential BANA interrogatory responses and data provided therein
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59119 Page
5 of 10
5
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
reflecting BANA’s use of the Claim Fraud Filter to decision
unauthorized transaction claims and to freeze or block EDD cardholder
accounts, and any reconsideration by BANA of those claims and any
compensation paid as a result which could be misused by fraudsters to
perpetrate future fraud or could be used by another financial institution
to BANA’s competitive disadvantage (see Amended Sealing Order
(ECF 365) at 5-9, 12; Sealing Order (ECF 603));
DX 190 reflects excerpts of an experts’ deposition testimony, which
includes discussions of BANA’s confidential documents, many of
which contain the confidential information described above, including
but not limited to: BANA’s handling of unauthorized transaction claims
and reconsiderations. This information could be misused by fraudsters
to perpetrate future fraud or could be used by another financial
institution to BANA’s competitive disadvantage (see Amended Sealing
Order (ECF 365) at 5-9, 12; Sealing Order (ECF 603)); and
DX 186, 187, 188, 189, 191, and 192 reflect excerpts of 30(b)(6) and
fact witnesses’ deposition testimony, which include discussions of
BANA’s confidential documents, many of which contain the
confidential information described above, including but not limited to:
BANA’s
handling
of
unauthorized
transaction
claims
and
reconsiderations; BANA’s contract with EDD and the responsibilities
thereunder; BANA’s communications with EDD regarding fraud-
related measures; BANA’s fraud strategies, including the use of EMV
chip technology and the freezing and blocking of accounts; and BANA’s
call center procedures and complaint escalation intake channels. This
information could be misused by fraudsters to perpetrate future fraud or
could be used by another financial institution to BANA’s competitive
disadvantage (see Amended Sealing Order (ECF 365) at 5-9, 12; Sealing
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59120 Page
6 of 10
6
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
Order (ECF 603)).
BANA has also provisionally redacted and sealed portions of the Reply, RAF,
and RO that quote, describe or reflect descriptions of the confidential documents,
testimony and topics identified above, or those previously submitted or described in
the Parties’ prior briefing and motions to seal submitted in connection with BANA’s
MSJ and Plaintiffs’ MSJ Opp. Those confidential topics include: BANA analyses
pertaining to fraud, including card skimming, and potential fraud prevention and
detection strategies to combat that fraud; confidential BANA general services
agreements and statements of work between BANA and its call center vendors;
confidential BANA communications with EDD regarding BANA’s and/or EDD’s
fraud strategies, including the use of EMV chip technology and freezing and blocking
of accounts; confidential BANA documents and testimony pertaining to BANA’s
Remediation Plan and Addenda with the Office of the Comptroller of the Currency
(OCC) and the Consumer Financial Protection Bureau (CFPB)—which were
designated Highly Confidential – Attorneys’ Eyes Only at those regulators’
requests—which this Court has found compelling reasons to seal; and confidential
EDD cardholder account or personal information, including personal identifying
information, the disclosure of which could expose those cardholders to harm or
identity theft, as well as the types of claims files or information that BANA considers
in connection with investigating and processing unauthorized transaction and error
claims, disclosure of which could provide the public with insight into BANA’s
confidential claims processes or procedures, thereby enabling fraudsters to
circumvent them and perpetrate future fraud, and the disclosure of which could also
enable other financial institutions to use that information to BANA’s competitive
disadvantage, among other topics. This is consistent with the terms of the Stipulated
Protective Order (ECF 82 § 3), with this Court’s prior Sealing Orders in favor of
BANA (ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467, 548, 598, 599, 600,
601, 602, 603) and in favor of Plaintiffs (ECF 376, 384, 394, 463, 475, 524, 527, 569,
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59121 Page
7 of 10
7
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
572, 609, 615, 618 ,630, 650), and with rulings in this Circuit. See, e.g., Darisse v.
Nest Labs, Inc., 2016 WL 11474174, *2 (N.D. Cal. June 2, 2016) (sealing class
certification motion and declarations that quote or reference confidential exhibits).
For the reasons discussed above, there are compelling reasons to seal discussions of
those topics, testimony and documents discussed in the Parties’ briefing. See supra
at 3-4.
*
*
*
For the foregoing reasons and for the reasons set forth in the Court’s Sealing
Orders in connection with class certification briefing and argument (ECF 365, 381,
390, 391, 397, 421, 466, 467, 548) and BANA’s Motion for Partial Summary
Judgment (ECF 603), Plaintiffs’ prior Motions to Seal (ECF 376, 384, 394, 463, 475,
524, 527, 569, 572, 609, 615, 618 ,630, 650), BANA’s prior Motions to Seal (ECF
328, 337, 344, 347, 383, 418, 451, 577, 579, 581, 583, 585, 587) and accompanying
declarations submitted in support thereof (ECF 344-1, 344-2, 344-3, 347-1, 347-2),
all of which are incorporated herein by reference, BANA respectfully requests that
the Court grant BANA’s Motion to Seal because compelling reasons support sealing
thereof.
Dated: February 20, 2026
Respectfully submitted,
By: s/ Laura G. Brys
LAURA G. BRYS (SBN 242100)
LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
601 S. Figueroa St., Suite 4100
Los Angeles, CA 90017
Tel.: +1 213 426 2500
Fax: +1 617 346 4444
JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59122 Page
8 of 10
8
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
Fax: +1 617 523 1231
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
KEITH LEVENBERG (pro hac vice)
KLevenberg@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N Street NW
Washington, DC 20036
Tel: +1 202 346 4000
Fax: +1 202 346 4444
Lindsay E. Hoyle (pro hac vice)
LHoyle@goodwinlaw.com
VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
GOODWIN PROCTER LLP
620 Eighth Avenue
New York, NY 10018
Tel: +1 212 813-8800
Fax: +1 212 355-3333
YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
JONES DAY
100 High Street
Boston, MA 02110
Tel.: +1 617 960 3939
Fax: +1 617 449 6999
JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN 278405)
mnazareth@myersnave.com
MEYERS NAVE
600 B Street, Suite 1650
San Diego, CA 92101
Attorneys for Defendant
BANK OF AMERICA, N.A.
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59123 Page
9 of 10
9
BANA’S MOT. TO SEAL PARTIAL SJ REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the clerk of the
court for the United States District Court for the Southern District of California by
using the CM/ECF system on February 20, 2026. I further certify that all participants
in the case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system. I certify under penalty of perjury that the foregoing is true and
correct.
Dated: February 20, 2026
s/ Laura G. Brys
LAURA G. BRYS
Case 3:21-md-02992-GPC-MSB Document 687 Filed 02/20/26 PageID.59124 Page
10 of 10