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BANA’S MOTION TO SEAL DECERT. MOT.
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000
Fax: +1 617 523 1231
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N Street, NW
Washington, DC 20036
Tel.: +1 202 346 4000
Fax: +1 202 346 4444
Attorneys for Defendant
BANK OF AMERICA, N.A.
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
IN RE: BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 21-MD-02992-GPC-MSB
DEFENDANT BANK OF AMERICA,
N.A.’S NOTICE AND MOTION TO
SEAL DOCUMENTS FILED IN
SUPPORT OF ITS MOTION TO
DECERTIFY THE CLASSES
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
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PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 79.2(c),
Defendant Bank of America, N.A. (BANA) hereby submits this Motion to Seal
(Motion to Seal) certain documents in connection with BANA’s Motion to Decertify
the Classes (Decertification Motion).
I.
STANDARD TO SEAL DOCUMENTS
The public’s “right to inspect and copy judicial records is not absolute.” See
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). Documents revealing
information relating to an ongoing law enforcement investigation may be sealed
where, as here, disclosure would result in “the ends of justice [] be[ing] frustrated,
not served, if the public were allowed access” to them. Times Mirror Co. v. United
States, 873 F.2d 1210, 1219 (9th Cir. 1989). Additionally, a party faced with the
disclosure of confidential or proprietary information may seek to file such documents
under seal to avoid disclosure of business information that might result in competitive
harm or be used for improper purposes. See Nixon, 435 U.S. 589 at 608, 611 (denying
disclosure); Local Civ. R. 79.2(c). Further, the documents that BANA seeks to seal
all reveal information that qualifies as “Protected Material” pursuant to the Parties’
Stipulated Protective Order (Protective Order), entered by the Court on September
24, 2021 (ECF 82).
It is acknowledged by courts, including many courts in this district, that a party
seeking to seal documents made in connection with a motion for decertification (i.e.,
a dispositive motion) must show “compelling reasons” to seal. Kamakana v. City and
Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006); see Pintos v. Pacific
Creditors Ass’n, 605 F.3d 665, 678-79 (9th Cir. 2010) (determining “compelling
reasons” standard applies to motion to seal documents relating to cross-motion for
summary judgment); see also EpicentRx, Inc. v. Carter, 2023 WL 4336695, at *1
(S.D. Cal. May 16, 2023) (applying “compelling reasons” standard to request to seal
certain exhibits associated with motions for summary judgment).
In applying the “compelling reasons” standard, courts, including this Court,
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consistently seal documents and references thereto where—as here—disclosure of
confidential information pertains to an active ongoing investigation, risks
competitive harm to the litigant, or improper use of the information such as to commit
fraud. See e.g., Forbes Media LLC v. United States, 2021 WL 3674516 (N.D. Cal.
Apr. 26, 2021), report and recommendation adopted, 548 F. Supp. 3d 872 (N.D. Cal.
2021), aff’d, 61 F.4th 1072 (9th Cir. 2023) (finding compelling reasons to seal
materials relating to an ongoing investigation); E.W. Bank v. Shanker, 2021 WL
3112452, at *18–19 (N.D. Cal. July 22, 2021) (finding compelling reasons to seal
verification of customer identities and fraud prevention measures); Soria v. U.S. Bank
N.A., 2019 WL 8167925, at *4 (C.D. Cal. Apr. 25, 2019) (finding compelling reasons
to seal fraud investigation procedures because there was a “significant danger that
someone could improperly use this information to commit fraud and avoid
detection”); see also ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467, 548, 598,
599, 600, 601, 602, 603, 638, 639, 640, 641, 642, 654, 662, 668, 695, 697, 699, 701,
703, 705, 707, 710, 713, 727 (the “Sealing Orders”).
II.
COMPELLING REASONS EXIST TO SEAL THE CONFIDENTIAL
DOCUMENTS.
As this Court has already found, compelling reasons exist to seal discussions
of highly confidential documents and data contained in the Decertification Motion,
Exhibits C and D of the Declaration of Jennifer Lennon (Lennon Declaration) and
Exhibits 1 and 2 of the Declaration of Laura G. Brys (Brys Declaration). ECF 727.
As reflected in the Decertification Motion and its supporting documents, these
discussions relate to a law enforcement investigation that is currently active, and
unsealing these materials could alert targets to the existence of the investigation and
reveal steps the Government takes to recover ill-gotten funds and to potentially take
further actions against fraudulent actors. The DOL-OIG has further designated this
information as confidential investigative information, and disclosing that information
to the public could disrupt ongoing investigations. Further, disclosure of these
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materials also risks revealing sensitive fraud information concerning cardholder’s
accounts, and include discussions that are likely to cause particularized competitive
harm to BANA and which could potentially enable future fraud, and therefore poses
a danger to BANA’s business and the public.
All are compelling reasons which outweigh the public disclosure factors, and
thus permit sealing of these documents. The Ninth Circuit has excluded materials
analogous to the references made in the Decertification Motion and its supporting
documents “that are part of an ongoing criminal investigation from public disclosure
under the First Amendment.” See Forbes Media LLC, 2021 WL 3674516 at *4. For
example, in Times Mirror Co., the court held that disclosure of materials relating to
an ongoing law enforcement investigation would pose an “obvious risk that the
subject of [a] search warrant would learn of its existence and destroy evidence of
criminal activity before the warrant could be executed.” 873 F.2d at 1215.
Further, in Shelley v. Cnty. of San Joaquin, yet another California district court
protected materials where “the public release of those documents could negatively
impact” law enforcement investigations. 2015 WL 2082370, at *7 (E.D. Cal. May 4,
2015).
Additionally, in Forbes Media LLC, the court held that:
Unsealing this type of material could jeopardize the Government’s
ongoing efforts to investigate and prosecute the crimes … [and enable]
perusal by both the public and targets of the investigation while it remains
underway. Significant negative consequences could follow from public
disclosure, including alerting subjects to the existence of the warrant,
revealing steps that the Government and others might take to effectuate
the subjects’ arrest including securing a third party’s assistance in the
execution of a sealed federal arrest warrant, and by revealing the names
of individuals who may or may not have charges eventually brought
against them. Opening that information to the public could prompt any
remaining subjects or associates to flee, conceal or destroy evidence, or
take other steps to evade responsibility for their crimes.
2021 WL 3674516, at *9.
This Court has also already found compelling reasons to seal discussions of
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documents like those at issue here, which relate to confidential business practices and
fraud prevention measures that could be misused to commit future fraud or used by
competitor banks to BANA’s disadvantage. Earlier last year, Judge Berg determined
“compelling reasons” exist to seal a number of exhibits, and any discussions thereof,
previously submitted with Plaintiffs’ motion to compel discovery that concern the
very same categories of confidential information that BANA seeks to seal here. See
ECF 266. In doing so, Judge Berg found that compelling reasons existed to seal
information concerning, among other things, fraud and claims analysis and strategies,
which are precisely the types of discussions BANA seeks to seal again.
In East West Bank v. Shanker, a California district court granted a motion to
seal portions of exhibits concerning “confidential onboarding processes, digital
banking platform[s], fraud management techniques, and verification of customer
identities, which if made public would harm [the bank’s] business,” and found that
public disclosure of EWB’s confidential fraud prevention measures would “harm
EWB’s business.” 2021 WL 3112452, at *18-19. Similarly, in Soria v. U.S. Bank,
N.A., another California district court found compelling reasons to file under seal
information related to a bank’s internal procedures for investigating incidents of
fraud, explaining that “[a]lthough there is a public interest in [the b]ank’s procedures
concerning its fraud investigations, public disclosure of this information may impede
[the b]ank’s ability to identify and combat future instances of fraud” and that “[t]here
is a significant danger that someone could improperly use this information to commit
fraud and avoid detection.” 2019 WL 8167925, at *4.
This Court also found compelling reasons to seal similar discussions related to
analyses of claims fraud and potential strategies to combat that fraud, including: the
Claim Fraud Filter and other fraud strategies; BANA’s analyses of state prepaid
unemployment program operations and contractual negotiations with vendors, fraud
prevention programs; confidential regulator materials; and quotes or summary
descriptions from such sealed exhibits. See, e.g., ECF 365, 381, 390. Those prior
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rulings are sufficient grounds alone to grant sealing here. See Lundstrom v. Young,
2022 WL 15524624, at *17 (S.D. Cal. Oct. 27, 2022) (J. Curiel) (considering prior
sealing of exhibits when granting motion to seal); Workplace Techs. Rsch., Inc. v.
Project Mgmt. Inst., Inc., 2021 WL 6091272, at *3 (S.D. Cal. Oct. 20, 2021) (sealing
references to document that court already granted sealing of). Specifically, BANA
seeks to seal references made to documents that fit into the following Confidential
and Highly Confidential – Attorneys’ Eyes Only categories, which this Court has
already found compelling reasons to seal:
Discussions related to an active, ongoing law enforcement investigation,
the disclosure of which risks alerting targets to the existence of the
investigation, revealing steps the Government takes to recover ill-gotten
funds and to potentially take further actions against fraudulent actors,
revealing sensitive fraud information concerning cardholder’s accounts,
and resulting in particularized competitive harm to BANA by
potentially enabling future fraud, therefore posing a danger to BANA’s
business and the public (see Sealing Order (ECF 727));
BANA’s confidential analyses of its state prepaid unemployment
program operations, including but not limited to, fraud volume (see
Amended Sealing Order (ECF 365) at 10–13, n. 14);
BANA’s fraud detection and prevention strategies and policies,
including current and former fraud strategies that could be misused
by fraudsters to perpetrate future fraud or could be used by another
financial institution to BANA’s competitive disadvantage (see
Amended Sealing Order (ECF 365) at 5–6, 12); and
Highly confidential ongoing investigation materials. Compelling reasons
exist to seal documents relating to BANA’s discussions with regulators and other
government investigative entities: the details of these conversations, as well as
discussions of the implementation of BANA’s review and the data underlying such
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a review, are highly sensitive because they pertain to an active ongoing investigation
and could provide fraudsters with a roadmap for how to circumvent accountability
for acting fraudulently. ECF 344-3 (Lennon) ¶ 3. This Court has previously sealed
references to regulator materials, which were designated by the regulators themselves
as “Highly Confidential – Attorneys’ Eyes Only” as a condition to BANA producing
them to Plaintiffs, and which contain information the OCC deemed privileged and
confidential under its statutes and regulations. ECF 603, 727. Standing alone, the
regulators’ determination and designation—which Plaintiffs readily agreed to when
they accepted the documents last year—should be a sufficient, compelling reason to
seal the Decertification Motion and its supporting documents. See, e.g., Erhart v. BofI
Fed. Bank, 2019 WL 4534701, at *3 (S.D. Cal. Sept. 19, 2019) (sealing information
that the OCC asserted bank examination privilege over but permitted to be produced
subject to confidentiality protections). See also ECF 344-3 (Lennon) ¶¶ 3–4, 6. This
Court has previously found compelling reasons to limit public access to such
documents because they contain highly sensitive, and confidential information that
would subject any disclosure to potential fraud. ECF 381, 498, 727.
BANA has provisionally redacted and sealed portions of the Decertification
Motion and its supporting documents that quote or describe these confidential
categories identified above. This is consistent with the terms of the Stipulated
Protective Order (ECF 82, § 3), and with rulings in this circuit including by this
Court. See, e.g., Darisse v. Nest Labs, Inc., 2016 WL 11474174, at *2 (N.D. Cal.
June 2, 2016) (sealing class certification motion and declarations that quote or
reference confidential exhibits); ECF 365, 381.
Documents that risk future fraud. BANA’s communications with state
regulators and other government investigative entities regarding fraud strategies
utilized in the EDD program could also be misused by fraudsters to perpetrate future
fraud and avoid detection. ECF 344-1 (Martin Decl.) ¶ 8; see, e.g., Soria, 2019 WL
8167925, at *4; Jasso, 2022 WL 2665979, at *2. This Court has previously found
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compelling reasons to limit public access to such documents because their disclosure
could lead to future fraud that poses a harm not only to the Bank, but also the public.
See ECF 365, 381, 727.
Documents that risk competitive harm. The aforementioned categories also
contain sensitive business information that could be used to BANA’s competitive or
commercial disadvantage, which is yet another compelling reason to seal the
documents. See, e.g., E.W. Bank, 2021 WL 3112452, at *18-19 (granting motion to
seal where public disclosure of EWB’s confidential fraud prevention measures would
“harm EWB’s competitive standing”); Adtrader, Inc. v. Google LLC, 2020 WL
6391210, at *2 (N.D. Cal. Mar. 24, 2020) (sealing references to internal strategic
decisions, policies, and processes related to detecting and responding to advertising
fraud). Aggregated account statistics regarding the number of EDD accounts, the
balances on those cards, the fraud claims filed by EDD cardholders, and the
combined monetary amounts of fraud associated therewith are proprietary,
confidential business information of EDD and/or BANA. ECF 344-1 (Martin Decl.)
¶¶ 7-10. Public disclosure of the number of active EDD accounts, account balances
and first party fraud could violate BANA’s confidentiality agreement with EDD.
Additionally, aggregated account statistics related to fraud claims is also
commercially sensitive information, from which certain of BANA’s revenues and
fraud losses could be derived, and if disclosed, could be used by another financial
institution to compete against BANA, which warrants sealing. See, e.g., Brady v.
Grendene USA, Inc., 2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) (J. Curiel)
(sealing confidential business information that might harm the litigants’ competitive
standing including profit and loss data and contractual agreements). This Court has
previously found compelling reasons to limit public access to such documents
because their disclosure could harm BANA’s competitive advantage. See ECF 381.
For the reasons discussed above, there are compelling reasons to seal
discussions of those topics. See supra, pgs. 2–7.
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III.
CONCLUSION
For the foregoing reasons and for the reasons set forth in the Court’s Sealing
Orders, Plaintiffs’ Motions to Seal (ECF 376, 384, 394, 463, 524, 527, 569, 572, 609,
612, 615, 618, 621, 630, 650, 689), BANA’s prior Motions to Seal (ECF 328, 337,
344, 347, 383, 418, 451, 470, 501, 511, 539, 542, 577, 579, 581, 583, 585, 587, 595,
596, 657, 664, 670, 673, 676, 679, 682, 687, 721) and accompanying declarations
submitted in support thereof (ECF 344-1, 344-2, 344-3, 347-1, 347-2), all of which
are incorporated herein by reference, BANA respectfully requests that the Court
grant Defendant’s Motion to Seal because compelling reasons exist that support the
sealing of the designated portions of the Decertification Motion, the Lennon
Declaration and Exhibits 1 and 2 to the Brys Declaration, and Exhibits C and D to
the Lennon Declaration in their entirety.
Dated: June 8, 2026
Respectfully submitted,
By: /s/ Laura G. Brys
LAURA G. BRYS (SBN 242100)
LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
601 S. Figueroa St., Suite 4100
Los Angeles, CA 90017
Tel.: +1 213 426 2500
Fax: +1 617 346 4444
JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000
Fax: +1 617 523 1231
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
KEITH LEVENBERG (pro hac vice)
KLevenberg@goodwinlaw.com
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GOODWIN PROCTER LLP
1900 N Street NW
Washington, DC 20036
Tel: +1 202 346 4000
Fax: +1 202 346 4444
VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
LINDSAY E. HOYLE (pro hac vice)
LHoyle@goodwinlaw.com
GOODWIN PROCTER LLP
620 Eighth Avenue
New York, NY 10018
Tel: +1 212 813-8800
Fax: +1 212 355-3333
YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
JONES DAY
100 High Street
Boston, MA 02110
Tel.: +1 617 960 3939
Fax: +1 617 449 6999
JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN 278405)
mnazareth@myersnave.com
MEYERS NAVE
600 B Street, Suite 1650
San Diego, CA 92101
Attorneys for Defendant
BANK OF AMERICA, N.A.
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the clerk of the
court for the United States District Court for the Southern District of California by
using the CM/ECF system on June 8, 2026. I further certify that all participants in
the case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system. I certify under penalty of perjury that the foregoing is true and
correct.
Dated: June 8, 2026
/s/ Laura G. Brys
LAURA G. BRYS
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