Full text
BANA’S MOTION TO SEAL NEW EVIDENCE
CASE NO. 21-MD-02992-GPC-MSB
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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 MOTION TO SEAL ITS
NOTICE OF NEW EVIDENCE AND
THE DECLARATION OF
JENNIFER LENNON IN SUPPORT
THEREOF
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
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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 Motion to Seal
Portions of Its Notice of New Evidence Concerning Class Members Relevant to Its
Pending Motion for Summary Judgment, Its Motions to Exclude Experts, and the
Certification of the Classes (“Notice”) and the Declaration of Jennifer Lennon
(“Lennon Decl.”) in Support Thereof (“Motion to Seal”).
I.
STANDARD TO SEAL DOCUMENTS
The public’s “right to inspect and copy judicial records is not absolute.” See
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Discussions of
information relating to an ongoing law enforcement investigation may be sealed
where, as here, disclosure would result in “the ends of justice [] be[ing] frustrated,
not served, if the public were allowed access” to them. Times Mirror Co. v. United
States, 873 F.2d 1210, 1219 (9th Cir. 1989). Additionally, a party faced with the
disclosure of confidential or proprietary information may seek to file references to
such documents under seal to avoid disclosure of business information that might
result in competitive harm or be used for improper purposes. See Nixon, 435 U.S.
589 at 608, 611 (denying disclosure); Local Civ. R. 79.2(c). Further, the references
that BANA seeks to seal all reveal information that qualifies as “Protected Material”
pursuant to the Parties’ Stipulated Protective Order (“Protective Order”), entered by
the Court on September 24, 2021 (ECF 82).
It is acknowledged by courts, including many courts in this district, that a party
seeking to seal documents containing references made in connection with a motion
for class certification or a motion for summary judgment (i.e., a dispositive motion)
must show “compelling reasons” to seal. Kamakana v. City and Cnty. of Honolulu,
447 F.3d 1172, 1179 (9th Cir. 2006); see 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 relating to cross-motion for summary judgment); see also
EpicentRx, Inc. v. Carter, 2023 WL 4336695, at 1 (S.D. Cal. May 16, 2023) (applying
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“compelling reasons” standard to request to seal certain exhibits associated with
motions for summary judgment).
In applying the “compelling reasons” standard, courts, including this Court,
consistently seal documents and references thereto where—as here—disclosure of
confidential information pertains to an active ongoing investigation, risks
competitive harm to the litigant, or improper use of the information such as to commit
fraud. See e.g., Forbes Media LLC v. United States, 2021 WL 3674516 (N.D. Cal.
Apr. 26, 2021), report and recommendation adopted, 548 F. Supp. 3d 872 (N.D. Cal.
2021), aff'd, 61 F.4th 1072 (9th Cir. 2023) (finding compelling reasons to seal
materials relating to an ongoing investigation); E.W. Bank v. Shanker, 2021 WL
3112452, at *18–19 (N.D. Cal. July 22, 2021) (finding compelling reasons to seal
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 fraud investigation procedures because there was a “significant danger that
someone could improperly use this information to commit fraud and avoid
detection”); see also ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467, 548, 598,
599, 600, 601, 602, 603, 638, 639, 640, 641, 642, 654, 662, 668, 695, 697, 699, 701,
703, 705, 707, 710, 713 (the “Sealing Orders”).
II.
COMPELLING REASONS EXIST TO SEAL THE CONFIDENTIAL
DOCUMENTS.
Compelling reasons exist to file under seal substantive references made to
discussions of confidential documents and data in the Notice and in the Lennon
Declaration. As reflected in the Lennon Declaration, these discussions relate to a law
enforcement investigation that is currently active, and unsealing these materials could
alert targets to the existence of the investigation and reveal steps the Government
takes to recover ill-gotten funds and to potentially take further actions against
fraudulent actors. The DOL OIG has further designated this information as
confidential investigative information, and disclosing that information to the public
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could disrupt ongoing investigations. Further, disclosure of these materials also risks
revealing sensitive fraud information concerning cardholder’s accounts, and include
discussions that are likely to cause particularized competitive harm to BANA and
which could potentially enable future fraud, which poses a danger to BANA’s
business and the public.
All are compelling reasons which outweigh the public disclosure factors, and
thus permit sealing of those documents. Similar compelling reasons exist here. The
Ninth Circuit has excluded materials analogous to the references made in the Notice
and Lennon Declaration “that are part of an ongoing criminal investigation from
public disclosure under the First Amendment.” See Forbes Media LLC, 2021 WL
3674516 at *4. For example, in Times Mirror Co., the court held that disclosure of
materials relating to an ongoing law enforcement investigation would pose an
“obvious risk that the subject of [a] search warrant would learn of its existence and
destroy evidence of criminal activity before the warrant could be executed.” 873 F.2d
at 1215. Further, in Forbes Media LLC, the court held that:
Unsealing this type of material could jeopardize the Government's ongoing
efforts to investigate and prosecute the crimes … [and enable] perusal by both
the public and targets of the investigation while it remains underway.
Significant negative consequences could follow from public disclosure,
including alerting subjects to the existence of the warrant, revealing steps that
the Government and others might take to effectuate the subjects’ arrest
including securing a third party’s assistance in the execution of a sealed federal
arrest warrant, and by revealing the names of individuals who may or may not
have charges eventually brought against them. Opening that information to the
public could prompt any remaining subjects or associates to flee, conceal or
destroy evidence, or take other steps to evade responsibility for their crimes.
2021 WL 3674516 at *9.
In East West Bank v. Shanker, a California district court granted a motion to
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seal portions of exhibits concerning “confidential onboarding processes, digital
banking platform[s], fraud management techniques, and verification of customer
identities, which if made public would harm [the bank’s] business,” and found that
public disclosure of EWB’s confidential fraud prevention measures would “harm
EWB’s business.” 2021 WL 3112452, at *18-19. Similarly, in Soria v. U.S. Bank,
N.A., another California district court found compelling reasons to file under seal
information related to a bank’s internal procedures for investigating incidents of
fraud, explaining that “[a]lthough there is a public interest in [the b]ank’s procedures
concerning its fraud investigations, public disclosure of this information may impede
[the b]ank’s ability to identify and combat future instances of fraud” and that “[t]here
is a significant danger that someone could improperly use this information to commit
fraud and avoid detection.” 2019 WL 8167925, at *4. Further, in Shelley v. Cnty. of
San Joaquin, yet another California district court protected materials where “the
public release of those documents could negatively impact” law enforcement
investigations. 2015 WL 2082370, at *7 (E.D. Cal. May 4, 2015).
Indeed, this court has already found compelling reasons to seal discussions of
documents just like those at issue here, which each relate to confidential business
practices and fraud prevention measures that could be misused to commit future fraud
or used by competitor banks to BANA’s disadvantage. Earlier this year, Judge Berg
determined that there are “compelling reasons” to seal a number of exhibits, and any
discussions thereof, previously submitted with Plaintiffs’ motion to compel
discovery that concern the very same categories of confidential information that
BANA seeks to seal here. See ECF 266. In doing so, Judge Berg found that
compelling reasons existed to seal information concerning, among other things, fraud
and claims analysis and strategies, which are precisely the types of discussions
BANA seeks to seal here.
This Court also found compelling reasons to seal similar discussions related to
analyses of claims fraud and potential strategies to combat that fraud including the
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Claim Fraud Filter and other fraud strategies, BANA’s analyses of state prepaid
unemployment program operations and contractual negotiations with vendors, fraud
prevention programs, confidential regulator materials, and quotes or summary
descriptions from such sealed exhibits. See, e.g., ECF 365, 381, 390. Those prior
rulings are sufficient grounds alone to grant sealing here. See Lundstrom v. Young,
2022 WL 15524624, at *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, at *3 (S.D. Cal. Oct. 20, 2021) (sealing
references to document that court already granted sealing of). Specifically, BANA
seeks to seal references made to documents that fit into the following Confidential
and Highly Confidential – Attorneys’ Eyes Only categories, which this Court has
already found compelling reasons to seal:
BANA’s communications with EDD regarding BANA’s and/or EDD’s
fraud strategies, including freezing and blocking of accounts 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 5–6, 12);
BANA’s confidential analyses of its state prepaid unemployment
program operations, including but not limited to, fraud volume (see
Amended Sealing Order (ECF 365) at 10–13, n. 14);
BANA’s fraud detection and prevention strategies and policies,
including 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); and
BANA’s confidential analyses pertaining to fraud and claims review
policies and strategies and the implementation thereof, including
reviewing complaint escalations and issuing provisional credits in
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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 5–9, 12).
Confidential regulator materials. Compelling reasons exist to seal
discussions relating to BANA’s discussions with regulators and other government
investigative entities: the details of these conversations, as well as discussions of the
implementation of BANA’s review and the data underlying such a review, are highly
sensitive because they pertain to an active ongoing investigation and could provide
fraudsters with a roadmap for how to circumvent accountability for acting
fraudulently. ECF 344-3 (Lennon) ¶ 3. This Court has previously sealed references
to regulator materials, which were designated by the regulators themselves as
“Highly Confidential – Attorneys’ Eyes Only” as a condition to BANA producing
them to Plaintiffs, and which contain information the OCC deemed privileged and
confidential under its statutes and regulations. Standing alone, the regulators’
determination and designation—which Plaintiffs readily agreed to when they
accepted the documents last year—should be a sufficient, compelling reason to seal
the Notice and Lennon Declaration. See, e.g., Erhart v. BofI Fed. Bank, 2019 WL
4534701, at *3 (S.D. Cal. Sept. 19, 2019) (sealing information that the OCC asserted
bank examination privilege over but permitted to be produced subject to
confidentiality protections). See also ECF 344-3 (Lennon Decl.) ¶¶ 3–4, 6. This Court
has previously found compelling reasons to limit public access to such documents
because they contain highly sensitive, and confidential information that would
subject any disclosure to potential fraud. ECF 381, 498.
BANA has provisionally redacted and sealed portions of the Notice and the
Lennon Declaration that quote or describe these confidential categories identified
above. This is consistent with the terms of the Stipulated Protective Order (ECF 82,
§ 3), and with rulings in this circuit including by this Court. See, e.g., Darisse v. Nest
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Labs, Inc., 2016 WL 11474174, at *2 (N.D. Cal. June 2, 2016) (sealing class
certification motion and declarations that quote or reference confidential exhibits);
ECF 365, 381.
Documents that risk future fraud. BANA’s communications with state
regulators, EDD, and other government investigative entities regarding fraud
strategies utilized in the EDD program could also be misused by fraudsters to
perpetrate future fraud and avoid detection. ECF 344-1 (Martin Decl.) ¶ 8; see, e.g.,
Soria, 2019 WL 8167925, at *4; Jasso, 2022 WL 2665979, at *2. This Court has
previously found compelling reasons to limit public access to such documents
because their disclosure could lead to future fraud that poses a harm not only to the
Bank, but also the public. See ECF 365, 381.
Documents that risk competitive harm. The aforementioned categories also
contain sensitive business information that could be used to BANA’s competitive or
commercial disadvantage, which is yet another compelling reason to seal the
documents. See, e.g., E.W. Bank, 2021 WL 3112452, at *18-19 (granting motion to
seal where public disclosure of EWB’s confidential fraud prevention measures would
“harm EWB’s competitive standing”); Adtrader, Inc. v. Google LLC, 2020 WL
6391210, at *2 (N.D. Cal. Mar. 24, 2020) (sealing references to internal strategic
decisions, policies, and processes related to detecting and responding to advertising
fraud). Aggregated account statistics regarding the number of EDD accounts, the
balances on those cards, the fraud claims filed by EDD cardholders, and the
combined monetary amounts of fraud associated therewith are proprietary,
confidential business information of EDD and/or BANA. ECF 344-1 (Martin Decl.)
¶¶ 10-12. Public disclosure of the number of active EDD accounts, account balances
and first party fraud could violate BANA’s confidentiality agreement with EDD.
Additionally, aggregated account statistics related to customer account balances,
activity, and fraud claims is also commercially sensitive information, from which
certain of BANA’s revenues and fraud losses could be derived, and if disclosed,
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could be used by another financial institution to compete against BANA, which
warrants sealing. See, e.g., Brady v. Grendene USA, Inc., 2015 WL 6828400, at *3
(S.D. Cal. Nov. 6, 2015) (J. Curiel) (sealing confidential business information that
might harm the litigants’ competitive standing including profit and loss data and
contractual agreements). This Court has previously found compelling reasons to limit
public access to such documents because their disclosure could harm BANA’s
competitive advantage. See ECF 381.
For the reasons discussed above, there are compelling reasons to seal
discussions of those topics. See supra, pgs. 2–8.
III.
CONCLUSION
For the foregoing reasons and for the reasons set forth in the Court’s Sealing
Orders, Plaintiffs’ Motions to Seal (ECF 376, 384, 394, 463, 524, 527), BANA’s
prior Motions to Seal (ECF 328, 337, 344, 347, 383, 418, 451, 470, 501, 511, 539,
542) 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 Defendant’s Motion to Seal because
compelling reasons exist that support the sealing of the designated portions of the
Notice and in the Lennon Declaration.
Dated: May 19, 2026
Respectfully submitted,
By: s/ James W. McGarry_____________
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
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
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Fax: +1 617 346 4444
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N St. 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.
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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 May 19, 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.
Executed:
May 19, 2026
s/ James W. McGarry
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