Francisco Roldan, III v. Bank of America, N.A., 2:24-cv-00136

Plaintiffs are Bank of America customers who used the bank’s online and mobile-banking services and were required to agree to the Online Banking Service Agreement (OBSA).
Plaintiffs allege the OBSA contains an unlawful non-disparagement clause, in violation of California Civil Code § 1670.8, that restricts customers from making statements damaging to Bank of America’s reputation.
Plaintiffs brought a putative class action on behalf of California residents who used Bank of America’s mobile-banking services.
A related claim was brought under California’s Unfair Competition Law (Business & Professions Code § 17200), premised on the alleged illegality of the OBSA provision.
Bank of America moved to dismiss both claims, contending the OBSA did not meet the statutory criteria and, even if it did, the claimed restriction did not exist as described by plaintiffs.
Plaintiffs had previously been granted leave to amend their complaint, but the court found the amendments insufficient.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the OBSA qualify as a 'contract for the sale or lease of goods or services' under Cal. Civ. Code § 1670.8?	The OBSA is a contract governing Plaintiffs’ purchase or use of bank services/products, thus falls within the statute.	OBSA does not pertain to the sale or lease of goods/services; plaintiffs did not allege any actual purchase as required.	No; plaintiffs failed to adequately allege the OBSA is such a contract.
Does the OBSA prohibit negative statements about Bank of America, violating § 1670.8?	The OBSA’s non-disparagement provision penalizes or threatens to penalize negative statements.	The OBSA does not actually prohibit or penalize negative statements as described by plaintiffs.	Court did not reach the issue, finding § 1670.8 inapplicable.
Is the derivative Unfair Competition Law claim (Bus. & Prof. Code § 17200) valid?	OBSA’s violation of § 1670.8 is “unlawful” and “unfair” conduct under § 17200.	If no violation of § 1670.8 exists, the § 17200 claim fails.	No; derivative claim fails if underlying § 1670.8 claim fails.
Should further amendment of the complaint be permitted?	Plaintiffs did not address this issue directly.	Amendment would be futile; plaintiffs failed to cure defects.	No; further amendment found futile.

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading requirement for facial plausibility)
Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for complaints)
Somers v. Apple, Inc., 729 F.3d 953 (grounds for dismissal under Rule 12(b)(6))
Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005 (standard for reviewing sufficiency of complaints)