Defendant’S Memorandum
- Date
- 2026-08-28
Summary
Defendant Bank of America, N.A.'s Memorandum of Points and Authorities in Support of its Motion for Class Decertification in In re: Bank of America California Unemployment Benefits Litigation, Case No. 3:21-md-02992-GPC-MSB, in the U.S. District Court for the Southern District of California, filed June 8, 2026 as Document 733-1, provisionally under seal. The motion is noticed for hearing on August 28, 2026 before Hon. Gonzalo P. Curiel. Bank of America argues that the certified classes of 109,414 EDD benefits cardholders include claimants it says obtained benefits through fraud, that plaintiffs bear the burden to exclude them, and that the resulting individual trials defeat predominance. It relies on Healy v. Milliman, Inc. and TransUnion LLC v. Ramirez and describes Department of Labor fraud alerts. The 31-page brief is signed by Goodwin Procter LLP, Jones Day and Meyers Nave.
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Case 3:21-md-02992-GPC-MSB Document 733-1 Filed 06/08/26 PageID.61342
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1 JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
2 GOODWIN PROCTER LLP
3 100 Northern Avenue
Boston, MA 02210
4 Tel.: +1 617 570 1000
Fax: +1 617 523 1231
5
SABRINA M. ROSE-SMITH (pro hac vice)
6 SRoseSmith@goodwinlaw.com
7 MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
8 GOODWIN PROCTER LLP
1900 N Street, NW
9 Washington, DC 20036
10
Tel.: +1 202 346 4000
Fax: +1 202 346 4444
11
Attorneys for Defendant
12 BANK OF AMERICA, N.A.
13 [ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
14
15
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
16 SAN DIEGO DIVISION
17 IN RE: BANK OF AMERICA Case No. 3: 21-MD-02992-GPC-MSB
CALIFORNIA UNEMPLOYMENT
18 BENEFITS LITIGATION DEFENDANT’S MEMORANDUM
OF POINTS AND AUTHORITIES IN
19 SUPPORT OF ITS MOTION FOR
20 CLASS DECERTIFICATION
21 Date: August 28, 2026
Time: 1:30 p.m.
22 Ctrm: 12A – 12th Floor
Judge: Hon. Gonzalo P. Curiel
23
24 FILED PROVISIONALLY UNDER SEAL
PURSUANT TO STIPULATED PROTECTIVE
25 ORDER
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MEMO. ISO DECERT. MOT. CASE NO. 3: 21-MD-02992-GPC-MSB
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1 TABLE OF CONTENTS
2 Page
3 BACKGROUND ....................................................................................................... 5
4 A. The Department of Labor Benefits Fraud Investigation ............................ 5
5 B. The May 21, 2026 Hearing.......................................................................... 8
6 STANDARD OF LAW ........................................................................................... 10
7 ARGUMENT ........................................................................................................... 10
8 I. Plaintiffs cannot carry their rule 23 burden with a
9 fraud-infested class. ................................................................................... 11
10 A. The burden of proof remains with plaintiffs. .......................................... 11
11 B. The need for of individual mini-
12 (or full trials) requires decertification. .................................................... 17
13 II. This court did not, and cannot, certify a “bifurcated” class. ..................... 20
14 III. This case cannot play out with common inquiries predominating............ 22
15 CONCLUSION........................................................................................................ 24
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 In re Asacol Antitrust Litig.,
907 F.3d 42 (1st Cir. 2018) .......................................................................... 18, 24
5
6 Bowerman v. Field Asset Servs., Inc.,
60 F.4th 459 (9th Cir. 2023) ............................................................. 17, 18, 21, 24
7
Brown v. DirecTV, LLC,
8
562 F. Supp. 3d 590 (C.D. Cal. 2021) ................................................................ 12
9
Brown v. Google, LLC,
10 2022 WL 17961497 (N.D. Cal. Dec. 12, 2022) ................................................. 19
11
Cruz v. Dollar Tree Stores, Inc.,
12 270 F.R.D. 499 (N.D. Cal. 2010) ....................................................................... 10
13 DaimlerChrysler Corp. v. Cuno,
14 547 U.S. 332 (2006) ........................................................................................... 14
15 D.C. ex rel. Garter v. Cnty. of San Diego,
16
2018 WL 692252 (S.D. Cal. Feb. 1, 2018) ........................................................ 22
17 Halliburton Co. v. Erica P. John Fund, Inc.,
573 U.S. 258 (2014) ........................................................................................... 10
18
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Healy v. Milliman, Inc.,
164 F.4th 701 (9th Cir. 2026) ............................................................. 4, 11, 14, 21
20
Heredia v. Eddie Bauer LLC,
21 2020 WL 127489 (N.D. Cal. Jan. 10, 2020) ............................................... passim
22
Hernandez v. WM Wholesale, LLC,
23 2025 WL 2556591 (C.D. Cal. Aug. 18, 2025) ................................................... 16
24
Herskowitz v. Apple, Inc.,
25 301 F.R.D. 460 (N.D. Cal. 2014) ....................................................................... 22
26 Mabanta v. Prime Now LLC,
27 2022 WL 1601415 (N.D. Cal. Feb. 28, 2022) ........................................ 14, 15, 16
28
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1 Officers for Just. v. Civ. Serv. Comm’n of City & Cnty. of S.F.,
2 688 F.2d 615 (9th Cir. 1982) .............................................................................. 10
3 Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC,
31 F.4th 651 (9th Cir. 2022) ........................................................................ passim
4
5 Pennington v. Tetra Tech, Inc.,
2024 WL 5213095 (N.D. Cal. Dec. 23, 2024) ................................................... 20
6
Rahman v. Mott’s LLP,
7
2014 WL 6815779 (N.D. Cal. Dec. 3, 2014) ............................................... 21, 24
8
Reitman v. Champion Petfoods USA, Inc.,
9 830 F. App’x 880 (9th Cir. 2020) ....................................................................... 21
10
Ries v. Ariz. Beverages USA LLC,
11 2013 WL 1287416 (N.D. Cal. Mar. 28, 2013) ............................................. 10, 11
12 Saavedra v. Eli Lilly & Co.,
13 2014 WL 7338930 (C.D. Cal. Dec. 18, 2014) ................................................... 20
14 Stearns v. Ticketmaster Corp.,
15
655 F.3d 1013 (9th Cir. 2011) ...................................................................... 12, 13
16 TransUnion LLC v. Ramirez,
594 U.S. 413 (2021) ........................................................................... 4, 11, 12, 13
17
18
Ugas v. H&R Block Enters., LLC,
2012 WL 5230297 (C.D. Cal. July 9, 2012) ................................................ 10, 23
19
Valentino v. Carter-Wallace, Inc.,
20 97 F.3d 1227 (9th Cir. 1996) .............................................................................. 20
21
Van v. LLR, Inc.,
22 61 F.4th 1053 (9th Cir. 2023) ................................................................. 11, 16, 17
23 Wal-Mart Stores, Inc. v. Dukes,
24 564 U.S. 338 (2011) ................................................................................. 3, 12, 24
25 Statutes
26
5 U.S.C. § 403(a) ....................................................................................................... 9
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15 U.S.C. § 1693m(a)(2)(B) .................................................................................... 18
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1 Other Authorities
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Fed. R. Civ. P. 23(c) .................................................................................... 10, 20, 21
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1 Last June, this Court certified several classes comprised of 109,414 EDD
2 benefits cardholders alleging that Bank of America improperly denied their disputes
3 of allegedly unauthorized ATM transactions. In opposing class certification, Bank of
4 America showed that any damages award to these classes would necessarily result in
5 cash payments to criminal fraudsters, including
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14 ECF 350-8 ¶¶ 13–14.
15 The second group of criminals could not be identified by Bank of America at
16 all, because the information necessary to investigate eligibility fraud for EDD
17 benefits resided (and still resides) with the government authorities that actually
18 qualify the benefits recipients and the recipients themselves—not with Bank of
19 America. But we do know that there are a whole lot of them. California estimated
20 over $32 billion was stolen by fraudulent benefits claimants in what it called a
21 “criminal assault on the benefits system.” ECF 349 at 1. The Department of Labor
22 (DOL) estimated that more than a third of Pandemic Unemployment Assistance
23 benefits claims were fraudulent, amounting to losses as high as $400 billion. Id. at 6.
24 As to who, exactly, those criminals are, Bank of America informed the Court in its
25 original opposition to class treatment:
26 Applications and other eligibility information reside with EDD, and EDD still
hasn’t managed to sort it all out—as shown by the fact EDD is still
27 retroactively disqualifying many cardholders each month. Criminal
investigations continue, even with the pandemic and prepaid program behind
28 us. The federal government concedes it has no way to assess whether or not
the million or more people who defrauded EDD have or ever will be caught.
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1 Id. at 36 (citations omitted), see also Declaration of Laura G. Brys (Brys Decl.), Ex.
2 1 at 11, 17–18 (Jan. 17, 2025 Hr’g Tr.). Thus, “EDD continue[s] to identify fraudsters
3 in Plaintiffs’ proposed classes years after the fact as investigations progress.” Id. at
4 1.
5 The Court found that Plaintiffs had established predominance for class-
6 certification purposes because “[t]here is no evidence that many unearthed fraudulent
7 claims will arise.” ECF 494 at 57–58. And Plaintiffs had based their class-
8 certification motion on the notion that Bank of America had already identified every
9 case of eligibility fraud. But that wasn’t true. Bank of America never investigated
10 (and could not investigate) unemployment insurance (UI) benefits eligibility fraud.
11 And it could learn about new cases of eligibility fraud on any given day.
12 That day has come. As Bank of America recently informed the Court (see ECF
13 723, 723-1), 1 on May 8, 2026,
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23 And like the claims fraud examples, this only scratches the surface of the full
24 extent of the eligibility fraud pervading the certified classes.
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A newer Declaration of Jennifer Lennon addressing further developments since her
28 May 19, 2026 Declaration (ECF 723-1) is concurrently filed in support of this Motion
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(Lennon Decl.).
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7 This Court’s reaction to these sobering data points was appropriate:
8 the Court remarked. Brys Decl., Ex. 2 at 5 (May 21, 2026
9 Hr’g Tr.). And the solution couldn’t be so simple as merely removing them from the
10 classes. For one thing, that would require Plaintiffs to proffer (and the Court to
11 certify) a completely new class definition. More fundamentally, resolving questions
12 over exactly whom to remove would itself be a daunting exercise. “The easy case,”
13 the Court questioned Plaintiffs, “is the situation where a fraudster is identified; both
14 sides agree that he is a fraudster, and he is gone.” Id. at 15. But the “ongoing process”
15 was likely to “identif[y] individuals who it is not that clean, and those are then the
16 ones that Bank of America will say, ‘We have the right to have the jury decide
17 whether or not they are in fact a fraudster,’” requiring “enough mini trials where the
18 predominance can no longer be found to exist with respect to these claims.” Id.
19 That was the appropriate question to pose. “[A] class cannot be certified on the
20 premise that [the defendant] will not be entitled to litigate its [] defenses to individual
21 claims.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011). For the same
22 reason, the certification of the classes here cannot stand. Bank of America does have
23 the right to have a jury decide who among the of likely fraudsters
24 are indeed fraudsters.
25 And this issue is not a peripheral one—it is “central to the validity of each one
26 of the claims.” Id. at 350. It goes, first of all, to standing—which will be Plaintiffs’
27 burden to prove. Criminal fraudsters who had no legal right in the first place to the
28 funds in dispute cannot possibly claim an Article III injury from the temporary loss
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1 of access to those funds at issue here. But Supreme Court and Ninth Circuit precedent
2 firmly establish that “[e]very class member must have Article III standing in order to
3 recover individual damages,” and so the Court may not “order relief to any uninjured
4 plaintiff, class action or not,” unless Plaintiffs carry their burden of making this
5 showing. TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (internal quotations
6 omitted). Thus, if these criminals are part of a class, they must be “winnow[ed] out”
7 from it. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th
8 651, 669 (9th Cir. 2022) (internal quotations omitted).
9 Separately, Plaintiffs cannot litigate their claims without carrying their burden
10 on the essential element of actual damages. At the recent hearing, Plaintiffs made
11 much of the fact that Bank of America’s pending summary-judgment motion does
12 not “seek summary judgment as to its liability under EFTA. It challenges damages.”
13 Brys Decl., Ex. 2 at 7. That is not the winning argument Plaintiffs think it is, as it
14 confirms the centrality of the damages disputes to this case, which make up of
15 the relief Plaintiffs seek on behalf of the classes (excluding an alternative claim for a
16 $500,000 EFTA penalty),
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18 That is not “a de minimis number.” ECF 494 at 59. The resulting mini-trials
19 would necessarily predominate. But they wouldn’t necessarily be mini-trials. An
20 adjudication of criminal fraud calls for a full-blown trial. And there is no way around
21 them. Plaintiffs have never proposed any way to do this. Their best idea—which they
22 concede is a “facile” one—is to postpone the winnowing-out exercise for after trial.
23 Brys Decl., Ex. 2 at 16. But recent Ninth Circuit precedent, issued after the Court
24 certified the classes (and after Bank of America moved for summary judgment),
25 forecloses that idea. “TransUnion . . . requires unnamed members of a certified class
26 for money damages to demonstrate standing at summary judgment,” not merely “at
27 the end of the life cycle of a class action” or “the time that individual money damages
28 are awarded.” Healy v. Milliman, Inc., 164 F.4th 701, 705–06 (9th Cir. 2026).
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1 Based on the new facts, and this new binding precedent, Bank of America
2 respectfully submits that the winnowing-out process that would be required here
3 warrants decertification of the classes.
4 BACKGROUND
5 A. The Department of Labor Benefits Fraud Investigation
6 On February 22, 2021, the Department of Labor’s Office of Inspector General
7 for Audit issued an Alert Memorandum informing the Department (and the public)
8 that it had identified “$5.4 billion of potentially fraudulent UI benefits paid to
9 individuals with social security numbers filed in multiple states, to individuals with
10 social security numbers of deceased persons and federal inmates, and to individuals
11 with social security numbers used to file for UI claims with suspicious email
12 accounts” from March 2020 through October 2020.2 It urged the Department “to take
F
13 immediate action and increase its efforts to ensure [state workforce agencies]
14 implement effective controls to mitigate fraud” and cautioned that it had “only
15 capture[d] a subset of the potential fraudulent UI activities,” and “expects that the
16 actual amount of potential fraud is much larger.” Id. at 1–2. It cited reports estimating
17 that California had “paid at least 10 percent ($11 billion) of its UI benefits to
18 fraudulent claims since the pandemic began and believes the amount could be as high
19 as 27 percent ($29 billion).” Id. at 2.
20 Subsequent alerts continued ratcheting up the fraudulent payment estimates.
21 On September 21, 2022, the DOL-OIG issued an alert stating its estimate of payments
22 to potentially ineligible recipients now stood at $45.6 billion.3 And it again warned
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Brys Decl., Ex. 3 (Alert Memorandum: The Employment and Training
24 Administration (ETA) Needs to Ensure State Workforce Agencies (SWA) Implement
Effective Unemployment Insurance Program Fraud Controls for High Risk Areas,
25 Report No. 19-21-002-03-315, at 1, U.S. Dep’t of Labor, Office of Inspector General
(Feb. 22, 2021), available at https://www.oig.dol.gov/public/reports/oa/2021/19-21-
26 002-03-315.pdf).
3
Lennon Decl., Ex. B (Alert Memorandum: Potentially Fraudulent Unemployment
27 Insurance Payments in High-Risk Areas Increased to $45.6 Billion, Report No. 19-
22-005-03-315, at 1 U.S. Dep’t of Labor, Office of Inspector General (Sept. 21,
28 2022), available at https://www.oig.dol.gov/public/reports/oa/2022/19-22-005-03-
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315.pdf).
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1 that this was only one small part of the full scope of the fraud. “Despite the OIG’s
2 continued efforts to identify potentially fraudulent payments to ineligible claimants,”
3 it stated, “we continue to experience delays in obtaining the needed UI data” from
4 the state workforce agencies, “imped[ing] our ability to perform our statutory duty to
5 effectively and timely conduct audits and investigations of the UI program.” Id. at 2.
6 A January 30, 2026 alert from the DOL-OIG warned that state workforce
7 agencies were continuing to fail at “fulfilling their programmatic responsibilities to
8 prevent and detect improper payments,” estimates of which had again risen
9 considerably: “According to Inspector General Congressional Testimony, of the
10 $888 billion in UI benefits, at least $191 billion could have been improper payments,
11 including more than $76 billion paid to fraudsters.” 4 The specific concern of the
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12 memorandum was a vast sum of unspent UI benefits still vulnerable to being
13 “targeted by capable adversaries” or “escheated (surrendered) to state unclaimed
14 property administrators, . . . further complicating potential overpayment recovery.”
15 Id. —labeled in the memorandum as “Financial Institution 1”—was
16 identified as one of four institutions still holding unspent funds in beneficiary
17 accounts. Id. ¶ 4 & Ex. A at 3. The memorandum stated that the four institutions had
18 been subpoenaed to produce records on “(1) all prepaid cards with remaining UI
19 balances and (2) prepaid card balances already escheated to state unclaimed property
20 administrators,” and that had complied with a records production
21 in “late September 2025.” Id., Ex. A at 3. That production encompassed “more than
22 5 million prepaid card accounts” and over a billion dollars in affected funds, over
23 $738 million of which had “not yet escheated.” Id. at 3–4. The DOL-OIG found that
24 the vast majority of that amount consisted of “potentially fraudulently obtained
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26 Lennon Decl., Ex. A (Alert Memorandum: The Employment and Training
Administration Needs to Ensure State Workforce Agencies Take Action to Recover
27 Significant Unemployment Insurance Holdings Still Held by Financial Institution 1’s
Prepaid Card Program, at 1–2, U.S. Dep’t of Labor, Office of Inspector General
28 (Jan. 30, 2026), available at https://www.oig.dol.gov/public/reports/oa/2026/50-26-
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001-03-315.pdf).
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1 funds,” totaling $714,626,297 across nearly 2.7 million prepaid card accounts, and
2 across twelve state UI programs. Id. at 3–5; see Lennon Decl. ¶¶ 6, 12.
3 The alert
4 memorandum and subpoenas weren’t concerned with clawing back fraudulent
5 benefits payments that were already spent (
6 ). They were concerned exclusively with funds still held in beneficiaries accounts
7 at risk of escheatment and recently escheated funds that could still be recoverable
8 from the respective state unclaimed-property agencies.
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22 Bank of America promptly notified the Court of this development with a May
23 19, 2026 Notice of New Evidence Concerning Class Members (ECF 723) supported
24 by a declaration from Bank of America executive Jennifer Lennon
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26 (ECF 723-1). The Court in response vacated a planned hearing on pending
27 summary-judgment and Daubert motions to convene a status conference to address
28 the effect of the Notice of New Evidence on the pending motions. ECF 725 at 1.
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1 to prevent the permanent loss of funds by escheatment. That was not “triggered” by
2 former Secretary of Labor Chavez-DeRemer, either. The alerts came from the DOL-
3 OIG. Federal OIG offices are independent of the agencies they oversee with
4 independent leadership appointed “without regard to political affiliation and solely
5 on the basis of integrity and demonstrated ability in accounting, auditing, financial
6 analysis, law, management analysis, public administration, or investigations.” 5
7 U.S.C. § 403(a).
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15 See Lennon Decl. ¶¶ 8, 14 & Exs. B & C.
16 Politics aside, the Court then questioned Plaintiffs’ counsel how they proposed
17 to handle the situation where “it is not that clean” who is a fraudster, where “Bank of
18 America will say, ‘We have the right to have the jury decide whether or not they are
19 in fact a fraudster,’” with the result of “having enough mini trials where the
20 predominance can no longer be found to exist with respect to these claims.” Brys
21 Decl., Ex. 2 at 15. Plaintiffs gave two responses. First, they said, “[t]he facile
22 response is you can easily bifurcate a case like this and have any individual
23 adjudications as to damages resolved later, once you determine the class-wide
24 liability.” Id. at 16. Second, they doubled down on the claim that “the bank has an
25 affirmative burden that it doesn’t satisfy merely by showing that there’s a potential
26 that certain class members are fraudsters.” Id.
27 But that is not where the burden lies.
28
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1 STANDARD OF LAW
2 Class-certification orders are “inherently tentative” procedural orders that
3 “may be altered or amended” at any time “before entry of a final judgment.” Officers
4 for Just. v. Civ. Serv. Comm’n of City & Cnty. of S.F., 688 F.2d 615, 633 (9th Cir.
5 1982); FED. R. CIV. P. 23(c)(1)(C). “The Court has a continuing duty to ensure
6 compliance with class action requirements pursuant to Rule 23, and therefore may
7 decertify a class at any time.” Ugas v. H&R Block Enters., LLC, 2012 WL 5230297,
8 at *2 (C.D. Cal. July 9, 2012). Motions to decertify are reviewed under “the same . . .
9 standard used in evaluating a motion to certify; namely, whether the requirements of
10 Rule 23 are met.” Cruz v. Dollar Tree Stores, Inc., 270 F.R.D. 499, 502 (N.D. Cal.
11 2010). “On a motion for decertification, the burden remains on the plaintiffs to
12 demonstrate ‘that the requirements of Rule 23(a) and (b) are met.’” Ries v. Ariz.
13 Beverages USA LLC, 2013 WL 1287416, at *3 (N.D. Cal. Mar. 28, 2013) (quoting
14 Marlo v. UPS, 639 F.3d 942, 947 (9th Cir. 2011)); see also, e.g., Halliburton Co. v.
15 Erica P. John Fund, Inc., 573 U.S. 258, 275 (2014) (plaintiff must “prove—not
16 simply plead—that their proposed class satisfies each requirement of Rule 23”).
17 ARGUMENT
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21 “[A] court must consider whether the
22 possible presence of uninjured class members means that the class definition is fatally
23 overbroad. When ‘a class is defined so broadly as to include a great number of
24 members who for some reason could not have been harmed by the defendant’s
25 allegedly unlawful conduct, the class is defined too broadly to permit certification.’”
26 Olean, 31 F.4th at 669 n.14 (quoting Messner v. Northshore Univ. HealthSystem, 669
27 F.3d 802, 824 (7th Cir. 2012)). That is because the exercise of “winnow[ing] out” the
28 uninjured cannot possibly occur without individual mini-trials where individual
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1 issues would predominate. Id. at 669. Plaintiffs’ inability to propose any alternative
2 requires decertification of their classes.
3 I. Plaintiffs cannot carry their Rule 23 burden with a fraud-infested class.
4 As this Court has recognized, the “plaintiff bears the burden of proving that
5 the class meets all four requirements of Rule 23(a) . . . by a preponderance of the
6 evidence.” ECF 494 at 37 (citing Ellis v. Costco Wholesale Corp., 657 F.3d 970,
7 979–80 (9th Cir. 2011); Olean, 31 F.4th at 665). That does not, under current Ninth
8 Circuit law, require them to prove that their class is entirely free of criminal
9 fraudsters. But it does require Plaintiffs to prove that their class can be made entirely
10 free of criminal fraudsters before trial. See TransUnion, 594 U.S. at 431; Olean, 31
11 F.4th at 669; Healy, 164 F.4th at 705 (holding that “the logic of TransUnion . . .
12 requires unnamed members of a certified class for money damages to demonstrate
13 standing at summary judgment”). Plaintiffs have neither done so, nor proposed any
14 Rule 23-compliant method for doing so.
15 A. The burden of proof remains with Plaintiffs.
16 Plaintiffs’ argument that “the bank has an affirmative burden that it doesn’t
17 satisfy merely by showing that there’s a potential that certain class members are
18 fraudsters,” (Brys Decl., Ex. 2 at 16), is wrong and misconceived on multiple levels.
19 The “affirmative burden” here rests with the Plaintiffs, not the bank. See Ries, 2013
20 WL 1287416, at *3. And the “potential that certain class members are fraudsters” is
21 exactly the kind of showing that would impose on Plaintiffs the burden of proving
22 that those class members can be identified and removed from the class with common
23 evidence and no prospect of individualized inquiries predominating. See, e.g., Van v.
24 LLR, Inc., 61 F.4th 1053, 1068–69 (9th Cir. 2023). As the Ninth Circuit explained in
25 Van, once the defendant “invoked an individualized issue . . . and provided evidence
26 that at least some class members lack meritorious claims because of this issue,” “the
27 spectre of class-member-by-class-member adjudication” required vacating class
28 certification. Id. at 1069.
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1 Plaintiffs appear to conflate the burden of proof applicable to Bank of
2 America’s affirmative defenses to the burdens of proof that fall on them when it
3 comes to standing, actual damages, and class certification. It is true that the Court has
4 held that Bank of America will carry the burden of proof on its EFTA defenses to
5 Plaintiffs’ liability claims if this case goes to trial. See ECF 494 at 46–47. But it is
6 not true that Bank of America will need to carry the burden of disproving actual
7 damages on Plaintiffs’ damages claims. Supreme Court precedent, Ninth Circuit law,
8 and EFTA itself are all clear: it is Plaintiffs’ burden to prove their standing and
9 “actual damages” to recover any monetary damages on behalf of the classes—
10 including the EFTA treble damages that make up over of the relief they seek.
11 See, e.g., TransUnion, 594 U.S. at 431 (“plaintiff must demonstrate standing”)
12 (emphasis added); Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1026 (9th Cir.
13 2011) (“plaintiff must show that the claimed actual damages were ‘as a result of the
14 violation’”) (emphasis added), abrogated on other grounds by Comcast Corp. v.
15 Behrend, 569 U.S. 27 (2013). And it is not true, as Plaintiffs contend, that “the bank
16 has an affirmative burden” at the certification (or decertification) stage—much less
17 that this “affirmative burden” extends to requiring Bank of America “to demonstrate
18 who is in fact a criminal” at the certification stage (or at any other point before trial)
19 in order to defeat Plaintiffs’ liability case. Brys Decl., Ex. 2 at 8, 16. That is true for
20 at least two reasons.
21 First is the principle that “a class cannot be certified on the premise that [the
22 defendant] will not be entitled to litigate its [] defenses to individual claims.” Wal-
23 Mart, 564 U.S. at 367. So, regardless which side has the burden of proof on one issue
24 or another, the burden of showing that issue will not present predominating individual
25 inquiries rests on Plaintiffs, not Bank of America. See, e.g., Brown v. DirecTV, LLC,
26 562 F. Supp. 3d 590, 612 (C.D. Cal. 2021) (“And on a class certification motion, the
27 Court does not necessarily have to assess the merits of the affirmative defenses to the
28 underlying claim. It assesses whether common questions predominate, whether a
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1 class action is superior, etc. If [Defendant] did raise the statute of limitations defense
2 at class certification, the question would not be whether the defense has merit, but
3 whether it involves a common question for class adjudication.”). (Bank of America,
4 as noted, will never have the burden to prove who is or is not a criminal to defeat
5 Plaintiffs’ damages claims. It is indisputably Plaintiffs’ burden to establish “actual
6 damages” under EFTA to recover any of the damages they seek. See Stearns, 655
7 F.3d at 1026.)
8 Second, the issue of which class members are criminal fraudsters does not
9 merely implicate Bank of America’s EFTA statutory defenses. As this Court
10 recognized when it ordered a stay of this case pending the Supreme Court’s ruling in
11 Lab’y Corp. of Am. Holdings v. Davis, No. 24-0304, “criminals who defrauded the
12 EDD with fraudulent benefits claims” have no Article III standing. ECF 448 at 5, 7.
13 Plaintiffs effectively conceded the same, when they told the Court at the recent status
14 hearing that “the existence or nonexistence of fraudsters is not a question of whether
15 there’s a violation of EFTA. It is really a question of, what is the class size? Who
16 does this affect? Who is in and who is out?” Brys Decl., Ex. 2 at 7. Consistent with
17 this, TransUnion and Olean establish the least of what Plaintiffs must accomplish:
18 “winnow out” the “non-injured subset of class members.” Olean, 31 F.4th at 669.
19 And if they cannot propose some method for doing so that satisfies Rule 23
20 predominance, the class must be decertified. See id. at 668 (“When individualized
21 questions relate to the injury status of class members, Rule 23(b)(3) requires that the
22 court determine whether individualized inquiries about such matters would
23 predominate over common questions.”).
24 Plaintiffs cannot shift this burden back to Bank of America by arguing that
25 Bank of America has not done enough at the current stage
26 As a threshold matter,
27 “because ‘[Article III] presume[s] that federal courts lack jurisdiction unless the
28 contrary appears affirmatively from the record,’ the party asserting federal
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1 jurisdiction when it is challenged has the burden of establishing it.” DaimlerChrysler
2 Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (quoting Renne v. Geary, 501 U.S. 312,
3 316 (1991). Bank of America has challenged the Article III standing of the criminals
4 in this class and the consequent existence of subject-matter jurisdiction over their
5 claims. That puts the burden on Plaintiffs to show who is injured, not on Bank of
6 America to show who is not. And they must do it now, not merely “at the end of the
7 life cycle” of the case. Healy, 164 F.4th at 705–06.
8 The constitutional issue aside, the same result follows by application of the
9 standard Rule 23 burdens. The case of Mabanta v. Prime Now LLC, 2022 WL
10 1601415 (N.D. Cal. Feb. 28, 2022), is apropos. Mabanta was a wage-and-hour case
11 alleging that Amazon workers were entitled to be paid for time spent scheduling their
12 shifts. Id. at *1. The plaintiff proffered the workers’ alleged entitlement to be “on the
13 clock” while scheduling shifts as the common question purportedly justifying class
14 treatment, but the defendants argued that the putative class necessarily included
15 workers who were “on the clock” when they scheduled their shifts (and were
16 therefore uninjured). Id. at *3-4. The plaintiff made precisely the same protest as
17 Plaintiffs here: “Plaintiff submits that ‘there is no reason or evidence to believe that
18 any class member only scheduled shifts while on the clock’” and that
19 “‘defendants . . . have not pointed to one example of a class member that only
20 scheduled shifts on the clock.’” Id. at *5 (brackets omitted). The Court rejected that
21 argument, ruling:
22
Plaintiff’s assertions neglect that it is his burden, on a motion for class
23 certification, to demonstrate compliance with Rule 23’s requirements. As
such, he, not defendants, must show ‘that the class members have suffered the
24 same injury.’ He has not done so here. Thus, contrary to plaintiff’s belief, it is
not defendants’ burden to disprove plaintiff’s theory that class members
25 commonly selected shifts off the clock.
26 Id. (quoting Wal-Mart, 564 U.S. at 349–50; citations omitted). It was immaterial that
27 the defendant could not show which class members had no claim. It was sufficient
28 for the defendant to establish that there were some. And the fact that there were some,
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1 coupled with the fact “it is impossible to know, without individual inquiries,” who
2 they were, defeated commonality and predominance. Id. (quoting Heredia v. Eddie
3 Bauer LLC, 2020 WL 127489, at *1 (N.D. Cal. Jan. 10, 2020)) (decertifying class on
4 the same ground).
5 Heredia is also instructive, especially given the decertification context. There,
6 the plaintiff had achieved certification of a class of Eddie Bauer retail employees
7 claiming a right to be “on the clock” during security inspections when they left the
8 stores. 2020 WL 127489, at *1. The court had been satisfied that the existence and
9 legality of an offending policy were common questions, and rejected Eddie Bauer’s
10 protests that the class included members who had been on the clock during security
11 checks, because Eddie Bauer “presented the Court with ‘no evidence of any of these
12 “on-the-clock” employees.’” Id. at *2. But then the record “significantly developed.”
13 Id. Eddie Bauer had an expert capture video footage of 620 employee exits, 137 of
14 which “captured all aspects of the exit inspection,” including the security check and
15 the employee’s clocking out. Id. “Of those 137 fully-observed exits, 80.3% were on
16 the clock.” Id. The Court then decertified the class because “the class includes
17 employees who did not suffer any harm or injury,” and it was “impossible to know,
18 without individual inquiries, which employees” were unharmed, even though it knew
19 there were plenty. Id. at *5–6. Further, the record furnished no way to do those
20 inquiries short of “ask[ing] each employee individually” about their experiences. Id.
21 at *5. The Court concluded that “the jury would necessarily have to decide whether
22 each employee experienced uncompensated exit inspections. Class actions are not
23 appropriate where the resolution of the case would require numerous mini trials.” Id.
24 at *6.
25 The instant case is directly analogous, except that the record here is even more
26 decisively in Bank of America’s favor. Plaintiffs do not deny “that there’s a potential
27 that certain class members are fraudsters.” Brys Decl., Ex. 2 at 16. Nor could they:
28
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1 various [class members] are resolved,” even though “the applicability . . . to the core
2 dispute has not been determined”) (internal quotations omitted).
3 B. The need for of individual mini- (or full trials)
4 requires decertification.
5 Bank of America has provided evidence that constitutional standing defenses
6 and statutory actual damages defenses bar recovery for
7 See Lennon Decl. ¶ 9 &
8 Ex. D. Perhaps this evidence
9
10 will not conclusively resolve those claims, but it is, at the least, evidence—evidence
11 that could only be parried (or corroborated) with more individual evidence, like
12 written discovery, deposition, and cross-examination testimony. Perhaps those
13 individual inquiries would show that the actual proportion of criminal fraudsters is
14 less (or perhaps more). But it is already more than just “some,” and it is more than
15 “mere speculation.” Van, 61 F.4th at 1068.
16
17 And Plaintiffs have proposed no way to
18 litigate those cases with common evidence.
19 That is dispositive. In Van, the Ninth Circuit deemed the defendant’s evidence
20 of “13,680 discounts [] provided to class members” sufficient to show that “some
21 class members [were] uninjured.” Id. at 1069. Even though the evidence “consisted
22 of only a small number of invoices, [it] was sufficient to prove that an inquiry into
23 the circumstances and motivations behind each of the 13,680 discounts might be
24 necessary,” and that inquiry “could potentially involve up to 13,680 depositions and
25 months of trial.” Id. That was enough to warrant vacating the class certification order
26 in Van. The evidence is far greater and stronger here ,
27 and would require depositions and months of trial here.
28 Similarly, in Bowerman v. Field Asset Servs., Inc., 60 F.4th 459 (9th Cir.
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1 2023), the Ninth Circuit decertified a class on finding “the damages phase of this
2 class action [] far messier than promised by plaintiffs’ counsel when the case was
3 certified,” because “proof by the testimony of individual [class members] is
4 necessary.” Id. at 469 (alterations omitted); see also, e.g., Heredia, 2020 WL 127489,
5 at *5 (decertifying the class because identifying class members “who did not suffer
6 any harm” required testimony from “each [class member] individually”). That is
7 exactly the problem here. Plaintiffs cannot deny they will bear the burden to prove
8 Article III standing and “actual damages” in order to recover the EFTA treble
9 damages and other money damages that make up of the relief they seek. 8 But
F
10 Plaintiffs have offered no way to prove their standing and actual damages classwide
11 without resorting to bifurcation and mini-trials that would descend into full-blown
12 trials and require discovery and testimony from of individual class
13 members.
14 The necessary discovery and testimony by itself defeats predominance.
15 Confronted with a scenario where statistical evidence indicated that “approximately
16 ten percent of class members had not been injured,” the First Circuit rejected the
17 feasibility of relying on “testimony” from class members to satisfy predominance:
18 The aim of the predominance inquiry is to test whether any dissimilarity
among the claims of class members can be dealt with in a manner that is not
19 “inefficient or unfair.” Inefficiency can be pictured as a line of thousands of
class members waiting their turn to offer testimony and evidence on individual
20 issues. Unfairness is equally well pictured as an attempt to eliminate
inefficiency by presuming to do away with the rights a party would
21 customarily have to raise plausible individual challenges on those issues.
22 In re Asacol Antitrust Litig., 907 F.3d 42, 46–47, 51–52 (1st Cir. 2018) (citation
23 omitted). The evidence here, of course, is more than just statistical.
24 But
25 Plaintiffs have given the Court that same choice between inefficiency and unfairness.
26 The first offends Rule 23. The second offends due process.
27
8
Without proof of actual damages, the most Plaintiffs can recover on behalf of their
28 EFTA classes, if they prove their liability case, is the capped statutory penalty of
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1 This Court expressed the concern that “we are still left with generalities and
2 the lack of something more individualized” . Brys Decl., Ex.
3 2 at 32. is already far more individualized and less generalized
4 than the evidence courts have found sufficient to destroy the cohesion of a class in
5 the above cases. See also, e.g., Brown v. Google, LLC, 2022 WL 17961497, at *19
6 n.2 (N.D. Cal. Dec. 12, 2022) (finding that “Google’s evidence . . . establishes that
7 individual and subjective interactions require individualized inquiries” even though
8 its “data is not connected to any particular class member, but general data that shows
9 that class members have differing experiences”).
10
11 Lennon Decl. ¶ 13 & Ex. D.
12 Thus, this Court was correct to apprehend why the inefficient course of
13 of individual mini- or full-blown trials is unavoidable. There will be no
14 “easy case” where “a fraudster is identified; both sides agree that he is a fraudster,
15 and he is gone.” Brys Decl., Ex. 2 at 15.
16 , and they do not
17 concede that any of them are “gone.” Rather, they have proposed the mini-trial route.
18 See id. at 16. And they have maintained that if these mini-trials “can prove actual
19 fraud, then the person is out” of the class, because their “class definition expressly
20 excludes class members who commit fraud.” Id. at 8, 18. They consider that class
21 definition “a mechanism in place” for ensuring that “fraudsters . . . are out of the
22 class.” Id. at 8. But it is not a “mechanism” that satisfies Rule 23 predominance.
23 There is, in fact, a name for such a “mechanism.” It is called a fail-safe class,
24 and it is unlawful in this Circuit (and most others). “A court may not . . . create a ‘fail
25 safe’ class that is defined to include only those individuals who were injured by the
26 allegedly unlawful conduct. ‘Such a class definition is improper because a class
27 member either wins or, by virtue of losing, is defined out of the class and is therefore
28 not bound by the judgment.’” Olean, 31 F.4th at 669 n.14 (quoting Messner, 669 F.3d
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1 at 825) (citation omitted).
2 The other problem is that the class definition is not actually a “mechanism” for
3 removing anyone from the class. Class definitions are not self-executing. Defining
4 uninjured cardholders out of the class does not actually accomplish it; it simply begs
5 the question of how to identify the uninjured cardholders to remove from the class.
6 And Plaintiffs still carry the burden of doing so without “individualized inquiries
7 about such matters.” Olean, 31 F.4th at 668. But as Plaintiffs admitted via their self-
8 confessed “facile” proposal to “bifurcate [the] case . . . and have any individual
9 adjudications as to damages resolved later,” they have no mechanism for carrying
10 their burden. Brys Decl., Ex. 2 at 16.
11 II. This Court did not, and cannot, certify a “bifurcated” class.
12 Plaintiffs’ proposal to “bifurcate [the] case” implicitly invokes Rule 23(c)(4).
13 They had previously made the suggestion in a footnote in their class-certification
14 motion with no elaboration. See ECF 324-1 at 4 n.2. The Court did not accept the
15 invitation then, and should not now.
16 Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or
17 maintained as a class action with respect to particular issues.” That merely prompts
18 the question of when it is “appropriate.” See, e.g., Saavedra v. Eli Lilly & Co., 2014
19 WL 7338930, at *10 (C.D. Cal. Dec. 18, 2014) (noting that while “[t]he Ninth Circuit
20 has approved the use of issue classes,” “neither the Ninth Circuit nor the Supreme
21 Court has established when certification of an issue class is appropriate”). The Ninth
22 Circuit has established that “Rule 23(c)(4) certification is not a consolation prize” to
23 be given regardless whether it “advance[s] the litigation as a whole.” Pennington v.
24 Tetra Tech, Inc., 2024 WL 5213095, at *6 (N.D. Cal. Dec. 23, 2024). Nor is it a
25 magic bullet for eliminating predominance problems on the premise that every
26 individual issue can be dealt with separately. See Valentino v. Carter-Wallace, Inc.,
27 97 F.3d 1227, 1229–30 (9th Cir. 1996) (vacating class-certification grant bifurcating
28 liability issues from individual damages determinations because “the court did not
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1 discuss whether the adjudication of the certified issues would significantly advance
2 the resolution of the underlying case, thereby achieving judicial economy and
3 efficiency”).
4 Thus, “a district court is not bound to certify a liability class merely because it
5 is permissible to do so under Rule 23(b)(3). The language of Rule 23(c)(4) speaks of
6 certifying as to particular issues ‘when appropriate,’ meaning that courts should use
7 Rule 23(c)(4) only where resolution of the particular common issues would
8 materially advance the disposition of the litigation as a whole.” Rahman v. Mott’s
9 LLP, 2014 WL 6815779, at *9 (N.D. Cal. Dec. 3, 2014) (internal quotations and
10 alterations omitted). A class trial on Plaintiffs’ liability theories would not
11 “materially advance the disposition of the litigation as a whole.” The overwhelming
12 majority of what Plaintiffs hope to recover here presupposes proof of standing and
13 actual damages, and for the “disposition” of these issues to “advance,”
14 of mini- or full-blown trials to determine class membership, injury, and
15 Article III standing must still follow. Rahman, 2014 WL 6815779, at *9; see also,
16 e.g., Bowerman, 60 F.4th at 470 (Ninth Circuit decertifying class because “proof by
17 the testimony of individual [class members] is necessary” for damages); Heredia,
18 2020 WL 127489, at *5–6 (decertifying class because identifying class members
19 “who did not suffer any harm” required testimony from “each [class member]
20 individually”). And it would violate Healy’s rule that “the standing inquiry for
21 unnamed class members” cannot “wait until the final stage of a damages action.” 164
22 F.4th at 708.
23 And, lastly, Rule 23(c)(4) certification is not warranted just because a plaintiff
24 asks for it. The burden is on Plaintiffs “to show that Rule 23(c)(4) certification was
25 ‘appropriate.’” Reitman v. Champion Petfoods USA, Inc., 830 F. App’x 880, 882 (9th
26 Cir. 2020). The “vague” suggestion that the “Court should reserve the question of
27 how damages should be adjudicated until the liability phase is complete” does not
28 carry that burden when doing so “would simply postpone [tens of thousands of] jury
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1 trials on damages, not eliminate the need for them.” D.C. ex rel. Garter v. Cnty. of
2 San Diego, 2018 WL 692252, at *3-4 (S.D. Cal. Feb. 1, 2018) (denying certification
3 because “Plaintiff has not devised a plan to resolve this case after the liability phase”),
4 aff’d, 783 F. App'x 766 (9th Cir. 2019). The same is true of the of
5 trials needed here.
6 III. This case cannot play out with common inquiries predominating.
7 “Under the predominance inquiry, a district court must formulate some
8 prediction as to how specific issues will play out in order to determine whether
9 common or individual issues predominate in a given case.” Herskowitz v. Apple, Inc.,
10 301 F.R.D. 460, 469 (N.D. Cal. 2014) (internal quotation marks omitted). This is how
11 standing issues will play out here.
12 Plaintiffs will argue, as they have, that the fact that
13 to all of the class members” is evidence
14 that they all had an injury warranting compensation. Brys Decl., Ex. 2 at 16. And
15 Bank of America will argue otherwise, as it has also done. Plaintiffs concede that
16 “[t]here is a question as to the legal significance” . Id.
17 As Bank of America has shown,
18
19 . See ECF 349 at 3–5, 13–14.
20 . Bank
21 of America “never attempted to sort out eligible benefits recipients from every person
22 who defrauded EDD” because all the “eligibility information reside[s] with EDD”
23 and the beneficiaries themselves, not the bank, “and EDD still hasn’t managed to sort
24 it all out—as shown by the fact EDD is still retroactively disqualifying many
25 cardholders each month.” Id. at 35–36.
26
27
28
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1
2
3 Plaintiffs will protest that it is too late, and this evidence should have been
4 presented earlier. Bank of America will point out that the evidence did not exist until
5 last month—
6 —and it doesn’t matter anyway, because the Court “may decertify a class at any
7 time.” Ugas, 2012 WL 5230297, at *2. It is not Bank of America’s fault that
8
9 and no justification to prejudice Bank of America just because material evidence
10 arose later than might have been maximally convenient. More might still arise.
11 , and on May 28, 2026,
12 subsequent to the status conference, the DOL-OIG issued another fraud alert
13 “assess[ing] that an opportunity exists . . . to[] ensure SWAs finalize and remit their
14 fraud findings for all [BANA] UI prepaid card accounts” to the DOL. Lennon Decl.
15 ¶¶ 4, 13; Brys Decl., Ex. 5.
16 Regardless, at this point, there is either no competent evidence of the suspected
17 fraudsters’ Article III standing (destroying the cohesion of the class, and warranting
18 decertification on that basis alone), or there is disputed evidence of the suspected
19 fraudsters’ standing, with only a jury capable of deciding whom to believe—
20 Plaintiffs, or Bank of America (and the DOL-OIG).
21 From there, perhaps the Court accepts Plaintiffs’ proposal “to reopen
22 discovery,” so they “can respond factually” to the DOL-OIG’s conclusions. Brys
23 Decl. Ex. 2 at 6. If so, Bank of America would have the same opportunity in reopened
24 discovery to adduce evidence supporting the DOL-OIG’s conclusions as Plaintiffs
25 would to seek evidence rebutting them. Disputes will inevitably follow about what
26 written discovery and how many absent class member depositions Bank of America
27 should be allowed to take.
28 Regardless, Bank of America will remain “entitled to litigate its [] defenses to
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1 individual claims”—if not through depositions, written discovery, and subpoenas,
2 then at least at trial. Wal-Mart, 564 U.S. at 367. And if the testimony of individual
3 class members will help resolve the factual dispute
4
5 , then Bank of America will be entitled to take that testimony,
6 . See Bowerman, 60 F.4th at 470; Asacol, 907 F.3d at 51–52; Heredia,
7 2020 WL 127489, at *5–6. And the jury will be entitled to evaluate the plausibility
8 of each suspected fraudster’s story one-by-one. Whether this occurs in the course of
9 a class trial, or after one, is immaterial. It will still have to occur, and the class portion
10 would not “materially advance the disposition of the litigation as a whole” with all
11 the individual hearings on standing still to come. Rahman, 2014 WL 6815779, at *9.
12 CONCLUSION
13 The Court certified Plaintiffs’ claims for class treatment on the premise, argued
14 by Plaintiffs, that Bank of America “has cited only a de minimis number of uninjured
15 class members which does not defeat predominance.” ECF 494 at 55. Bank of
16 America disagrees, but even if that were so, the “de minimis” examples Bank of
17 America cited last year were just that—examples, not exhaustive: the mere tip of the
18 proverbial iceberg. Now, much more of the iceberg is in sight.
19 , and the
20 more who will likely follow upon further investigation, are not a “de
21 minimis” number, and the exercise of adjudicating which are criminal fraudsters
22 cannot occur without individual inquiries predominating. Bank of America thus
23 respectfully submits that the Court should de-certify the Plaintiff classes.
24
25 Dated: June 8, 2026 Respectfully submitted,
26 By: /s/ Sabrina M. Rose-Smith_________
27 SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
28 MATTHEW L. RIFFEE (pro hac vice)
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MEMO. ISO DECERT. MOT. CASE NO. 3:21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 733-1 Filed 06/08/26 PageID.61371
Page 30 of 31
1 MRiffee@goodwinlaw.com
KEITH LEVENBERG (pro hac vice)
2 KLevenberg@goodwinlaw.com
GOODWIN PROCTER LLP
3 1900 N St. NW
Washington, DC 20036
4 Tel: +1 202 346 4000
Fax: +1 202 346 4444
5
JAMES W. MCGARRY (pro hac vice)
6 JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
7 100 Northern Avenue
Boston, MA 02210
8 Tel.: +1 617 570 1000
Fax: +1 617 523 1231
9
LAURA G. BRYS (SBN 242100)
10 LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
11 601 S Figueroa St., Suite 4100
Los Angeles, CA 90017
12 Tel.: +1 213 426 2500
Fax: +1 617 346 4444
13
YVONNE W. CHAN (pro hac vice)
14 YChan@jonesday.com
JONES DAY
15 100 High Street
Boston, MA 02110
16 Tel.: +1 617 960 3939
Fax: +1 617 449 6999
17
JANICE P. BROWN (SBN 114433)
18 jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN
19 278405)
mnazareth@myersnave.com
20 MEYERS NAVE
600 B Street, Suite 1650
21 San Diego, CA 92101
22 Attorneys for Defendant
BANK OF AMERICA, N.A.
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ATTORNEYS AT LAW
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MEMO. ISO DECERT. MOT. CASE NO. 3:21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 733-1 Filed 06/08/26 PageID.61372
Page 31 of 31
1 CERTIFICATE OF SERVICE
2 I hereby certify that I electronically filed the foregoing with the clerk of the
3 court for the United States District Court for the Southern District of California by
4 using the CM/ECF system on June 8, 2026. I further certify that all participants in
5 the case are registered CM/ECF users and that service will be accomplished by the
6 CM/ECF system. I certify under penalty of perjury that the foregoing is true and
7 correct.
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10 Executed: June 8, 2026 s/ Sabrina M. Rose-Smith
11 SABRINA M. ROSE-SMITH
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ATTORNEYS AT LAW
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MEMO. ISO DECERT. MOT. CASE NO. 3:21-MD-02992-GPC-MSB
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