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BANA’S MOT. TO SEAL CLONINGER 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 DOCUMENTS FILED IN
REPLY IN SUPPORT OF ITS
MOTION TO EXCLUDE THE
PURPORTED EXPERT OPINIONS OF
JANE CLONINGER
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
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BANA’S MOT. TO SEAL CLONINGER REPLY
CASE NO. 3:21-MD-02992-GPC-MSB
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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) portions of certain documents1 in connection with BANA’s
Reply in Support of its Motion to Exclude the Purported Expert Opinions of Jane
Cloninger (Cloninger Reply). In particular, BANA seeks to seal portions of one
Hoyle Declaration Exhibit because compelling reasons support sealing of the
identified document, as well as any references to that exhibit in the Cloninger Reply
filed in support. Consistent with the Court’s prior sealing Order finding compelling
reasons to seal certain exhibits filed with BANA’s Motion to Exclude the Purported
Expert Opinions of Jane Cloninger (ECF 598), BANA also seeks to seal references
within the Cloninger Reply to the contents of those already-filed and sealed 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
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
1 BANA’s Exhibit to the Declaration of Lindsay E. Hoyle in Support of the Cloninger
Reply (Hoyle Declaration) shall be referred to as “HX” or “Hoyle Declaration
Exhibit” in this Motion and the forthcoming Cloninger Reply.
2 BANA incorporates by reference its Motion to File Documents Under Seal (ECF
577) in connection with its Motion to Exclude the Purported Expert Opinions of Jane
Cloninger (Cloninger Motion) (ECF 563) and the Declaration of Lindsay E. Hoyle
in Support thereof (ECF 563-2), and Plaintiffs’ Motion to File Documents Under Seal
(ECF 621) in connection with Plaintiffs’ Opposition to Defendant’s Motion to
Exclude the Purported Expert Opinions of Jane Cloninger (ECF 623) and the
Declaration of Katherine Bass in Support thereof (ECF 623-1).
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
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).
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 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, *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 and BANA’s handling of unauthorized transaction
claims, 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 the confidential documents and testimony at issue here (or references thereto),
as well as substantive discussions of already sealed exhibits filed in connection with
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Cloninger 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 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 excerpted expert testimony (HX 50) that BANA seeks to seal
includes discussions of BANA’s confidential documents, which pertain to
confidential topics, including but not limited to: BANA’s handling of unauthorized
transaction claims and reconsiderations; and BANA’s fraud strategies, including the
use of EMV chip technology and the freezing and blocking of accounts, which this
Court has already found compelling reasons to seal. See ECF 365, 381 (finding
compelling reasons to seal).
BANA has also provisionally redacted and sealed portions of the Cloninger
Reply that quote, describe or reflect descriptions of the confidential documents,
testimony and topics that were previously submitted or described in the Parties’ prior
briefing and motions to seal submitted in connection with the Cloninger Motion.
Those confidential topics include BANA’s fraud and claims analyses and strategies
and BANA’s analyses of its state prepaid unemployment program operations,
including fraud volume and cardholder complaints, among other topics. This is
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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 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), BANA’s Daubert Motions (ECF 598, 599, 600,
601, 602), 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,
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/ 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
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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
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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