Protective Order

Summary

Exhibit 1 to Document 733-4, filed June 8, 2026 in In re Bank of America California Unemployment Benefits Litigation, No. 3:21-MD-02992-GPC, is a redacted transcript of the January 17, 2025 motion hearing before District Judge Gonzalo P. Curiel in San Diego. The hearing was on the motion to certify a class, and the court had issued a tentative ruling for the parties to address. Connie Chan of Altshuler Berzon argued for the class plaintiffs and James McGarry of Goodwin Procter for Bank of America. At the start, plaintiffs asked leave to amend the master complaint so the due process claim covers the credit rescission class as well as the account freeze class, and the bank did not oppose. The hearing ended at 3:05 P.M. with the court directing a draft transcript so the parties could agree on portions to seal.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

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Case 3:21-md-02992-GPC-MSB Documen t 733-4 Filed 06/08/26 PagelD.61377
Page 1 of 59

Exhibit 1

REDACTED VERSION OF
DOCUMENT SOUGHT TO
BE SEALED PURSUANT
TO STIPULATED
PROTECTIVE ORDER
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.61378 1

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA
IN RE: BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT BENEFITS
LITIGATION
No. 3:21-MD-02992-GPC
January 17, 2025
Courtroom 2D

)
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San Diego, California

TRANSCRIPT OF PROCEEDINGS

(MOTION HEARING)

BEFORE THE HONORABLE GONZALO P. CURIEL, DISTRICT JUDGE

COURT REPORTER: JENNIFER GIBSON
CACSR NO. 12802
U.S. District Court
333 West Broadway, Suite 420
San Diego, CA 92101
Jennifer Gibson@casd.uscourts.gov

(Reported by Stenotype; Transcribed by Computer)
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.61379 2

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APPEARANCES:

FOR THE PLAINTIFFS:

FOR THE DEFENDANT:

Page 3 of 59

BRIAN DANITZ

Cotchett Pitre & McCarthy, LLP
840 Malcome Road

Burlingame, CA 94010

(650) 697-600
bdanitz@cpmlegal.com

CONNIE K. CHAN

& MICHAEL RUBIN

& COLIN CLEMENTE JONES
Altshuler Berzon, LLP

177 Post Street, Suite 300
San Francisco, CA 94108
(415) 421-7151
cchan@altshulerberzon.com
mrubin@altshulerberzon.com
cjyones@altshulerberzon.com

GAYLE M.BLATT

Casey Gerry Schenk Francavilla Blatt &
Penfield, LLP

110 Laurel Street

San Diego, CA 92101-1406
(619)238-1811

gmb@cglaw.com

JAMES W. McGARRY

& LAURA G. BRYS

& MATTHEW LUKE RIFFEE
Goodwin Procter, LLP
100 Northern Avenue
Boston, MA 02210
(617)570-1000
jJmcgarry@goodwinlaw.com
lbrys@goodwinlaw.com
mriffee@goodwinlaw.com
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(Friday, January 17, 2025; 1:37 P.M.)
-o00-

THE CLERK: MATTER 2 ON CALENDAR, 21-MD-2992, IN RE
BANK OF AMERICA CALIFORNIA UNEMPLOYMENT BENEFITS LITIGATION FOR
MOTION HEARING.

THE COURT: APPEARANCES, PLEASE.

MS. CHAN: GOOD AFTERNOON, YOUR HONOR. CONNIE CHAN OF
ALTSHULER BERZON ON BEHALF OF CLASS PLAINTIFFS AND THE PROPOSED
CLASSES. AND WITH ME TODAY ARE MY COLLEAGUES, MICHAEL RUBIN
AND COLIN JONES.

THE COURT: ALL RIGHT. GOOD AFTERNOON.

MR. DANITZ: GOOD AFTERNOON, YOUR HONOR. BRIAN DANITZ
OF COTCHETT, PITRE & MCCARTHY FOR PLAINTIFEFS.

THE COURT: SAY THAT ONE MORE TIME. DANITZ?

MR. DANITZ: YES, YOUR HONOR.

THE COURT: ALL RIGHT.

MS. BLATT: GOOD AFTERNOON, YOUR HONOR. GAYLE BLATT
OF CASEY GERRY ON BEHALF OF THE CLASS PLAINTIFFS.

THE COURT: GOOD AFTERNOON.

MR. McGARRY: GOOD AFTERNOON, YOUR HONOR. JIM MCGARRY
ON BEHALF OF THE DEFENDANTS -- DEFENDANT.

THE COURT: GOOD AFTERNOON.

MR. RIFFEE: GOOD AFTERNOON, YOUR HONOR. MATT RIFFEE,

ALSO ON BEHALF OF DEFENDANT.
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THE COURT: GOOD AFTERNOON.

MS. BRYS: GOOD AFTERNOON. LAURA BRYS, ALSO ON
BEHALF OF BANK OF AMERICA.

THE COURT: ALL RIGHT. GOOD AFTERNOON TO YOU ALL. WE
ARE HERE ON A MOTION TO CERTIFY CLASS. THE COURTS HAVE
REVIEWED THE POSITIONS OF THE PARTIES, AND GIVEN THAT THERE'S
SO MANY MOVING PARTS, THE COURT ISSUED A TENTATIVE SO THAT
YOU'LL HAVE AN OPPORTUNITY TO ADDRESS ANY PORTION OF THE
TENTATIVE THAT YOU BELIEVE REQUIRES FURTHER RESPONSE OR THAT
YOU BELIEVE NEEDS CORRECTION. I HAVE A COUPLE OF QUESTIONS
BEFORE WE START THAT PROCESS. I BELIEVE THAT THERE'S REFERENCE
IN A -- IN A FOOTNOTE AND THAT'S WHETHER THE PLAINTIFFS CAN
RAISE THE DUE PROCESS CLAIMS FOR CREDIT RESCISSION CLASS WHEN
IT'S NOT RAISED IN THE SECOND-AMENDED MASTER COMPLAINT. AND SO
LET ME TURN TO PLAINTIFF'S COUNSEL.

HOW DO YOU PROPOSE THAT WE ADDRESS THAT?

MS. CHAN: YES. THANK YOU VERY MUCH, YOUR HONOR.
PLAINTIFFS WOULD REQUEST LEAVE OF COURT TO AMEND OUR COMPLAINT
SO THAT WE CAN CLARIFY THAT THE DUE PROCESS CLAIM IS, IN FACT,
BROUGHT ON BEHALF OF OUR CREDIT RESCISSION CLASS IN ADDITION TO
THE ACCOUNT FREEZE CLASS. AS YOUR HONOR NOTED IN THE
TENTATIVE, THE PARTIES HAVE FULLY BRIEFED THAT ISSUE, THE
APPLICABILITY OF THE DUE PROCESS CLAIM TO THE CREDIT RESCISSION
CLASS, AND SO WE BELIEVE THERE'S NO ARGUMENT THAT THE BANK

COULD MAKE THAT THERE WOULD BE ANY PREJUDICE SUFFERED. FOR ALL
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THE SAME REASONS THAT THE DUE PROCESS CLAIM APPLIES TO THE
ACCOUNT FREEZE CLASS, IT EQUALLY APPLIES TO THE CREDIT
RESCISSION CLASS WHO ARE EQUALLY DEPRIVED OF THEIR
CONSTITUTIONALLY-PROTECTED PROPERTY IN UNEMPLOYMENT INSURANCE
BENEFITS WITHOUT PRE-DEPRIVATION NOTICE AND OPPORTUNITY TO BE
HEARD.

THE COURT: AND AT THIS TIME, DOES THE DEFENSE HAVE
ANY OPPOSITION TO THAT PROPOSAL?

MR. McGARRY: NO, WE DON'T, YOUR HONOR.

THE COURT: ALL RIGHT. SO WE'LL GIVE YOU A COUPLE OF
DAYS OR SO TO FILE THAT AMENDED MASTER COMPLAINT, AND IT WILL
BE LIMITED -- AND WE'LL DIRECT THAT THE ADDITIONAL LANGUAGE
THAT IDENTIFIES THIS ISSUE BE ADDED TO A ALREADY-EXISTING
PARAGRAPH RATHER THAN CHANGING THE NUMBERING BECAUSE THEN
ULTIMATELY TO THE EXTENT THAT WE HAVE AN ORDER AND IT KIND OF
RELIES UPON THE CURRENT ENUMERATION, WE CAN MAINTAIN THAT. ALL
RIGHT?

MS. CHAN: ABSOLUTELY, YOUR HONOR. THANK YOU VERY
MUCH.

THE COURT: AND THEN THE NEXT QUESTION I HAD IS KIND
OF A SIMILAR ONE, AND THAT'S WITH RESPECT TO THE BREACH OF A
FIDUCIARY DUTY CLAIM. AND THERE'S A CLAIM THAT'S ATTACHED TO
THE CUSTOMER SERVICE CLASS AND I BELIEVE AT THE PARAGRAPH 12,
THE COURT RAISES THE QUESTION OF WHETHER OR NOT THE CURRENT

MASTER COMPLAINT SUFFICIENTLY IDENTIFIES THAT AS A CAUSE OF
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ACTION AS TO THAT CLASS. AND SO TO THE EXTENT THAT THERE'S ANY
DEFICIENCY THERE, ARE YOU PROPOSING ALSO TO AMEND AS TO THAT?

MS. CHAN: THANK YOU AGAIN, YOUR HONOR. WE WOULD
AGAIN REQUEST LEAVE TO CLARIFY THAT THE BREACH OF FIDUCIARY
DUTY CLAIM IS ALSO BROUGHT ON BEHALF OF THE CUSTOMER SERVICE
CLASS. THE CENTRAL ALLEGATION THERE IS THAT THE BANK BREACHED
ITS FIDUCIARY DUTY TO THE CLASS BY PRIORITIZING ITS OWN PROFITS
OVER THE INTERESTS OF LEGITIMATE CARDHOLDERS AND THAT THEY DID
SO IN PARTICULAR BY DELIBERATELY UNDER-STAFFING THEIR CLAIM
CALL CENTER THROUGH WHICH ALL CARDHOLDERS WERE REQUIRED TO
SUBMIT THEIR CLAIMS AS WELL AS SEEK RE-CONSIDERATION OF THE
CLAIMS THAT HAD BEEN DENIED PURSUANT TO THE BANK'S CLAIM FRAUD
FILTER.

THE COURT: ALL RIGHT. IS THERE ANY OPPOSITION TO
THAT ORAL REQUEST?

MR. McGARRY: OTHER THAN MS. CHAN'S CHARACTERIZATION,
NO. NO OPPOSITION.

THE COURT: ALL RIGHT. THE OBJECTION IS NOTED, BUT
WE'LL PROVIDE YOU WITH PERMISSION TO PROCEED AND MAKE THAT
AMENDED CHANGE AS WELL.

MS. CHAN: THANK YOU, YOUR HONOR.

THE COURT: AND THEN I THINK THIS MIGHT BE BETTER
POSED TO THE DEFENSE. AND THAT'S REGARDING THE -- THE

REMEDIATION PLAN AND WHETHER OR NOT THE REMEDIATION PLAN WAS
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.61384 7

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MR. McGARRY: THE REMEDIATION PLAN, YOUR HONOR, WAS
BROADER THAN JUST INDICATOR 1.

THE COURT: ALL RIGHT. AND WHERE WOULD THAT BE
INDICATED SPECIFICALLY, THAT |) 3 I Di i i 7 77s °

MR. McGARRY: YEAH, I THINK IF YOU -- IF YOU READ THE
PLAN -- AND I DON'T REMEMBER THE SPECIFICS CITE TO THE PLAN,
BUT THE PLAN TALKS AS50UT I Di i i i. ©
INTENTIONALLY BEING CAUTIOUS BECAUSE WE HAVEN'T DISCUSSED
SEALING ISSUES.

THE COURT: ALL RIGHT. WELL, LET'S -- LET'S BRING
THAT UP. THERE HAVE BEEN A NUMBER OF SEALED PLEADINGS, SEALED
DOCUMENTS, SUPPORTING DOCUMENTS IN THIS CASE, AND WE DID
RECEIVE A HEADS UP THAT THERE WOULD BE A REQUEST BY EITHER BOTH
PARTIES OR ONE PARTY TO ALSO AFFORD CERTAIN PORTIONS OF THE
ARGUMENTS IN A SEALED FASHION; IS THAT RIGHT?

MR. McGARRY: YES, YOUR HONOR. I THINK THE -- THE
CONCEPT WOULD BE YOUR HONOR HAS ALREADY RULED THAT CONSIDERABLE
AMOUNT OF THE RECORD IS SEALED, AND SO WE WANTED TO RAISE THE
ISSUE SO THAT WE COULD COME UP WITH A PROCESS TO MAKE SURE THAT
BEFORE A TRANSCRIPT IS MADE PUBLICLY-AVAILABLE, THAT WE HAVE AN
OPPORTUNITY TO ESSENTIALLY APPLY THE EXACT LOGIC, THINGS THAT
YOUR HONOR HAS ALREADY DEEMED SHOULD BE SEALED TO THE -- THE

TRANSCRIPT. AND, ACTUALLY, THE SAME THING WOULD APPLY TO
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Page 9 of 59

WHATEVER THE FINAL ORDER ULTIMATELY LOOKS LIKE. THE TENTATIVE
OBVIOUSLY DISCUSSES A LOT OF MATERIAL THAT YOUR HONOR HAS
PREVIOUSLY FOUND WAS APPROPRIATE TO BE SEALED.

THE COURT: AND SO AS FAR AS THESE PROCEEDINGS HERE IN
OPEN COURT WHICH ARE OTHERWISE OPEN TO THE PUBLIC, DO YOU HAVE
ANY CONCERNS ABOUT WHAT WILL BE INTRODUCED INTO THE RECORD,
WHAT WILL BE RELIED UPON?

MR. McGARRY: JI -- I THINK SHORT OF, YOU KNOW,
CLEARING THE COURTROOM, THERE'S REALLY NOT MUCH WE CAN DO ABOUT
THAT. I THINK FROM -- FROM THE DEFENSE PERSPECTIVE, WE WILL
TRY TO BE AS CIRCUMSPECT AS POSSIBLE IN TALKING ABOUT ISSUES.
IF WE -- YOU KNOW, WE NEED TO ADDRESS THEM IN A WAY THAT HAS
CONCERNS, WE CAN RAISE THEM AT THAT TIME, BUT I THINK WE'LL
JUST DO OUR BEST.

THE COURT: OKAY. AND THE PLAINTIFFS AGREE THAT
THAT'S THE APPROPRIATE WAY TO GO FORWARD?

MS. CHAN: YES, YOUR HONOR. WE HAVE NO OBJECTION TO
DEFENDANT'S PROPOSAL.

THE COURT: OKAY. SO THAT'S HOW WE'LL PROCEED AT THIS
HEARING, KEEPING IN MIND THAT WITH RESPECT TO ORDERS OF THE
COURT, THAT WE WILL REMAIN TRUE TO THE SEALING ORDERS THAT HAVE
BEEN ENTERED.

MR. McGARRY: THANK YOU, YOUR HONOR.

THE COURT: IS THERE ANYTHING ELSE PRELIMINARILY IN A

SIMILAR VEIN THAT WE NEED TO ADDRESS THERE?
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.61386 9

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MR. MCcGARRY: J DON'T THINK SO. I DIDN'T ANSWER YOUR
QUESTION FULLY BECAUSE --

THE COURT: ALL RIGHT.

MR. McGARRY: -- BECAUSE I WAS BEING CIRCUMSPECT ABOUT
IT.

THE COURT: SO WE WERE TALKING ABOUT THE REMEDIATION

PLAN AND WHETHER OR NOT 17 [as
RUNDE PLAINTIFFS AGREE

WITH THAT?

MS. CHAN: YES, YOUR HONOR.

THE COURT: OKAY.

MR. McGARRY: YOUR HONOR HAD ASKED ME WHERE --

THE COURT: IN THE RECORD AND --

MR. McGARRY: -- SO I'M GOING TO LET MY COLLEAGUE,
MATTHEW RIFFEE, ACTUALLY ADDRESS THAT QUESTION.

THE COURT: DO YOU KNOW?

MR. RIFFEE: IT IS IN A NUMBER OF PLACES IN THE
RECORD, YOUR HONOR, BUT THE EASIEST PLACE TO FIND IT IS PAGE 3

OF THE REMEDIATION PLAN WHERE IT PROVIDES

THE REPORTER: I'M SORRY, I'M HAVING TROUBLE HEARING
THAT WHOLE SIDE.

THE COURT: YEAH. SO IF YOU CAN DO THIS --
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MR. RIFFEE: OF COURSE.

THE COURT: IF YOU CAN TAKE THAT MICROPHONE AND PLACE
IT A LITTLE BIT CLOSER TO YOUR FACE. THEY MOVE. AND THEN THAT
WAY THE COURT REPORTER CAN -- CAN HEAR YOU BETTER. AND THIS
GOES AS TO EVERYONE.

MR. RIFFEE: MY APOLOGIES.

THE COURT: INCLUDING ME.

MR. McGARRY: SO THE EASIEST PLACE TO FIND IT IS

PAGE 3 OF THE REMEDIATION PLAN WHERE IT PROVIDES ii

THE COURT: ALL RIGHT. THANK YOU. THEN I HAVE TWO

QUESTIONS RELATING TO THE MARTIN DECLARATION. ONE IS WITH

RESPECT TO THE CONCLUSION THAT

IT DOESN'T

LOOK LIKE MR. MARTIN ADDRESSED THAT. DO YOU KNOW?

MR. RIFFEE: MY UNDERSTANDING, YOUR HONOR, IS THAT ||
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THE COURT: OKAY.

MR. RIFFEE: NOT SITTING HERE TODAY, YOUR HONOR.
THE COURT: OKAY. AND THEN LASTLY, FROM THE COURT'S
SIDE OF THINGS, THERE'S REFERENCE IN MR. MARTIN'S DECLARATION

DATED OCTOBER 23RD, 2024, THAT THE REMEDIATION PLAN WAS a

2

MR. RIFFEE: MY UNDERSTANDING IS THAT IT

THE COURT: OKAY. SO YOU DON'T HAVE AN UPDATE AS OF
TODAY ?

MR. RIFFEE: JI DO NOT YOUR HONOR.

THE COURT: OKAY. SO THAT ANSWERS THE QUESTIONS THAT
I HAD. AND TO THE EXTENT THAT WE PROVIDED THE TENTATIVE AND AS
YOU CAN SEE IT TENTATIVELY GRANTS THE MOTION FOR CLASS
CERTIFICATION, THE COURT HAS ENDEAVORED TO ADDRESS EACH OF THE
DEFENSE ARGUMENTS THAT WERE PRESENTED AS TO WHY THE COURT
SHOULD NOT CERTIFY, AND I BELIEVE THAT WE HAVE SUFFICIENTLY

ADDRESSED THOSE ARGUMENTS. BUT TO THE EXTENT THAT DEFENSE
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COUNSEL DISAGREES OR WISHES TO PRESENT SOMETHING AND PRESS IT
FURTHER, LET ME GIVE YOU THAT OPPORTUNITY. AND YOU CAN DO IT
AT THE PODIUM.

MR. McGARRY: THANK YOU, YOUR HONOR.

THANK YOU, YOUR HONOR. JI THINK IT WILL COME AS NO
SURPRISE TO YOUR HONOR THAT WE VERY RESPECTFULLY THINK YOU GOT
A LOT OF IT WRONG, BUT WHAT I WANTED TO DO WAS FOCUS ON A
HANDFUL OF ISSUES WHERE I THINK THERE'S SORT OF SIGNIFICANT
ERROR INVOLVED.

THE COURT: ALL RIGHT.

MR. McGARRY: THE FIRST IS THE -- THE DEFENDANTS MADE
A THRESHOLD ARGUMENT THAT THE -- THAT THE PROCESS OF
IDENTIFYING ACCOUNTS WOULD REQUIRE AN INDIVIDUAL ANALYSIS
ACCOUNT-BY-ACCOUNT BECAUSE UNDER THE DEFINITION -- THIS ALL
RELATES TO THE ELECTRONIC FUNDS TRANSFER ACT, THE EFTA
ARGUMENT. AND UNDER THE DEFINITION OF ACCOUNTS THAT ARE
COVERED BY EFTA REQUIRES THAT THEY BE FOR PERSONAL, FAMILY, OR
HOUSEHOLD PURPOSES. AND THERE'S TWO POINTS --

THE COURT: AND SO THE COURT HAS FOUND THAT THAT'S
NOT, IN FACT, THE CASE AND THAT INSTEAD ANOTHER SECTION WHICH
RELATES TO GOVERNMENTAL --

MR. McGARRY: RIGHT.

THE COURT: SO LET ME HEAR THEN --

MR. McGARRY: YES.

THE COURT: -- MORE ABOUT WHY THE PERSONAL AND THE
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FAMILY PROVISION APPLIES.

MR. McGARRY: SO -- SO TWO POINTS, YOUR HONOR. ONE IS
THAT I THINK THAT THE PLAINTIFFS AND YOUR HONOR GOT THE READING
OF THE REGULATION WRONG. THE GOVERNMENT BENEFITS ACCOUNT
LANGUAGE IS A CLARIFICATION OR AN EXPANSION OF THE DEFINITION
OF AN ACCOUNT. THE DEFT ACCOUNT IS DEFINED IN 12 CFR
1005.2(b) (1), RIGHT? BUT (b) (1) REQUIRES THAT THE ACCOUNT BE
ESTABLISHED FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES. THE
GOVERNMENT BENEFITS PART IS NOT A SEPARATE DEFINITION. IT IS
ANOTHER WAY IN WHICH -- IT'S AN EXPANSION OF THE ACCOUNT
DEFINITION, BUT IT DOESN'T MEAN THAT THE ACCOUNT DOESN'T HAVE
TO BE FOR PERSONAL, FAMILY, AND HOUSEHOLD PURPOSES. SO I THINK
AS A -- AS A LEGAL MATTER THAT THE -- THE PLAINTIFF'S POSITION
THAT THE COURT ADOPTED WAS -- WAS -- IT WAS LEGALLY INCORRECT.
BUT EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT I'M WRONG ABOUT
THAT, IT DOESN'T MEAN -- IT DOESN'T MEAN THAT CRIMINALS AND
FRAUDSTERS HAVE PROTECTION UNDER EFTA. I MEAN --

THE COURT: BUT AS A THRESHOLD QUESTION, THE ISSUE IS
WHICH ONE OF THESE SECTIONS APPLIES AND WHETHER OR NOT THE
REQUIREMENTS FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES
APPLIES VERSUS GOVERNMENT BENEFIT ACCOUNTS. SO IN ONE, THE
ACCOUNTS ARE BEING ESTABLISHED FOR PERSONAL, FAMILY, OR
HOUSEHOLD PURPOSES, AND THEN IN THE OTHER REALM, WE HAVE THESE
ACCOUNTS THAT ARE ESTABLISHED ESSENTIALLY BY THE GOVERNMENT,

THEY'RE GOVERNMENT BENEFIT ACCOUNTS, AND THEY PROVIDE A BENEFIT
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TO PERSONS. AND SO IT SEEMS LIKE WE ARE TALKING ABOUT TWO
DIFFERENT TYPES OF ACCOUNTS, THAT ONE IS WHERE AN INDIVIDUAL
OPENS AN ACCOUNT FOR HIMSELF OR HIS FAMILY FOR HOUSEHOLD
PURPOSES, AND THEN YOU HAVE THESE OTHER TYPES OF ACCOUNTS. DO
YOU HAVE ANY AUTHORITY TO SUPPORT THE IDEA THAT IN FACT THERE
AREN'T THESE TWO SEPARATE FORMS OF ACCOUNTS AND THAT THE --
THESE GOVERNMENT BENEFIT ACCOUNTS KIND OF FALL UNDER THE
PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES?

MR. McGARRY: I THINK IT'S JUST A STRAIGHT STATUTORY
CONSTRUCTION POINT. I WOULD SAY THAT IF YOU -- IF YOU LOOK AT
THE MOHAMED CASE WHICH IS A FOURTH CIRCUIT CASE THAT THE --
THAT THE PLAINTIFFS RELIED ON, THE ISSUE THERE HAD NOTHING TO
DO WITH THE PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES POINT. THE
ISSUE IN THAT CASE WAS ENTIRELY ABOUT WHETHER THE -- THE
ACCOUNT AT ISSUE WAS ESTABLISHED BY THE -- THE BENEFIT AGENCY
OR BANK OF AMERICA. AND IT -- IT WAS A COMPLETELY DIFFERENT
LEGAL ISSUE THERE. SO THERE'S NOT A LOT OF CASE LAW ON THAT
PARTICULAR SECTION, BUT I THINK IT'S -- I THINK IT'S A STRAIGHT
FORWARD STATUTORY CONSTRUCTION ARGUMENT.

THE COURT: AND TO A QUICK -- TO THE PLAINTIFF ON
THAT, DO YOU HAVE RESPONSE AS TO THAT POINT?

MS. CHAN: WELL, I THINK, YOUR HONOR, MR. MCGARRY IS
CORRECT THAT THE ISSUE -- THE ISSUE PRESENTED IN MOHAMED WAS
DIFFERENT, BUT THE FOURTH CIRCUIT'S REASONING IS VERY CLEAR.

THE FOURTH CIRCUIT RELIED ON, AS MR. MCGARRY SAYS, A STATUTORY
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INTERPRETATION. AND THE COURT SAID THAT EFTA SPECIFICALLY
APPLIES TO AN ACCOUNT, AND AN ACCOUNT EXPRESSLY INCLUDES A
PREPAID ACCOUNT, AND A PREPAID ACCOUNT EXPRESSLY INCLUDES A
GOVERNMENT BENEFIT ACCOUNT. THAT WAS INTERPRETING 12 CFR
1005.2 (b) (3) (1) (B). THE FOURTH CIRCUIT SQUARELY HELD THAT
THESE ARE GOVERNMENT BENEFIT ACCOUNTS AND THEREFORE ARE
QUALIFYING ACCOUNTS UNDER EFTA. BUT ALSO TO EVEN IF THESE
ACCOUNTS NEEDED TO SATISFY THE THRESHOLD INQUIRY THAT
MR. MCGARRY IS POINTING TO ABOUT BEING ESTABLISHED FOR PERSONAL
OR FAMILY OR HOUSEHOLD REASONS, THE SOLE AUTHORITY THAT THE
BANK RELIES ON, THE HANSEN VERSUS TICKET TRACK CASE, IN THAT
VERY CASE, THE COURT IN FACT CERTIFIED AND SAID THAT THAT
DISTINCTION ALONE UNDER THE FDCPA WAS NOT A BASIS FOR DENYING
CLASS CERTIFICATION. AND THIS SIMILAR LANGUAGE APPLIED IN YOUR
HONOR'S DECISION IN VICTORINO WHERE THE SIMILAR LANGUAGE WAS
USED IN THE CONTEXT OF THE SONG BEVERLY ACT. AND LIKEWISE
THERE, YOUR HONOR DID NOT DETERMINE THAT THAT WAS NOT AN ISSUE
THAT REQUIRED INDIVIDUALIZED INQUIRY OR THAT NECESSARILY
DEFEATED A FINDING OF PREDOMINANCE IN THAT CASE.

THE COURT: ALL RIGHT. THANK YOU. YES, YOU CAN
RETURN TO YOUR ARGUMENT.

MR. McGARRY: THANK YOU, YOU YOUR HONOR. SO BUT EVEN
IF I'M WRONG ABOUT THE PERSONAL, FAMILY, HOUSEHOLD STATUTORY
INTERPRETATION ISSUE, THAT DOESN'T MEAN THAT CRIMINAL

FRAUDSTERS HAVE PROTECTION UNDER EFTA. THE WHOLE -- THE WHOLE
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Page 17 of 59

POINT OF THE ARGUMENT WAS THAT IT'S IMPOSSIBLE TO TELL
FRAUDULENT INTENT WITHOUT GOING CASE BY CASE, RIGHT? THAT'S --
THAT'S SORT OF THE -- THAT'S THE GIST OF THE ARGUMENT THAT WE
WERE MAKING. AND EFTA, AS THE PLAINTIFFS POINT OUT REPEATEDLY,
IS A CONSUMER PROTECTION STATUTE. IT'S DESIGNED TO HELP
CONSUMERS. WHAT IT'S NOT DESIGNED TO DO IS TO HELP CRIMINALS.

THE COURT: BUT IS THAT SOMETHING THAT THE PLAINTIFFS
HAVE TO PROVE IN THEIR PRIMA FACIE CASE?

MR. McGARRY: IT DOESN'T -- SO I THINK -- I THINK MY
VIEW, OUR VIEW IS THAT IT'S -- IF IT'S NOT COVERED BY THE
STATUTE, RIGHT, IF -- IF CRIMINAL ACTIVITY IS NOT COVERED BY
THE STATUTE, THEN THAT'S -- THAT'S SORT OF BEFORE YOU GET TO
THE WHO-HAS-THE-BURDEN-OF-PROOF ISSUE, RIGHT? BUT THE -- THE
POINT IS THAT --

THE COURT: I'M NOT SURE YOU'RE ANSWERING THE
QUESTION. IS THIS SOMETHING THAT THE PLAINTIFFS HAVE TO
DEMONSTRATE AS PART OF THEIR PRIMA FACIE CASE?

MR. McGARRY: JI THINK THE PLAINTIFFS HAVE TO
DEMONSTRATE THAT THEY CAN PURSUE THE CLASS --

THE COURT: THAT THEY MEET THE ELEMENTS, THAT -- THAT
THEY —-—-

MR. McGARRY: AND MEET THE ELEMENTS OF THE CLAIMS, BUT
THIS --

THE COURT: AND IS THAT AN ELEMENT, THAT YOU HAVE TO

DISPROVE THAT THERE WAS FRAUD INVOLVED?
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.61394 7

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MR. McGARRY: JI THINK IT -- IT -- IT RAISES -- BECAUSE
IT CAN'T POSSIBLY BE THE CASE THAT A CRIMINAL FRAUDSTER HAS
STANDING UNDER THE ELECTRONIC FUNDS TRANSFER ACT, I DON'T THINK
EVEN THE PLAINTIFFS TAKE THAT POSITION, RIGHT? BUT BECAUSE
THERE'S NO WAY TO KNOW THAT WITHOUT DELVING INTO ALL OF THE
RECORDS AND AS, YOU KNOW, BASICALLY SOME OF THE EXAMPLES --
EXCUSE ME -- THAT WE CITED IN OUR PAPERS, YOU KNOW, DOING
ADDITIONAL INVESTIGATION, DOING -- LOOKING -- TAKING
DEPOSITIONS OF PEOPLE, YOU CAN'T TELL ALL OF THAT, RIGHT? AND
THE POINT IS THAT --

THE COURT: SO THEN LET ME ASK, SO WHAT'S THE PURPOSE

OF THIS PROCESS THAT'S BEEN TAKING PLACE THAT MR. MARTIN REFERS

MR. McGARRY: YOUR HONOR, THAT PROCESS -- OR THAT

PROCESS IS

I HAVE A WHOLE SEPARATE ARGUMENT ABOUT -- ABOUT

MES, 20T2AT'S A SORT OF A DIFFERENT
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POINT.

THE COURT: SO WHAT PROOF DO YOU HAVE BEYOND THESE
EFFORTS THAT HAVE BEEN TAKEN WITH RESPECT TO THE REMEDIATION
PLAN THAT DEMONSTRATES THAT THERE IS THIS LARGE NUMBER OF
FRAUDSTERS THAT ARE CURRENTLY MEMBERS OF THE PROPOSED CLASS?

MR. McGARRY: JI WOULD SAY A COUPLE THINGS, YOUR HONOR.
FIRST, I MEAN, THE EDD ALONE, RIGHT, EDD HAD ITS ISSUES, RIGHT,
BUT EDD ALONE PRECLUDED MORE THAN P| FRAUDSTERS FROM
WRONGFULLY CLAIMING BENEFITS, BUT THEY ALSO ALLOWED BILLIONS OF
DOLLARS IN BENEFITS THAT -- THAT IT WASN'T ABLE TO CATCH,
RIGHT, OR THE BANK OF AMERICA WASN'T ABLE TO CATCH. THERE ARE
A NUMBER OF REPORTS FROM STATE AND FEDERAL AGENCIES IN OUR
PAPERS THAT TALK ABOUT THE FACT THAT THIS IS SOPHISTICATED
FRAUD AND THAT MOST OF THIS WILL NEVER BE RECOVERED. AND IT
JUST DOESN'T --

THE COURT: TO THE EXTENT THAT IT WILL NEVER BE
RECOVERED, WILL IT NEVER BE IDENTIFIED EITHER?

MR. McGARRY: WELL, THAT'S -- THAT'S THE POINT.
THERE'S ACTUALLY AN INTERESTING ARTICLE IN YESTERDAY'S WALL
STREET JOURNAL ADDRESSING EXACTLY THIS ISSUE, THAT THE CRIMINAL
AUTHORITIES HAVE BEEN LOOKING AT THIS FOR FIVE YEARS AND
THEY'RE RUNNING UP AGAINST A STATUTE OF LIMITATIONS PROBLEM FOR
CRIMINAL PROSECUTION BECAUSE IT'S SO HARD TO IDENTIFY THE
PROPLE WHO ENGAGE IN THIS TYPE OF FRAUD THAT WAS GOING ON AT

THE TIME OF THE PANDEMIC PROGRAMS LIKE PUA.
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.61396 9

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THE COURT: SO TO THE EXTENT THAT IT'S SO DIFFICULT TO
ENGAGE IN THIS INVESTIGATION AND IDENTIFICATION OF THE
FRAUDSTERS, THEN HOW WOULD THAT AFFECT TRIAL IN TERMS OF
CREATING ALL OF THESE INDIVIDUALIZED DETERMINATIONS?

MR. McGARRY: RIGHT. BECAUSE THE -- THE POINT OF A
NUMBER OF OUR ARGUMENTS, RIGHT, AND WE'RE TALKING RIGHT NOW
ABOUT THE PERSONAL, FAMILY, HOUSEHOLD PURPOSES ARGUMENT, RIGHT,
IS THAT IN ORDER TO ULTIMATELY GET TO THE -- THE LEGAL ISSUE,
RIGHT, IT'S A GATEWAY STEP TO DO YOU EVEN HAVE RIGHTS UNDER THE
STATUTE BEFORE YOU CAN EVEN CLAIM IT. AND THE -- THE -- THE
ISSUE IS THAT THE PLAINTIFFS HAVE DONE NOTHING OTHER THAN POINT
TO THE REMEDIATION PLAN AS A WAY TO SAY HOW THEY'RE GOING TO
GRAPPLE WITH THE FACT THAT THERE'S UNDOUBTEDLY FRAUDSTERS IN
THIS POPULATION. IT'S IMPOSSIBLE --

THE COURT: BUT, AGAIN, YOU'RE PLACING THE ONUS ON THE
PLAINTIFFS. AND WE BOTH, YOU KNOW, APPRECIATE THAT THE
GOVERNMENT'S BURDEN -- NOT THE GOVERNMENT'S BURDEN -- THE
PLAINTIFF'S BURDEN IS TO ESTABLISH THAT THE ELEMENTS THAT EXIST
WHICH WOULD NOT INCLUDE IDENTIFYING PEOPLE WHO AREN'T ENTITLED
TO SOME REMEDIES, THAT THAT FALLS ON THE DEFENSE EITHER BY
VIRTUE OF THE STATUTE PLACING THE BURDEN ON THE DEFENSE, OR TO
THE EXTENT THAT IT'S A PART OF AN AFFIRMATIVE DEFENSE, AND AT
THIS POINT, I HAVEN'T SEEN THE PROOF, THE EVIDENCE WHICH
DEMONSTRATES THE MAGNITUDE OF THE AMOUNT OF EVIDENCE THAT WOULD

BE COMING IN ON THIS QUESTION OF WHO ARE THE FRAUDSTERS AND
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THESE INDIVIDUALIZED DETERMINATIONS TO TRY TO EXCLUDE THEM AT
TRIAL.

MR. McGARRY: J THINK THAT'S -- THAT'S A FAIR POINT,
YOUR HONOR. I GUESS I WOULD -- I WOULD POINT TO THE FACT THAT
IN MATT MARTIN'S DECLARATION WHICH YOU ASKED A QUESTION ABOUT A

FEW MINUTES AGO, HE TALKED ABOUT THE FACT THAT IT iii

AND IF YOU'VE GoT aa

PROPLE AND -- BANK OF AMERICA HAS TO HAVE THE RIGHT, WHETHER
IT'S THE RIGHT AS A -- AS DEFENDING ITSELF IN A LAWSUIT OR
WHETHER IT'S TRYING TO PROVE THAT A TRANSACTION WAS AUTHORIZED
OR FRAUDULENT UNDER EFTA, IT HAS TO HAVE THE RIGHT TO EVALUATE
FACH AND EVERY ONE OF THOSE. AND IF YOU TALK ABOUT JUST --

JUST AS A PRACTICAL MATTER, IF WE'RE TALKING ABOUT

PEOPLE AND WE'RE GOING To TAKE
Pee 3 ~O -- JUST TO EVALUATE EACH ONE OF THOSE

AND THEN COME AND PRESENT THE EVIDENCE AT TRIAL, I'M NOT GOOD
AT MATH, BUT THAT'S A VERY LONG AND -- AND LABORIOUS PROCESS.
AND THAT'S THE POINT, YOUR HONOR, IS THAT ULTIMATELY
THE -- THE PREDOMINATING ISSUES AT TRIAL, IT'S EASY TO SAY
THERE'S GOING TO BE A COMMON QUESTION OR A COMMON EVIDENCE, BUT
WHAT'S GOING TO ULTIMATELY BE THE PREDOMINATING ISSUES AT TRIAL

IS DO THESE PEOPLE EVEN HAVE RIGHTS, DO THEY -- IF THEY DO,
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HAVE THEY COMPLIED WITH THE STATUTE. IF THEY HAVE, DID -- DID
BANA, IN FACT, VIOLATE ITS DUTIES UNDER THE STATUTE, AND DO
THAT INDIVIDUAL BY INDIVIDUAL.

THE COURT: AND -- AND, AGAIN, TO THE EXTENT THAT THE
INFORMATION THAT WILL BE FOLLOWED UP ON IS IN THE POSSESSION OF
BANK OF AMERICA, THEY -- IF NOT EXCLUSIVE POSSESSION, THEY ARE
THE ONES THAT MANAGE AND HAVE THIS INFORMATION AVAILABLE TO
THEM, AND AT THIS POINT, YEARS AFTER THIS FRAUD OCCURRED AND
WELL INTO THIS LITIGATION, WE DON'T HAVE BANK OF AMERICA
OFFERING SOMETHING MORE THAN WHAT IS IN THE RECORD. AND
MEANWHILE, THE PLAINTIFFS OFFER A PRIMA FACIE CASE. IT SEEMS
DIFFICULT FOR THE COURT TO SAY THAT, "OH, WOW, AT THIS POINT
IT'S CLEAR THAT THE COMMON ISSUES THAT HAVE BEEN IDENTIFIED BY
THE PLAINTIFF DO NOT PREDOMINATE OVER THE INDIVIDUAL ISSUES
BECAUSE IT'S LIKELY THAT THERE'S A BUNCH OF FRAUDSTERS OVER
THERE, EVEN THOUGH WE DON'T HAVE ANY INDICATION OF, YOU KNOW,
HOW MANY THERE ARE AND HOW LIKELY IT IS FOR, YOU KNOW,
CONTINUED EFFORTS TO IDENTIFY MANY MORE." AND KEEPING IN MIND
THAT EVERY TIME A FRAUDSTER IS IDENTIFIED, THAT, YOU KNOW,
YOU'VE SUCCEEDED IT IN HAVING THEM EXCLUDED FROM THE CLASS
SINCE THE CLASS ITSELF RECOGNIZES THAT IT DOESN'T WANT ANY
BFRAUDSTERS AS A PART OF THE -- THE CLASS LITIGATION.

SO ALL RIGHT. DID YOU WANT TO MAKE ADDITIONAL POINTS?

MR. McGARRY: WELL, I JUST -- THE -- THE STANDING

POINT I THINK I MADE WITH RESPECT TO THE REMEDIAL HOUSEHOLD
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.613992

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PURPOSE POINT, THERE'S A SIMILAR ARGUMENT, AND I -- AND I JUST
WANT TO ARTICULATE IT EVEN THOUGH IT'S -- IT'S SIMILAR IN
NATURE. AND I UNDERSTAND YOUR HONOR'S PROBABLY GOING TO HAVE
THE SAME REACTION TO IT, BUT LET'S -- EVEN ASSUMING THAT WE
DON'T HAVE THE PERSONAL, FAMILY, OR HOUSEHOLD QUESTION, RIGHT,
THE -- THE HEART OF THIS CASE INVOLVES UNAUTHORIZED TRANSACTION
CLAIMS, RIGHT? THAT'S WHAT ALL OF THIS IS ABOUT. UNAUTHORIZED
TRANSACTION CLAIMS ARE DEFINED IN THE CFR AT 10 -- 1005.2(m) AS
EXCLUDING -- IN ORDER TO HAVE AN UNAUTHORIZED TRANSACTION
CLAIM, IT EXCLUDES CARDHOLDERS WHO ASSENTED TO THE
TRANSACTIONS, CARDHOLDERS WHO BENEFITED FROM THE TRANSACTIONS,
OR CLAIMS MADE WITH FRAUDULENT INTENT. AND AS I SAID BEFORE,
FRAUDULENT INTENT IS NECESSARILY A CASE-BY-CASE ARGUMENT. SO
EVEN IF BANK OF AMERICA HAS THE BURDEN OF PROOF, AS -- AS WE'VE
ARTICULATED WITH RESPECT TO THE EARLIER ISSUE, ALL OF THOSE --
DID SOMEONE BENEFIT FROM THE TRANSACTION, DID THEY ASSENT TO
THE TRANSACTION, WAS A CLAIM MADE WITH FRAUDULENT INTENT -- AND
WE SITE SOME EXAMPLES IN OUR PAPERS -- ALL OF THOSE ARE
FUNDAMENTALLY INDIVIDUAL.

THE COURT: WHILE THEY ARE FUNDAMENTALLY INDIVIDUAL,
THE LAW REQUIRES THE DEFENDANT TO IDENTIFY INDIVIDUALS WHOSE,
YOU KNOW, CONSENT IS AT QUESTION, BENEFITS -- MORE THAN THEY'RE
JUST A CLASS AND THAT THESE ARE ISSUES AND THAT THESE ISSUES
MAY END UP AFFECTING THE RIGHT OF A CLASS MEMBER TO RECOVERY,

THE LAW REQUIRES MORE AT THIS POINT, DOESN'T IT?
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.61400 3

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MR. McGARRY: J THINK THE LAW REQUIRES THE
PLAINTIFFS -- REMEMBER, THE BURDEN HERE IN THIS ENTIRE
PROCEEDING IS ON THE PLAINTIFFS. I THINK THE LAW REQUIRES THE
PLAINTIFFS TO DEMONSTRATE TO YOUR HONOR THAT --

THE COURT: THAT THEY DIDN'T CONSENT, THAT THEY DIDN'T
BENEFIT, THAT THEY DIDN'T --

MR. McGARRY: THAT THOSE -- THAT THOSE ANSWERS -- THE
ANSWERS TO THOSE QUESTIONS DON'T MATTER. THAT THERE'S A COMMON
OVER-ARCHING QUESTION OR SERIES OF QUESTIONS THAT CAN BE
RESOLVED THAT WILL BE PREDOMINANTLY COMMON, AND THAT THOSE
QUESTIONS DON'T MATTER. AND I DON'T UNDERSTAND HOW THAT CAN BE
THE CASE WHEN WE KNOW THE LEVEL OF FRAUD AND ACTIVITY THAT --

THAT THIS PROGRAM HAD MORE BROADLY THAN JUST THESE Qa

PROPLE.

THE COURT: ALL RIGHT.

MR. McGARRY: JUST A COUPLE OTHER QUICK POINTS, YOUR
HONOR. THE -- YOUR HONOR MADE THE POINT THAT THE PLAINTIFFS
ARGUED THAT A -- THAT A CLASS CAN BE CERTIFIED EVEN WITH

UNINJURED PERSONS, AND I GUESS I WANT TO DRAW THE DISTINCTION
BETWEEN THOSE CASES THAT TALK ABOUT UNINJURED PERSONS AND HERE
WHERE YOU HAVE ACTUAL FRAUDSTERS, ACTUAL CRIMINALS WHO ARE PART
OF THE CLASS, RIGHT? IT'S -- IT'S DIFFERENT FROM THE STANDING
CASE WHICH SAYS, WELL, THERE'S A BUNCH OF PEOPLE, THERE MIGHT
BE A HANDFUL WHO WEREN'T INJURED, RIGHT? THAT'S DIFFERENT IN

CHARACTER FROM SAYING THERE'S A -- THERE'S A BUNCH OF PEOPLE,
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SOME OF WHOM WERE ACTIVELY ENGAGING IN FRAUD ON THE BENEFIT

SYSTEM.

FORGIVE ME, I'M JUST SEEING IF WE'VE ALREADY TALKED
ABOUT MY OTHER POINTS. THE -- I GUESS A COUPLE OTHER POINTS.
ONE IS THAT THE -- THE COURT SEEMS TO ASSUME THAT THE

REMEDIATION PLAN EXCLUSIONS EXCLUDED ALL OF THE FRAUDSTERS FROM
THE CLASS, BUT, YOUR HONOR, THAT CAN'T BE DONE OR HASN'T BEEN
DONE OR CAN'T BE DONE BECAUSE NOT ALL THE INFORMATION IS IN
BANA'S POSSESSION. SOMETIMES IT HAS TO COME FROM LAW
ENFORCEMENT; SOMETIMES IT COMES FROM EDD. BANK OF AMERICA ONLY

HAS ACCESS TO ATM FOOTAGE ON ITS OWN ATMs, AND SO THE -- THE

FACT THAT THE REMEDIATION PLAN

THERE'S -- THERE'S ONE OTHER POINT THAT I WANT ON THIS
ISSUE THAT I WANTED TO ADDRESS WHICH IS THE -- YOUR HONOR

SEEMED PERSUADED AND YOU'VE SAID TO ME THAT THERE'S ONLY
EVIDENCE OF A HANDFUL OF PEOPLE HERE ON THE -- THE POINT THAT
THE CLASS CAN BE CERTIFIED IF THERE'S A DE MINIMIS AMOUNT OF

NON-CLASS MEMBERS INCORPORATED WITHIN IT. THE -- THERE'S A --

ME > |S THERE WAS -- RIGHT, THE -- THE

CONCEPT OF THE THEORY THAT THE REMEDIATION PLAN ALREADY DID THE

WORK AND THAT ANYBODY WHO WAS FRAUDULENT OR DIDN'T HAVE A CLAIM
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WAS EXCLUDED, RIGHT, THE ASSUMPTION THERE IS THAT EVERYONE WHO
ALREADY GOT PAID, RIGHT, THERE WAS AN ACTUAL ANALYSIS DONE, A
SUBSTANTIVE ANALYSIS DONE AND THAT ALL OF THOSE PEOPLE WERE —--

HAVE RIGHTEOUS CLAIMS FOR LACK OF A BETTER WORD. BUT

a. 39 AND OUST SO THAT THE -- THE RECORD IS CLEAR BECAUSE
THIS WILL TAKE A COUPLE OF STEPS TO GET T,, Si i i 7 777?

THE COURT: SAY THAT AGAIN.

MR. McGARRY: SO WHERE DID THOSE
,§. «SO «DUST SO THE RECORD IS CLEAR, RIGHT, SO BANK OF
AMERICA RESPONDED TO A SERIES OF INTERROGATORIES THAT THE
PLAINTIFF SUBMITTED, INCLUDING INTERROGATORY 39 WHICH IS

DEFENDANT'S EXHIBIT 43. AND THAT INTERROGATORY IDENTIFIED pe

RESPONSE STATES THAT [i
FOR EXAMPLE, THE CREDIT RESCISSION CLASS IS J PEOPLE oR So.
ALL OF THAT RESCISSION OCCURRED IN N.S ALL oF

THE COURT: TO THE EXTENT THAT THEY WERE
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F | WOULD THEY EVEN BE CLASS MEMBERS?

MR. McGARRY: THEY WOULD BECAUSE THE CLASS IS DEFINED
AS WHETHER YOU WERE PAID UNDER THE -- UNDER THE REMEDIATION
PLAN. AND THEY WERE, IN FACT, PAID.

THE COURT: ARE WE TALKING ABOUT THE REMEDIATION PLAN

PAYMENTS VERSUS IN REAL TIME WHEN THE --

MR. McGARRY: NO. NO, SO THIS IS -- THERE'S A COUPLE
STEPS HERE. THE -- THE CLASS IS -- THE WAY THE PLAINTIFFS
DEFINE THE CLASS, IT'S -- IT'S ESSENTIALLY EVERYBODY WHO GOT --

I'M OVER SIMPLIFYING, BUT EVERYBODY WHO GOT PAID IN THE
REMEDIATION PROCESS, THERE WERE PEOPLE WHO WERE PAID IN THE
REMEDIATION PROCESS WHO -- WHOSE CLAIMS WERE ALLOWED EARLIER,
PRIOR TO THE REMEDIATION PROCESS FOR VARIOUS REASONS. SO, FOR
EXAMPLE, WITH THE CREDIT RESCISSION CLASS, RIGHT, THE -- THE --
ALL OF THE CREDIT RESCISSION CLASS FOLKS WHO ASKED FOR

RECONSIDERATION, YOU KNOW, THE [J oR SO, WERE

RU «S00 THAT POINT, THEY HAD THEIR
FUNDS BACK. BUT UNDER THE REMEDIATION PLAN, ii i

ESR IGHT?) =6AND SO THE -- SO THE REMEDIATION PLAN
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.614047

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een. — 08S THAT
MAKE SENSE?

THE COURT: JI -- I'M FOLLOWING MOST --

MR. McGARRY: OKAY.

THE COURT: -- OF WHAT YOU'RE REFERENCING, ALTHOUGH IN

THE MIDDLE OF THAT, YOU SAID THAT A NUMBER OF THESE PEOPLE

INVOLVED INDIVIDUALS WHO TRIGGERED MORE THAN JUST ONE OF THE

FILTERS?

MR. McGARRY: THE -- THE -- I DIDN'T MEAN TO SUGGEST
THAT THE -- THAT THE PLAINTIFFS HAVE DEFINED THEIR CLASS THAT
WAY. THEY HAVEN'T. RIGHT? I JUST -- I'M JUST SAYING THAT THE

REMEDIATION PLAN ITSELF, AS WE TALKED ABOUT EARLIER, [a

THE COURT: RIGHT.
MR. McGARRY: SO ANYWAY, SO WE'RE TALKING ABOUT THE
DIFFERENT POPULATIONS IN RESPONSE TO INTERROGATORY 39, RIGHT,

AND I TALKED ABOUT THE CREDIT

SO THE BANK HAD OBLIGATIONS UNDER THE PRELIMINARY
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INJUNCTION TO REVIEW CERTAIN -- AND PROCESS CERTAIN NUMBER OF

CLAIMS ON CERTAIN TIMELINES, i
GSCsi«ANND«THEN AS YOUR HONOR'S AWARE, THERE WERE
RE.) NOW, WHILE BANK OF AMERICA'S

RECORDS CAN'T DISTINGUISH WHICH CLAIMS WERE OR WERE NOT

MANUALLY REVIEWING EACH CLAIM FILE, WE CAN'T ESTIMATE THE
Pe 3Y LOOKING AT THAT CRITERIA
THAT THE BANK APPLIED AND THE RECORDS THAT THE PLAINTIFFS AND
THEIR EXPERTS RELIED ON TO IDENTIFY THE CLAIM DENIAL AND CREDIT
RESCISSION CLASS MEMBERS.

SO THE PLAINTIFFS DEFINE THE CLAIM-DENIAL CLASS AS
ESTIMATED TO BE MJ PEOPLE. AND PLAINTIFFS AND THEIR
EXPERTS RELY, IN PART, ON BANK OF AMERICA'S RESPONSE TO
INTERROGATORY 2 IN ORDER TO MAKE THOSE CALCULATIONS. THAT'S

PLAINTIFF'S EXHIBIT 146. THAT RESPONSE IDENTIFIED

SO THE PLAINTIFFS HAVE ALL OF THAT INFORMATION. THEIR EXPERTS
RELIED ON IT IN ORDER TO DEFINE THE CLASS. AND THEY ONLY
ATTACH AN EXCERPT OF THE DATA THAT'S ACCOMPANYING THE RESPONSES

WHICH THEY EXCERPTED AT PAGES 21 AND 22 OF PLAINTIFF'S EXHIBIT
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146. THE FULL DATA SPREADSHEET, WHICH THE PLAINTIFFS HAVE AND
THEIR EXPERTS RELIED ON AND WHICH WE'D BE HAPPY TO PROVIDE THE

COURT IF YOU'D LIKE TO REVIEW IT, SHOWS THE FOLLOWING:

SO BASED ON THIS DATA -- AND I REALIZE THERE'S A LOT

OF INFORMATION THERE, BUT THE COURT CAN REASONABLY ASSUME THAT

NOW, THE POINT OF ALL THAT IS JUST TO MAKE THE POINT THAT IT IS
NOT TRUE THAT EVERYBODY WHO GOT PAID OR EVEN CLOSE TO EVERYBODY
GOT PAID ACTUALLY GOT A MANUAL REVIEW AS TO WHETHER OR NOT

THERE WAS A -- A LEGITIMATE CLAIM MADE HERE. RIGHT? THE POINT

THE COURT: SO LET ME ASK, WITH RESPECT TO THE ACTUAL
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NUMBER OF REVIEWED ACCOUNTS -- MR. MARTIN STATES THAT 9

MR. McGARRY: I'M SORRY, I -- I APOLOGIZE, I'M NOT
SURE I UNDERSTAND YOUR QUESTION.

THE COURT: I'M SORRY?

MR. McGARRY: JI SAID I'M NOT SURE THAT I UNDERSTAND
YOUR QUESTION.

THE COURT: OH. SURE.

MR. McGARRY: WHICH NUMBER ARE YOU ASKING FOR?

THE COURT: ALL RIGHT. SO THE -- THE MARTIN

DECLARATION STATES i 7

MR. McGARRY: RIGHT.

THE COURT: AND SO MY QUESTION IS WHAT WAS THE

MR. McGARRY: JI DON'T -- DO YOU KNOW THE ANSWER TO

THAT QUESTION, MATT?

MR. RIFFEE: SO, YOUR HONOR, i 277777

THE COURT: RIG). i.

MR. RIFFEE: RIGHT. 1), 3 2 7_7_l
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THE COURT: BUT DO YOU UNDERSTAND MY QUESTION? IT

MR. RIFFEE: SO THIS IS OUT OF THE WHOLE POPULATION OF

INDIVIDUALS WHO HAD CLAIMS PAID DURING THE REMEDIATION PLAN,

NOT JUST IN CALIFORNIA. a

NOT JUST BASED ON --

MR. RIFFEE: SO LET ME TAKE A STEP BACK. I UNDERSTAND
IT'S SOMEWHAT CONFUSING. SO THESE INDIVIDUALS ALL HAD THEIR --
THE COURT: "THESE" BEING
MR. RIFFEE: THE 3

THE COURT: OKAY.
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THE COURT: SO THEN THAT GOES TO THE IDEA THAT IN

TERMS OF

ee «AND THAT THE TOOLS THAT WOULD FOR EXAMPLE BE

USED BY THE UNITED STATES ATTORNEY'S OFFICE TO IDENTIFY FRAUD,
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THAT THOSE WEREN'T AVAILABLE TO THE BANK OF AMERICA, AND AS
SUCH, AS A STARTING POINT, THE LEVEL OF INQUIRY WOULD HAVE BEEN
LIMITED, THAT BANK OF AMERICA WOULD HAVE HAD KIND OF ONE ARM
TIED BEHIND THEIR BACK IN TRYING TO PROCEED WITH THE --

MR. RIFFEE: THAT'S -- THAT'S PRECISELY IT, YOUR
HONOR. AND THAT -- AND THAT'S THE ISSUE HERE. IF THERE WAS
LITIGATION, IF THE BANK WAS ABLE TO CONDUCT DEPOSITIONS OR SEEK
DISCOVERY FROM EACH OF THESE P| INDIVIDUALS, IT WOULD BE
ABLE TO GET MORE INFORMATION ON EACH OF THE INDIVIDUALS FROM
THE INDIVIDUAL THEMSELF. IT'S LIMITED TO THE RECORDS THAT THEY
HAVE. IT'S NOT ABLE TO TEST WHETHER OR NOT THEY WERE WHO THEY
SAID THEY WERE WHEN THEY MADE CLAIMS FOR EDD BENEFITS. IT'S
NOT -- THEY CAN'T TEST WHETHER THEY WERE, IN FACT, UNEMPLOYED
OR SEEKING THE BENEFITS IN THE FIRST PLACE AND OBTAINED THE
ACCOUNT FOR FRAUDULENT OR CRIMINAL PURPOSES.

THE COURT: ALL RIGHT. THANK YOU. YOU MAY PROCEED.

MR. McGARRY: THANK YOU, YOUR HONOR. I WANTED TO TALK
FOR A MINUTE ABOUT THE CCPA CLAIM WHICH IS BASED ON THE -- THE
MAGNETIC STRIPE, LACK-OF-AN-EMV-CHIP ARGUMENT. YOUR HONOR
PROPOSED THAT LOST OR STOLEN CARDS SHOULD BE EXCLUDED FROM THE
CLASS BECAUSE I THINK EVEN THE PLAINTIFFS ADMIT THAT PEOPLE WHO
HAD LOST OR STOLEN CARDS WOULDN'T HAVE AN ISSUE IMPACTED BY THE
MAG STRIPE. BUT LOST AND STOLEN CARDS ARE NOT THE ONLY PEOPLE
WHO HAVE TO BE EXCLUDED. AND JUST DOING THAT REQUIRES LOOKING

AT EACH INDIVIDUAL'S CLAIM FILE AND TRANSACTION HISTORIES TO
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.6141B4

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FIGURE OUT WHO THEY ARE. OTHERS WHO CAN'T POSSIBLY HAVE BEEN

IMPACTED BY THE LACK OF AN EMV CHIP WOULD INCLUDE yy

AND YOU CAN'T ISOLATE

THESE GROUPS. YOU HAVE TO LOOK AT EACH INDIVIDUAL FILE AND ALL
THE FACTS AND CIRCUMSTANCES AROUND THAT, AROUND THE POSSESSION
OF THE CARD, IN ORDER TO MAKE THAT DETERMINATION. AND AT LEAST
WITH RESPECT TO THIS ISSUE, THE BURDEN OF PROOF IS NOT ON BANK
OF AMERICA. THER -- WE HAVE SOME OTHER DISAGREEMENTS, AS YOU
MIGHT IMAGINE, BUT IN A 96-PAGE ORDER, IT WOULD TAKE SOME TIME
TO GO THROUGH THEM ALL. I THINK THAT WITH THE EXCEPTION OF

ALLOWING ME TO CONFER WITH MY COLLEAGUE FOR A SECOND --
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.614125

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THE COURT: OF COURSE.

MR. McGARRY: -- WE'LL RELY ON OUR PAPERS ON THE OTHER
ISSUES. THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. LET ME HEAR FROM PLAINTIFF'S
COUNSEL. WHAT DO YOU MAKE OF THE ARGUMENT THAT DEFENSE COUNSEL
AND THE DEFENSE IS HAMSTRUNG BY THE LACK OF INVESTIGATIVE TOOLS
THAT OTHERWISE WOULD BE ABLE TO IDENTIFY ANY NUMBER OF
FRAUDSTERS? IS THAT SOMETHING THE COURT SHOULD TAKE INTO
ACCOUNT, AND IF SO, HOW?

MS. CHAN: THANK YOU, YOUR HONOR. A COUPLE OF
RESPONSES TO THAT POINT. THE FIRST IS THAT IF YOU LOOK AT

DEFENDANT'S EXHIBIT 43, THEIR INTERROGATORY RESPONSES WHERE

THEY TALK A5OUT [a
BANK'S INTERROGATORY RESPONSE SHOWS THAT i I Ri i i 7777’
APPROXIMATELY [RBMM,—sLDENTIFIED IN DEFENDANT'S EXHIBIT
43 THAT THE BANK SAYS (i ii 7 _ 7_7_

THE COURT: DO YOU KNOW WHAT THAT WOULD HAVE INVOLVED
OR ENTAILED, THAT ELIGIBILITY DETERMINATION?

MS. CHAN: I DON'T BELIEVE THE INFORMATION IS IN THE

RECORD, BUT EDD CERTAINLY HAS BEEN AWARE OF THE ISSUES OF
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.614136

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BENEFITS ENROLLMENT FRAUD AND HAS OVER THE YEARS DEVELOPED
MULTIPLE TOOLS TO ASSIST EDD ITSELF IN ALSO IDENTIFYING AND

VERIFYING ELIGIBILITY OF INDIVIDUALS.

THE COURT:

2

MS. CHAN: IN THIS INSTANCE,

THE COURT: OKAY.

MS. CHAN: AND THEN IN ADDITION TO THAT, AS YOUR HONOR
NOTED IN YOUR TENTATIVE, THE BANK HAD AMPLE OPPORTUNITY AND WAS
REQUIRED TO RECONSIDER CLAIMS PURSUANT TO THE TERMS OF THE
FEDERAL PRELIMINARY INJUNCTION ORDER. AND THE BANK SAYS IN

THETR INTERROGATORY RESPONSE, AGAIN AT DEFENDANT'S EXHIBIT 43,

SO THE BANK ITSELF, AS A FINANCIAL INSTITUTION WITH
ANTI-MONEY LAUNDERING OBLIGATIONS AS THE BANK REPEATEDLY
UNDERSCORES, HAS OBLIGATIONS, HAS VERY SOPHISTICATED TOOLS
WITHIN ITS OWN OPERATIONS TO IDENTIFY INDIVIDUALS AND TO

IDENTIFY INDIVIDUALS WHO MAY OR MAY NOT BE FRAUDSTERS. AND
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.614147

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Pee. §3=28ND AS YOUR HONOR NOTED, THE BANK HAS A
SORRY, YOUR HONOR, I -- I'M ABOUT TO DISCUSS SOME MATTERS THAT
HAVE BEEN DESIGNATED "CONFIDENTIAL," AND I WOULD LIKE THE
OPPORTUNITY TO DISCUSS THE RECORD FULLY, BUT I DON'T WANT TO
RAISE ISSUES GIVEN THAT WE DO HAVE AN OPEN COURTROOM.

THE COURT: ALL RIGHT. SO IS THIS SOMETHING THAT YOU
CAN REFER TO BY CITING THE RECORD AND GIVING SOME GENERAL IDEA
OF WHAT THE -- WHAT THE SUBSTANCE CONSISTS OF?

MS. CHAN: I CAN -- I CAN TRY TO DISCUSS IT IN GENERAL
TERMS, BUT I DO WANT TO BE CONCRETE ABOUT WHAT THE EVIDENCE
SHOWS.

THE COURT: DO YOU WANT TO APPROACH SIDEBAR WITH
OPPOSING COUNSEL AND OUR REPORTER TO TAKE DOWN THAT INFORMATION
TO MAKE THE RECORD?

MS. CHAN: PERHAPS I CAN JUST CONFER WITH MR. MCGARRY
BRIEFLY?

THE COURT: OKAY.

MR. RUBIN: YOUR HONOR, WHILE THEY'RE CONFERRING --
MICHAEL RUBIN -- I'M NOT SURE THERE IS ANYONE IN THE COURTROOM
WHO'S NOT COURT STAFF OR PARTY.

THE COURT: THAT WAS SOMETHING THAT MY CLERK POINTED
OUT, BUT AT THE SAME TIME, I DON'T -- I RECOGNIZE MORE THAN
HALF OF THE PEOPLE IN THE COURTROOM, BUT I DON'T RECOGNIZE

EVERYONE. AND TO THE EXTENT THAT THERE WOULD BE SOMEONE WHO IS
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FROM EITHER A NEWSPAPER OR FROM SOME OTHER CAMP THAT COULD POSE
A PROBLEM FOR YOU, THEN I WANT TO BE RESPECTFUL.

MR. RUBIN: SURE. WHILE --

THE COURT: AND SO TO THE EXTENT THAT YOU'RE
COMFORTABLE PROCEEDING IN OPEN COURT, THEN WE CAN ADDRESS THE
SEALED PORTIONS BY WAY OF THE TRANSCRIPTS. THAT'S FINE.

MR. RUBIN: YOUR HONOR, WHILE I AGREE THAT EVERYONE IN
THE PUBLIC HAS THE RIGHT TO BE HERE, IF THERE ISN'T, CAN WE
SIMPLY ASK IF THERE'S ANYONE IN THE COURTROOM WHO IS NOT
AFFILIATED WITH THE COURT OR EITHER PARTY? AND WE'RE NOT GOING
TO EXCLUDE THAT PERSON, OF COURSE, BUT THAT INFORMS WHAT WE CAN
SAY.

THE COURT: ALL RIGHT. IS THERE ANYONE WHO'S NOT
ASSOCIATED WITH THE COURT EITHER AS A LAW CLERK, EXTERN, OR

MR. RUBIN: JI THINK WE'RE GOOD.

MS. CHAN: GREAT. OKAY.

THE COURT: THAT ASSUMES THAT THAT PERSON WHO'S NOT A
MEMBER OF THE COURT WAS HONEST AND --

MR. McGARRY: JI HAVE FAITH IN HUMANITY, YOUR HONOR.

THE COURT: ALL RIGHT. WELL, GOOD. THAT'S WHAT THIS
CASE IS ABOUT, RIGHT?

MS. CHAN: OKAY. JI APOLOGIZE FOR THE DISRUPTION, YOUR

HONOR. THANK YOU. SO AS I WAS SAYING, THE BANK HAS gg
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Page 40 of 59

SO THE BANK HAS HAD AMPLE RESOURCES TO INVESTIGATE THESE

INDIVIDUAL CLAIMS.

THE OTHER IMPORTANT POINT I WANT TO UNDERSCORE -- AND
THIS IS DISCUSSED AT LENGTH IN YOUR HONOR'S TENTATIVE AS WELL
WITH WHICH WE STRONGLY AGREE -- THE BANK HAS AN AFFIRMATIVE
OBLIGATION UNDER EFTA TO INVESTIGATE THESE CLAIMS REALLY WITHIN
THE FIRST TEN DAYS OF THE CLAIM BEING FILED. BUT CERTAINLY AT

THIS POINT, THE BANK HAS HAD MORE THAN FOUR YEARS TO
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.614140

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Page 41 of 59

REINVESTIGATE THESE CLAIMS. WHAT WE HEARD MR. MCGARRY SAY IS

MM. «9 BUT THE BANK CANNOT NOW RELY ON ITS IGNORANCE OF

WHETHER THESE CLAIMS WERE ULTIMATELY MERITORIOUS OR NOT AND

RELY ON THE FACT THAT
Pe 32ND NOW USE THAT PROFESSED IGNORANCE

TO DENY THE CLAIMS OF P| INDIVIDUAL CALIFORNIANS WHO WERE
ALL VICTIMIZED BY THE BANK'S COMMON POLICIES AND PROCEDURES AND
WHO ALL HAVE RIGHTS UNDER EFTA.

AS -- AS MR. MCGARRY IDENTIFIED, EFTA IS REALLY AT THE
CORE OF THIS CASE. AND EFTA IS A REMEDIAL STATUTE WHOSE
PRIMARY OBJECTIVE IS -- IS THE PROTECTION OF CONSUMER RIGHTS IN
WHICH THE NINTH CIRCUIT HAS SAID "MUST BE CONSTRUED LIBERALLY
IN THE CONSUMER'S FAVOR" TO FURTHER THOSE CONSUMER-PROTECTION
OBJECTIVES. EFTA GUARANTEES ALL EDD CARDHOLDERS A CERTAIN
NUMBER OF SPECIFIC SUBSTANTIVE RIGHTS. ONE, AS YOUR HONOR
NOTES, IS A RIGHT TO A SUBSTANTIVELY REASONABLE AND ADEQUATE AS
WELL AS TIMELY INVESTIGATION, AS WELL AS THE PAYMENT OF
PROVISIONAL CREDIT WITHIN THE FIRST TEN DAYS IF THAT
INVESTIGATION IS NOT YET COMPLETE WHICH IS TO BE MADE PERMANENT
BY DAY 45.

AND AS YOUR HONOR NOTES, EFTA CREATES A PRESUMPTION IN

FAVOR OF THE CONSUMER THAT THE CLAIM IS, IN FACT, VALID AND
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.614181

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Page 42 of 59

PLACES THE BURDEN ON THE BANK TO REBUT THAT PRESUMPTION OF
CLAIM VALIDITY THROUGH ACTUAL CONCRETE EVIDENCE. THE -- THE
BANK HAS AN OBLIGATION, A BURDEN TO PROVE THAT THE TRANSACTION
WAS, IN FACT, AUTHORIZED BY THE CARDHOLDER AND IS NOT A VALID
CLAIM, AND THAT IS THE SOLE BASIS ON WHICH THE BANK IS ALLOWED
TO DENY AN INDIVIDUAL'S CLAIM. TO ENSURE THAT THESE
PROTECTIONS, THESE CONSUMER PROTECTIONS ARE STRICTLY ADHERED
TO, EFTA CREATES STRICT LIABILITY AND PROVIDES FOR STATUTORY
DAMAGES IN THE EVENT OF A VIOLATION, EVEN IN THE ABSENCE OF A
SHOWING OF PECUNIARY HARM RESULTING FROM THESE VIOLATIONS OF
LAW. AND, FURTHERMORE, EFTA CREATES AN ENTITLEMENT TO TREBLE
DAMAGES TO ENSURE THAT THE PROVISIONS REQUIRING THE PAYMENT OF
PROVISIONAL CREDIT AND THE RIGHT TO AN ADEQUATE AND TIMELY
INVESTIGATION ARE ADHERED TO.

AS YOUR HONOR CORRECTLY NOTES IN THE TENTATIVE ORDER,
WHETHER THE BANK'S CLAIM FRAUD FILTER POLICIES VIOLATED THESE
REQUIREMENTS UNDER EFTA AND WHETHER IT GIVES RISE TO AN
ENTITLEMENT TO TREBLE DAMAGES ARE COMMON ISSUES THAT APPLY
FQUALLY TO ALL MEMBERS OF THE CLAIM DENIAL AND THE CREDIT
RESCISSION CLASSES.

I ALSO WANT TO ADDRESS THE POINT THAT MR. MCGARRY MADE

ABOUT THE CREDIT RESCISSION CLASS IN PARTICULAR. THOSE ARE

INDIVIDUALS, REMEMBER, WHO'S
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.614192

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Page 43 of 59

I WANT TO ADDRESS THE REMEDIATION PLAN IN PARTICULAR.
THAT IS CERTAINLY NOT THE ONLY BASIS FOR WHY THERE IS REASON TO
BE CONFIDENT THAT OUR CLASSES, AS VERY NARROWLY DEFINED, DO NOT

INCLUDE A GREAT NUMBER OF UNINJURED INDIVIDUALS. BUT THE

REMEDIATION PLAN IS PARTICULARLY IMPORTANT BECAUSE a
ee «CEAT'S SET FORTH IN ITS REMEDIATION PLAN

AT PLAINTIFF'S EXHIBIT 74. AND TO THAT END, THE BANK SAID THAT
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.6142Q3

—

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Page 44 of 59

IN OTHER WORDS, ANYBODY -- EVERYONE IN OUR CLASS OF

MM) «INDIVIDUALS FALLS INTO ONE OF TWO CATEGORIES; J

AS YOUR HONOR CORRECTLY NOTED, THE CASE LAW DOES NOT
REQUIRE PLAINTIFFS TO SHOW THAT AS THE BANK SAYS ON PAGE 19 OF
ITS OPPOSITION THAT THE CLASS IS, QUOTE, 100 PERCENT PURGED OF
UNINJURED INDIVIDUALS. THE CASE LAW SAYS IN TYSON FOODS THAT
SO LONG AS PLAINTIFFS HAVE SHOWN THAT THERE ARE CENTRAL, COMMON
ISSUES THAT PREDOMINATE, A CLASS CAN BE CERTIFIED EVEN IF THERE
ARE INDIVIDUALIZED ISSUES OF AFFIRMATIVE DEFENSES AND DAMAGES.
THE NINTH CIRCUIT SAID AGAIN IN OLEAN THAT A CLASS CAN BE
CERTIFIED WHERE COMMON ISSUES PREDOMINATE, EVEN IF IT IS
POSSIBLE THAT THE CLASS INCLUDES MORE THAN A DE MINIMIS NUMBER
OF UNINJURED INDIVIDUALS. AND IMPORTANTLY IN RUIZ-TORRES, THE
NINTH CIRCUIT AGAIN EXPLAINED THAT THE -- THE CORE CONCERN IS

THAT A CLASS IS NOT DEFINED SO BROADLY AS TO SWEEP IN A GREAT
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.6142%4

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Page 45 of 59

NUMBER OF INDIVIDUALS WHO COULD NOT POSSIBLY BE INJURED BECAUSE
THEY SIMPLY WERE NOT SUBJECT TO THE CONDUCT THAT IS BEING
CHALLENGED. WE CERTAINLY DO NOT HAVE THAT PROBLEM HERE. THERE
IS NO DISPUTE THAT EVERY MEMBER OF EACH OF OUR FIVE PROPOSED
CLASSES WAS EQUALLY SUBJECT TO THE EXACT SAME UNIFORMLY-APPLIED
COMMON BANK POLICIES AND PROCEDURES WHICH COMMON EVIDENCE WILL
SHOW THE BANK ENACTED AND ADOPTED TO PROTECT ITS OWN PROFITS
DESPITE KNOWING THAT IT WAS DOING SO AT THE EXPENSE OF
LEGITIMATE CARDHOLDERS' INTERESTS.

FURTHERMORE, AS YOUR HONOR NOTES IN THE TENTATIVE, WE
HAVE ENSURED THAT OUR CLASSES DO NOT SWEEP IN A GREAT NUMBER OF
UNINJURED INDIVIDUALS BECAUSE WE HAVE NARROWLY DEFINED THOSE
CLASSES IN TWO IMPORTANT WAYS. AS YOUR HONOR NOTES, IT IS
LIMITED TO INDIVIDUALS WHO TRIGGERED INDICATOR 1 AND INDICATOR
1 ALONE. AS -- AS THE BANK ACKNOWLEDGES, THERE WERE MANY --
En =O NDIVIDUALS WHO WERE TRIGGERED -- WHO
TRIGGERED ADDITIONAL CLAIM FRAUD FILTERS BEYOND INDICATOR 1,
AND BY DEFINITION, THOSE INDIVIDUALS ARE EXCLUDED FROM OUR
CLASS.

AND -- AND, TWO, OUR CLASS DEFINITIONS EXCLUDE ALL
INDIVIDUALS WHO ARE DETERMINED BY THE BANK TO HAVE ENGAGED IN
ANY KIND OF BENEFITS ENROLLMENT OR PROGRAM FRAUD. AS YOUR
HONOR NOTES, THE BANK HAS NOT MADE AN EVIDENTIARY SHOWING THAT
THERE WAS A SIGNIFICANT -- ANYTHING CLOSE TO A SIGNIFICANT

NUMBER OF INDIVIDUALS IN OUR CLASS WHO DO NOT HAVE -- HAVE
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Page 46 of 59

NOT -- WHO ARE UNINJURED. AND THE CASE LAW IS VERY CLEAR THAT
WHEREAS HERE PLAINTIFFS HAVE MADE A SHOWING THAT COMMON ISSUES
PREDOMINATE, THE DEFENDANT CANNOT OVERCOME THAT SHOWING OF
PREDOMINANCE BY MERELY SPECULATING THAT THERE ARE SOME
AFFIRMATIVE DEFENSES THAT MAY APPLY TO INDIVIDUALS OR BY
POINTING TO A MERE SMATTERING OF EXAMPLES WHICH IS ALL THAT THE
BANK HAS DONE HERE.

THE COURT: WOULD YOU LIKE TO RESPOND TO THE -- IF NOT

THE INVITATION, THE DEFENSE POSITION THAT IF WE'RE GOING TO

EXCLUDE THOSE WHO [aes
MS. CHAN: WELL, YOUR HONOR, I THINK WE WOULD BE

WILLING TO AGREE TO MODIFY THE CLASS DEFINITION SO THAT IT

EXCLUDES ANYBODY WHO [a

AGAIN, THOSE ARE INDIVIDUALS WHO ARE READILY IDENTIFIABLE FROM
THE BANK'S OWN RECORDS.

AS TO THE OTHER HYPOTHETICAL SITUATIONS THAT THE BANK
RAISES, AGAIN I DON'T BELIEVE THE BANK HAS MET ITS BURDEN OF

POINTING TO ANY EVIDENCE THAT THAT IS A DEFENSE THAT IS LIKELY
Case 3:21-md-02992-GPC-MSB Document 733-4 Filed 06/08/26 PagelD.61423 6

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Page 47 of 59

TO IMPACT A SIGNIFICANT NUMBER OF OUR PROPOSED EMV CHIP CLASS

MEMBERS. AND OUR EXPERT, OUR EMV CHIP EXPERT, JANE CLONINGER,

HAS OFFERED HER OPINION THAT iy

AS ACKNOWLEDGED BY THE BANK'S OWN DOCUMENTS -- WE CITED A

NUMBER OF EXHIBITS -- THE BANK'S OWN DOCUMENTS i

BECAUSE OF THE KNOWN VULNERABILITY OF THESE CARDS. THAT IS
INFORMATION THAT IS ACKNOWLEDGED IN THE BANK'S OWN DOCUMENTS,

AND OUR EXPERT PROVIDES HER OPINION AS TO WHY THAT IS -- J

Pv FOR OUR CLASS

MEMBERS' UNAUTHORIZED TRANSACTIONS THAT THEY FELL VICTIM TO.
THE COURT: IS YOUR VIEW THAT UNAUTHORIZED ACCESS
WOULD NOT HAVE BEEN POSSIBLE UNLESS THE CARD WAS USED, UNLESS
THE CARD WAS SWIPED?
MS. CHAN: WELL, YOUR HONOR, I THINK ANOTHER REASON
WHY THE EMV CHIP CLASS CERTAINLY SHOULD BE CERTIFIED IS BECAUSE
THE CCPA CLAIM SAYS THAT FINANCIAL INSTITUTIONS SUCH AS THE

BANK HAVE THIS OBLIGATION TO USE REASONABLE SECURITY MEASURES.
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Page 48 of 59

AND HERE IT IS A COMMON CLASS-WIDE QUESTION WHETHER THE BANK'S
FAILURE TO INCLUDE EMV CHIPS IN EVERY SINGLE CARDHOLDER'S CARD
SUBJECTED THEM TO A HEIGHTENED RISK OF EXFILTRATION OF THEIR

DATA. IT'S UNDISPUTED AND IT'S SET FORTH IN OUR EXPERT'S

REPORT THAT

THE COURT: SO THAT'S THE THEORY THAT THE PLAINTIFFS
ARE OPERATING UNDER AS TO THE SECOND ELEMENT ON THE EMV CHIP
CLASS, THAT THERE WAS THIS EXFILTRATION VERSUS THEFT OR
DISCLOSURE?

MS. CHAN: CORRECT, YOUR HONOR. OUR THEORIES ARE THAT
ALL OF OUR CLASS MEMBERS WERE SUBJECT TO AN UNAUTHORIZED ACCESS
AT TWO POINTS. THE FIRST IS THOSE WHOSE CARDS WERE SKIMMED,
BUT THE SECOND IS THOSE WHOSE INFORMATION WAS ACCESSED AT THE
POINT OF THE FRAUDSTER USING A COUNTERFEIT CARD TO ENGAGE IN AN

UNAUTHORIZED ATM WITHDRAWAL.

THE COURT:
MS. CHAN: 1 DON'T —~ [a

THE COURT: ALL RIGHT. ANYTHING FURTHER?
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Page 49 of 59

MS. CHAN: NO, YOUR HONOR. I THINK YOUR TENTATIVE
VERY THOROUGHLY ADDRESSES ALL OF THE POINTS THAT THE BANK HAS
MADE. IF THERE ARE ANY OTHER QUESTIONS THAT THE COURT WOULD
LIKE ME TO ADDRESS, I'D BE MORE THAN HAPPY TO; BUT OTHERWISE
WE -- WE CERTAINLY AGREE WITH THE COURT'S TENTATIVE AND
RESPECTFULLY ASK THAT THE COURT ADOPT THE TENTATIVE AS ITS
RULING.

THE COURT: ALL RIGHT. LET ME RETURN TO MR. MCGARRY.
DO YOU WISH TO REPLY OR ANYONE ELSE FROM THE DEFENSE TEAM WISH
TO REPLY TO ANY ARGUMENTS THAT WERE JUST MADE?

MR. McGARRY: JUST A FEW POINTS, YOUR HONOR. ONE IS
MS. CHAN SAID I THINK FOUR OR FIVE TIMES THAT THEIR CLASS AND
THE CASE LAW ALLOWS FOR UNINJURED INDIVIDUALS TO BE INCLUDED,
AND I MADE THE DISTINCTION EARLIER WHICH SHE DOESN'T ADDRESS
THAT WHAT WE'RE TALKING ABOUT IS -- WERE -- IS PEOPLE WHO WERE
ACTIVELY ENGAGED IN FRAUD AS OPPOSED TO PEOPLE WHO WERE
UNINJURED.

THE REFERENCE TO -- ON -- ON THE ISSUE OF THE
REMEDIATION PLAN EXCLUDING EVERYONE WHO COMMITTED FRAUD AND

THEREFORE HAD SOLVED THE PROBLEM, THE DEFINITION THAT SHE READ,

SHE -- SHE LEFT OFF -- AND THEY DID THIS IN THE REPLY BRIEF --
LEFT OFF THE FIRST WORD OF THE -- OF THE QUOTE WHICH IS
"PREVIOUSLY." SO IF THE BANK HAD PREVIOUSLY MADE

DETERMINATIONS THAT PEOPLE HAD ENGAGED IN SOME SORT OF FRAUD,

THEN THEY WERE EXCLUDED FROM THE CLASS. THAT HAS NOTHING
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Page 50 of 59

WHATSOEVER TO DO WITH THE [MM PEOPLE WHO ARE GOING FORWARD
AND HAVE BEEN PAID.

THE -- I THINK YOUR HONOR ASKED THE RIGHT QUESTION OF

MS. CHAN ON THE
RE, sHAT'S THE PREDOMINATING

THEORY OF THE PLAINTIFFS' CASE, THAT SOMEHOW THE -- J

~

BUT THAT'S -- THAT'S NOT NECESSARILY THE CASE.
THE -- THE LAST POINT I'LL MAKE ON THE -- ON THIS --
ON THIS SKIMMING AND EXFILTRATION ISSUE IS MS. CHAN MADE

REFERENCE TO A COUPLE OF POINTS IN THE RECORD ABOUT aay

GR, «AND THEN WE DON'T DISPUTE THAT. BUT WHAT IS CLEAR IS
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Page 51 of 59

Pe )=36AND IF YOU WOULDN'T MIND, I'M GOING TO

ASK MR. RIFFEE TO ADDRESS ONE MORE ISSUE, YOUR HONOR.

THE COURT: OF COURSE.

MR. RIFFEE: THANK YOU, YOUR HONOR. AND JUST ONE
ADDITIONAL POINT, I THINK SOMETHING THAT MS. CHAN RAISED AT THE
BEGINNING OF HER ARGUMENT -- OR HER RESPONSE WHEN SHE

REFERENCED "D EX" -- OR "DEFENDANT'S EXHIBIT 43" AND NOTING

IT DOESN'T

HAVE THAT INFORMATION. AS THE CALIFORNIA STATE AUDITOR, AS THE
CALIFORNIA LEGISLATURE HAS NOTED, EDD HAD MANY ISSUES WITH WHAT
IT DID OR DID NOT DO IN TERMS OF ACTUALLY VERIFYING PEOPLE'S
ELIGIBILITY FOR BENEFITS, AND THE DEPARTMENT OF LABOR, THE
HOUSE COMMITTEE, THE DOJ HAS ALL SAID THAT MUCH OF THE FRAUD
STILL IS NEVER GOING TO BE RECOVERED, AND MANY OF THE
FRAUDSTERS OR THE CRIMINALS ARE NEVER GOING TO BE IDENTIFIED.

BUT, YES, SOME OF THE INDIVIDUALS AND PLAINTIFFS' PROPOSED EFTA
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Page 52 of 59

THE -- IN YOUR TENTATIVE RULING,

THE COURT: ALL RIGHT. SO WE WILL TAKE THE MATTER
UNDER SUBMISSION, BUT WE EXPECT THAT WE'LL ISSUE A FINAL
OPINION WITHIN THE NEXT THREE OR FOUR DAYS. I THINK MONDAY IS
A HOLIDAY. SO WE INTEND TO ISSUE AN ORDER NEXT WEEK. AND SO
THEN WITH THAT, THAT RAISES THE QUESTION AS TO MOVING FORWARD
WITH THIS CASE. NOW THAT WE'VE HANDLED THIS BIG-TICKET ITEM, I

WOULD LIKE TO BECOME MORE INVOLVED THAN I HAVE BEEN IN
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Page 53 of 59

OVERSEEING AND SHEPHERDING THE CASE FORWARD, AND SO I WILL
LIKELY BE SETTING SOME REGULAR KIND OF STATUS CONFERENCES TO
SEE WHERE THINGS LIE. BUT AT THIS MOMENT, LET ME ASK, WHAT DO
YOU SEE AHEAD OF THE BEND OR AT THE BEND THAT WE WILL WANT TO
TAKE UP IN THE FORESEBABLE FUTURE? ANYTHING, MS. CHAN?

MS. CHAN: YES. APPRECIATE THAT, YOUR HONOR. I THINK
THE NEXT ISSUE TO BE ADDRESSED WOULD BE CLASS NOTICE. AND
PLAINTIFFS WOULD BE HAPPY TO, YOU KNOW, PREPARE A PROPOSAL OF
PROPOSED CLASS NOTICE TO THAT END.

THE COURT: ALL RIGHT. SO TO THE EXTENT THAT WE THEN
TAKE CARE OF THE -- KIND OF FINALIZE WHAT CORRESPONDS TO THEN
THE CLASS CERTIFICATION, DO YOU ANTICIPATE ANY DISCOVERY OR
EXPERT ISSUES THAT WE WILL WANT TO TAKE UP, AND AT WHAT POINT
DO YOU THINK WE SHOULD THINK ABOUT A TRIAL DATE?

MR. RUBIN: I'M HAPPY TO RESPOND. FIRST, YOUR HONOR,
WE DO WANT TO THANK JUDGE BERG WHO HAS STAYED ON TOP OF THIS
AND REALLY HAS SET CONFERENCES EVERY TWO OR THREE WEEKS OVER
THE LAST YEAR AND HAS HELPED MOVE US TO THIS POINT. WE WILL
CONTINUE TO MEET WITH HIM. WE HAVE ANOTHER MEETING SCHEDULED.
WE'RE HAVING -- WE'RE WORKING OUT DISCOVERY ISSUES. THE -- THE
CLASS NOTICE, WE'VE DISCUSSED INTERNALLY WHAT THE PARAMETERS
WOULD BE IF THIS WERE YOUR HONOR'S RULING. WE CAN WORK OUT THE
TIMING AND MEET AND CONFER WITH THE BANK'S COUNSEL. WE'VE GOT
VERY GOOD RELATIONS AMONG COUNSEL. YES, I THINK THAT PROBABLY

AT THE NEXT STATUS CONFERENCE WE SHOULD TALK ABOUT TRIAL DATES,
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WE SHOULD TALK ABOUT ADDITIONAL EXPERTS. WE DO HAVE AN EXPERT
DISCLOSURE DATE. THE DATES HAVE BEEN EXTENDED FOR AN
ADDITIONAL MONTH. THE PARTIES, IN LIGHT OF YOUR HONOR'S
TENTATIVE AND RULING, WILL PROBABLY GIVE ADDITIONAL THOUGHT TO
WHETHER WE NEED MORE EXPERTS THAN WE HAVE, BUT THERE'S TIME FOR
THAT. THERE'S TIME FOR THE EXPERT DISCOVERY. WE HAVE OTHER
MATTERS PENDING BEFORE JUDGE BERG THAT HOPEFULLY HE'LL BE ABLE
TO RESOLVE. IF NOT, LIKE ONE OF THE ISSUES THAT CAME BEFORE
HIM PREVIOUSLY THAT WAS THEN SUBMITTED TO YOU, IT MAY COME TO
YOU. BUT I THINK THAT THOSE ARE THE PRINCIPAL ISSUES THAT
WE'RE -- WE'RE FOCUSING. FOR EXAMPLE, WE HAVE PENDING BEFORE
JUDGE BERG DISCUSSIONS ABOUT DEPOSITIONS OF TWO OF THE BANK'S
EXECUTIVES, MR. MONTAG AND MR. MOYNIHAN. YOU RECALL THEM FROM
THE RULING YOU MADE ABOUT THEIR DOCUMENTS NOW THAT WE'VE SEEN
THEIR DOCUMENTS. WHAT JUDGE BERG ORDERED WAS THAT WE TAKE
ADDITIONAL DEPOSITIONS OF SUBORDINATE BANK EXECUTIVES. WE'VE
STARTED THAT PROCESS. WE'VE AGREED ON A SCHEDULE WITH THE
BANK. AND THEN WE'RE GOING TO REVISIT WITH JUDGE BERG THE
APPROPRIATENESS OF THOSE REMAINING TWO DEPOSITIONS. THAT MAY
COME BEFORE YOU. PERHAPS WE CAN RESOLVE IT WITH JUDGE BERG.
WE'RE NOT SURE. BUT THOSE ARE THE SORT OF ISSUES THAT HAVE
BEEN PERCOLATING.

THE COURT: ALL RIGHT. AND WHAT I MAY DO -- WHAT I
WILL DO IS I'LL TALK TO JUDGE BERG AND THEN SEE IF SOME OF

THESE ISSUES ARE JUST SO CLEARLY ONES THAT WOULD END UP BEING
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APPEALED TO ME THAT WE'LL JUST KIND OF CUT TO THE CHASE AND
HAVE THOSE ISSUES PRESENTED TO THE DISTRICT COURT.

MR. RUBIN: AND THAT WOULD SAVE ALL OF US SOME -- SOME
TIME AND MONEY, AND WE WOULD APPRECIATE THAT.

THE COURT: WELL, GIVEN THAT THIS IS A 2021 CASE, I'M
EKFAGER TO MOVE THIS FORWARD AS QUICKLY, AS PRACTICAL, AS QUICKLY
AS -- AS IS PRUDENT.

MR. MCGARRY, DO HAVE YOU ANY OFFERINGS AS TO MOVING
FORWARD?

MR. McGARRY: JI THINK THE PLAINTIFFS HAVE SUMMED IT UP
REASONABLY WELL. OBVIOUSLY WE HAVEN'T TALKED ABOUT NOTICE. I
THINK THEIR CHARACTERIZATION OF OUR WORKING RELATIONSHIP WITH
JUDGE BERG IS ACCURATE. I THINK HE -- JUDGE BERG HAS HELPED
ALL OF US STAY ON TRACK AND MOVED THINGS ALONG. AND, YEAH, I

MEAN, WE'RE AWARE OF THE ISSUES THAT THE PLAINTIFFS RAISED.

THERE'S A SCHEDULING ORDER IN THE CASE WHICH HAS PRE-TRIAL -- A
PRE-TRIAL DATE OF -- I FORGET -- SEPTEMBER, OCTOBER, SOMETHING
LIKE THAT.

THE COURT: OF THIS YEAR?

MS. BRYS: SEPTEMBER 12TH.

MR. MCGARRY: SEPTEMBER 12TH? YOU KNOW, WHETHER
THAT'S REALISTIC ACHIEVABLE IN LIGHT OF SUMMARY JUDGMENT
DEADLINES AND EXPERT DEADLINES AND THE LIKE REMAINS TO BE SEEN,
BUT THERE'S A REASONABLY-AGGRESSIVE SCHEDULE THAT'S CURRENTLY

IN PLACE AND -- IF THAT HELPS, YOUR HONOR --
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THE COURT: AND YOU EXPECT THAT WE WILL SEE MOTIONS
FOR SUMMARY JUDGMENT FROM ONE SIDE OR THE OTHER?

MR. RUBIN: JI THINK THAT'S LIKELY, YOUR HONOR.

MR. McGARRY: J WOULD BE SURPRISED IF YOU DIDN'T GET
THEM FROM BOTH SIDES.

THE COURT: FROM BOTH SIDES. OKAY. ALL RIGHT. WELL,
I'M NOT GOING TO TRY TO REINVENT THE WHEEL IN TERMS OF ASKING
JUDGE BERG TO STEP ASIDE AS TO DISCOVERY ISSUES GIVEN HIS, I
THINK, MORE -- HIS INSTITUTIONAL KNOWLEDGE REGARDING A LOT OF
THIS, BUT IN THOSE CASES WHERE IT'S CLEAR THAT THERE IS GOING
TO BE AN APPEAL TO THE DISTRICT COURT, I THINK IT DOES MAKE
SENSE TO KIND OF TRY TO, IF NOT SHORT -- TRY TO SPEED UP THAT
PROCESS BY COMING TO THE COURT AS AN INITIAL MATTER. AND ALSO
I THINK I WILL SCHEDULE STATUS CONFERENCES AT LEAST EVERY FOUR
TO SIX WEEKS JUST TO KIND OF SEE WHERE WE'RE AT AND TO SEE IF
THERE'S ANY KIND OF FOLLOW-UP TO WHAT'S HAPPENING BEFORE JUDGE
BERG AND TO SEE IF WE CAN MAYBE NIP SOMETHING IN THE BUD OR
ADDRESS SOMETHING AND GIVE YOU ALL MY VIEW ON THINGS. ALL
RIGHT?

MR. RUBIN: YES. THANK YOU, YOUR HONOR.

THE COURT: ANYTHING ELSE?

MS. CHAN: I'M SORRY, YOUR HONOR, BUT JUST ONE SMALL
TECHNICAL ISSUE WE NOTED WITH THE TENTATIVE. ON PAGE 19, ONE
OF OUR NAMED PLAINTIFFS, AZURI MOON, HIS PRONOUNCES ARE

"HE/HIM," AND HE'S REFERRED TO AS "SHE" IN THE TENTATIVE. IF
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YOU WOULDN'T MIND MAKING THAT CORRECTION --

THE COURT: OKAY.

MS. CHAN: -- WE'D APPRECIATE IT.

THE COURT: THANK YOU. ANYTHING ELSE?

MR. McGARRY: ONE SECOND, YOUR HONOR. NOTHING ELSE
FROM US, YOUR HONOR.

THE COURT: LET ME DO THIS. LET ME ASK YOU TO MEET
AND CONFER AND THEN IDENTIFY THOSE PORTIONS OF THE TRANSCRIPT
THAT WE WILL WANT TO HAVE SEALED. I DON'T KNOW IF IT MAKES
SENSE TO WAIT FOR A DRAFT TO BE PREPARED AND -- AND -- BEFORE
IT'S MADE PUBLIC -- AND THEN HAVE YOU REVIEW THAT AND IDENTIFY
THE SECTIONS, OR IF YOU ALREADY KNOW WHAT IT IS THAT OCCURRED
AT THIS HEARING THAT WE NEED TO SEAL OFF.

MR. McGARRY: JI WOULD SUGGEST, YOUR HONOR, KNOWING
FROM -- FROM MY TEAM'S PERSPECTIVE HOW TIME-CONSUMING IT HAS
BEEN TO TRY TO PROPOSE REDACTIONS GOING FORWARD AND NOT EVEN
INCLUDING THE MEET-AND-CONFER PROCESS, JUST ACTUALLY DOING
THAT, THAT IT PROBABLY MAKES SENSE TO HAVE A DRAFT WRITTEN, A
DRAFT TRANSCRIPT. AND I WOULD SAY THE SAME THING WITH RESPECT
TO YOUR ORDER AS YOUR CURRENT -- THE TENTATIVE ORDER HAS -- HAS
A LOT OF INFORMATION IN IT THAT YOU'VE PREVIOUSLY FOUND SEALED.
WE CAN WORK OFF THE TENTATIVE IF YOU WANT US TO, BUT IT

PROBABLY MAKES SENSE TO HAVE A FINAL ORDER THAT WE COULD THEN

THE COURT: ALL RIGHT. WE CAN DO THAT. I'LL ASK THE
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COURT REPORTER TO PREPARE A DRAFT OF THE TRANSCRIPT, AND THEN
UPON HAVING IT ISSUED AND REVIEWING IT AND MEETING AND
CONFERRING, YOU CAN EITHER AGREE UPON WHAT PORTIONS TO BE
SEALED, OR TO THE EXTENT THAT YOU DON'T AGREE, YOU CAN OFFER
YOUR OWN RESPECTIVE VIEWS ON THE PORTIONS THAT YOU DON'T AGREE
UPON, RIGHT.

MR. McGARRY: JI SUSPECT, YOUR HONOR, BECAUSE YOU'VE
GIVEN US PRETTY CLEAR GUIDANCE IN YOUR PRIOR ORDERS THAT WE
SHOULD BE ABLE TO WORK THOSE OUT WITHOUT MUCH DIFFICULTY.

THE COURT: OKAY. AND THEN WHEN WE FINALIZE THE ORDER
THAT WOULD OTHERWISE BE READY TO FILE, WE'LL PROVIDE IT TO YOU
AGAIN FOR YOUR REVIEW AND SO THAT THEN YOU CAN IDENTIFY THE
PORTIONS THAT WOULD REQUIRE ADDITIONAL ATTENTION, RIGHT?

MR. McGARRY: THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU ALL SO MUCH FOR YOUR
ARGUMENTS, AND GOOD TO SEE YOU ALL, AND WE'LL SEE YOU SOON.

ALL COUNSEL: THANK YOU, YOUR HONOR.

(WHEREUPON, THE PROCEEDING CONCLUDED AT 3:05 P.M.)
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-o00-

I certify, by signing below, that the foregoing is a correct
stenographic transcript of the oral proceedings had in the
above-entitled matter this 17th day of January, 2025. A
transcript without an original signature or conformed signature
is not certified. I further certify that the transcript fees
and format comply with those prescribed by the Court and the
Judicial Conference of the United States.

/S/ JENNIFER GIBSON

JENNIFER G. GIBSON, CSR NO. 12802


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