Kyc Company Litigation (2026-06-08)

Summary

Document 733-5, filed June 8, 2026 in In re Bank of America California Unemployment Benefits Litigation, No. 21-md-2992-GPC-MSB, is the transcript of the May 21, 2026 motion hearing before United States District Judge Gonzalo P. Curiel in San Diego. Judge Curiel said the court had been preparing a tentative ruling on the pending motion for summary judgment and motions to exclude expert testimony when Bank of America filed a notice about Department of Labor reviews bearing on whether fraudsters are within the certified class. Michael Rubin of Altshuler Berzon, for the plaintiffs, argued the filing does not affect summary judgment and asked to reopen discovery if the bank moves for decertification. Sabrina Rose-Smith of Goodwin Proctor said the bank intends to move for decertification. The court asked the parties to meet and confer on discovery, and the hearing ended at 2:38 p.m.

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Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61436

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

IN RE: BANK OF AMERICA - Docket
CALIFORNIA UNEMPLOYMENT - No. 21-md-2992-GPC-MSB

BENEFITS LITIGATION

- May 21, 2026
1:30 p.m.

San Diego, California

TRANSCRIPT OF MOTION HEARING
BEFORE THE HONORABLE GONZALO P. CURIEL
UNITED STATES DISTRICT JUDGE
(PAGES 1 THROUGH 42, INCLUSIVE. )

For the Plaintiffs:

A-P-P-E-A-R-A-N-C-E-S

Altshuler Berzon LLP
177 Post Street, Suite 300
San Francisco, California 94108
By: MICHAEL RUBIN, ESQ.
CONNIE K. CHAN, ESQ.
JAMES BALTZER, ESQ.

—- and -

Cotchett, Pitre & McCarthy
San Francisco Airport Office Center
840 Malcolm Road
Burlingame, California 94010
By: BRIAN DANITZ, ESQ.
REGINA WANG, ESQ.
VASTI S. MONTIEL, ESQ.

- and -

CaseyGerry

110 Laurel Street

San Diego, California 92101

By: DAVID S. CASEY JR., ESQ.
GAYLE M. BLATT, ESQ.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61437

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A-P-P-E-A-R-A-N-C-E-S (CONTINUED)

For the Defendant Bank of America, N.A.:

Court Reporter:

Goodwin Proctor LLP

1900 N Street, N.W.

Washington, DC 20036

By: SABRINA M. ROSE-SMITH, ESQ.
MATTHEW L. RIFFEE, ESQ.

- and -

Goodwin Proctor LLP

100 Northern Avenue

Boston, Massachusetts 02210
By: JIM McGARRY, ESQ.

—- and -

Goodwin Proctor LLP

601 South Figueroa Street, Suite 4100
Los Angeles, California 90017

By: LAURA BRYS, ESQ.

—- and -

Goodwin Proctor LLP

The New York Times Building
620 Eighth Avenue

New York, New York 10018

By: VALERIE A. HAGGANS, ESQ.

Chari Bowery, RPR, CRR

USDC Clerk's Office

333 West Broadway, Suite 420
San Diego, California 92101

Reported by Stenotype, Transcribed by Computer
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61438

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21-md-2992-—GPC-MSB 3

SAN DIEGO, CALIFORNIA; MAY 21, 2026; 1:30 P.M.
-—o00-
THE CLERK: Number one on the calendar, 21-md-2992,
In Re: Bank of America California Unemployment Benefits
Litigation, for status.
THE COURT: Appearances, please.
MR. RUBIN: Thank you, Your Honor.

For plaintiffs -- maybe we will do it by firm. Michael
Rubin, from Altshuler Berzon. With me are my colleagues,
Connie Chan and James Baltzer; and Jess Levy, who is going to
be sworn into the bar within the next week or two.

THE COURT: Congratulations.
MR. DANITZ: Good afternoon, Your Honor.

Brian Danitz of Cotchett, Pitre & McCarthy, and with me
today are Regina Wang and Vasti Montiel.

THE COURT: Good afternoon.

MR. CASEY: Good afternoon, Your Honor. Dave Casey
of CaseyGerry. My partner, Gayle Blatt, is here, Your Honor.

THE COURT: Good afternoon, Mr. Casey.

And then, from the defense side?

MS. ROSE-SMITH: Good afternoon, Your Honor. Sabrina
Rose-Smith, with Goodwin Proctor, on behalf of Bank of America.

With me are Matthew Riffee, Valerie Haggans, Jim McGarry,

and Laura Brys, all with Goodwin Proctor. And also with me is

Sunik Pour (phonetic).
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61439

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THE COURT: Good afternoon to you all.

And I will let you know that we had been working very hard
on the pending motion for summary judgment and the motions to
exclude expert testimony, and we were finalizing all of our
work so that we could issue a tentative in advance of what
would have been the hearing at this time. However, as we all
know, there was a filing the night before last related to -- if
not developments, related to ongoing reviews by the Department
of Labor and inquiries being made of Bank of America, and it
relates to an issue that has surfaced throughout these
proceedings -- at the class certification stage and even now --
as to the existence of fraudsters within the certified class
and whether or not there exists any number of fraudsters and
whether or not, moving forward, we would end up tied up with
individualized determinations, mini trials, as to these
potential fraudsters.

We have addressed the issue in the past, and the Court
would respond and say that, as of this time, Bank of America
hasn't provided any concrete evidence to that effect. So this
notice appears to respond to that finding, that conclusion,
that ongoing response from the Court.

And, certainly, the Court could have gone forward with the
motion for summary judgment. We could have had a full hearing
and we could have issued an opinion. At the same time, the

question would be, you know, why, given that we now have this
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61440

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issue, that it appears it is evolving even as we speak; that
there are additional developments, I believe, in the

declaration of Jennifer Lennon.

She notes that just recently, in May, 3 ii i

And at the same time, it just begs for a response from the
plaintiff, and then an opportunity to consider how this affects
where we are.

So with respect to that, looks to me like, Mr. Rubin, you
are ready to address that.

MR. RUBIN: I am, Your Honor.

THE COURT: Please.

MR. RUBIN: Thank you for the opportunity to at least
present a preliminary response to the bank's Tuesday night
filing and for those preliminary comments by Your Honor.

Let me start with the bottom line, and then I will explain
how we get there, because we have given thought to both what
was included in the Lennon declaration and to the various
procedural mechanisms that can be affected going forward.

Our position is that the Tuesday night filing does not

affect the summary judgment analysis in any way, and in fact,
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we advised the bank this morning, since we have, by my count,
15 attorneys here and lots of binders of documents, if the
Court were willing to entertain argument on summary judgment
and withhold decision until the Court is ready to issue it,
that would be fine with us, because we are here and we have had
some difficulty scheduling. We have obviously moved this
several times.

Our position is also that the bank's filing does not
require decertification or partial decertification; but that,
as a procedural matter, if the bank were to choose to file a
motion for full or partial decertification, that would probably
be the most appropriate motion for us to use to provide our

response to however the bank intends to rely upon this new

information.
We would request -—- and I can go through later some of the
specifics -- the opportunity to reopen discovery so we can

probe some of the ambiguities in the declaration and the
attachments so that when we respond to any file the bank -- to
any motion the bank ultimately files, we can respond factually,
because this, as you note, doesn't really explain what the bank
has determined, what DOL has determined, let alone what EDD has
determined. But that is probably the best procedural mechanism
for addressing these issues.

But let me place this in context. It's been more than

five years. This case is longstanding. The first case was
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61442

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21-md-2992-GPC-MSB

filed in November 2020,
eC
started causing injury to plaintiffs five and a half years ago.
And so, we, like Your Honor, want to move this case along.

The bank's summary judgment motion, as you recall, doesn't
actually seek summary judgment as to its liability under EFTA.
It challenges damages. It challenges various other causes of
action. But there is no significant dispute that the bank did
not conduct the statutorily required investigation of the
claimants' unauthorized claims within the required ten days.

So Your Honor will issue your decision on summary
judgment, but I think it's pretty clear as we go forward that
we have a strong liability case. Certainly, there's no
contention by the bank that there's no liability as a matter of
law as to the EFTA claim.

So the existence or nonexistence of fraudsters is not a
question of whether there's a violation of EFTA. It is really
a question of, what is the class size? Who does this affect?
Who is in and who is out?

And we have known that for a while. We have known that

since your class certification decision just about a year ago.

It was the end of June 2025, after all the LabCorp stuff before
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61443

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the Supreme Court.

In that class certification ruling, as you recall, you
quoted EFTA, 15 U.S.C. 1693g(b), and you said, on several
occasions -- initially on page 4, in the introduction, and then
in greater detail at pages 51 to 52 -- what you just said
earlier in this hearing, which is that the bank has the burden
of demonstrating that one or more of these class members should
be excluded because they are, themselves, criminals. And we

know that in denying all the claims of class members and
freezing their accounts back in the fall of 2020, iy

Well, you gave the bank the opportunity, as the statute
provides, to demonstrate who is in fact a criminal. And you
went beyond that. You accepted our proposed class definition.
And as you recall, our class definition expressly excludes
class members who commit fraud. So we already have a mechanism
in place.

If at any point prior to trial the bank is able, through
whatever mechanism, to meet its burden of proof as to
demonstrating that some class members should not be entitled to
recover because they are criminals, they are fraudsters, they
are out of the class. There's no dispute about that.

The question now is, what has changed? What did we learn
from the Tuesday night filing?

We learned a couple of things, as far as we can tell.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61444

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We learned for the first tin 9 RPT
GMM when DOL first subpoenaed records fron ii
Pn in September 2025.

now know, from looking at Exhibit B to the Lennon declaration,
that the Department of Labor, under this administration, has
relied upon four criteria set forth in a 2022 memo that could
be used to identify potential fraudsters.

Now, Department of Labor has not found that anyone is a
fraudster. It has not found that anyone is a probable
fraudster. It has identified, as you pointed out,
doing subtraction here.

So, at a minimum -- and this is one of the reasons it
doesn't have an impact on summary judgment -- we know that we

have got a class, we think -- plaintiffs contend that's

109,000; but at a minimum, [i
ME) 2c 22) of the Liability

issues can be determined as to them, as we work through who is
in and who is out of the class.

But let's focus for a moment on those four criteria.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61445

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There's nothing new. There's nothing sophisticated.

There's nothing unknown about those criteria. [yyy

The EDD, since July of 2021 -- the Court may be familiar
with McGregor Scott; used to be the U.S. Attorney in the
Eastern District of California. Mr. Scott has been the fraud
special counsel for EDD since July 2021. The state auditor's
report, which is in the summary judgment record -- it's a
Request for Judicial Notice Number 2 -- talks about the
analysis that EDD has done.

EDD has gone through these factors, but most importantly,

out in the class certification order, the bank has been working

think Your Honor's order said that they began actually looking
for fraudsters I in october 2022 —- what is that?
Three and a half years ago -- to see if they can identify

fraudsters.

MEME. ix its september 2022, Exnipit 2,

does.

THE COURT: Let me ask you about that.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61446

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Looking at the 2022 memo --

MR. RUBIN: Sure.

THE COURT: -- it appears that there's frustration
expressed by the Department of Labor with respect to, I guess,
this sister agency and whether or not they are doing enough to
obtain and furnish information to the Department of Labor
regarding fraud. And so there's repeated -- if not criticisms,
complaints about what is being provided by the ETA.

And the ETA, that is a federal agency, correct?

MR. RUBIN: That's right. That's part of the
Department of Labor.

THE COURT: And so, the Department of Labor that is
otherwise involved in this process of identifying the
fraudsters, they are relying on the ETA to furnish information
that then would help identify fraudsters. And as of 2022, they
are not satisfied, and for good reason.

And so then, to the extent that ETA wasn't providing that
sort of information, then I think there's later references to
these state work agencies that they themselves aren't providing
sufficient information.

So it sounds like Bank of America would be kind of arguing
that, at the end of the day, they themselves were being denied
the information that would have assisted them in identifying
fraud.

So what is your response to that?
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61447

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MR. RUBIN: My response is that that is incorrect
based on what the existing record demonstrates.
So what does the existing record demonstrate?

That's -—- when someone calls up a

call center, if they are able to get through after that

That's Defendant's Exhibit 39.

You don't need ETA to do anything. And you -- what has --
why was all this triggered in January of 2026 by the then
Secretary of Labor, Ms. Chavez—DeRemer? We don't know.

We do know that there's been an effort by the
administration to try to find fraud committed in blue states.
It's not in the record. We don't know whether this was
anything to do with it, but the process was going along.

wanted to challenge class member status or if it wanted to keep
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61448

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investigation. And it did, in fact -- again, as you point out
in your order, the class certification order -- manually
investigate every class member whose claim was $2,000 or more

and it couldn't find fraudsters.

MEM) «©: 2ccition, one of the factors

is, is there an email address -- and again, we have no idea, a
MS, which of the criteria the Department of Labor now
believes that a potential fraudster may have violated and we
would find that out in discovery, when we ask for all the
communications, all the data, all the distribution.

But one of the factors is, if someone has an email address
with a domain that doesn't reveal their identity, well, I don't
know -- and we can easily find out what the email addresses

are ——

These are presumably the databases and the inquiries that

the bank has been undertaking since October 2022.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61449

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MRSC There is nothing in the Department of Labor's
suggestion that these four categories indicate potential fraud
California EDD, under the special fraud counsel, hasn't been
able to figure out.

If, between now and the time of trial -- and we hope
that's not too delayed; as Your Honor knows, we have a
mandatory settlement conference scheduled for June 24; this
case has been going on for a while. But if, at the time of
trial, EDD or the bank finds that someone is not a potential
fraudster but a real fraudster, a real criminal, then they
don't meet the definition, and the bank will have met its
burden. But that's the process that's in place.

And I just want to get back for a moment to summary
judgment because we are here, prepared. Even though I
understand that you are close to finished with a tentative and
that would certainly benefit the parties to have the tentative
to argue in support of or against, given that we are here and
prepared, it may be useful to the Court to hear the arguments
and ask the questions on summary judgment. Because if you
think about what is actually before the Court, the basic issues
as to what constitutes damages, have the various parties met
their respective burdens, you are going to -- regardless of

what happens with respect to this ongoing inquiry into
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61450

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following up on the DOL request to conduct further review for
those class members, there is going to be a class of a greater
or lesser size. The parties, I guess, disagree about what that
is. But the size of the class only affects the amount of total
damages.

As you know, the way the damages are calculated, we have
these extensive charts based on each class member's loss, the
date of the loss, and the application of whatever the jury
finds is the appropriate interest rate times that period of
time. And the expert has made clear that if any fraudster is
identified, they are just lopped off. So it doesn't affect any
of the issues before the Court on summary judgment.

Obviously, if Your Honor would like us to come back and
would like us to consider it --

THE COURT: Let me ask you something.

The easy case is the situation where a fraudster is
identified; both sides agree that he is a fraudster, and he is
gone.

To the extent that this ongoing process identifies
individuals who it is not that clean, and those are then the
ones that Bank of America will say, "We have the right to have
the jury decide whether or not they are in fact a fraudster."
And now, given where we are, they are so numerous that we would
end up having enough mini trials where the predominance can no

longer be found to exist with respect to these claims.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61451

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What is your response to that type of argument?

MR. RUBIN: It is a two-level response. The facile
response is you can easily bifurcate a case like this and have
any individual adjudications as to damages resolved later, once
you determine the class-wide liability.

But the more important response is the bank has an
affirmative burden that it doesn't satisfy merely by showing
that there's a potential that certain class members are
fraudsters.

The bank has been through all 109,000 individuals. It has
conducted its manual investigation as to a great many of them.
The bank chose MM -- each of these 109 -- this is
part of their damages argument.

the bank has is
es Co all of the class members. There is a
question as to the legal significance of that.

The bank has decided that it is not —

But I think the real answer to your question is, under the
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class definition and under your orders and under the section of
EFTA that places the burden on the bank, the bank actually has
to prove it.

Now, there have been people excluded from the class. At

the outset of the case, unrelated to the case, PF

But if we end up with people in a gray area, what do we
know about those people? We know that they made claims that
someone stole money from their account. We know that those
claims were denied by the bank within a day or two, without
conducting any investigation, simply because CFF1 automatically
caused their claim to be rejected simply because they had a
card-present ATM transaction. So we know there was a violation
of EFTA, and all the other violations that we go through on

Now, it is not exactly clear what the bank is saying. It
may be saying that, "Oh, yeah, it is true that we didn't
conduct any investigation other than applying CFF1 within the
first ten days, but had we done what the law requires us to and

had we conducted that complete investigation, we would have
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61453

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found that they are fraudsters."

But they can't say that as to any of the J} because

think, taking a different position, which even though EFTA
provides statutory damages, as a matter of equity, it is not
appropriate to allow someone to recover the EFTA single and
treble damages -- although single have been largely paid -- if
it turns out that they are actual fraudsters.

And we have greed with that. And, Your Honor, you have
agreed with that. If they can prove actual fraud, then the
person is out. But if the bank can't meet that statutory
burden, then they are entitled to recovery.

And, again, I come back to the point I made earlier, at a
minimum, we have got the J. And those folks have been
waiting a long time for this trial.

So whatever Your Honor decides to do, would the -- the
bank, obviously, with permission of the Court, can file
whatever motion it files. We will respond with probably a more
detailed presentation, including case law, to explain why there
should be no stay, why summary judgment shouldn't be disrupted,
why we should proceed for liability.

But the pretrial schedule, as currently exists, should
stay on. The mandatory settlement conference, before Judge

Berg, for June 24, should stay on. We should be allowed to
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61454

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pursue discovery into everything that Ms. Lennon has said here
to try to figure it out in more detail.

There's a lot of hand waving about fraud and there has
been from the start of the case. And every time we have
specifically undertaken to focus on it and to drill down in the
details, we found an insufficiency of proof on the bank's part,
as has Your Honor. And we think they are still there. These

are large numbers. There's a commonsense reaction.

We will drill down. We will try to figure out the
answers. But as yet, we haven't seen anything that would
warrant taking this case off the current course or delaying
things further.

THE COURT: All right. And I appreciate your
remarks, your analysis.

Ultimately, to the extent there was this filing, the Court
considered it would be irresponsible to not hear from you,
either in person or in writing. To the extent that you wished
to inquire further or consider this further and file something,

I would have been happy to accommodate that request. It sounds
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like you are not making that request and that, instead, you are
prepared to have the Court decide the pending motions as to
summary judgment and the motions to exclude experts and to
maintain the schedule that we currently have with respect to
settlement conference and moving forward to pretrial
conference.

MR. RUBIN: That's correct.

And if Your Honor expresses a willingness to entertain a
motion for decertification or partial decertification, then we
would ask that the Court now allow us to reopen discovery so
that, when it comes time for us to respond to such a motion, we
will have sufficient information to enable us to do so without
further delaying the case.

THE COURT: All right. And it is clear from the
papers filed by Bank of America that they do expect to file a
motion for decertification. And under the law, they are
entitled to, to the extent that it is based upon a new body of
facts or evidence.

And so, then as far as discovery, it sounds like,
depending upon what it is or what information that Bank of
America's relying upon, new information, that the plaintiffs
would have an opportunity to test it or to learn more about the
reliability of that information.

All right. Thank you.

MR. RUBIN: Thank you.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61456

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THE COURT: And then, let me turn to defense counsel.
Is that going to be you, Ms. Rose-Smith?
MS. ROSE-SMITH: Yes, Your Honor. Thank you.
THE COURT: So, first of all, with respect to
timing, as it relates to the 2022 memorandum, that was a
memorandum, as I mentioned previously, where the Department of
Labor was expressing dissatisfaction, frustration with the ETA
and their efforts in supplying information about trying to
tamp down, trying to end this campaign of fraud that was taking
place.
And then there was the reference to the four-factor test,
back then, so that's not new.
In terms of the January 2026 memo, it sounds like | |

further, that there would have been some level of communication

and the Department of Labor. Is that correct?

MS. ROSE-SMITH: That's correct, Your Honor.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61457

No

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THE COURT: Do you have any understanding as to why

the Department of Labor

MS. ROSE-SMITH: So, it is a good question, Your
Honor.

From what we understand,
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61458

No

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THE COURT: There is some sense of urgency that is
expressed in this memo that I detected, that the DOL
authorities were concerned about, you know, the lack of urgency
with its partners and that something needed to be done quickly.

And to the extent that that message is being conveyed, and
then, meanwhile, they asserted that they have identified
fraudsters, that they wouldn't then take all means of moving
forward; and, having identified where the money is, having
identified a fraudster, taken the next step, which is to now
have those funds, that are earmarked to a particular fraudster,
and have them returned to the government so that they can be
used for good.

MS. ROSE-SMITH: I -- I don't disagree with you, Your
Honor.

I just -- this is the inner workings of the federal
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61459

No

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THE COURT:

And so, with respect to the work that's being performed a

And to the extent that the answer is "no,"

MS. ROSE-SMITH: So, from when we were informed, on

May 8th,
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61460

No

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So there wasn't, from that May 8 -—-
THE COURT: Sorry. That was May 18?
MS. ROSE-SMITH: No. May 8.

THE COURT:

And then, from beginning --
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61461

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THE COURT: Okay. So then that explains why this
filing was just presented within the last couple of days versus
in April or March or February or January.

MS. ROSE-SMITH: Yes, Your Honor.

THE COURT: All right. So then, as to what to make
of it and how it affects the proceedings that are before the
Court -- the motion for summary judgment, partial summary
judgment, and motions for excluding witnesses -- do you
agree with Mr. Rubin that, at this point, there really isn't a
good reason to hold up proceedings and to otherwise modify
our schedule as it relates to the motion for summary
judgment?

MS. ROSE-SMITH: You won't be surprised, Your Honor,
to discover that, in fact, I don't agree with that.

Our view is -- and we put this in our notice. Our view is
that we think that this evidence bears directly on some of the
arguments we made in our summary judgment motion and some of
our Daubert motions.

In particular, we have argued at summary judgment that the
plaintiffs have the burden to prove causation, class-wide, in
order to recover damages, and they haven't because they can't
distinguish between who is a legitimate or not legitimate class
member. And before, we had struggled with being able to prove
to Your Honor that in fact that class was as riddled with fraud

as we thought it was, but now we can. And I would like to say
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61462

No

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No
~

for a minute why that is, because counsel for plaintiff spent a
lot of time saying we could have figured this out.

But you have to understand that all of the work that the
bank has been doing has been to try and understand claims
fraud. So what -- so all of the work that they did ||

was to try and validate whether

or not these were legitimate claims; 3s

And that information, we think, is actually critical
because if these are not legitimate beneficiaries, then they
don't have valid claims, and then they don't have claims
against Bank of America.

THE COURT:

MS. ROSE-SMITH: That's right.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61463

No

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And you will note that even the federal government had
trouble getting that data.

THE COURT:

MS. ROSE-SMITH: No.

We did -- at the time, one of the things that the bank's

fraud analytics department was looking at was

THE COURT: Is part of the investigation that was

undertaken by Bank of America -- did it include

MS. ROSE-SMITH: They did try and identify, inasmuch
as they could, but they don't have the complete data that would

tell them that.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61464

No

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THE COURT:

MS. ROSE-SMITH:

THE COURT: So we know these four factors that have
given credence to the notion that some of these funds were
applied for by fraudsters, this litmus test, it's existed for a
significant period of time, at least the last four years. And

so now, at this point -- and

How do things change now, moving forward,

from what they have been previously?

MS. ROSE-SMITH: So, unfortunately, Your Honor, fj
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61465

No

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It's all they publicly

said they have looked at.

THE COURT: So, in moving forward, to decertify the
classes that have been approved by the Court, are you going to
be in a position to rely upon the actual identification of
fraudsters in this group of class members? Or is it just going

co be that, lll

and it gives credence,

it gives license to this argument that we have been presenting

for the last nunber of years, [ii

MS. ROSE-SMITH: So the bank is looking at whatever
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61466

No

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21-md-2992-GPC-MSB 31
it can do because it understands that it has -- it has this
obligation to prove the fraud in the class. But there -- in

the end, this information has got to come from the federal

government or EDD, at least from where we sit right now.

THE COURT: But you just said that, at the end, Jj

MS. ROSE-SMITH:
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61467

No

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But, certainly, one of the things that we would like to do

is to try to have the opportunity to show that there -- yj

THE COURT: It seems to me we are still left with
generalities and the lack of something more individualized that
would then give rise to supporting evidence for these
positions, either on predominance or causation.

How do you respond to Mr. Rubin's argument that ayy

MS. ROSE-SMITH: So I would respond to that in two

ways, Your Honor.
First, as I noted, the reason that the bank has not been
able to identify these is not because we don't think they are

fraudsters. It is because what we have the ability to look at
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61468

No

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and what we have the ability to discern from the files that we

have really bears on claims fraud.

and we -- and we -- and we have briefed extensively

the holes in the data we have there. Pd

MS We don't have all of those things.

So the idea that, "Well, we have had all this time to
prove it, and we can't," my response to that is, that's because
what we would really like to prove in these populations is
eligibility fraud; in other words, they never should have
gotten these benefits in the first place.

You are right that there is not at this point, as I stand
here today, some way in which Bank of America can do that for
the entire class. But it doesn't mean that Bank of America
shouldn't be allowed to try, and that is the problem that we
have with mini trials and the manageability and whether or not
a class action is the superior way of resolving these disputes.

Certainly, we would like to be able to reach out to the

And so, I guess, the response there is twofold. One, it
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61469

No

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isn't that we have sat on our hands and not looked. We have
tried. We have every reason to believe there's fraud. ||
Second, now that there is -- there are some criteria that

would like the opportunity to try and get additional

information from the Department of Labor, from EDD, fF

We have not previously been able to do that.

still having discussions with them.

But I do think, given that it is our burden, we should be
allowed to try. And particularly, as to each individual
person, we should be allowed to question individuals, to ask
that's why we would move to decertify this class, one of the
reasons.

THE COURT: So this idea of being allowed to try,
certainly, this Court has allowed Bank of America to try to
develop this information. And at this point, it sounds like
you are not blaming the Court at all for denying you the

ability to learn the information that you are seeking. Jj
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61470

No

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left in this situation where we are in a holding pattern. And
to be in a holding pattern five years into litigation seems

crazy, to wait an additional month or two or three to see ||

Pe =6S° I don't see at this point that there's a

good reason to hold off considering what is before the Court.

To the extent that the Court issues its rulings, and yj

whether or not that constitutes grounds for the Court to
reconsider based upon new evidence, we can deal with that at
the appointed time.

But at this point, to hold up the proceedings or to modify
the schedule we have in place, I don't think serves a good
purpose. I mean, certainly, Bank of America being outfitted
with the information that it needs to defend itself is a good
reason; but ultimately, balancing that with the amount of time
that we have already taken in these proceedings, ultimately,
the Court, as a steward, as someone who is managing this
litigation, I have to think about getting this case forward,

getting it to trial.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61471

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So at this point, then, given that the plaintiff isn't
asking for the opportunity to file anything, and having heard
the parties with respect to their views on whether or not we
should suspend these proceedings on the motion for partial
summary judgment, I will deny the request to suspend the
proceedings.

What I will do, I think, at this time, is -- I can do one
of two things. I can take a ten-minute break and then return
to the bench and then entertain arguments that you all would
make with some questioning by the Court on these motions. Or,
in the alternative, I can reschedule the matter where, then,
you would have, in advance of the hearing, a tentative, so that
you could direct yourself to it.

Do you have a view on that?

MS. ROSE-SMITH: Sure. So, a couple of things.

We are not asking the Court to suspend these proceedings
indefinitely. We do intend to move for decertification. And
so the real request that the bank was asking is to pause the
proceedings for that purpose.

I understand from the Court's --

THE COURT: When you say "pause the proceedings," you
mean to suspend the proceedings as it relates to the motion for
summary judgment?

MS. ROSE-SMITH: So that we could move for

decertification.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61472

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THE COURT: No. I definitely would not be willing to
do that.

MS. ROSE-SMITH: So in that event, I do think that
the Court's -- the Court's tentative, the Court's hearing of
argument should be informed by how we think this does impact
summary judgment because we do think that the existence of
potential fraudsters does impact us. So I think the parties
would benefit from seeing a tentative that has considered this
information and being able to present arguments to the Court
about that.

So our request, then, would be for the Court to schedule
this. It doesn't need to be some lengthy delay, but to
schedule it. That would allow us to be able to present
arguments about why we think this impacts the summary judgment
briefing and the Daubert motions.

THE COURT: All right. Thank you.

Mr. Rubin, your take? What is your view?

I would be inclined to reset this matter for a week or two
so that then, in terms of our tentative that we would issue for
your benefit, that it would refer to this most recent
development and set of arguments that support the positions.

MR. RUBIN: The only practical concern I have -- and
we would welcome Your Honor's tentative thoughts; they will
make it a more effective argument and a speedier argument -- is

that the parties have had enormous difficulty scheduling. When
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61473

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Your Honor took this hearing off calendar on April 17th and --

THE COURT: I apologize for that --

MR. RUBIN: No, and we had our own problems with
scheduling.

So if we could get a firm date while we are all here in
the courtroom, within the next week or two -- I understand
different people on both sides are arguing different parts of
the motion, but if we have to reshuffle a little bit to
accommodate the Court's schedule, that would be our preference.

THE COURT: I can hold a hearing on this on May 29th.

Are parties are available on May 29th, 1:30?

MR. RUBIN: Yes, Your Honor.

THE COURT: Although I think I just saw from my
judicial law clerk, she might not be with me on that date.

MS. ROSE-SMITH: Your Honor, we had previous --

THE COURT: Go ahead.

MS. ROSE-SMITH: Parties previously had talked about
June 5th. I don't know if the Court is available on that date,
but that is one date the parties were previously discussing.

We could do it then, I believe.

MR. RUBIN: Your Honor, would either tomorrow or the
28th work? Since we are here, and people would otherwise be
taking red-eyes back home.

MS. ROSE-SMITH: We have some mediations that we have

to be at tomorrow.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61474

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(Court and law clerk confer.)
THE COURT: I can't give you tomorrow.
I can give you either June 5th or June 10th, June 11th,
June 12th. Those days would work.
MR. RUBIN: May I consult with co-counsel, please?
(Counsel confer.)

THE COURT: Oh, actually, my clerk is just reminding
me, I will be attending my daughter's graduation on June 12, so
that is no longer available. But June 5, 10, and ll.

MR. RUBIN: So the 5th works for us, Your Honor.

MS. ROSE-SMITH: We can all do the 10th for sure. I
think we have -- we have one member who has a conflict on the
5th, that we can't do.

MR. RUBIN: I am unavailable on the 10th, Your Honor.

THE COURT: You are unavailable on the 10th?

MR. RUBIN: But the 11th works.

THE COURT: So there was one attorney that's
unavailable on the 5th, did you say?

MS. ROSE-SMITH: Yes. I don't know about the 11th.
I heard, I was -- while we were trying, I don't know if you
decided the 11th was available.

THE COURT: I think plaintiffs' counsel is available
on the llth. Let's inquire about the 11th.

(Counsel confer.)

MS. ROSE-SMITH: We can all do the llth, Your Honor.
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61475

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THE COURT: Let's do that then. We will do June 11
at 1:30 p.m.

MR. RUBIN: Thank you, Your Honor.

THE COURT: Thank you.

And I believe we have a settlement conference on the 24th.

MR. RUBIN: The 24th.

THE COURT: So I expect that we will have a
tentative. And then to the extent that there's tweaking of it,
it will be completed by no later than the 15th, so you will
have that already taken care of when you go to the settlement
conference.

MR. RUBIN: And do I understand, Your Honor, that
there will be no further briefing on these issues unless and
until the bank moves for partial decertification?

THE COURT: I think so. I don't think that there is
anything more to be written that has not otherwise been said.

So, at this point let me inquire, is there any need for a
briefing, Ms. Smith?

MS. ROSE-SMITH: No, Your Honor. We have
identified -- I mean, I am a defense attorney; I always want
another opportunity. But in this particular instance, I think
we have identified for you in the filing that we made why we
think that this is impactful for summary judgment and the
Daubert motions.

THE COURT: So with respect to a request that
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61476

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Mr. Rubin made as to discovery in the event of a motion for
decertification, at this point, what is your view on that
issue?

As I mentioned, I would be inclined to permit reopening up
discovery to address the issues that relate to a motion for
decertification. And I am not sure if we are in a position to
identify the parameters as of this moment.

But what is your take?

MS. ROSE-SMITH: So we did discuss that, Your Honor,
and if -- because we do intend to move for decertification. We
understand that discovery might need to be opened for the
limited purpose of addressing these newly raised issues.

We, of course, would want there to be some parameters of
that sort, but we do understand that that would be the
plaintiffs' request.

THE COURT: I guess, can I ask you to meet and confer
with respect to this --

MR. RUBIN: Yes, that's what I was going to suggest.
That makes sense.

THE COURT: -- and to the extent there's some
dispute -- you can't agree on everything -- then you can
present that to the Court and I will decide.

MR. RUBIN: We will do that, Your Honor.

MS. ROSE-SMITH: Yes, Your Honor.

THE COURT: Thank you. Anything else?
Case 3:21-md-02992-GPC-MSB Document 733-5 Filed 06/08/26 PagelD.61477

Nh

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MR. RUBIN: No. Appreciate it.

THE COURT: Thank you, all.

MS. ROSE-SMITH: Thank you, Your Honor.
(End of proceedings at 2:38 p.m.)

C-E-R-T-I-F-I-C-A-T-I-O-N
I certify that the foregoing is a correct
transcript from the record of proceedings in the above-entitled

matter. Dated: May 28, 2026.

/s/ Chari Bowery

Chari Bowery, CSR No. 9944, RPR, CRR


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