Motion For Summary
- Date
- 2026-05-21
Summary
Defendant Bank of America, N.A.'s Notice of New Evidence Concerning Class Members, filed May 19, 2026 as Document 723 in In re: Bank of America California Unemployment Benefits Litigation, Case No. 3:21-md-02992-GPC-MSB, in the U.S. District Court for the Southern District of California. The notice states it is relevant to BANA's pending Motion for Partial Summary Judgment (ECF 589-1), its Motion to Exclude Greg Regan (ECF 567-1), and the Court's class certification order (ECF 494). It recounts that the Court certified five classes on June 16, 2025 and that BANA filed its motions on October 17, 2025. BANA argues that information from the Department of Labor Office of Inspector General, described in a declaration attached as Exhibit 1, shows the classes include claimants who engaged in UI benefits fraud, and states it intends to seek decertification. It was filed provisionally under seal.
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Case 3:21-md-02992-GPC-MSB Document 723 Filed 05/19/26 PageID.60303 Page
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1 JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
2 GOODWIN PROCTER LLP
3 100 Northern Avenue
Boston, MA 02210
4 Tel.: +1 617 570 1000
Fax: +1 617 523 1231
5
SABRINA M. ROSE-SMITH (pro hac vice)
6 SRoseSmith@goodwinlaw.com
7 MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
8 GOODWIN PROCTER LLP
1900 N Street, NW
9 Washington, DC 20036
10 Tel.: +1 202 346 4000
Fax: +1 202 346 4444
11
Attorneys for Defendant
12 BANK OF AMERICA, N.A.
13 [ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
14
UNITED STATES DISTRICT COURT
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FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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SAN DIEGO DIVISION
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18 IN RE: BANK OF AMERICA Case No. 21-MD-02992-GPC-MSB
CALIFORNIA UNEMPLOYMENT
19 BENEFITS LITIGATION DEFENDANT BANK OF AMERICA,
N.A.’S NOTICE OF NEW EVIDENCE
20 CONCERNING CLASS MEMBERS
RELEVANT TO ITS PENDING
21 MOTION FOR SUMMARY
JUDGMENT, ITS MOTION TO
22 EXCLUDE EXPERTS, AND THE
23 CERTIFICATION OF THE CLASSES
24 Date: May 21, 2026
Time: 1:30 p.m.
25 Ctrm: 12A – 12th Floor
Judge: Hon. Gonzalo P. Curiel
26
FILED PROVISIONALLY UNDER SEAL
27 PURSUANT TO STIPULATED PROTECTIVE
ORDER
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
DEF.’S NOTICE OF NEW EVIDENCE RE CLASSES CASE NO. 3:21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 723 Filed 05/19/26 PageID.60304 Page
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1 DEFENDANT’S NOTICE
2 Defendant Bank of America, N.A. (“BANA”) files this notice of a
3 development relevant to (1) BANA’s pending Motion for Partial Summary Judgment
4 (ECF 589-1, “BANA Partial MSJ”), (2) BANA’s pending Motion to Exclude Greg
5 Regan (ECF 567-1, “BANA MTE Regan”), and (3) the Court’s Opinion and Order
6 certifying the classes in the above captioned-matter (ECF 494, “Class Cert. Order”).
7 On June 16, 2025, the Court issued an opinion and order certifying five classes.
8 In certifying the classes, the Court held that BANA had not sufficiently demonstrated
9 with evidence that individual issues would predominate because its evidence only
10 “amount[ed] to a de minimis number of uninjured class members.” Class Cert Order
11 at 58-59. The Court further determined that “[t]here is no evidence that many
12 unearthed fraudulent claims will arise.” Id. at 57-58.
13 On October 17, 2025, BANA filed a motion for partial summary judgment and
14 motions to exclude five of Plaintiffs’ experts, including Plaintiffs’ damages expert
15 Greg Regan, who purports to calculate “actual damages” for class members under
16 the Electronic Funds Transfer Act (“EFTA”) and based on certain other claims. In its
17 motions, among other things, BANA argued that it should be granted summary
18 judgment and that Regan’s opinions should be excluded because they relied on
19 assumptions, rather than evidence, of actual harm—and particularly because
20 Plaintiffs’ and Regan’s damages models and calculations could not distinguish
21 between injured and uninjured cardholders (including those who obtained their
22 accounts through fraud), or show that BANA’s alleged actions resulted in any actual
23 harm (as required to recover actual damages under the EFTA). See, e.g., BANA
24 Partial MSJ at 21-22; BANA MTE Regan at 10-13; ECF 693 at 9-10; ECF 684 at 2-
25 3.
26 In support of those motions, BANA put forth evidence of the pervasive fraud
27 in the prepaid unemployment insurance (UI) programs, and particularly in the
28 prepaid UI program administered by the California Employment Development
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 1
DEF.’S NOTICE OF NEW EVIDENCE RE CLASSES CASE NO. 3:21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 723 Filed 05/19/26 PageID.60305 Page
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1 Department (“EDD”) in 2020 and 2021. See, e.g., ECF 589-2 ¶¶ 46-51 (“BANA SUF
2 ISO Partial MSJ”). BANA has long argued that many of these fraudsters are included
3 in the certified classes. However, because BANA had no role in making eligibility
4 determinations and does not have access to UI claimants’ benefits applications or
5 eligibility information, BANA has not been able to determine how many or which
6 class members had engaged in UI benefits fraud (and therefore were uninjured). See,
7 e.g., id. ¶¶ 6, 9, 118, 129, 135.
8 Circumstances have changed considerably since then. The United States
9 Department of Labor Office of Inspector General (“DOL OIG”) has released
10 information confirming the worst of BANA’s suspicions: the classes are full of
11 fraudsters. As indicated in the Declaration of Jennifer Lennon (“Lennon Decl.”)
12 attached hereto as Exhibit 1,
13
14 . Lennon Decl. ¶¶ 6-9.
15 As stated in the 2022 DOL OIG Alert Memorandum (which was included in
16 BANA’s summary judgment filing), the DOL OIG has long suspected and has been
17 investigating significant fraud in the prepaid UI populations. See BANA SUF ISO
18 Partial MSJ ¶¶ 47-49; ECF 590; see also Lennon Decl. ¶¶ 4-7 & Ex. B.
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24 . Lennon Decl. ¶¶ 5-6.
25 .
26 Id. ¶ 9.
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW 2
DEF.’S NOTICE OF NEW EVIDENCE RE CLASSES CASE NO. 3:21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 723 Filed 05/19/26 PageID.60306 Page
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1 . Id. ¶¶ 9-10.
2 A public alert memorandum was issued about the DOL OIG’s investigation of
3 Prepaid Accounts on January 30, 2026. See id. ¶¶ 5-6 & Ex. A.
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5
6
7 . Id. ¶ 6.
8 On May 8, 2026,
9
10 . Id. ¶ 8.
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12 . Id. ¶ 9.
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18 .
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21 because EDD (and not BANA)
22 is in possession of UI benefits eligibility information, and is and was at all relevant
23 times responsible for making UI benefits eligibility determinations. Id. ¶ 10. As of
24 today’s date,
25 . Id. ¶ 11.
26 BANA submits this Notice because it believes it is highly relevant to questions
27 at issue in its pending dispositive motion and motions to exclude Plaintiffs’ experts,
28 and to Plaintiffs’ ability to pursue claims and damages on behalf of the classes in this
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 3
DEF.’S NOTICE OF NEW EVIDENCE RE CLASSES CASE NO. 3:21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 723 Filed 05/19/26 PageID.60307 Page
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1 action. BANA further reserves its right to and intends to seek decertification of the
2 classes because they clearly contain a significant number of uninjured fraudsters.
3
4 Dated: May 19, 2026 Respectfully submitted,
5 By: s/ James W. McGarry
JAMES W. MCGARRY (pro hac vice)
6 JMcGarry@goodwinlaw.com
7 GOODWIN PROCTER LLP
100 Northern Avenue
8 Boston, MA 02210
Tel.: +1 617 570 1000
9 Fax: +1 617 523 1231
10
MATTHEW L. RIFFEE (pro hac vice)
11 MRiffee@goodwinlaw.com
SABRINA M. ROSE-SMITH (pro hac vice)
12 SRoseSmith@goodwinlaw.com
KEITH LEVENBERG (pro hac vice)
13 KLevenberg@goodwinlaw.com
14 GOODWIN PROCTER LLP
1900 N Street NW
15 Washington, DC 20036
Tel: +1 202 346 4000
16 Fax: +1 202 346 4444
17
LAURA G. BRYS (SBN 242100)
18 LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
19 601 S. Figueroa St., Suite 4100
Los Angeles, CA 90017
20 Tel.: +1 213 426 2500
21 Fax: +1 617 346 4444
22 VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
23 LINDSAY E. HOYLE (pro hac vice)
LHoyle@goodwinlaw.com
24 GOODWIN PROCTER LLP
25 620 Eighth Avenue
New York, NY 10018
26 Tel: +1 212 813-8800
Fax: +1 212 355-3333
27
YVONNE W. CHAN (pro hac vice)
28 YChan@jonesday.com
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 4
BANA’S NOTICE OF NEW EVIDENCE RE CLASSES CASE NO. 3:21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 723 Filed 05/19/26 PageID.60308 Page
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1 JONES DAY
100 High Street
2 Boston, MA 02110
3 Tel.: +1 617 960 3939
Fax: +1 617 449 6999
4
JANICE P. BROWN (SBN 114433)
5 jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN 278405)
6 mnazareth@myersnave.com
7 MEYERS NAVE
600 B Street, Suite 1650
8 San Diego, CA 92101
9 Attorneys for Defendant
BANK OF AMERICA, N.A.
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW 5
BANA’S NOTICE OF NEW EVIDENCE RE CLASSES CASE NO. 3:21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 723 Filed 05/19/26 PageID.60309 Page
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1 CERTIFICATE OF SERVICE
2 I hereby certify that I electronically filed the foregoing with the clerk of the
3 court for the United States District Court for the Southern District of California by
4 using the CM/ECF system on May 19, 2026. I further certify that all participants in
5 the case are registered CM/ECF users and that service will be accomplished by the
6 CM/ECF system. I certify under penalty of perjury that the foregoing is true and
7 correct.
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9 Dated: May 19, 2026 s/ James W. McGarry
10 JAMES W. MCGARRY
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW 6
BANA’S NOTICE OF NEW EVIDENCE RE CLASSES CASE NO. 3:21-MD-02992-GPC-MSB
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