Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 1 of 18
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`GUBERNICK LAW, P.L.L.C.
`Benjamin Gubernick, CA State Bar No. 321883
`10720 W. Indian School Rd., Suite 19, PMB 12
`Phoenix, Arizona 85037
`Telephone: (734) 678-5169
`Email: ben@gubernicklaw.com
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`
`David N. Lake, CA State Bar No. 180775
`LAW OFFICES OF DAVID N. LAKE,
` A Professional Corporation
`16130 Ventura Boulevard, Suite 650
`Encino, California 91436
`Telephone: (818) 788-5100
`Facsimile: (818) 479-9990
`Email: david@lakelawpc.com
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`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`JULIE HICKS, KUANG TING
`CHONG, and STEPHANIE MOORE,
`individuals;
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` Plaintiffs,
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`v.
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`BANK OF AMERICA, N.A., a
`Delaware corporation; and DOES 1-10,
`inclusive,
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`
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` Defendants.
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` CASE NO.:
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`CLASS ACTION
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`COMPLAINT
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`1. NEGLIGENCE;
`2. VIOLATION OF THE ELECTRONIC
`FUNDS TRANSFER ACT;
`3. BREACH OF CONTRACT;
`4. VIOLATION OF THE CALIFORNIA
`CONSUMER PRIVACY ACT;
`5. BREACH OF IMPLIED DUTY OF
`COMPETENCE; and
`6. VIOLATION OF UNFAIR
`COMPETITION LAW
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`(Jury Trial Demanded)
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` COMPLAINT (CLASS ACTION)
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`Julie Hicks (“Hicks”), Kuang Ting Chong (“Chong”), and Stephanie Moore
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`(“Moore”) (“Hicks”) (collectively, “Plaintiffs”), through undersigned counsel, on behalf
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`of themselves and all others similarly situated, bring this Class Action Complaint against
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`Bank of America, N.A. (“BOA”) and DOE Defendants 1-10 (the “DOE Defendants”)
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`(collectively, “Defendants”), and allege upon personal knowledge as to their own
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`actions, and upon information and belief as to counsel’s investigations and all other
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`matters, as follows:
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`NATURE OF ACTION
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`1.
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`This class action seeks recovery for California residents who experienced
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`interruptions in access to their unemployment benefits because of intentional and
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`negligent misconduct by BOA.
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`2.
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`Starting in 2020, numerous individuals began exploiting BOA’s lax security
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`measures to gain unauthorized access to Employment Development Department
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`(“EDD”) debit cards (“EDD Cards”).
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`3.
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`These debit cards were all issued by BOA. California residents receiving
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`EDD benefits are issued a debit card from BOA along with a corresponding BOA
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`account. EDD benefits are directly deposited into these BOA accounts. Beneficiaries
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`own their accounts. The BOA account and debit card are the only means of accessing
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`unemployment benefits for hundreds of thousands of Californians.
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`4.
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`BOA chose to respond to the systemic failures in its security measures by
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`either transferring funds out of recipients’ accounts, revoking credits to the accounts to
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`create negative balances, or simply locking debit cards and preventing access to benefits.
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`As a result, tens of thousands of Californians were deprived of access to their only source
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`of income during a global pandemic.
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`5.
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`Plaintiff Julie Hicks is, and at all times mentioned herein was, an individual
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`residing in the State of California, County of Santa Clara.
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`6.
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`Plaintiff Kuang Ting Chong is, and at all times mentioned herein was, an
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`individual residing in the State of California, County of Los Angeles. He receives
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`unemployment benefits from the State of California.
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`7.
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`Plaintiff Stephanie Moore is, and at all times mentioned herein was, an
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`individual residing in the State of California, County of Los Angeles. She receives
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`unemployment benefits from the State of California.
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`8.
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`Defendant Bank of America, N.A. (“BOA”) is a Delaware corporation. Its
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`principal place of business is located at 100 North Tryon Street, Charlotte, North
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`Carolina 28255.
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`9.
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`Plaintiffs do not know the true names and capacities of the defendants sued
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`herein as DOES 1 through 10 (“DOE Defendants”), inclusive, and therefore sue said
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`DOE Defendants by fictitious names. Plaintiffs are informed and believe and based on
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`such information and belief allege that each of the DOE Defendants are contractually,
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`strictly, negligently, intentionally, vicariously liable and or otherwise legally responsible
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`in some manner for the acts and omissions described herein. Plaintiffs will amend this
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`Complaint to set forth the true names and capacities of each DOE Defendant when the
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`same are ascertained.
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`10. Plaintiffs are informed and believe and based on such information and belief
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`allege that BOA and the DOE Defendants, inclusive, and each of them, are and at all
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`material times have been, the agents, servants or employees of each other, purporting to
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`act within the scope of said agency, service or employment in performing the acts and
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`omitting to act as averred herein. Each of the Defendants named herein are believed to,
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`and are alleged to have been acting in concert with, as employee, agent, co-conspirator or
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`member of a joint venture of, each of the other Defendants, and are therefore alleged to
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`be jointly and severally liable for the claims set forth herein, except as otherwise alleged.
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`JURISDICTION AND VENUE
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`11. This Court has original jurisdiction over this matter under 28 U.S. Code §
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`1332(a) because Plaintiffs are residents of California, BOA is a Delaware corporation
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`with its principal place of business in North Carolina, and the amount in controversy
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`exceeds $75,000 exclusive of interest and costs. This Court also has jurisdiction under
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`the Class Action Fairness Act, 28 U.S. Code § 1332(d), because the parties are minimally
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`diverse and the amount in controversy exceeds $5,000,000.
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`12. Venue is proper as this action is part of a multidistrict litigation assigned to
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`the Southern District of California.
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`FACTUAL ALLEGATIONS
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`13. Plaintiffs are unemployed California residents. At all relevant times they
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`received unemployment benefits from EDD. These unemployment benefits were
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`provided to them through EDD Cards.
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`14. All EDD Cards are linked to BOA accounts. EDD distributes benefits to
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`holders of EDD Cards by depositing money in the BOA accounts associated with the
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`beneficiary.
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`15. Beneficiaries who receive their benefits using an EDD Card must agree to
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`the “California Employment Development Department Debit Card Account Agreement”
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`(the “Account Agreement”). The Account Agreement states that the beneficiary’s
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`relationship to BOA is governed by Regulation E, and that, at a minimum, holders of
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`EDD Cards have the same protections from risk of loss as those provided by Regulation
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`E.
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`16. No EDD Cards issued by BOA prior to 2021 have an “EMV” chip. EMV
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`stands for “Europay, Mastercard, and Visa.” EMV chips are small, metallic squares that
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`create unique transaction data each time the chip is used to make a purchase. This differs
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`from obsolete magnetic-stripe cards, which use the same transaction data each time a
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`purchase is made.
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`17. Debit cards without chips are extremely easy for thieves to duplicate. All a
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`thief needs to create a duplicate card is data from a single debit card purchase.
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`18. As identical data from magnetic-stripe purchases is provided every time the
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`cardholder makes a purchase, the information commonly finds its way to online “dark
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`web” brokers. In contrast, data from past EMV chip purchases is essentially useless to
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 5 of 18
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`would-be thieves.
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`19. As debit cards with EMV chips are far more secure, in recent years they
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`have become ubiquitous for credit card and debit card issuers. They are also inexpensive
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`to produce. Indeed, on information and belief, EDD Cards are the only cards BOA issues
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`that do not have an EMV chip.
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`In 2020, large numbers of individuals targeted the security weaknesses in
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`BOA’s EDD Cards. These individuals used clone cards, likely created from information
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`obtained on the dark web, to initiate fraudulent ATM withdrawals throughout California.
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`See,
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`e.g., <https://losangeles.cbslocal.com/2020/10/29/bank-of-america-freezes-edd-
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`accounts-of-nearly-350000-unemployed-californians-for-suspected-fraud/>.
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`In October 2020, BOA decided to respond to this uptick in fraudulent
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`withdrawals by preventing nearly 350,000 unemployed Californians from accessing their
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`unemployment benefits. Id.
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`22. BOA denied EDD benefits recipients access to funds by freezing accounts
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`and by reversing credits for fraudulent withdrawals that BOA had previously granted.
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`BOA reversed credits to create negative balances in the accounts, thereby preventing
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`anyone—including the accounts’ lawful beneficiaries—from accessing funds already in
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`the account or new funds deposited into the accounts by EDD.
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`23. On or about July 20, 2020, an unknown person used a cloned EDD Card to
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`steal $1,000 in unemployment benefits from Chong’s account. Chong learned of the
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`fraud on July 20, 2020 and contacted BOA to report the theft the same day.
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`24. On July 21, 2020, Chong filed a police report with the Alhambra police
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`department. The officer Chong spoke to initially confused him with another holder of an
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`EDD Card who had also just had funds stolen.
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`25. On July 31, 2020, BOA credited $1,000 to the account associated with
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`Chong’s EDD Card.
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`26. On September 2, 2020, Chong received a notice from BOA that it had
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`completed its investigation, and that the $1,000 credit to his account was now permanent.
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`27. On October 4, 2020, BOA nonetheless debited $1,000 from Chong’s
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`account, creating a negative balance. The account history on BOA’s website claimed that
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`the debit was made by “State of CA EDD Unemployment.”
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`In reality, however, the October 4, 2020 debit was made by BOA.
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`29. Chong repeatedly contacted BOA and EDD in an effort to obtain access to
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`his $1,000 in withheld unemployment benefits. In an October 15, 2020 phone call with
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`BOA’s claim department, Chong was told his issue would be resolved “in the order it
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`was received.”
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`30. Months went by before Chong was granted access to his withheld
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`unemployment benefits.
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`31. On July 18, 2020, Moore was the victim of a fraudulent $1,000 withdrawal
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`from an ATM machine and a separate fraudulent withdrawal of $482 at a Target retail
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`store. These transactions depleted all the funds from her account. Moore discovered the
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`fraud on July 18, 2020 when she tried to purchase ice cream for her daughter and the
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`transaction was declined.
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`32. Moore reported the fraudulent withdrawal on July 18, 2020, within minutes
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`of discovering that unknown persons had depleted the funds in her account.
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`33.
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` On or about July 30, 2020 Moore was granted a $1,482 credit to her
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`account by BOA.
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`34. On or about the 7th or 8th of August 2020, BOA informed Moore in writing
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`that the provisional $1,482 credit had been made permanent.
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`35. On September 30, 2020 Moore attempted to purchase a tire for her vehicle.
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`The transaction was declined. Moore attempted to check the balance in her BOA EDD
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`account and was unable to log into the account. On information and belief BOA froze
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`Moore’s account on or about September 30, 2020 without providing prior notice to
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`Moore.
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`36. On or about October 4, 2020, BOA debited $1,482 from Moore’s account.
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`Moore’s account history on BOA’s website claimed that the debit was made by “State of
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 7 of 18
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`CA EDD Unemployment.” This created a negative balance.
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`37. On October 12, 2020, Moore spoke with a BOA employee who admitted
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`that BOA had debited the money from Moore’s account.
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`38. As with Chong’s account, Moore’s account was not debited by EDD, but
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`rather BOA.
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`39. BOA sent identical letters to Chong and Moore dated October 2, 2020.
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`Upon information and belief BOA issued identical letters retracting provisionally granted
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`credits or permanently granted credits on October 2, 2020 to numerous EDD
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`beneficiaries.
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`40. While Chong and Moore continued receiving EDD direct deposits they were
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`denied access to these funds as the direct deposit was applied against the negative
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`account balance created by BOA.
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`41. On September 3, 2020, an unauthorized third party made a $1,000
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`withdrawal from Hicks’ EDD accounts.
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`42. The
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`third party subsequently made seven more $1,000 fraudulent
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`withdrawals from Hicks’ accounts, on each day, until September 11, 2020, when Hicks’
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`account was frozen by BOA.
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`43. Hicks timely reported the unauthorized withdrawals, and verified her
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`identity with EDD and BOA. Nonetheless, BOA has refused to reimburse the fraudulent
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`withdrawals or unfreeze Hicks’ account. As a result, Hicks has been denied use of a
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`further $21,000 EDD has deposited in her account over the last nine months.
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`44. The electronic fund transfers from Plaintiffs’ accounts, and numerous other
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`EDD beneficiary accounts, were initiated by a person other than the consumer without
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`actual authority to initiate the transfer. No one besides BOA received a benefit from the
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`transfers.
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`CLASS ACTION ALLEGATIONS
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`45. Plaintiffs bring this action on behalf of themselves and all others similarly
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`situated as a class action pursuant to Fed. R. Civ. P. 23. Plaintiffs seek to represent the
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 8 of 18
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`following putative classes:
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`The Access Denial Class: All holders of EDD Cards who were denied access to
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`unemployment benefits as a result of BOA’s decision to freeze accounts or reverse
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`prior credits from January 1, 2020 to the present.
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`The Cloned Card Class: All holders of EDD Cards who, from the earliest
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`applicable statute of limitations to the present, had an EDD Card that did not have
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`an EMV chip and who experienced an unauthorized withdrawal by a third party
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`using a cloned EDD Card.
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`46. Specifically excluded from the Classes are: (a) any officers, directors or
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`employees of Defendants; (b) any judge assigned to hear this case (or spouse or
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`immediate family member of any assigned judge); (c) any employee of the Court; (d) any
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`juror selected to hear this case; and (e) any attorneys of record and their employees.
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`47. Plaintiffs reserve the right to amend or modify the class definition with
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`greater specificity, by further division into subclasses, or by limitation to particular
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`issues.
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`48. Numerosity. The class members are so numerous that joinder of each
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`individual class member would be impracticable and unfeasible, and the disposition of
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`their claims as a class will benefit the parties, the Court, and the interests of justice. The
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`precise number of class members is readily available from a review of Defendants’
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`business records.
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`49. Ascertainability. The proposed Classes are ascertainable from objective
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`criteria. Specifically, Defendant maintains business records which include the names,
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`contact information and other identifying information of members of the proposed
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`Classes.
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`50. Commonality and Predominance. There is a well-defined community of
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`interest among the Classes’ members and common questions of both law and fact
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`predominate over questions affecting individual members. These common legal and
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`factual questions include, but are not limited to, the following:
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 9 of 18
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`A. Whether BOA’s decision not to use EMV chips in its EDD Cards was
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`reasonable;
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`B. Whether BOA’s actions violated the Electronic Funds Transfer Act;
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`C. Whether BOA’s actions constitute a breach of contract;
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`D. Whether BOA’s actions violate California’s consumer protection laws;
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`E. Whether BOA’s actions breached the implied duty of competence owed by
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`BOA;
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`F. Whether BOA’s decision not to use EMV chips in its EDD Cards
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`proximately resulted in Class members losing access to their unemployment
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`benefits; and
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`G. Whether BOA’s actions constitute an unfair business practice under
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`California’s Business & Professions Code §17200 et seq..
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`51. Typicality. Plaintiffs’ claims are typical of those of all Class members in
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`that they arise out of the same course of conduct of Defendants, and enable them to seek
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`the same relief under the same theories of recovery. The effort Plaintiffs undertake to
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`pursue their own claims will significantly benefit the Classes’ members because of the
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`identical nature of the issues across the Classes.
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`52. Adequacy of Representation. Plaintiffs will fairly and adequately represent
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`and protect the interests of the members of the Classes. Plaintiffs share a common
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`interest with the Classes’ members. Plaintiffs have suffered an injury-in-fact as a result
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`of Defendants’ conduct, as alleged herein. Plaintiffs have retained counsel who are
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`competent and experienced in the prosecution of complex class action litigation.
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`Plaintiffs and their counsel intend to prosecute this action vigorously and faithfully for
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`the benefit of the Classes’ members. Plaintiff has no interests contrary to the Classes’
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`members, and will fairly and adequately protect the interests of the Classes.
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`53. Community of Interest. The proposed Classes have a well-defined
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`community of interest in the questions of fact and law to be litigated. These common
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`questions of law and fact predominate. The named Plaintiffs’ claims are typical of the
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 10 of 18
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`Classes’ members.
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`54. Superiority. The certification of the Classes in this action is superior to the
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`litigation of a multitude of cases by members of the putative Classes. Class adjudication
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`will conserve judicial resources and will avoid the possibility of inconsistent rulings.
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`Moreover, there are members of the Classes who are unlikely to join or bring an action
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`due to, among other reasons, their reluctance to spend large sums of time and money to
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`recover a relatively modest individual recovery. Equity dictates that all persons who
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`stand to benefit from the relief sought herein should be subject to the lawsuit and hence
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`subject to an order spreading the costs of the litigation among Class members in
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`relationship to the benefits received. The damages and other potential recovery for each
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`individual member of the Classes are modest relative to the substantial burden and
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`expense of individual prosecution of these claims. Given the dollar amount of the
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`individual members of the Classes’ claims, few, if any, could or would afford to seek
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`legal redress individually for the wrongs complained of herein. Even if the members of
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`the Classes themselves could afford individual litigation, the court system could not.
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`Individualized litigation presents a potential for inconsistent or contradictory judgments.
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`Individualized litigation increases the delay and expense to all parties and the court
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`system presented by the complex legal and factual issues of the case. By contrast, the
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`class action device presents far fewer management difficulties, and provides the benefits
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`of single adjudication, economy of scale, and comprehensive supervision by a single
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`court.
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`55.
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`In the alternative, the above-referenced Classes may be certified because:
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`(a) The prosecution of separate actions by the individual members of the Classes
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`would create a risk of inconsistent or varying adjudication with respect to
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`individual Class members’ claims which would establish incompatible
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`standards of conduct for Defendants;
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`(b) The prosecution of separate actions by individual members of the Classes
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`would create a risk of adjudications which would as a practical matter be
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` COMPLAINT (CLASS ACTION)
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 11 of 18
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`dispositive of the interests of other members of the Classes who are not parties
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`to the adjudications, or which would substantially impair or impede the ability
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`of other members to protect their interests; and,
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`(c) Defendants have acted or refused to act on grounds generally applicable to the
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`Classes, thereby making appropriate final and injunctive relief with respect to
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`the Classes.
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`FIRST CLAIM FOR RELIEF
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`Negligence
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`(By all Plaintiffs, on behalf of both Classes)
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`56. Plaintiffs incorporate all preceding and succeeding allegations as if fully set
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`forth herein.
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`57. By holding unemployment benefits for members of the Cloned Card Class
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`and issuing EDD Cards, BOA had a duty of care to take reasonable security precautions
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`to prevent EDD Cards from being copied by thieves. Defendants breached that duty by
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`failing to use EMV chips in their EDD Cards, and that failure proximately led to tens of
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`thousands of unauthorized withdrawals from class member accounts, and loss of access
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`of benefits during a global pandemic.
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`58. Plaintiffs and all members of the Cloned Card Class suffered damages
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`because of Defendants’ conduct.
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`59. Plaintiff and all members of the Cloned Card Class are entitled to actual
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`damages, interest, and injunctive relief requiring BOA to institute basic security
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`precautions sufficient to avoid future widespread cloning of EDD Cards.
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`60. As to the Access Denial Class, BOA had a duty to take reasonable steps to
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`timely and adequately investigate and respond to claims of fraud, and to restore access to
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`EDD benefits to victims of fraudulent withdrawals.
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`61. BOA breached that duty by instituting wholesale account freezes, reversing
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`credits issued to cardholder accounts, and failing to put in place sufficient claims
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`investigation procedures and infrastructure.
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` COMPLAINT (CLASS ACTION)
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 12 of 18
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`62. As a proximate result of BOA’s conduct, members of the Access Denial
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`Class lost access to their unemployment benefits during a global pandemic.
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`63. Members of the Access Denial Class are entitled to actual damages, interest,
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`and injunctive relief requiring BOA to institute reasonable claims resolution processes.
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`Violation of The Electronic Funds Transfer Act 15 USC § 1963 et seq. and 12 C.F.R.
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`SECOND CLAIM FOR RELIEF
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`§ 205.1 et seq.
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`(By all Plaintiffs, on behalf of the Access Denial Class)
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`64. Plaintiffs incorporate all preceding and succeeding allegations as if fully set
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`forth herein.
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`65. Plaintiffs bring this cause of action pursuant to the United States Electronic
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`Funds Transfer Act (EFTA) and 12 C.F.R. § 205.1 to 205.20 (Regulation E of the
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`EFTA).
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`66. Defendants engaged in unlawful conduct under Regulation E by seizing
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`unemployment benefits in accounts for which Plaintiffs and members of the Access
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`Denial Class were beneficiaries and by denying access to accounts.
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`67. Chong and Moore provided notice to BOA less than two days after the
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`fraudulent transactions occurred in each of their respective accounts. Per 12 C.F.R. §
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`205.6(b)(1) Plaintiffs’ liability was capped at $50. Despite this clear cap on liability
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`BOA subjected Chong to $1,000 in liability and Moore to $1,482 in liability. Upon
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`information and belief numerous other class members gave timely notice of the
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`fraudulent activity and are also limited to $50 of liability per 12 C.F.R. § 205.6(b)(1).
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`68.
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`12 C.F.R. § 205.6(b)(2) establishes a maximum amount of liability of $500
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`when notice of the unauthorized electronic funds transfer is not provided to the financial
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`institution within two business days. Plaintiffs Chong and Moore have discussed their
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`situations with other similarly situated individuals who are members of the class. In all of
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`those cases BOA debited the entire amount of the provisional credit in excess of the
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`limits set by 12 C.F.R. § 205.6(b).
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 13 of 18
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`69. With regard to any class members who did not directly provide BOA with
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`actual notice, BOA was on constructive notice of the unauthorized electronic funds
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`transfers pursuant to 12 C.F.R. § 205.6(b)(5)(iii). Numerous unauthorized electronic fund
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`transfers occurred from EDD accounts, upon information and belief, many were timely
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`reported to BOA. BOA was receiving so many calls about these unauthorized transfers in
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`the relevant time frames that the named Plaintiffs and class members would routinely be
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`on hold for several hours at a time when they called in to make reports or ask BOA for
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`information. The widespread fraud specifically targeting EDD beneficiaries was also
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`widely reported in the media.
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`70.
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`In no event should any class member be liable for over $500 of damages
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`under 12 C.F.R. § 205.6. BOA has failed to comply with 12 C.F.R. § 205.6 by putting
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`unemployed Californians on the hook for thousands of dollars of liability in direct
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`violation of federal law.
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`71. As a direct and proximate result of Defendants’ violation of the Regulation
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`E, Plaintiffs and members of the Access Denial Class have lost money.
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`72. Plaintiffs, on behalf of themselves and the Access Denial Class, seek: (a) an
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`injunction barring Defendants from illegally debiting unemployment benefits; (b)
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`restitution of all unemployment benefits funds improperly debited by Defendants; (c)
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`statutory damages; (d) actual damages; (e) attorneys’ fees and costs of suit; and (f)
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`interest.
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`THIRD CLAIM FOR RELIEF
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`Breach of Contract
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`(By all Plaintiffs, on behalf of the Access Denial Class)
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`73. Plaintiffs incorporate all preceding and succeeding allegations as if fully set
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`forth herein.
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`74. BOA utilizes a contract of adhesion for all Californians receiving EDD
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`benefits that is purportedly agreed whenever an individual “us[es] or allow[s]” another to
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`use” the beneficiaries EDD Card.
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 14 of 18
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`75. The contract of adhesion includes a section titled, “Bank of America’s ‘Zero
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`Liability’ Policy for Unauthorized Transactions.” That sections sates in pertinent part:
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`Federal law (described in the section below entitled ‘Regulation E Liability
`Disclosure; Your Liability in Case of Loss, Theft, or Unauthorized
`Transactions’) may limit your liability for unauthorized transactions on your
`Account, but you may still be liable in some circumstances. Under the Bank
`of America “zero liability” policy, you may incur no liability for
`unauthorized use of your Card up to the amount of the unauthorized
`transaction, provided you notify us within a reasonable time of the loss or
`theft of your Card, Card number or PIN or its unauthorized use, subject to
`the following terms and conditions…
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`76. The contract of adhesion states that a reasonable period of time is decided
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`solely at BOA’s discretion but cannot be shorter than the time limit provided in
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`Regulation E.
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`77. Plaintiffs and all members of the Access Denial Class have not been
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`provided with the benefit of BOA’s “Zero Liability” policy. In cases where notice was
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`provided in a reasonable time, Plaintiffs and all members of the class: (i) did not receive
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`reimbursement in a timely manner or; (2) did receive any reimbursement whatsoever by
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`BOA for the unauthorized withdrawals.
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`78. Moreover, BOA’s decision
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`to revoke prior credits for fraudulent
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`withdrawals is manifestly incapable with its “Zero Liability” policy.
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`79. Plaintiffs and all members of the Access Denial Class suffered damages as a
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`result of Defendants’ conduct.
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`80. Plaintiffs and all members of the Access Denial Class are entitled to
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`damages, interest, and injunctive relief requiring BOA to institute basic security
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`precautions sufficient to avoid future widespread denials of account access.
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`FOURTH CLAIM FOR RELIEF
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`Violation of Cal. Consumer Privacy Act, Cal. Civ. Code § 1798.100, et seq.
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`(By Chong and Moore, on behalf of the Cloned Card Class)
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`81. Plaintiffs incorporate all preceding and succeeding allegations as if fully set
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`forth herein.
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`82. The California Consumer Privacy Act, Cal. Civ. Code § 1798.100, et seq.,
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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 15 of 18
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`(the “CCPA”) required BOA to provide reasonable security for Plaintiffs’ personal
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`information.
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`83. The information extracted from an EDD Card during the cloning process is
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`“personal information” as that term is used in Cal. Civ. Code § 1798.100(d)(1).
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`84. When an EDD Card without an EMV chip is cloned, an “unauthorized
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`access and exfiltration, theft, or disclosure” of personal information occurs. Cal. Civ.
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`Code § 1798.150(a).
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`85. By failing to use EMV chips in its EDD Cards, BOA breached its duty to
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`implement reasonable security measures. As a proximate result of BOA’S failure,
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`Plaintiffs’ EDD Cards were cloned and they suffered unauthorized account withdrawals.
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`86. Plaintiffs sent written notice of BOA’s violation of the CCPA at least 30
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`days prior to bringing suit under the CCPA and BOA failed to cure its violation.
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`87. Plaintiffs and all people similarly situated are entitled to damages including
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`statutory interest, statutory damages, reasonable attorneys’ fees, costs of suit, and
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`injunctive relief requiring BOA to implement reasonable security measures.
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`FIFTH CAUSE OF ACTION
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`Breach of Implied Duty of Competent Performance
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`(By all Plaintiffs, on behalf of both Classes)
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`88. Plaintiffs incorporate all preceding and succeeding allegations as if fully set
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`forth herein.
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`89. California law required BOA to perform its obligations under the Account
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`Agreement competently and with reasonable care.
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`90. As to the Cloned Card Class, BOA breached its implied duty of competent
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`performance by failing to use EMV chips in its EDD Cards.
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`91. As to the Access Denial Class, BOA breached its implied duty of competent
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`performance by failing to implement an effective claims resolution process and by
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`engaging in wholesale account freezes and credit reversals.
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`92. As a proximate result of BOA’s breach of its implied duty of competence,
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` COMPLAINT (CLASS ACTION)
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`

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`Case 5:21-cv-05544-VKD Document 1 Filed 07/20/21 Page 16 of 18
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`P