Full text
RESP. TO PLS’ OBJ. TO EVID. ISO BANA’S MSJ
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
RESPONSE TO PLAINTIFFS’
OBJECTIONS TO EVIDENCE IN
SUPPORT OF BANK OF AMERICA,
N.A.’S MOTION FOR PARTIAL
SUMMARY JUDGMENT (ECF 633-3)
Date:
April 17, 2026
Time:
1:30 p.m.
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
FILED PROVISIONALLY UNDER SEAL
PURSUANT TO STIPULATED PROTECTIVE
ORDER
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RESP. TO PLTFS’ OBJ. TO BANA’S SJ EVID.
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TABLE OF CONTENTS
Page
INTRODUCTION ...................................................................................................... 1
A. The Objections to Chestnut’s Declaration Should Be Overruled. ....................... 6
B. The Objections to Golden’s Declaration Should Be Overruled. ........................ 10
C. The Objections to Lennon’s Declaration Should Be Overruled. ....................... 12
D. The Objections to Letson’s Declaration Should Be Overruled. ......................... 14
E. The Objections to Martin’s Declaration Should Be Overruled. ......................... 33
F. The Objection to Robart’s Declaration Should Be Overruled. ........................... 37
CONCLUSION ......................................................................................................... 38
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RESP. TO PLTFS’ OBJ. TO BANA’S SJ EVID.
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Defendant Bank of America, N.A. (BANA) hereby submits this Response to
Plaintiffs’ Objections to Evidence in Support of BANA’s Motion for Partial
Summary Judgment (ECF 633-3) (Objections).
As a threshold matter, the Objections are procedurally improper, and the Court
should decline to consider them on that basis. In lieu of lodging the Objections within
the 50 pages they were allotted by this Court to respond to BANA’s Separate
Statement of Undisputed Facts (SUF) (see ECF 560), Plaintiffs filed the 28-page
Objections on top of a 65-page response to the SUF (ECF 652-1) and 28 more pages
of additional “facts” (ECF 652-2). The Court should not countenance this brazen end-
run around the page limitations negotiated by the parties, and ordered by the Court.
The Court should overrule the Objections on this basis alone.
If this threshold deficiency is not dispositive, the majority of Plaintiffs’
Objections are also due to be overruled because they do not comply with the 2010
Amendment to Rule 56 of the Federal Rules of Civil Procedure. As amended, Rule
56 permits parties to object “that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2)
(emphasis added); see also id. 56(c)(4) (“[a]n affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify
on the matters stated”) (emphasis added). Since the 2010 Amendment was enacted,
this Court has consistently emphasized that “[a]t the summary judgment stage,
evidence need not be authenticated or otherwise presented in an admissible form.”
Theweny v. Mercedes-Benz USA, LLC, 2024 WL 1161696, *1 n.1 (S.D. Cal. Mar.
18, 2024) (Curiel, J.) (emphasis added, internal quotations omitted). “[A]t the
summary judgment stage, district courts consider evidence with content that would
be admissible at trial, even if the form of the evidence as presented would not be
admissible at trial.” Kekona v. City of San Diego, 2024 WL 5227734, *3 (S.D. Cal.
Dec. 26, 2024); see also Cherewick v. State Farm Fire and Cas. Ins., 578 F. Supp.
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RESP. TO PLTFS’ OBJ. TO BANA’S SJ EVID.
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3d 1136, 1155 (S.D Cal. 2022) (similar). Many of the Objections attack the form in
which BANA’s evidence is presented, not the admissibility of the underlying facts,
and therefore should be overruled as these facts may be properly considered by the
Court in ruling on BANA’s MSJ. See Kekona, 2024 WL 5227734, *3 (objections at
the summary judgment stage for “lack of foundation, speculation, hearsay, relevance,
or that evidence . . . constitutes an improper legal conclusion” are “unnecessary to
consider”). Further, if Plaintiffs actually believed that some of BANA’s declarations
were improper, they should have moved to strike them and articulated the specific
basis for doing so. See, e.g., Colby v. Newman, 2013 WL 12124390, *9 (C.D. Cal.
June 11, 2013) (overruling objections and noting that “the Court need not consider
boilerplate recitations and blanket objections submitted without analysis applied to
specific items of evidence”) (internal quotations omitted). But they did not do in the
Objections (or anywhere else in the 93 other pages they submitted with their
Opposition to BANA’s Motion for Partial Summary Judgment (MSJ)).
Instead, Plaintiffs repeatedly rely on the same eight categories of objections,
each of which is generally improper at this stage and should be overruled. These
general responses are incorporated in each of the below specific responses to
Plaintiffs’ specific Objections, by reference to the end note number indicated in each
of the preceding paragraphs.*
Authentication.1 Plaintiffs’ Objections based on authentication are
quintessentially the kinds of objections to form and not substance that amended Rule
56 and subsequent caselaw consider improper or unnecessary at summary judgment.
See Romero v. Nevada Dep’t of Corr., 673 F. App’x 641, 644 (9th Cir. 2016) (noting
that 2010 amendment “eliminate[d] the unequivocal requirement that evidence
submitted at summary judgment must be authenticated,” and only “requires that such
* For example, BANA’s response to Plaintiffs’ first Objection to DX 1 in the
following chart includes a reference to “lack of foundation,” including the end note
number of “2” (among other responses), indicating that BANA’s response
incorporates the information included in the paragraph beginning with “Lack of
Foundation and Personal Knowledge” below.
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RESP. TO PLTFS’ OBJ. TO BANA’S SJ EVID.
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evidence ‘would be admissible in evidence’ at trial”); see also Morton v. Cnty. of San
Diego, 2024 WL 5126281, *5 (S.D. Cal. Dec. 16, 2024) (overruling “lacks
authentication” objection where the objected-to evidence “will be admissible in some
form at trial”). All of the documents to which Plaintiffs object as lacking
authentication were produced in this case in response to Plaintiffs’ discovery
requests, directed either at BANA or third parties, and Plaintiffs do not contend that
any of the objected-to documents are not what they purport to be or that BANA will
be unable to authenticate these documents at trial. See Burch v. Regents of Univ. of
Cali., 433 F. Supp. 2d 1110, 1123-24 (E.D. Cal. 2006) (declining to consider
authenticity objections where “the court is confident [proponent] would be able to
authenticate [the documents] at trial”). These Objections should be overruled.
Lack of Foundation and Personal Knowledge.2 Plaintiffs object to portions
of five of BANA’s declarations submitted as evidence, arguing that those
declarations lack foundation for, or personal knowledge of, the facts therein. These
objections ignore that “the requirement of personal knowledge imposes only a
minimal burden on a witness” at summary judgment. Bogavac v. El Pollo Loco, Inc.,
2025 WL 1177541, *2 (S.D. Cal. Apr. 23, 2025) (internal quotation omitted) (finding
statement by declarant that he is familiar with the relevant documents, items, and
processes sufficient to establish personal knowledge and foundation at summary
judgment). Further, objections to lack of foundation are routinely overruled by courts
in this district as “not appropriate at summary judgment” given that amended Rule
56’s focus is on the substance of evidence, not its form. Morton, 2024 WL 5126281,
*4, see also Kekona, 2024 WL 5227734, *3-4. These Objections also should be
overruled.
Hearsay.3 Plaintiffs’ hearsay objections also improperly elevate evidentiary
form over substance. None of them contend that the actual facts contained in the
supposed “hearsay” evidence are inadmissible in any form at trial. Thus, the evidence
may be properly considered by the court at summary judgment. See Kekona, 2024
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WL 5227734, *4 (overruling hearsay objections where the relevant evidence is “in
one way or another, admissible for non-hearsay purposes or through exceptions to
the rule against hearsay, even if the form of the evidence may not be”); Cherewick,
578 F. Supp. 3d at 1157 (“as long as a court finds that hearsay evidence could be
presented in an admissible form at trial (i.e., through testimony from a witness laying
the foundation for an exception or because the Court finds the evidence to be non-
hearsay), it may consider the evidence when ruling on the motion for summary
judgment”). Plaintiffs’ hearsay Objections should be overruled.
Relevance.4 Plaintiffs relevance objections ignore that such objections “are
unnecessary at the summary judgment stage because there is no jury that can be
misled and no danger of confusing the issues.” Morton, 2024 WL 5126281, *4. These
objections should also be overruled as superfluous and “redundant of the summary
judgment standard itself.” See Cherewick, 578 F. Supp. 3d at 1156. Rather than
objecting to the evidence as irrelevant, caselaw instructs that Plaintiffs should instead
“simply argue that the facts are not material.” Id. (quoting Burch, 433 F. Supp. 2d at
1119) (emphasis in original). Of course, Plaintiffs do this too, in their response to
BANA’s SUF, further demonstrating that is where the Objections should have been
properly lodged. For these reasons, the relevance Objections should be overruled.
Ultimate Fact/Legal Conclusion.5 Like objections based on hearsay and
relevance, the Objections that testimonial or declaratory evidence provides an
ultimate fact or legal conclusion are not appropriate or considered at the summary
judgment stage. See Kekona, 2024 WL 5227734, *4; Tan v. Quick Box, LLC, 2024
WL 1121795, *4 (S.D. Cal. Mar. 14, 2024). These, too, should be overruled.
Best Evidence Rule.6 Plaintiffs’ Objections based on the “Best Evidence
Rule” again focus on the form of the evidence presented rather than the substance
and should be overruled as unnecessary. See Bogavac, 2025 WL 1177541, *3; see
also Insalaco v. Fire Ins. Exch., 2022 WL 17968763, *3 (N.D. Cal. July 15, 2022)
(noting the best evidence rule “is a rule of preference and not a rule of absolute
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RESP. TO PLTFS’ OBJ. TO BANA’S SJ EVID.
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exclusion”). Further, these Objections are aimed at evidence and testimony not
seeking to prove the contents of documents, which is the only thing Federal Rule of
Evidence 1002 prohibits. See Bogavac, 2025 WL 1177541, *3 (overruling best
evidence rule objections because “while there may be documents relating to [the
declarant’s] statements, [d]efendant does not attempt to prove their contents through
[those] statements”). Moreover, many of these Objections address documents that
are “not closely related to a controlling issue” and so are exempted from Rule 1002
anyway. See Fed. R. Evid. 1004(d). Each of these reasons independently warrants
overruling these Objections.
Mischaracterizes Evidence.7 Plaintiffs purport to “object” to certain portions
of the declarations as mischaracterizing cited evidence, but such objections are
plainly improper as they do not bear on the admissibility of the objected-to evidence.
See Morton, 2024 WL 5126281, *4 (argument that summary judgment evidence
mischaracterizes evidence is “not an objection to the admissibility of the evidence
but a challenge to the import of the evidence and is therefore not an appropriate
evidentiary objection”); Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d
1023, 1033 (C.D. Cal. 2013) (similar). For this reason, these Objections should be
overruled.
Improper Lay Witness Testimony.8 Plaintiffs object to several statements by
BANA’s declarants as impermissible lay witness opinions. These Objections are
misplaced, as Federal Rule of Evidence 701 permits opinion testimony from lay
witnesses where such testimony is “(a) rationally based on the witness’s perception;
(b) helpful to . . . determining a fact in issue; and (c) not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.” Each of the statements
objected to as improper lay witness opinions are rationally based on the witnesses’
perception and personal knowledge as laid out in their declarations, and not based on
any technical or scientific knowledge under Rule 702. These Objections should be
overruled too.
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1
*
*
*
2
For these reasons and as explained further below, each of Plaintiffs' Objections
3
should be overruled.
4
A.
The Obiections to Chestnut's Declaration Should Be Overruled.
5
Robert Chestnut has personal knowledge of the facts set forth m his
6
Declaration, including the documents cited therein, and will provide foundation and
7
authenticity at trial. Chestnut is a regional executive for BANA overseeing client
8
relationships. DX 1 ,r 2. The basis of Chestnut's personal knowledge of the facts
9
around BANA's agreement with EDD and
are
10
provided in his Declaration. The Declaration explains that at relevant times, Chestnut
11
was responsible for "overseeing the management of BANA's relationship with
12
EDD," and that he "regularly reviewed the terms of the contract between BANA and
13
EDD" and became familiar through his experience with '
14
resulting from the pandemic." Id. ,r,r 2-3. All Objections related to
15
Chestnut's Declaration should be overruled.
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:
estnu
Deel., Page 3,
Lines, 12-16, 111
"BANA' s Agreement
with EDD was at
best
nd
to
,
ac o
oun
and Personal
K~owledge (Fed. R.
Ev1d. 104tb), 602;
Fed. R. Civ. P.
56(c)(4)).
He_arsay (Fed. R.
Ev1d. 801, 802).
Declarant relies on a
document that has not
been authenticated for
the truth of their
content. (FRE 803.)
Best Evidence Rule
(Fed. R. Evid: 1002).
1mproper testimony
about contents of a
document that speaks
for itself.
6
RESP. TO PLTFS ' OBJ. TO BANA's SJ EVID.
mproper o
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2 hearsay3
Inapplicable:
personal knowled!Ie,2
best evidence rule't5'
Overruled:
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: etter
from Dawn
Haddock, Senior
Vice President
and Senior Client
Manager at
BAN.A, to Carole
Vigne, General
Counsel of EDD
dated May 26,
2021
:
estnut
Deel., Page 3,
Lines 17-27, 112;
"As a result of the
pandemic and
resulting fraud that
plagueat
ut entic1ty
e .
Evid. _901(a)). This
letter 1s not
automatically
authenticated under
the FRE and BANA
has not otherwise
sufficiently
authenticated the
letter as admissible
evidence, e.g., a
business OJ 1mblic
record. (FRE 803(6)-
(8), 901 , 902.)
. mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
hearsay3
Hearsay (Fed. R.
Evid. 801 , 802). DX
55 relies on
extraneous hearsay
documents for the
truth of the matter.
Best Evidence (Fed.
R. Ev. 1002). Instead
of producing original
documents upon
which it relies, DX 55
presents summary
calculations, theories,
and methods without
pr~senting original
evidence.
e evance
e .
Evid. 402 03). The
testimony?s probative
value is substantially
outweighed by a
danger of confusing
tµe issues and wastmg
time.
Lack of Foundation
and Personal
K~owledge (Fed. R.
Ev1d. 104(b), 602;
Fed. R. Civ. P.
56(c)(4)). No
evidence of
declarant' s personal
knowledge.
7
Inapplicable:
autlienticityf 1 best
evidence ru e6
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2
relevance,4 hearsay3
Inapplicable: best
evidence rule6,
personal knowledge,2
Overruled:
Overruled:
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
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Dec. as DX 154.'
SUMF No. 21-22
(DX 1 ,r 12)
SUMF No. 22, 220
(DX 154)
. etter
.
fromBANA to
the California
Senate
u e
. .
.
02).
eclarant offers
improper summary
testimony about
contents of a
document that speaks
for itself.
He_arsay (Fed. R.
Ev1d. 801, 802).
Declarant cites an
inadmissible
document for the truth
of its content
ut entication
e .
R. E'1d. 901(a)). This
letter 1s not
automatically
authenticated under
the FRE and BANA
has not otherwise
sufficiently
authenticated the
letter as admissible
evidence, e.g., a
business or public
record.
Hearsay (Fed. R.
Evid. 801, 802). This
letter references other
8
RESP. TO PLTFS' OBJ. TO BANA 's SJ EVID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
hearsay3
Inapplicable:
autlienticityf 1 best
evidence ru e6
Overruled:
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:
estnut
Deel., Page 4,
Lines 1-11,, 113;
DX55,Dx f70
"Additionally , EDD
did not paY. fees to
BANA under the
EDD Agreement. In
fact1 EDD received
additional amounts
(i.e., a revenue share)
from BANA under the
EDD Agreement. The
revenue
as
• • • • •
• • • •
• ••
ocuments or t e
truth of their content.
Best Evidence Rule
(Fed. R. Evid. 1002).
this letter presents
summary calculations
without presenting
original evidence of
underlying data.
ac o
ersona
K~owledge (Fed. R.
Evid. 104tb), 602;
Fed. R. Civ. P.
56(c)(4)). No
evidence of
declarant' s personal
knowledge.
Best Evidence Rule
(Fed. R. Evid. 1002).
Declarant offers
improper summary
testimony about
contents of a
document that speaks
for itself.
He_arsay (Fed. R.
Evid. 801 , 802).
Declarant cites an
inadmissible
document for the truth
of its content.
9
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
hearsay3
Inapplicable:
personal knowled!Ie,2
best evidence rule't5'
Overruled:
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SUMF No. 18-19
(DX ,r 13)
SUMF No. 19, 21,
208 (DX 55)
SUMF No. 19, 22
(DX 170)
ut entication
e .
R. Eyid. 901(a)). This
data 1s not
automatically
authenticated under
the FRE and BANA
has not otherwise
sufficiently
authenticated the data
as admissible
evidence.
Overruled:
15
B.
The Objections to Golden's Declaration Should Be Overruled.
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: o en
Deel., Page 3,
Lines 23-25, 1 12
"As a result of
BANA's efforts,
BANA was able to
grow its UI prepaid
il
l
r staffing
FTEin
20 to over
TE by
r 2020. See
DX 173; DX 174; DX
25; DX 24."
SUMF No. 212-214,
216-219
roun s or
Ob"ection
1sc aractenzes
Evidence (Fed. R.
Evid. 403). The
declarant claims -
FTEfor'.IMlffln
and over
FTE
for Decem er 020
10
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
esponse
napp 1ca e:
miscliaracterizes
evidence7
Overruled:
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:
o en
Deel., Page 5,
Lines 17-19, 120
"Although some
callers experienced
extended wait times
during spikes in call
volumes, those s2ikes
were not avoidaole
under these
circumstances _given
the impact of tlie
global pandemic."
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SUMF No. 43
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SUMF No. 212-214,
218
ega
Conclusion/Ultimate
Fact (Fed. R. Evid.
701). Golden's _lay
testimony provides
an inadmissible legal
conclusion about
necessity1 causation,
and the aosence of
reasonable
alternatives.
ut entication
e .
R. Evi~. 90l(a}).
o
custodian or other
qualified witness has
authenticated the data
provided.
11
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
Overruled:
relevance4
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: legal
conclusion/ultimate
fact5
Overruled:
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 693-1 Filed 02/20/26 PageID.59421
Page 13 of 42
1
C.
The Obiections to Lennon's Declaration Should Be Overruled.
2
Jennifer Lennon has personal knowledge of the facts set forth m her
3
Declaration, including the documents cited therein, and will provide foundation at
4
trial. Lennon is BANA 's Prepaid Unemployment Programs Executive. DX 3 ,r 1. The
5
basis of Lennon's knowledge of the Consent Orders, the Remediation Plan, and
6
BANA's implementation of the same is provided in her Declaration. See id. ,r 2.
7
Lennon explained in her declaration that in her role, she is responsible for leading
8
particular functions, including "prepaid call center, complaints, fraud policy, and
9
return of funds process~ and prepaid claims processing,
10
management,
11
and cardholder communications." Id. The Objections related to Lennon's Declaration
12
should be overruled.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
SUMF No. 107, 127,
137, 150, 152-165,
168, 176, 178, 180
Best Evidence Rule
(Fed. R. Evid. 1002,
1006). BANA
impermissibly
attempts to use the
Remediation Plan
(DX 43.A)'s
descri tion of
rove
e
f
als of
12
RESP. TO PLTFS' OBJ. TO BANA's SJ EVID.
mproper o
after 2U10
amendment to Fed.
R. Civ. P. 56:
Overruled:
hearsay3
Inapplicable: best
evidence rule6
CASE No. 3 :21-MD-02992-GPC-MSB
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2
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9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
: ennon
Deel., Page 4,
Lines 9-12, 112
"BANA' s remediation
efforts and
implementation of the
Rem • •
SUMF No. 156, 180
: ennon
Deel., Page 4
Lines 16-21114
"BANA' s remediation
efforts and
implementation of the
Rem • •
27
SUMF No. 178
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
ac o
oun abon
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)).
Declarant cloes not
explain the basis for
her statements about
what BANA's
Legal
Conclusion/Ultimate
Fact (Fed. R. Evid.
701). beclarant offers
her 1mpro_per lay
<:>pinion aoout how
.ediation
e evance
Evid. 402).
Lack of Foundation
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)).
Declarant cloes not
explain the basis for
about
Legal
Conclusion/Ultimate
Fact (Fed. R. Evid.
701 - 702). Declarant
offers p~r improper
lay opm10n about
13
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2 legal
conclusion/ultimate
facts
Inapplicable:
personal knowledge2
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
relevance,4 lack of
foundation,2 legal
conclusion/ultimate
facts
Inapplicable:
personal knowledge2
Overruled:
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 693-1 Filed 02/20/26 PageID.59423
Page 15 of 42
I
2
3
D.
The Obiections to Letson's Declaration Should Be Overruled.
4
Michael Letson has personal knowledge of the facts set forth m his
5
Declaration, including the documents cited therein, and will provide foundation at
6
trial. Letson was at the relevant times head of BANA's Global Financial Crimes
7
(GFC) group's Financial Crimes Analytics team and is now GFC's Managing
8
Director. DX 4 ,r 1. Letson's knowledge of BANA's fraud identification and
9
prevention strategies-and implementation of the same-is detailed in his
IO
Declaration. See id. ,r,r 3-4. Letson clearly identified that he "manage[ s] the GFC
11
business operations group at BANA whose mission is to lead the efforts of the
12
institution to detect and deter criminal misconduct and fraud and support compliance
13
with the Bank Secrecy Act and anti-money laundering (BSA/AML) obligations." Id.
14 ,r 3. Letson also explained that he, through his role, is "familiar with-and in many
15
instances developed, directed, or implemented-BANA's fraud detection
16
capabilities and efforts, including its use of anti-fraud strategies." Id. The Objections
17
related to Letson' s Declaration should be overruled.
18
19
20
21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
: etson
Deel. P_g. 2, lines
21-27, ,1 7
"Any fraud strategy
can Impact persons
whose card activities
or observable
characteristics appear
to be fraudulent or
suspicious but are not,
in fact, fraudulent for
a particular
cardh9lder. ~n.my
expenence, It IS never
BANA's intention to
inconvenience valid
benefits recipients;
however1 no fraud
strate
IS I 00%
ecbon
ac o
oun abon
and Personal
Knowled~ (Fed R.
Eyid. I 04 ); Fed R.
Civ. 602; ed. R.
Civ. 56(c)(4)).
Declarant lacks
personal knowledge
of all ofBANA's
intentions such that
he can opine on what
was "never BANA 's
intention." Nor does
Declarant provide the
basis of his belief
about how a)?.y fraud
strategy can Impact
cardholders.
14
RESP. TO PLTFS' OBJ. TO BANA 's SJ EVID.
mproper o
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2
relevance,4 legal
conclusion5
Inapplicable:
personal knowledge2
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 16 of 42
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3
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7
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GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
e ective at
identifving only
fraudulent activity.
That is the nature of
reasonable strat~ies
(like the Claim Fraud
Filter (CFF) described
below), which are an
important took used
for fraud deterrence
across the American
economy."
SUMFNo. 98
: etson
Deel. Pg. 3, lines
1-8, 18
"At all times when
assessing and
implementing fraud
strategies across all of
BANA's products
(including UI
[ unemplo
ent .
msura
e evance
e . .
Evid. 402). etson's
~ubjective belief is
irrelevant.
Legal Conclusion
(Fea. R. Evid. 701).
Letson's statement
describing the CFF as
a "reasonable
strateg[y ]" is a legal
conclus10n.
ac o
oun ation
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)).
Declarant lacks
- -
d~e
'at
.
Relevance (Fed. R.
Evid. 402). Letson's
subjective belief
about BANA's goal
~'[alt all times" 1s
irrelevant.
Improper O_pinion
Testimony (Fed. R.
Evid. 701, 702).
L
,
.
' .... ,
' .
15
s
RESP. TO PLTFS' OBJ. TO BANA 's SJ EVID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2
relevance4
Inapplicable:
personal knqw:ledge2
improper op1mon
testimony8
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 17 of 42
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3
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5
6
7
8
9
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12
13
14
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16
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18
19
20
21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
: etson
Deel. Pg. 4, lines
6-22, 111
"Starting in Spring
2020, BANA
observed, and was
informed by law
enforcement agencies
and other third-party
sources of massive
fraud and illegality in
UI programs and
affecting BANA
prepaid cards issued
to distribute benefits
for UI grograms in 12
states. The fraud was
' is
ac o
oun ation
and Personal
Knowled~ (Fed R.
Eyid. I 04 ); Fed R.
Civ. 602; ed. R.
Civ. 56(c)(4)).
Declarant has not
established personal
knowledge of what
"BANA observed."
Relevance (Fed. R.
Evi~. 402)_. The
testimony is
irrelevant as the fraud
described is about
benefits eligibility
while this case
different in type and
concerns
in scale from anything unauthorized A TM
BANA had seen
transactions.
previously in its UI
prepaid _programs. In
Hearsay (Fed. R.
my protess10nal
Evid. 801~ 802). The
e)g)erience, the scale
NBC article, '"Easy
oCthis fraud and
money' : How
misuse was
international scam
unp~ecedented. These artists pulled off an
sentiments appear to
epic theft of Covid
be shared by faw
benefits" and Jeremy
enforcement: the then- Sheridan's
chief of Secret Service P.ronouncement
investigations Jeremy therein consists of out
Sheridan pronounced
of court statements
that pandemic-era
that are being offered
unemployment benefit for their trutli.
abuse was "the largest
fraud scheme that I've
ever encountered."
'Easy money': How
international scam
artists pulled off an
epic theft of COVID
benefits, NBC, Aug.
15, 2021,
https://www .nbcnews.
coin/news
/usnews/easy money-
howinternat10nal-
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
16
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2
relevance,4 hearsay3
Inapplicable:
personal knowledge2
Even if these
Objections were
proper (they are not),
BANA further
responds as follows:
Plamtiffs' relevance
Objection should also
be overruled because
there is no real dispute
that this evide~~~
, was
eve ope and
implemented in
response to an
explosion in observed
benefits fraud (see
SUF ,r 46-57; id.
-
• elf
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 18 of 42
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26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
scam-artists-pu e -
epic-theft-covid-
nl276789. This was
not a situation where
fraud was more
common simply
because the programs
had grown larger.
Instead, the pandemic
created opportunities
for benefits eligibility
and unauthorized
transaction claims
(Error Claims) fraud
types that had not
oeen prevalent before
and, m the case of
benefits eligibility
fraud.,, was not even
possiole on a wide
scale before."
SUMFNo. 54
.
: etson
Deel. Pg. 5, lines 1-
12, ,r 15
"Also in May 2020,
BANA was first
alerted to benefits
eligibility fraud when
the U.S. Secret
Service issued an alert
about massive fraud
bei~g perpetrated
agamst state
unemployment
programs. A true and
correct copy of the
alert is attached to the
Declaration of Laura
G. Brys in Support of
BANA's Request for
Judicial Notice (the
"Jlrys RJN Deel.") as
RJN 5 (BANA EDD_
ac o
oun ation
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)).
Declarant has not
established personal
knowledge.
Relevance (Fed. R.
Evi~. 402)_. The
testimony 1s
irrelevant as the fraud
described is about
benefits eligibility
while this case
concerns
unauthorized A TM
transactions.
RJN 5
17
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2
relevance,4 hearsay3
Inapplicable:
personal knowledge2
Even if these
Objections were
proper (they are not)
BANA further
responds as follows:
Plamtiffs' relevance
Objection should also
be overruled because
there is no real dispute
that this evidence 1s
relevant. See Resp. to
Obj. 16.
Further, Plaintiffs'
hearsay Objection
should also be
overruled because
these statements are
not being offered for
their trutn but for
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 19 of 42
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21
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27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
: etson
Deel. P_g. 5, lines
13-19, ,1 14
or
sc aractenzes
Evidence (Fed. R.
Evid. 403).. The cited
evidence does not
support the statement.
Relevance (Fed. R.
Evid. 402). This
FinCEN advisory
concerns
impersonation of
government agents
and charities which is
irrelevant to this case.
"Ultimately, law
enforcement
uncovered criminal
conduct stretching
across the globe, and
domestic networks of
"money mules" who
occupied themselves
all day long with
applying for
unemployment or
making cash
Hearsay (Fed. R.
withdrawals using
Evid. 801,802). The
wrongfully obtained
article from FinCEN,
BANA UI J)rep~id
titled "Advisory on
cards." FinCEN,
Imposter Scams and
Advisory on Imposter Money Mule
Scams and Money_
Schemes Related to
Mule Schemes Related Coronavirus Disease
to Coronavirus
2019 (COVID-19),"
Disease 2019
consists of out of
(COVID-19) (July 7,
court statements that
2020), https://www.
are being offered for
fincen. ov/sites/de
18
RESP. TO PLTFS' OBJ. TO BANA 's SJ EVID.
t eir e ect on
BAN A's state of mind
and as a basis for
BANA's actions. See
Highfields Cap. I, LP
v. SeaWorld Ent., Inc.,
2022 WL 1037210, *6
(S.D. Cal. Apr. 6,
2022) (oveµul~ng
hearsay obJect10~
where statement 1s
offered "to establish
the effect on the
listener or a basis in
fact for the listener's
subsequent actions")
(internal quotations
omitted). Specifically,
these statements are
offered to support
BANA's reasonable
belief at t
•
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
relevance,4 hearsay3
Inapplicable:
miscliaracterizes
evidence7
Even if these
Objections were
proper (they are not)
BANA further
responds as follows:
Plaintiffs' hearsay
Objection should also
be overruled because
these statements are
not being offered for
their trutn, but for
their effect on
BANA's state of mind
and as a basis for
BANA's actions. See
Resp. to Obj. 17.
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 20 of 42
19
RESP. TO PLTFS’ OBJ. TO BANA’S SJ EVID.
CASE NO. 3:21-MD-02992-GPC-MSB
1
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3
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5
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7
8
9
10
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12
13
14
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16
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18
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20
21
22
23
24
25
26
27
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
fault/files/advisory/20
20-07-07/Advisory_
%20Imposter_and
_Money_Mul E_
COVID_19_508_FIN
AL.pdf.”
SUMF No. 54
their truth.
19.DX 4: Letson
Decl. Pg. 5-6, lines
19-2, ¶ 14
“PUA fraud also
occurred within
California’s state
prison system, as
PBANA observed
(and California’s State
Auditor and various
news organizations
later reported) that an
estimated $810
million in benefits
was fraudulently
obtained by prisoners
making fraudulent
unemployment
claims. As of January
2021, California’s
State Auditor
estimated nearly $10.4
billion in fraudulent
claims.
Subsequent reports
have estimated in
excess of $32 billion
of unemployment
benefits were stolen
and illegitimately
issued in California.
Auditor of the State of
California, Significant
Weaknesses in EDD’s
Approach to Fraud
Prevention Have Led
to Billions of Dollars
in Improper Benefit
Payments (Jan.
2021),https://informati
on.audito
r.ca.gov/pdfs/reports/
Lack of Foundation
and Personal
Knowledge (Fed R.
Evid. 104(b); Fed R.
Civ. 602; Fed. R.
Civ. 56(c)(4)).
Declarant has not
established personal
knowledge.
Relevance (Fed. R.
Evid. 402). The
testimony is
irrelevant as the fraud
described is about
benefits eligibility
while this case
concerns
unauthorized ATM
transactions.
RJN 5
Hearsay (Fed. R.
Evid. 801, 802). The
“information from
federal, state, and
local law
enforcement” are out
of court statements
being offered for
their truth.
Hearsay (Fed. R.
Evid. 801, 802). The
report from Auditor
of the State of
California, titled
“Significant
Weaknesses in
EDD’s Approach to
Fraud Prevention
Have Led to Billions
of Dollars in
Improper Benefit
Payments” consists
Improper objection
after 2010
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2
relevance,4 hearsay3
Inapplicable:
personal knowledge,2
Even if these
Objections were
proper (they are not)
BANA further
responds as follows:
Plaintiffs’ relevance
Objection should also
be overruled because
there is no real dispute
that this evidence is
relevant. See Resp. to
Obj. 16.
Sustained:
__
Overruled:
__
Case 3:21-md-02992-GPC-MSB Document 693-1 Filed 02/20/26 PageID.59429
Page 21 of 42
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GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
: etson
Deel. Pg. 6, lines
7-17, 116
o out o court
statements that are
being offered for
their truth.
ac o
oun ation
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)).
Declarant lacks
personal knowledge
of what information
the State has and its
responsibilities.
Relevance (Fed. R.
Evi~. 402)_. The
testimony 1s
irrelevant as the fraud
11111
concerns
unauthorized A TM
transactions.
20
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of Overruled:
foundation,2
relevance4
Inapplicable:
personal knowledge,2
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 22 of 42
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27
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GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
n
e evance
.
7, lines Evi~. 402) ..
testimony 1s
irrelevan
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
21
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
Overruled:
relevance4
Even if these
Objections were
proper (they are not)
BANA further
responds as follows:
Plamtiffs' relevance
Objection should also
be overruled because
there is no real dispute
that this evidence 1s
relevant. See Resp. to
Obj. 16.
CASE No. 3 :21-MD-02992-GPC-MSB
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27
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GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
: etson
Deel. Pg. 8, lines
6-15, 120
"GFC 's and law
enforcement's
investigations in the
first six months of the
pandemic yielded two
key observations that
were themes of fraud
and suspicious
activity in State UI
ro ams that used
i~. 402) ..
1mony 1s
levan
e evance
e
Evi~. 402).. he
testimony 1s
irrelevant as the
activity de
•
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
.
22
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
Overruled:
relevance4
Even if these
Objections were
proper (they are not)
BANA further
responds as follows:
Plamtiffs' relevance
Objection should also
be overruled because
there is no real dispute
that this evidence 1s
relevant. See Resp. to
Obj. 16.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
Overruled:
relevance4
Even if these
Objections were
prop~r (they are not)
BANA further
responds as follows:
Plamtiffs' relevance
Objection should also
be overruled because
there is no real dispute
that this evidence 1s
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 24 of 42
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5
6
7
8
9
10
11
12
13
14
15
7, 57, 58,
16
17
18
19
20
21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
tson
8-9, lines
Relevance (Fed. R.
Evi~. 402)_. The
testimony 1s
irrelevant as the
activity de~
-
~
g
do with
CFF-1
23
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
re evant.
Obj. 16.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2
relevance4
Inapplicable:
personal knowled~e,2
best evidence rule
Even if these
Objections were
proper (they are not)
BANA further
responds as follows:
Plamtiffs' relevance
Objection should also
be overruled because
there is no real dispute
that this evidence 1s
relevant. See Resp. to
Obj. 16.
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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A TTOR.\/£\·SA T LAW
SUMF No. 62, 63, 65
: etson
Deel. P_g. 9, lines
11-21, ,1 22
"As a report issued by
the United States
House Committee on
Oversight and
Accountability
recently explained:
EDD staff under Su's
leadership adol?ted a
'pay and chase model
and processed
incoming_ claims
quickly; EDD staff
understood that less
time should be spent
on checking eligibility
of claimants as this
would slow down
gaying out benefits.
Tliis led to many bad
actors like
international
organized crime and
individual criminals
cashing in while
eligible claimants
were unable to obtain
their benefits.
H. Comm. on
Oversight and
Accountability
Majority Staff,
Examining
Widespread Fraud in
Pandemic
Unemployment Relief
Programs (Sept. 10,
202-l)
https://oversight.house
. ov/w -
are
e
es evi ence of its
contents, and
testimony evidence is
not admissible to
prove its contents.
e evance
e . .
Evi~. 402)_. he
testimony is
irrelevant as it
concerns benefits
eligibility and had
nothing to do with
CFF-1
Hearsay (Fed. R.
Evid. 801, 802). The
report issued b_y the
United States House
Committee on
Oversight and
Accountability titled
"Examining
Widespreaa Fraud in
Pandemic
Unemployment R.elief
Programs" consists
of unauthenticated
out of court
statements that are
being offered for
their truth.
24
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
relevance,4 hearsay3
Even if these
Objections were
proper (they are not)
BANA further
responds as follows:
Plamtiffs' relevance
Objection should also
be overruled because
there is no real dispute
that this evidence is
relevant. See Resp. to
Obj. 16.
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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2
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24
25
26
27
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GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
content up oa s
09/UI - Report-
FINAL.pdf."
SUMF No. 64, 68
: etson
Deel. P_g. 9, lines
21-27, ,1 22
"By mid-September
2020, the Governor
shut down EDD so it
could take two weeks
to implement a new
process to fight
lraudulent
applications for
benefits and clean a
backlog of pendin_g_
applications. See ~DD
Announces Reset m
Response to Strike
Team
Recommendations to
Process Claims Faster,
Reduce Fraud and
Tackle Backlog Issue,
EDD, New Refease
No. 20-49, Sept. 19,
2020, https://edd.ca.
gov/About EDD/
pdf/news-20-49 .pdf."
SUMF No. 64, 68
: etson
Deel. Pg. 10, lines
1-5, 123
"To further combat
the staggering level of
UI fraud and to meet
its resQ_onsibilities
underl3SA/
e evance
e . .
Evi~. 402)_. he
testimony 1s
irrelevant as it
concerns benefits
eligibility and had
nothing to do with
CFF-1
Lack of Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)).
Declarant lacks
personal knowledge
of the Governor's
internal directives or
the operational
motivations of the
EDD.
Hearsay (Fed. R.
Evid. 801,802). The
EDD Announcement
consists of out of
court statements that
are being offered for
their truth. Letson
does not even provide
the EDD
Announcement as the
link does not work.
25
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56:
relevance,4 hearsay3
Inapplicable:
personal knowledge2
Even if these
Objections were
proper (they are not)
BANA further
responds as follows:
Plaintiffs' relevance
Objection should also
be overruled because
there is no real dispute
that this evidence 1s
relevant. See Resp. to
Obj. 16.
Further in response to
Plaintiffs' Objection
that the link to the
EDD Announcement
in Letson's
Declaration does not
work, the EDD
Announcement is
available at
https:/ /www.labor.ca.
gov/2020/09/19/edd-
announces-reset/.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation/ legal
conclus10n
Inapplicable:
personal knowled~e,2
best evidence rule
Overruled:
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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21
22
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24
25
26
27
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GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
SUMF No. 7-8, 55-
58, 80, 82, 94
: etson
Deel. P_g. 10-11,
lines 27-18, 126
clusion
vi~. 701).
s
ot
an evidentiary fact.
Best Evidence Rule
(Fed. R. Evi_d. 1002).
Declarant tnes to
prove the content of
BANA's strategies
via testimony rather
than providing these
documents.
ation
mproper o Jection
after 2U10
Knowledge (Fed R.
amendment to Fed.
Evid. 104Tb); Fed R. R. Civ. P. 56: lack of
Civ. 602; Fed. R.
foundation2
Civ. 56(c) 4))~ Letson
26
Inapplicable:
personal knowled2:e,2
best evidence rule,s-
Overruled:
RESP. TO PLTFS ' OBJ. TO BANA's SJ E VID.
CASE No. 3 :21-MD-02992-GPC-MSB
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17
18
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21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
BANA
was require to
investigate those Error
Claims and, as I
understand the legal
requirements, if
BANA was unable to
complete the
investigation in 10
business days, BANA
was requirea to issue
a " rov1sional" credit
via
es 1mony rather than
P.roviding these
aocuments.
27
RESP. TO PLTFS' OBJ. TO BANA's SJ EVID.
CASE No. 3 :21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 693-1 Filed 02/20/26 PageID.59437
Page 29 of 42
1
2
tson
tion
mproser O Jection
3
11-12,
after 2 10
127
owled~ (Fed R.
amendment to Fed.
4
yid. 104 ); Fed R.
R. Civ. P. 56: lack of Overruled:
~v. 602; ed. R.
foundation2
5
6
Inapplicable:
b
ersonal knowled~e,2
est evidence rule
7
8
9
10
11
12
13
14
an
15
nts.
16
17
18
19
20
21
22
23
24
25
26
27
SUMF No. 79, 91
28
GooDWlN PROCTER LLP
28
A TTOR.\/£\·SA T LAW
RESP. TO PLTFS' OBJ. TO BANA's SJ EVID.
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GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
SUMF No. 79, 91
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
29
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of Overruled:
foundation,2 hearsay3
Inapplicable:
personal knowledge2
CASE No. 3 :21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 693-1 Filed 02/20/26 PageID.59439
Page 31 of 42
1
evance
.
mproser O Jection
id. 402).
after 2 10
2
amendment to Fed.
R. Civ. P. 56:
Overruled:
3
relevance,4 lack of
4
foundation,2 hearsay3
5
Inapplicable:
personal knowledge2
6
7
8
Lack of Foundation
and Personal
9
Knowled~ (Fed R.
10
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
11
Civ. 56(c)(4)).
Declarant does not
12
explain how he has
personal knowle'!ee
about what BAN 's
13
SUMF No. 82, 103
experts and Fraud
teams believe.
14
15
Hearsai (Fed. R.
Evid. 8 1, 802, 805).
16
Declarant puq,orts to
repeat out-of-court
17
statements by
BANA's experts and
18
Fraud teams to prove
the truth of the matter
asserted.
19
tson
mproser O Jection
20
13, lines
after 2 10
2
amendment to Fed.
21
R. Civ. P. 56:
Overruled:
22
relevance,4 lack of
foundation2
23
Inapplicable:
24
b
ersonal knowledge,2
Lack of Foundation
est evidence rule1 °
and Personal
improper lay opimon8
25
Knowled~ (Fed R.
26
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
27
Civ. 56(c)(4)).
Declarant does not
28
explain how he has
ersonal knowled e
GooDWlN PROCTER LLP
30
A TTOR.\/£\·SA T LAW
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 32 of 42
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21
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GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
SUMF No. 82, 92
: etson
Deel. P_g. 13, lines
19-23, ,1 33
"At the time the CFF
was implemented, in
Improper Lay
Opinion (Fed. R.
Evid. 701 ).. Declarant
offers his im ro
Best Evidence Rule
(Fed. R . Evi_d. 1002).
Decla
ther than
cuments
31
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation,2
relevance4
Inapplicable:
personal knowledge2
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 33 of 42
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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
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
SUMF 102
: etson
Deel. P_g. 14, lines
23-27, ,1 36
Relevance (Fed. R.
Evid. 402). Letson
. .
• ' .
• . . . ' ' .
w
this case.
ac o
oun ation
(Fed R. ~vid. 104(bt
Fed R. C1v. 602~ Fed.
R. Civ. ~6(c)(4)J. The
Declarat10n does not
identifv who nre;pared
-rys
SJ Declaration as DX
180.
mproper ay
Opinion (Fed. R.
Evid. 701 ).. Declarant
offers his improper
lay orinion that there
was clear evidence
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation2
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation2
Overruled:
Overruled:
"Given the clear
evidence of massive
fraud specifically
designed to exploit
BANA's obligations
to issu~provisional
of
" nd Inapplicable:
personal knowledge,2
improper lay opimon8
credit, ¥fANA
SUMF No. 82, 84-86,
122
Lack of Foundation
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)).
Declarant does not
explain constituted
"clear evidence" and
this statement is
contradicted by the
testimony of analysts
and managers that
they were unaware of
or could not recall
32
RESP. TO PLTFS' OBJ. TO BANA 's SJ EVID.
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Page 34 of 42
1
2
3
E.
The Obiections to Martin's Declaration Should Be Overruled.
4
William M. Martin has personal knowledge of the facts set forth in his
5
Declaration, including the documents cited therein, and will provide foundation at
6
trial. Martin served at relevant times as a BANA Prepaid Fraud Operations Executive.
7
DX 5 ,r 1. Martin's knowledge of and experience with BANA's fraud detection and
8
anti-fraud strategies as applied to the EDD prepaid card program is clearly laid out
9
in his Declaration. Id. ,r,r 2-3. Martin established that he has personal knowledge
1 O regarding the "fraud associated with unauthorized transaction claims" in his current
11
and prior roles at BANA, and he is "[ s ]pecifically ... familiar with the -
12
13
14
15
" and has "been directly and
16
personally involved in the development and implementation of BANA's fraud
17
detection capabilities and efforts." Id. ,r 3. The Objections related to Martin's
18
Declaration should be overruled.
19
20
21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
33
RESP. TO PLTFS' OBJ. TO BANA's SJ EVID.
mproper o
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation2
Inapplicable:
personal knowledge,2
improper lay opimon8
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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2
3
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5
6
7
8
9
10
11
12
13
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15
16
17
18
19
20
21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
, 134-
:
artin
Deel., Page 4,
Lines 17-20, 1 8
"EMV chip
technology can deter
certain types of third-
party fraud, but it does
not eradicate all
fraudulent
transactions. For
example, EMV chip
technology does not
prevent first-party
benefits enrollment
fraud, card-not-
present fraudulent
transactions, or the
fraudulent use of the
card if lost or stolen."
ac o
oun ation
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)). Lack
of foundat10n for
declarant' s testimony
regarding abilities
ana limitations of
EMV chip
technology.
Improper Lay
Opinion (Fed. R.
Evid. 702). Improper
lay ~pinion regarding
a01ht1es and
limitations of EMV
chip technology.
34
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation2
Inapplicable:
personal knowledge,2
improper lay opimon8
Overruled:
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 36 of 42
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
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
:
artin
Deel., Page 4,
Lines 21-25, 19
"While EMV chip
technolo_gy makes it
more diffrcult to
create counterfeit
cards, it do
:
artin
Deel., Pages 4-5,
Lines 26-2, 110
"EMV chi~
SUMF No. 247, 248
ac o
oun ation
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
Civ. 602; ed. R.
Civ. 56(c)(4)). Lack
of foundat10n for
declarant' s testimony
regarding abilities
ana limitations of
EMV chip
technology.
Improper Lay
Opinion (Fed. R.
Evid. 702). Improper
lay ~pinion regarding
afohties and
limitations of EMV
chip technology.
ac o
oun ation
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
Civ. 602; ed. R.
Civ. 56(c)(4)). Lack
of foundat10n for
declarant' s testimony
regarding abilities
ana limitations of
EMV chip
technology cqmpared
to the magnetic
stnpe.
Improper Lay
Opinion (Fed. R.
Evid. 702). Improper
lay ~pinion regarding
afohties and
limitations of EMV
chip technology
compar~d to. the
magnetic stnpe.
35
RESP. TO PLTFS ' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation2
Inapplicable:
personal knowledge,2
Improper lay opimon8
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of
foundation2
Inapplicable:
personal knowledge,2
Improper lay opimon8
Overruled:
Overruled:
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Page 37 of 42
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
:
artin
Deel., Page 5,
Lines 3-10, 111;
DX181
e evance
e .
Evid. 402). vents in
July 2021 occurred
outside of the Class
period and are not
relevant.
"After receiving
a_pproval from
California EDD, in
Hearsay (Fed. R.
July .2021, B-- Evid. 801, 802, 805).
-
•
Declarant cites to his
•
own out-of-court
p p
t cards
statement in DX 181
with EMV c •
for the truth o •
Declaration of Laura
G. Brys as DX 181,
Bates st
:
-ma1
from declarant to
BANA on August
31, 2021 about
fraud claims
ec aran as not
established that DX
181 is admissible
under ~ hearsay
except10n.
e evance
e .
Evid. 402). vents in
July 2021 occurred
outside of the Class
period and are not
relevant.
mproper o Jection
after 2010
amendment to Fed.
R. Civ. P. 56:
relevance,4 hearsay3
mproper o Jection
after 2010
amendment to Fed.
R. Civ. P. 56:
relevance,4 hearsay3
Overruled:
25
SUMF No. 241
Inapplicable:
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
Authentication (Fed. autlientication1
R. Evid. 90l(a)).
Declarant does not
establish DX 181 as a
36
RESP. TO PLTFS' OBJ. TO BANA's SJ E VID.
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Page 38 of 42
1
2
3
4
5
6
7
8
9
usmess recor .
(FRE 901.)
Hearsay (Fed. R.
Evid. 803, 805). DX
181 is an out-of-court
statement asserted for
the truth of its
content that relies on
unidentified data that
cannot be
authenticated as a
business record or
other exception to
hearsay exclusion.
(FRE 803, 805.)
10
F.
The Obiection to Robart's Declaration Should Be Overruled.
11
Don Robart has personal knowledge of the facts set forth in his Declaration,
12
including the documents cited therein, and will provide foundation at trial. Robart is
13
an Operations Executive in Claims Processing for BANA. DX 6 ,r 1. Robart's
14
knowledge of and experience with BANA's Business Records and the systems and
15
processes that produce those Records is clearly laid out in his Declaration. See id. ,r,r
16
3-4. The Objection to Robart's Declaration should be overruled.
17
18
19
20
21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
rt
2-3
7 '
and Personal
Knowled~ (Fed R.
Eyid. 104 ); Fed R.
C1v. 602; ed. R.
Civ. 56(c)(4)).
Declarant cloes not
ex lain how he has
37
RESP. TO PLTFS ' OBJ. TO BANA's SJ E VID.
mproper o Jection
after 2U10
amendment to Fed.
R. Civ. P. 56: lack of Overruled:
foundation2
Inapplicable:
personal knowledge,2
improper lay opimon8
CASE No. 3 :21-MD-02992-GPC-MSB
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Page 39 of 42
1
2
3
4
5
6
7
ere ore, e
een
September 13, 2020
ana November 21,
2020, Bank of
America cannot
determine the
individual wait or
hold time for a caller
through a simple
~ystematic data 1;mll of
its own records.
mproper ay
Opinion (Fed. R.
Evid. 702). Declarant
of(e~s imprope~ lay
egardmg
8
SUMF No. 229-230
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
GooDWlN PROCTER LLP
A TTOR.\/£\·SA T LAW
CONCLUSION
For the foregoing reasons, BANA respectfully requests the Court overrule all
of Plaintiffs' Objections and consider all of its evidence as appropriate in resolving
its Motion for Partial Summary Judgment (ECF 589).
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.: +l 617 570 1000
Fax: +l 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
38
RESP. TO PLTFS ' OBJ. TO BANA's SJ EVID.
CASE No. 3 :21-MD-02992-GPC-MSB
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RESP. TO PLTFS’ OBJ. TO BANA’S SJ EVID.
CASE NO. 3:21-MD-02992-GPC-MSB
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
GOODWIN PROCTER LLP
1900 N Street NW
Washington, DC 20036
Tel: +1 202 346 4000
Fax: +1 202 346 4444
VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
LINDSAY E. HOYLE (pro hac vice)
LHoyle@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.
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CASE NO. 3:21-MD-02992-GPC-MSB
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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 BRYS
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