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BANA’S MOT. TO SEAL REGAN REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
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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 PORTIONS OF ITS REPLY IN
SUPPORT OF ITS MOTION TO
EXCLUDE PURPORTED EXPERT
OPINIONS OF GREG J. REGAN
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
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GOODWIN PROCTER LLP
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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) portions of BANA’s Reply in Support of its Motion to
Exclude Purported Expert Opinions of Greg J. Regan (Regan Reply). In particular,
consistent with the Court’s prior sealing Order finding compelling reasons to seal
certain exhibits filed with BANA’s Motion to Exclude Purported Expert Opinions of
Greg J. Regan (ECF 602), BANA seeks to seal references within the Regan Reply to
the contents of those already-filed and sealed exhibits.1
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
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 to exclude expert testimony must show “compelling
reasons” to seal, as such motions may be effectively “dispositive of a motion for
summary judgment.” Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597
(9th Cir. 1996) (noting that Daubert ruling was dispositive); see Rink v. Cheminova,
Inc., 400 F.3d 1286, 1288 (11th Cir. 2005) (affirming a grant of summary judgment
on grounds that plaintiff failed to prove causation after the plaintiff's expert was
excluded under Daubert).
1 BANA incorporates by reference its Motion to Seal Documents (ECF 585) filed in
connection with its Motion to Exclude Purported Expert Opinions of Greg J. Regan
(Regan Motion) (ECF 567) and the Declaration of Lindsay E. Hoyle in Support
thereof (ECF 567-2), and Plaintiffs’ Motion to File Documents Under Seal (ECF 618)
in connection with Plaintiffs’ Opposition to BANA’s Motion to Exclude the
Purported Expert Opinions of Greg J. Regan (ECF 620) and the Declaration of James
Baltzer in Support thereof (ECF 620-1).
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Courts, including this Court, consistently seal documents where—as here—
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 602; 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, *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), claim reconsideration
policies and strategies, analyses of its state prepaid unemployment program,
discussions of the Remediation Plan and Addenda, cardholder account information,
and cardholder complaints and escalations, among other topics. See ECF 266, 293,
365, 381, 390, 391, 397, 421, 466, 467, 548, 598, 599, 600, 601, 602, 603 (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) (J. Curiel)
(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 references to the confidential documents and testimony at issue here that were
already sealed in connection with the Regan Motion, 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
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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”).
BANA has provisionally redacted and sealed portions of the Regan Reply that
quote, describe or reflect descriptions of the confidential documents, testimony and
topics previously submitted or described in the Parties’ prior briefing and motions to
seal submitted in connection with the Regan Motion. Those confidential topics
include the following categories of documents and information, for which this Court
has already found compelling reasons to seal:
BANA’s analyses of its state prepaid unemployment program
operations, including but not limited to operational risks and losses (see
ECF 365 at 10-13, n. 14 (finding compelling reasons to seal); ECF 602
(same));
•
BANA’s Remediation Plan and Addenda with the OCC and CFPB, and
its implementation of those Plans, which both agencies themselves
designated as “Highly Confidential – Attorneys’ Eyes Only” (see ECF
365 at 14-16 (finding compelling reasons to seal); ECF 602 (same));
•
BANA’s interrogatory responses and data provided therein reflecting
any reconsideration by BANA of those claims and any compensation
paid as a result (see ECF 365 at 5-9, 12 (finding compelling reasons to
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seal); ECF 602 (same));
•
Testimony concerning aggregated statistics related to EDD benefit
recipients account balances, activity, and fraud claims that BANA is
obligated to maintain as confidential pursuant to its agreement with
EDD (ECF 324-106 at 5), and otherwise would keep as confidential
because its disclosure could cause competitive harm to BANA or its
customers (see ECF 365, 381 (finding compelling reasons to seal); ECF
602 (same));
•
Individual EDD cardholder account, transactions, and claim
information, which often include personal, sensitive, or financial
information (see ECF 365, 381 (finding compelling reasons to seal);
ECF 602 (same)); and
•
Expert reports and excerpts of experts’ deposition testimony, which
include discussions of BANA’s confidential documents, many of which
contain the confidential information described above: 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 (see ECF 365, 381 (finding
compelling reasons to seal); ECF 602 (same)).
This is consistent with the terms of the Stipulated Protective Order (ECF 82 §
3), with this Court’s prior Sealing Orders (ECF 266, 293, 365, 381, 390, 391, 397,
421, 466, 467, 548, 598, 599, 600, 601, 602, 603), 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
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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), the Court’s Sealing Orders in connection with
BANA’s Daubert Motions (ECF 598, 599, 600, 601, 602), the Court’s Sealing Orders
in connection with BANA’s Motion for Partial Summary Judgment (ECF 603),
Plaintiffs’ Motions to Seal (ECF 376, 384, 394, 463, 475, 524, 527, 569, 572, 609,
615, 618), 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/ Lindsay E. Hoyle
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
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
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
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
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
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.
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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/ Lindsay E. Hoyle
LINDSAY E. HOYLE
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