Defendant’s Response to Plaintiffs’ Motion to Consolidate Related Cases and to Appoint Lead Counsel and Executive Committee — No. 3:21-cv-00376-VC (Dkt. 44, N.D. Cal.)

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Defendant Bank of America, N.A.'s response, filed February 26, 2021 as Dkt. 44 in Yick v. Bank of America, N.A., Case No. 3:21-cv-00376-VC, in the U.S. District Court for the Northern District of California, to the plaintiffs' motion to consolidate related cases and to appoint lead counsel and an executive committee. The filing relates to eight putative class actions over California unemployment benefits that BANA distributed for the Employment Development Department (EDD) through prepaid debit cards. BANA agrees that consolidation for pre-trial purposes, including discovery, dispositive motions and class certification, is appropriate, but argues that consolidating the matters for trial would be premature and that an executive committee spread across ten different firms is unnecessary. It is signed by Laura A. Stoll of Goodwin Procter LLP.

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1 LAURA A. STOLL (SBN 255023)
LStoll@goodwinlaw.com
2 GOODWIN PROCTER LLP
601 South Figueroa Street, 41st Floor
3 Los Angeles, California 90017
Tel.: +1 213 426 2500
4 Fax: +1 213 623 1673

5 DAVID ROSSITER CALLAWAY (SBN 121782)
DCallaway@goodwinlaw.com
6 GOODWIN PROCTER LLP
601 Marshall Street
7 Redwood City, California 94063
Tel.: +1 650 752 3100
8 Fax: +1 650 853 1038

9 BARRY W. LEE (SBN 088685)
bwlee@manatt.com
10 MANATT PHELPS & PHILLIPS LLP
One Embarcadero Center, 30th Floor
11 San Francisco, California 94111
Tel.: +1 415 291 7450
12 Fax: +1 415 291 7474

13 Attorneys for Defendant
BANK OF AMERICA, N.A.
14

15
UNITED STATES DISTRICT COURT
16
NORTHERN DISTRICT OF CALIFORNIA
17
JENNIFER YICK, on behalf of herself and all Case No. 3:21-cv-00376-VC
18 others similarly situated,

19 Plaintiff, DEFENDANT BANK OF AMERICA’S
RESPONSE TO PLAINTIFFS’ MOTION TO
20 v. CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE
21 BANK OF AMERICA, N.A., and DOES 1-20, COMMITTEE
inclusive,
22 Courtroom: 4 – 17th Floor
Defendants. Judge: Hon. Vince Chhabria
23
Complaint filed: January 14, 2021
24

25 This document also relates to: Case No. 3-21-cv-00494-VC
26 CARLOS RODRIGUEZ, on behalf of himself
and all others similarly situated,
27
Plaintiff,
28 Judge: Hon. Vince Chhabria

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 v.
Complaint filed: January 20, 2021
2 BANK OF AMERICA, N.A.,

3 Defendant.

4 This document also relates to: Case No. 3:21-cv-00547-VC
5 J. MICHAEL WILLRICH, on behalf of himself
and all others similarly situated,
6
Plaintiffs, Judge: Hon. Vince Chhabria
7
v. Complaint filed: January 22, 2021
8
BANK OF AMERICA, N.A., and DOES 1-20,
9 inclusive,
10 Defendants.
11 This document also relates to: Case No. 3:21-cv-00572-VC
12 LINDSAY MCCLURE, on behalf of herself and
all others similarly situated,
13
Plaintiff,
14 Judge: Hon. Vince Chhabria
v.
15 Complaint filed: January 25, 2021
BANK OF AMERICA, N.A., and DOES 1-20,
16 inclusive,
17 Defendants.
18 This document also relates to: Case No. 3:21-00615-VC
19 ROLAND OOSTHUIZEN and ROSEMARY
MATHEWS, on behalf of themselves and all
20 others similarly situated,
21 Plaintiffs, Judge: Hon. Vince Chhabria
22 v. Complaint filed: January 26, 2021
23 BANK OF AMERICA, N.A., and DOES 1-30,
inclusive,
24
Defendants.
25
This document also relates to: Case No. 3:21-cv-00699
26
ROBERT L. WILSON, on behalf of himself and
27 all others similarly situated,
28

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 Plaintiff, Judge: Hon. Vince Chhabria

2 v. Complaint filed: January 28, 2021

3 BANK OF AMERICA, N.A., and DOES 1-20,
inclusive,
4
Defendants.
5
This document also relates to: Case No. 3:21-cv-00743-VC
6
CHRISTOPHER MOSSON, on behalf of
7 himself and all others similarly situated,
8 Plaintiff,
Judge: Hon. Vince Chhabria
9 v.
Complaint filed: January 29, 2021
10 BANK OF AMERICA, N.A., and DOES 1-50,
inclusive,
11
Defendants.
12
This document also relates to: Case No. 3:21-cv-00869-VC
13
CLARA CAJAS, on behalf of herself and all
14 others similarly situated,
15 Plaintiff,
Judge: Hon. Vince Chhabria
16 v.
Complaint filed: February 3, 2021
17 BANK OF AMERICA, N.A., and DOES 1-20,
inclusive,
18
Defendants.
19

DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 Defendant Bank of America, N.A. (“Defendant” or “BANA”) submits this response to

2 Plaintiffs Jennifer Yick, Roland Oosthuizen, and Rosemary Mathews’ (together, “Plaintiffs”)

3 Motion to Consolidate Related Actions, Appoint Cotchett, Pitre & McCarthy, LLP and Altshuler

4 Berzon LLP as Interim Co-Lead Counsel, and Proposed Executive Committee (the “Motion”).

5 MEMORANDUM OF POINTS AND AUTHORITIES

6 I. Introduction

7 The lawsuits that Plaintiffs seek to consolidate (as well as several pending in other

8 districts) relate to massive fraud targeting California’s unemployment benefits program that

9 surged at the height of the COVID-19 pandemic. At a time when millions of Californians and

10 other Americans had lost their livelihoods and were relying on government assistance to make

11 ends meet, legions of criminals were exploiting this unprecedented crisis to target government

12 agencies like the California Employment Development Department (“EDD”), resulting in

13 hundreds of thousands of instances of fraudulent unemployment benefits claims, as well as

14 unauthorized access to unemployment benefits that had been distributed to legitimate claimants.

15 BANA, which had been retained by EDD to distribute unemployment benefits to qualifying

16 residents through prepaid debit cards, worked closely with EDD to address the diversion of sorely

17 needed unemployment benefits into the hands of criminals. BANA, in collaboration with EDD,

18 has taken a number of actions, such as freezing suspicious debit card accounts believed to have

19 been either the product of or affected by fraud, and establishing a series of fraud-prevention

20 measures to identify suspected fraudulent activity.

21 Plaintiffs do not dispute that fraud occurred or that it was rampant; indeed, Plaintiffs

22 allege that they, too, were victims of fraudulent and unauthorized activity on their accounts. See,

23 e.g., Yick Compl. ¶¶ 39–41. Instead, Plaintiffs blame BANA for the fraud, while at the same time

24 alleging that EDD’s and BANA’s fraud-prevention efforts were overbroad, resulting in some

25 legitimate accounts being frozen due to suspicion of fraud. See, e.g., McClure Compl. ¶ 20;

26 Willrich Compl. ¶ 59.

27 Because the eight putative class actions that Plaintiffs seek to consolidate involve similar

28 claims and facts, BANA agrees that consolidation for pre-trial purposes (including discovery,
1
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 dispositive motions, and class certifications) is appropriate. However, BANA believes it would

2 be premature to consolidate these matters for trial, as discovery will likely reveal a number of

3 factual differences between the claims of each individual plaintiff that may make a consolidated

4 trial unduly cumbersome or prejudicial.

5 With respect to Plaintiffs’ proposal for an executive committee, BANA does not believe

6 that a committee is necessary under these circumstances, where all of the cases to be consolidated

7 involve a number of overlapping facts (except those specific facts that are relevant to each

8 plaintiff’s individual account and/or transactions) and issues of law. Allocating responsibilities

9 among ten different firms1 would defeat the purpose of consolidation, as the efficiencies achieved

10 by consolidation could easily be outweighed by the inefficiency of having ten firms involved in

11 strategy and decision-making.

12 II. The Cases Should Be Consolidated for Pretrial Purposes Only

13 BANA agrees that consolidation of these putative class actions is appropriate for pretrial

14 purposes, given that each involves BANA’s efforts to protect against the large-scale fraud

15 directed at EDD and legitimate recipients of unemployment benefits. Each of the eight lawsuits

16 raises issues concerning BANA’s delivery of EDD benefits and its efforts to combat that fraud,

17 such as freezing debit card accounts suspected of fraud, and responding to claims of fraudulent

18 transactions. Therefore, discovery will no doubt overlap significantly, as each set of plaintiffs

19 will likely seek to depose BANA regarding the same or similar issues. Class certification and

20 dispositive motions in each case will also likely raise similar legal issues, as the claims asserted

21 by each set of plaintiffs largely overlap, and plaintiffs propose to certify a similarly defined class

22 in each case.

23 However, each plaintiff’s case may ultimately turn on the facts specific to their claim,

24 such as any evidence of fraud surrounding each account or transaction in dispute, and whether

25 accounts and any claims made on the accounts are legitimate. In addition to class certification

26 issues such differences may raise, it may not be appropriate to consolidate these eight cases for

27
1
28 Plaintiffs ask the Court to appoint two firms as interim Proposed Lead Counsel, and eight other
firms to serve on an executive committee.
2
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 trial, where a consolidated trial could end up being eight separate mini-trials. Therefore, while

2 BANA agrees that pre-trial consolidation is appropriate, BANA requests that the Court decline

3 (for now) to issue a ruling with respect to consolidation for trial, in order to allow the parties to

4 confer regarding this issue after discovery, class certification, and dispositive motions have been

5 completed, and to submit additional briefing at that time if agreement cannot be reached. 2

6 III. An Executive Committee Is Not Necessary in This Case

7 BANA does not oppose the appointment of Cotchett, Pitre & McCarthy LLP and

8 Altshuler Berzon LLP as interim Co-Lead Counsel. And although it takes no issue with the

9 qualifications of the other firms in Plaintiffs’ proposal, BANA does not believe that an eight-firm

10 executive committee is necessary or appropriate here, where the cases to be consolidated all bring

11 substantially similar legal claims, and a multi-tiered committee could lead to numerous

12 inefficiencies and likely significantly increased costs.

13 First, Plaintiffs do not point to any differences between the eight lawsuits that would

14 necessitate an eight-firm executive committee—or any committee at all. “Committees are most

15 commonly needed when group members’ interests and positions are sufficiently dissimilar to

16 justify giving them representation in decision making.” Manuel for Complex Litig., § 10.221.

17 The fact that there is more than one group of plaintiffs “is irrelevant if Plaintiffs’ interests are not

18 divergent or dissimilar.” Aberin v. Am. Honda Motor Co., Inc., 2017 WL 3641793, at *2 (N.D.

19 Cal. Aug. 24, 2017). Courts within this circuit routinely deny requests for appointment of

20 executive committees where a plaintiff fails to demonstrate that such an appointment is necessary.

21 See, e.g., Aberin, 2017 WL 3641793, at *2 (finding three-firm committee unwarranted where

22 “Plaintiffs have neither addressed nor demonstrated that the interests of the class diverge or are

23 dissimilar”); Kamakahi v. Am. Soc. for Reprod. Med., 2012 WL 892163, at *3 (N.D. Cal. Mar.

24 14, 2012) (declining to appoint a three-firm executive committee where plaintiff did not

25 2
On February 8, 2021, BANA filed a Notice of Pendency of Other Actions or Proceedings
26 Pursuant to Local Rule 3-13 (Dkt. No. 22), notifying the Court of two actions pending in the
Central District of California: (1) Chong v. Bank of America, 2:20-cv-10052 (C.D. Cal. Nov. 2,
27 2020) (Aenlle-Rocha, J.); and (2) Zoelle et al. v. Bank of America, N.A., 2:21-cv-00518 (C.D. Cal.
Jan. 20, 2021) (Olguin, J). In addition, BANA wishes to alert the Court of a third matter pending
28 in the Eastern District of California that may involve similar questions of law and fact: Wiggins v.
Bank of America, N.A., 2:21-cv-00319 (E.D. Cal. Feb. 18, 2021) (England, J.).
3
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 “identif[y] any diverse interest among the parties”); Nicolow v. Hewlett Packard Co., 2013 WL

2 792642, at *9 (N.D. Cal. Mar. 4, 2013) (declining to appoint an executive committee); In re

3 Cathode Ray Tube (CRT) Antitrust Litig., 2008 WL 2024957, at *2 (N.D. Cal. May 9, 2008)

4 (concluding that there was “no need for an executive committee at this time”); In re 5-Hour

5 Energy Marketing v. Innovation Ventures, LLC, 2013 WL 12134144, at *2 (C.D. Cal. Nov. 8,

6 2013) (concluding “it does not appear that there are different types of claims that could best be

7 pursued by separately-appointed counsel.”).

8 Plaintiffs have pointed to no divergence or dissimilarity in interests between the various

9 groups of plaintiffs or the proposed classes. See Aberin, 2017 WL 3641793, at *2 (where there

10 are no divergent interests between the groups of plaintiffs, “an executive committee is not

11 necessary to protect class members’ interests in decision-making”). Indeed, it would be difficult

12 for Plaintiffs to do so, given that many of the current complaints contain lengthy sections that

13 appear to have been literally (and liberally) cut and pasted from one another. Compare, e.g., Yick

14 Compl. ¶¶ 1–6, 14–40, 46–54 with Cajas Compl. ¶¶ 1–6, 14–40, 46–54. Similarly, many of the

15 complaints describe the same proposed class. Compare Yick Compl. ¶ 68 with Wilson Compl.

16 ¶ 34 and Willrich Compl. ¶ 66.3 Given that it initially appears as if each named plaintiff falls

17 within the proposed class definitions in all of the complaints, these cases could have been brought

18 as a single lawsuit, managed by one set of class counsel, with no need for a committee. 4

19 Second, it is difficult to see how the interests of efficiency and economy would be served

20 by the appointment of a committee. It is well known that “[c]ommittees of counsel can

21 sometimes lead to substantially increased costs” and “unnecessary duplication of efforts.”

22 Manuel for Complex Litig., § 10.221. Indeed, Judge Breyer denied the appointment of a multi-

23 firm executive committee proposed by the Cotchett firm in part because of “the tendency of

24
3
Plaintiffs themselves contend that “all of the related actions are brought against Bank of
25 America on behalf of substantially the same proposed class” and “involve the same defendant and
similarly defined classes, raise virtually identical legal and factual issues, and seek the same or
26 substantially similar relief.” Motion Brief at 1, 2.
4
27 In addition, Plaintiffs all reside in California and the related cases were brought in the same
district. Thus, the proposed executive committee members will play no “role in navigating any
28 differences due to jurisdiction, location, and law” that might justify their appointment. Mack v.
LLR, Inc., 2018 WL 6038349, at *5 (C.D. Cal. Jan. 31, 2018).
4
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 shared leadership structures to complicate, muddle, and otherwise bloat litigation.” Nicolow,

2 2013 WL 792642, at *9. The cumbersome eight-firm executive committee proposed by Plaintiffs

3 (in addition to two firms serving as Proposed Lead Counsel) would similarly complicate, muddle,

4 and bloat this litigation. Under the proposed structure, there would be more law firms involved in

5 the litigation than there are cases to be consolidated—an overly complicated arrangement that

6 would undermine the very purpose of the proposed consolidation, creating numerous

7 inefficiencies and adding significantly to the costs of both sides. The costs of coordination alone

8 (e.g., conference calls and e-mails between Proposed Lead Counsel and the firms on the proposed

9 executive committee) could far exceed the efficiency-savings of consolidation. It makes little

10 sense to consolidate eight cases only to turn around and divvy up responsibilities between just as

11 many different firms.

12 Plaintiffs cite to just three instances in which a court appointed a large multi-firm

13 executive committee like the one they propose. See Motion Brief at 13–14. But all three cases

14 are multi-district litigations that bear little resemblance to this case in size, complexity, or scope.

15 For example, in In re Volkswagen Litigation, plaintiffs brought hundreds of individual actions in

16 multiple district courts across multiple states. See Consolidated Consumer Class Action

17 Complaint, In re Volkswagen “Clean Diesel” Mktg., Sales Prac., and Prod. Liab. Litig., 3:15-

18 md-02672-CRB (N.D. Cal. Feb. 22, 2016) (ECF No. 1230). Here, in contrast, Plaintiffs propose

19 to consolidate only eight cases, all pending in the same district. Therefore, an eight-firm

20 executive committee is unnecessary—particularly in light of the qualifications of interim

21 Proposed Co-Lead Counsel, who are well-equipped to manage this case on their own—and would

22 create inefficiencies that could materially increase the costs of this case.

23 IV. Conclusion

24 For the reasons stated above, BANA respectfully requests that the Court consolidate these

25 cases for pretrial purposes only. BANA further requests that the Court decline to appoint an

26 executive committee.

28
5
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 Dated: February 26, 2021 Respectfully Submitted,

3 By: /s/ Laura A. Stoll
Laura A. Stoll
4 LStoll@goodwinlaw.com
GOODWIN PROCTER LLP
5 601 South Figueroa Street, 41st Floor
Los Angeles, California 90017
6 Tel.: +1 213 426 2500
Fax: +1 213 623 1673
7
DAVID ROSSITER CALLAWAY
8 DCallaway@goodwinlaw.com
GOODWIN PROCTER LLP
9 601 Marshall Street
Redwood City, California 94063
10 Tel.: +1 650 752 3100
Fax: +1 650 853 1038
11
BARRY W. LEE (SBN 088685)
12 bwlee@manatt.com
MANATT PHELPS & PHILLIPS LLP
13 One Embarcadero Center, 30th Floor
San Francisco, California 94111
14 Tel.: +1 415 291 7450
Fax: +1 415 291 7474
15

16 Attorneys for Defendant BANK OF AMERICA, N.A.
17

28
6
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC
1 CERTIFICATE OF SERVICE

2 I hereby certify that I electronically filed the foregoing with the clerk of the court for the

3 United States District Court for the Northern District of California by using the CM/ECF system

4 on February 26, 2021. I further certify that all participants in the case are registered CM/ECF

5 users and that service will be accomplished by the CM/ECF system. I certify under penalty of

6 perjury that the foregoing is true and correct.

8 Executed: February 26, 2021 /s/ Laura A. Stoll
9

28
7
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO CONSOLIDATE RELATED CASES AND TO
APPOINT LEAD COUNSEL AND EXECUTIVE COMMITTEE, Case No. 3:21-cv-00376-VC

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