Filed 5/30/23 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

STATE OF CALIFORNIA ex rel. 

EDELWEISS FUND, LLC, et al.,

Plaintiffs and Appellants,

v.

JPMORGAN CHASE & COMPANY 

et al.,

Defendants and Respondents.

 A163264

 (City & County of San Francisco

 Super. Ct. No. CGC-14-540777)

ORDER MODIFYING

OPINION AND DENYING 

REHEARING; NO CHANGE 

IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on April 27, 2023, be modified 

as follows.

1. On page 22, add the following sentence to the end of footnote 12:

We also emphasize that, because the definition refers to the 

“most common week-over-week rate change,” the bucketing of a 

VRDO means only that it matched the change shared by the 

greatest number of other VRDOs—however many that might 

be—in a particular week at least 80 percent of the time over 26 

weeks. The definition does not require the same VRDOs to 

undergo identical changes for an extended period of time, and 

does not specify a particular percentage of VRDOs that must 

have the “most common” change in a given week. In their 

petition for rehearing, defendants complained that the opinion 
2

occasionally departed from this definition by referring to 

“identical” or “lockstep,” rather than “matching,” changes. To 

avoid potential confusion, we have revised some of the language, 

but we disagree with defendants that Edelweiss’s definition of 

bucketing does not support an inference of fraud when the 

analysis is combined with the other allegations in the seventh 

amended complaint.

2. On page 23, in the second full paragraph, in the sentence that ends with 

the phrase “(4) given the dynamics of the market . . .”, the phrase shall be 

modified to read:

(4) given the dynamics of the market, one could not reasonably 

expect VRDOs with vastly different characteristics to have 

matching interest rate adjustments (under the criteria in the 

seventh amended complaint) if the objective were to select the 

lowest interest rate for each VRDO that would enable the series to 

be sold at par.

3. On page 24, on the seventh line, the word “lockstep” shall be modified to 

the word “matching”.

There is no change in the judgment.

The petition for rehearing, filed May 12, 2023, is denied.

Dated: May 30, 2023 STREETER, Acting P. J.
3

Trial Court: City and County of San Francisco Superior 

Court

Trial Judge: Honorable Anne-Christine Massullo

Counsel for Plaintiffs and Appellants: STEYER LOWENTHAL BOODROOKAS 

ALVAREZ & SMITH, Allan Steyer, Jill M. 

Manning, Jill K. Cohoe

THE LAWRENCE LAW FIRM,

Jeffrey W. Lawrence

SCHNEIDER WALLACE COTTRELL 

KONECKY, Todd M. Schneider, Jason H. 

Kim, Matthew S. Weiler, James A. Bloom 

CONSTANTINE CANNON, Ari Yampolsky

Counsel for Defendant and Respondent 

Wells Fargo Bank, N.A.: 

JONES DAY, Michael P. Conway, Matthew J. 

Silveira, Margaret Adema Maloy

Counsel for Defendant and Respondent 

JPMorgan Chase Bank, N.A. and J.P. 

Morgan Securities LLC

GREENBERG TRAURIG, William J. Goines

Counsel for Defendant and Respondent 

Bank of America Corporation, Bank of 

America N.A., and Merrill Lynch, 

Pierce, Fenner & Smith Inc.

WILLIAMS CUTLER PICKERING HALE 

AND DORR, Matthew Benedetto

Counsel for Defendants and 

Respondents Citigroup Global Markets 

Inc., Citibank N.A., Citigroup Financial 

Products Holdings Inc., and RBC 

Capital Markets, LLC

KEESAL, YOUNG & LOGAN, Peter R. 

Boutin, Christopher A. Stecher 

Counsel for Defendants and 

Respondents Morgan Stanley & Co. 

LLC, Morgan Stanley Bank, N.A., 

Morgan Stanley Capital Services Inc., 

and Morgan Stanley Capital Group Inc.

SIDLEY AUSTIN, Matthew J. Dolan

Counsel for Defendant and Respondent 

Piper Jaffray & Co., and Piper Jaffray 

Financial Products Inc.

KEESAL, YOUNG & LOGAN, Ben Suter

Counsel for Defendants and 

Respondents Barclays Capital Inc. and 

Barclays Bank PLC

SKADDEN, ARPS, SLATE, MEAGHER & 

FLOM, Jack P. DiCanio, Kasonni M. Scales

Counsel for Chamber of Commerce of 

the United States of America, 

California Chamber of Commerce, and 

KING & SPALDING, Ethan P. Davis, 

Matthew V.H. Noller
4

American Bankers Association as 

Amici Curiae on behalf of Respondents
Filed 4/27/23 (unmodified opn.)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

STATE OF CALIFORNIA ex rel. 

EDELWEISS FUND, LLC, et al.,

Plaintiffs and Appellants,

v.

JPMORGAN CHASE & COMPANY 

et al.,

Defendants and Respondents.

 A163264

 (City & County of San Francisco

 Super. Ct. No. CGC-14-540777)

Plaintiff-Relator Edelweiss Fund, LLC (Edelweiss) brought a qui tam 

action against several financial institutions and subsidiaries under the

California False Claims Act (Gov. Code, § 12650 et seq.)1 (CFCA). In its 

operative seventh amended complaint, Edelweiss alleges that defendants 

contracted to serve as remarketing agents (RMAs) to manage California 

variable rate demand obligations (VRDOs): tax-exempt municipal bonds with 

interest rates reset by RMAs on a periodic basis, typically weekly. It alleges

that defendants violated the CFCA by submitting false claims for payment

for these remarketing services, knowing they had failed their obligation to 

reset the interest rate for the California VRDOs at the lowest possible rate

that would enable them to sell the series at par (face value). Instead, 

defendants “engaged in a coordinated ‘Robo-Resetting’ scheme where they 

mechanically set the rates en masse without any consideration of the 

1 Undesignated statutory references are to the Government Code.
2

individual characteristics of the bonds or the associated market conditions or 

investor demand” and “impose[d] artificially high interest rates on California 

VRDOs, the exact opposite of what California hires them to accomplish.” 

Edelweiss also alleges that defendants had conspired to violate the CFCA by 

colluding to inflate interest rates on these VRDOs. 

Edelweiss alleges that it performed a forensic analysis of rate resetting 

during a four-year period, which revealed that defendants regularly grouped 

VRDOs with “vastly different” characteristics into “buckets,” and applied the 

same absolute rate change (a given number of basis points) to each bucket. 

Edelweiss identifies eight factors that made these bonds allegedly dissimilar: 

credit quality of the issuer, credit quality of the letter of credit provider, type 

of liquidity support facility, source of revenue, economic sector, the size of the 

issuance, the state of the issuance, and fraternity (applicable to small issues 

in which the buyers may have some special affiliation or fraternity with the 

issuer, like a university). 

Edelweiss alleges that it also studied credit rating upgrades for 

California VRDO issuers and identified “dozens of specific instances” in 

which the upgrade did not result in a relative decrease in the interest rate. It 

alleges that in these instances, defendants “set the interest rate of a VRDO at 

a level higher than it should have been, taking the relevant circumstances 

into consideration, including the characteristics of the VRDO at issue and the 

market preferences for it.”

Edelweiss further alleges that various former employees of defendants 

“stated and corroborated” that defendants engaged in this robo-resetting 

scheme. A former employee of Wells Fargo stated that it initially determined

by how many basis points the VRDO’s interest rate should differ relative to 
3

the SIFMA index,

2 and then “almost never” made adjustments to the spread,

resetting rates of VRDOs in “large groups” by the same number of basis 

points. A former Citi employee described the VRDO market as “the ‘biggest 

joke of a market of all time’ ” and said that it should have operated on the 

basis of prevailing market conditions, but did not.

The trial court sustained defendants’ demurrer to the seventh amended 

complaint without leave to amend, concluding that Edelweiss had not 

pleaded sufficiently particularized factual allegations. It reasoned that the 

allegations “may be consistent with fraud,” but the pleading lacked

particularized allegations about how the defendants set their VRDO rates 

and did not support a reasonable inference that “the observed conditions were 

caused by fraud, as opposed to any other factors that may have influenced the 

relevant financial markets during the relevant time period.” 

On appeal, Edelweiss argues that the trial court applied an overly 

burdensome particularity requirement and erroneously concluded that

Edelweiss had failed to adequately plead its claims. While allegations of a

CFCA claim must be pleaded with particularity, we conclude that the trial

court required too much to satisfy this standard. We also reject defendants’ 

alternative argument that Edelweiss’s claims are foreclosed by the CFCA’s

public disclosure bar (§ 12652, subd. (d)(3)(A)). Accordingly, we reverse.

2 SIFMA refers to the Securities Industry Financial Markets 

Association swap index, which “tracks the average interest rate for highlyrated VRDOs reset on a weekly basis.”
4

BACKGROUND3

1. CFCA

The CFCA was enacted by the Legislature in 1987, patterned on the 

federal False Claims Act (31 U.S.C. § 3729 et seq.). (Rothschild v. Tyco 

Internat. (US), Inc. (2000) 83 Cal.App.4th 488, 494.) It imposes liability for 

civil penalties and treble damages on any person who (1) “[k]nowingly 

presents or causes to be presented a false or fraudulent claim for payment or 

approval”; (2) “[k]nowingly makes, uses, or causes to be made or used a false 

record or statement material to a false or fraudulent claim”; or

(3) “[c]onspires to commit a [CFCA] violation.” (§ 12651, subd. (a)(1)–(3).)

The CFCA was designed “ ‘to prevent fraud on the public treasury,’ ”

and thus it “ ‘must be construed broadly so as to give the widest possible 

coverage and effect to the prohibitions and remedies it provides.’ ” (City of 

Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 801–802 (Pomona).) 

The CFCA was also intended “to supplement governmental efforts to identify 

and prosecute fraudulent claims made against state and local governmental 

entities.” (Rothschild v. Tyco Internat. (US), Inc., supra, 83 Cal.App.4th at 

p. 494.) Accordingly, the CFCA contains qui tam provisions authorizing 

private relators to bring actions on behalf of California to seek redress for a 

violation of the act. (§ 12652, subd. (c)(1).) A qui tam plaintiff must file a 

CFCA complaint under seal and serve it on the Attorney General, and 

include a written disclosure of the plaintiff’s material evidence and 

information. (Id., subd. (c)(2), (3).) After the Attorney General notifies the 

court that both it and the appropriate prosecuting authority decline to 

3 The following is a brief summary of some of the factual and 

procedural background in this case, which we set out to provide context to the 

issues raised on appeal. Additional facts are included in our legal discussion.
5

proceed with the action, the qui tam plaintiff has the right to prosecute the 

action. (Id., subd. (c)(8)(D)(iii).) 

Qui tam claims based on certain categories of information are

foreclosed by what is known as the CFCA’s “public disclosure bar.” (State 

ex rel. Bartlett v. Miller (2016) 243 Cal.App.4th 1398, 1407 (Bartlett).) 

Section 12652, subdivision (d)(3)(A) (section 12652(d)(3)(A)) states: “The 

court shall dismiss an action or claim under this section, unless opposed by 

the Attorney General or prosecuting authority of a political subdivision, if 

substantially the same allegations or transactions as alleged in the action or 

claim were publicly disclosed in any of the following: [¶] (i) A criminal, civil, 

or administrative hearing in which the state or prosecuting authority of a 

political subdivision or their agents are a party. [¶] (ii) A report, hearing, 

audit, or investigation of the Legislature, the state, or governing body of a 

political subdivision. [¶] (iii) The news media.” The public disclosure bar, 

however, does not apply if the person bringing the action is the “original 

source of the information.” (Id., subd. (d)(3)(B).) “Original source” includes 

an individual who has voluntarily provided the information to the state

before filing an action or “[h]as knowledge that is independent of, and 

materially adds to, the publicly disclosed allegations or transactions.” (Id., 

subd. (d)(3)(C)(ii).)

If the qui tam plaintiff proceeds and is successful, the plaintiff is 

typically entitled to receive between 25 and 50 percent of the recovery 

achieved in the case. (§ 12652, subd. (g)(3)–(5) [subject to exceptions for 

government employees and individuals who planned or initiated the CFCA 

violation].) The CFCA thus “seeks to induce private ‘whistleblowers,’

uniquely armed with information about false claims, to risk the failure of 

their qui tam suits in hopes of sharing in a handsome recovery if they 
6

succeed. Indeed, this prospect of reward may be the only means of inducing 

such private parties to come forward with their information.” (State ex rel. 

Harris v. PricewaterhouseCoopers, LLP (2006) 39 Cal.4th 1220, 1231.) “ ‘The 

driving force behind the false claims concept is the providing of incentives for 

individual citizens to come forward with information uniquely in their 

possession and to thus aid the Government in [ferreting] out fraud.’ ” (Ibid.)

2. This Action

In 2014 Edelweiss filed a qui tam action on behalf of the state of 

California against several financial institutions and subsidiaries alleging a

single cause of action for violation of the CFCA. Edelweiss is a limited 

liability company and its sole principal, B. Johan Rosenberg, is a “registered 

municipal advisor with more than 20 years of experience advising 

municipalities and other clients on issuing securities, particularly VRDOs 

and other municipal bonds.” Rosenberg is not a current or former employee 

of any of the defendants.

In July 2019, after Edelweiss had twice amended its complaint, the 

trial court dismissed the defendants named in the original complaint for 

failure to serve them with the complaint and summons within three years 

after the action was commenced. (Code Civ. Proc., § 583.210, subd. (a).) The 

trial court, however, declined to dismiss the additional defendants who had 

been added in the second amended complaint. We affirmed this order in 

State ex rel. Edelweiss Fund, LLC v. JP Morgan Chase & Co. (2020) 

58 Cal.App.5th 1113, 1126.

In August 2019 the trial court sustained the remaining defendants’ 

demurrer to the second amended complaint with leave to amend. Edelweiss 

filed a third amended complaint and, by stipulated order, a fourth amended

complaint. The trial court sustained defendants’ demurrer to the fourth
7

amended complaint with leave to amend. It found that the allegations 

remained insufficient due to lack of particularity. It also addressed, and

rejected, defendants’ alternative argument that the action was prohibited by 

the public disclosure bar because it relied on interest rates published on the 

Electronic Municipal Market Access (EMMA) website.

4 Relying on Bartlett,

the trial court concluded that EMMA is not a “report” of the state or “news 

media” triggering the public disclosure bar. (Bartlett, supra, 243 Cal.App.4th 

at pp. 1413–1414 [no public disclosure bar based on Securities and Exchange 

Commission (SEC) filing accessible on its online database].) Edelweiss filed a 

fifth amended complaint, and the trial court again sustained defendants’ 

demurrer with leave to amend for lack of particularity. Edelweiss then filed 

a sixth amended complaint with a motion for leave to file a seventh amended 

complaint. The trial court granted the motion. In March 2021 Edelweiss 

filed its seventh amended complaint.

3. Seventh Amended Complaint

The seventh amended complaint asserts a single cause of action for 

violation of the CFCA against JPMorgan, Citigroup, Wells Fargo, Bank of 

America, Merrill Lynch, Morgan Stanley, Barclays, Royal Bank of Canada

(RBC), and Piper Jaffray. It alleges that, since 2009, these defendants each 

served as the RMA for between 54 and 408 VRDOs issued by California

(either the state or some local governmental entity).

The seventh amended complaint included the following allegations

regarding VRDOs, remarketing agreements, defendants’ “robo-resetting” 

scheme, and the resulting harm to California.

4 EMMA is a publicly accessible website operated by the Municipal 

Securities Rulemaking Board (MSRB). Effective April 1, 2009, MSRB rules

require RMAs to report VRDO interest rate resets and this information is 

available through EMMA.
8

a. VRDOs

VRDOs are variable rate, tax-exempt bonds primarily issued by state 

and local government entities to raise money to fund various long-term 

projects or infrastructure. The interest rate on VRDOs is reset regularly, 

typically weekly or even daily. VRDOs are an attractive financing option for 

these government entities because they can borrow money for long periods of 

time while paying lower, short-term interest rates that are reset regularly. 

VRDOs are attractive to investors because they are a low-risk, high-liquidity, 

and tax-free investment.

b. Remarketing Agreements

VRDO issuers contract with RMAs to manage these bonds. The 

seventh amended complaint references “representative examples” of 

remarketing agreements with each of the eight defendants, and quotes a 

provision in these agreements entitled “Rate Resetting Obligation.” The 

quoted provision in the example agreement with Bank of America reads:

“The Weekly Rate shall be the rate determined by the Remarketing Agent to 

be the lowest rate which would enable the Remarketing Agent to sell the 

[Series 2005B2 and B3 Bonds] for delivery on the effective date of such rate 

at a price (without regard to accrued interest) equal to 100% of the principal 

amount thereof.” (Italics and boldface omitted.) The quoted provisions in the 

example agreements with Barclays, Citigroup, and JPMorgan contain similar 

language.

The quoted provision in the example agreement with Morgan Stanley 

reads: “The Weekly Rate shall be the rate of interest per annum determined 

by the Remarketing Agent to be the minimum interest rate which, if borne by 

such [St. Joseph’s Series 2011B, C & D Bonds] under Prevailing Market 

Conditions, would enable the Remarketing Agent to sell such [St. Joseph’s 
9

Series 2011B, C & D Bonds] on the effective date of such rate at a price 

(without regarding accrued interest) equal to the principal amount thereof.” 

(Italics and boldface omitted, and italics added.) The quoted provision in the 

example agreement with Piper Jaffray also contains similar “prevailing 

market conditions” language.

The quoted provision in the example agreement with RBC reads: “The 

Variable Rate determined by the Remarketing Agent on each Variable 

Interest Computation Date shall be that rate of interest which, if borne by 

the [Turnleaf Series 2003A Bonds], would, in its reasonable professional 

judgment, on the basis of prevailing financial market conditions, be the 

interest rate necessary, but which would not exceed the interest rate necessary, 

to be borne by the [Turnleaf Series 2003A Bonds] in order for the market 

value of the [Turnleaf Series 2003A Bonds] on such Variable Interest 

Computation Date to be 100% of the principal amount thereof (disregarding 

accrued interest) if the [Turnleaf Series 2003A Bonds] were sold on such 

Variable Interest Computation Date; provided, however, that in no event 

shall the Variable Rate at any time exceed the Maximum Rate.” (Italics and 

boldface omitted, and italics added.)

According to the seventh amended complaint, to determine the lowest 

interest rate, an RMA must consider the “unique characteristics” of the 

VRDO, including “the identity of the issuer, the source of repayment, the 

issuer’s credit rating, the sector of the finance project, the location of the 

finance project, the existence of a liquidity provider, the type of liquidity 

provided, and the credit rating of the liquidity provider.” 

c. “Robo-Resetting” Scheme

The seventh amended complaint alleges that defendants violated their

“Rate Resetting Obligation” to reset the interest rate for California VRDOs at 
10

the lowest possible rate that would enable them to sell the series at par.

5

Instead, defendants “engaged in a coordinated ‘Robo-Resetting’ scheme where 

they mechanically set the rates en masse without any consideration of the 

individual characteristics of the bonds or the associated market conditions or 

investor demand” and “impose[d] artificially high interest rates on California 

VRDOs, the exact opposite of what California hires them to accomplish.” 

Edelweiss offers four bases to support this theory. First, it alleges that 

Edelweiss performed “an extensive forensic analysis of the interest rates and 

other market data” from April 1, 2009, to November 14, 2013, “for the 

California VRDOs (and VRDOs issued by other states) for which Defendants 

have served as the RMA.” Edelweiss concluded that the interest rates on 

“buckets” of unrelated VRDOs were set collectively, moving up or down in 

“lock-step fashion.” 

Second, it alleges that Edelweiss performed a “study of credit-rating 

upgrades for California VRDO issuers” and identified “dozens of examples” 

where the upgrade “did not result in a decrease in the interest rate each 

Defendant set for the VRDO at issue, relative to the interest rates the 

Defendant set on the VRDOs of other issuers whose credit ratings were not 

upgraded.” 

Third, it alleges that seven former employees of defendants “stated and 

corroborated” that defendants engaged in this robo-resetting scheme. 

5 It also alleges that defendants had a “Remarketing Obligation” to “use 

their best efforts to ‘remarket’ at the lowest possible interest rate the VRDOs 

to other investors when the existing investor ‘puts’ or ‘tenders’ the bond back 

to the RMA for a return of its investment (at face value plus interest).” 

Edelweiss does not make any argument that it adequately pleaded a CFCA 

claim based on this obligation, and accordingly we deem any such argument 

waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
11

Fourth, it alleges that defendants’ inflated VRDO pricing “is evident 

from a comparison of their average pricing to the average pricing of 7-day AA 

non-financial commercial paper.” According to Edelweiss, “[t]his is the type 

of security most closely analogous to VRDOs because both are of a short-term 

nature, have a low rate of default, are issued by non-financial entities, and 

are approved investments for money market funds.” It alleges that in a 

“properly functioning market,” the interest rates on California VRDOs should 

not exceed 75 percent of 7-day AA non-financial commercial paper because

unlike VRDOs, commercial paper is not tax-exempt and therefore is a less 

attractive investment. It alleges that, from 2008 onwards, the interest rate 

for defendants’ California VRDOs was higher than for commercial paper. 

The seventh amended complaint also alleges that defendants conspired 

to violate the CFCA by colluding to inflate interest rates on these VRDOs. It 

alleges that this collusion was evident from (1) “cross-bank bucketing” of 

VRDOs showing the same kind of “lock-step” price movements across 

defendants; (2) defendants’ “coordinated response” to certain market events; 

(3) defendants’ use of the J.J. Kenny Index;6 and (4) the relationships

between defendants.

d. Alleged Harm

The seventh amended complaint alleges that California has been 

harmed because it (1) paid for remarketing services it did not receive; (2) paid

higher interest on its VRDOs; and (3) paid for “letter of credit” services—

where the provider must purchase the VRDO from a redeeming investor if 

the RMA is unable to find another investor—that were “rarely called upon” 

6 The J.J. Kenny Index is a third-party index of VRDO rates that is 

“regularly published in the form of an e-mail to over 200 subscribers, 

including the Defendants in this action.”
12

because of these inflated interest rates. It estimated damages of “over 

$641 million,” including $155 million in remarketing fees, $350 million in 

inflated rates, and $136 million in letter of credit fees during the 2009 to 

2013 period. 

4. Demurrer Sustained Without Leave to Amend

Defendants demurred to the seventh amended complaint. The trial 

court sustained the demurrer without leave to amend. It found that

Edelweiss had pleaded express contractual provisions from the RMA 

agreements that required defendants to set the interest rate at the lowest 

rate that would enable them to sell the VRDO series at par. It concluded, 

however, that Edelweiss had not pleaded particularized allegations of falsity, 

i.e., that defendants’ claims for payment were rendered false because they 

submitted the claims knowing they had materially breached those

contractual obligations. Given that Edelweiss had not pleaded a viable 

theory of predicate liability, it concluded that the conspiracy claim also failed. 

This appeal followed. We received an amicus curiae brief submitted 

jointly by the Chamber of Commerce of the United States of America, the 

California Chamber of Commerce, and the American Bankers Association, as 

well as Edelweiss’s response to the amicus brief.

5. Edelweiss Actions in Other States

In addition to its CFCA complaint, Edelweiss filed similar qui tam

actions in four other states. Defendants’ motions to dismiss were denied in 

Illinois, New York, New Jersey, and Massachusetts. In Illinois, the trial 

court concluded that the allegations were sufficiently particular to state a 

claim under the Illinois False Claims Act and rejected dismissal based on the

public disclosure bar. 
13

In New York, the appellate court affirmed the denial of defendants’ 

motion to dismiss upon concluding that Edelweiss had adequately alleged a 

claim at this stage and that the proposed deficiencies fell into the realm of 

specifics that Edelweiss was not required to plead. (State ex rel. Edelweiss 

Fund, LLC v. JP Morgan Chase & Co. (2020) 140 N.Y.S.3d 1, 2.) Defendants 

were alleged to have bucketed VRDOs and treated them identically, 

sometimes for years, and without apparent economic justification, given the

disparate characteristics of the VRDOs that Edelweiss itemized. (Id. at p. 3.)

In New Jersey, the trial court denied defendants’ motion to dismiss

after noting that it seemed like more of a summary judgment motion and

that the question of whether Edelweiss “can prove the allegations contained 

in the fourth amended complaint is not the issue before me[.]”7 It found that 

Edelweiss had alleged with proper specificity that defendants reset rates for 

dissimilar VRDOs en masse and through a process that could not result in 

the lowest rates that defendants were required to obtain, and that “a 

contrary interpretation or an alternative explanation simply presents a 

factual issue for discovery.” 

7 Edelweiss has made two requests for judicial notice on appeal. We 

granted the May 9, 2022 request, but deferred ruling on the November 19, 

2021 request until the merits of the appeal. (See People v. Preslie (1977) 

70 Cal.App.3d 486, 493–494.) We now grant Edelweiss’s request to take 

judicial notice of Exhibit 1, a transcript of decision in State of N.J. ex rel. 

Edelweiss Fund, LLC v. JP Morgan Chase & Co. (N.J.Super.Ct., Sept. 13, 

2021, No. 885–15). Edelweiss also asks us to take judicial notice of Exhibit 2, 

an article from The Bond Buyer; defendants oppose the request. We deny 

this request. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 

434, 444, fn. 3 [reviewing courts generally do not take judicial notice of 

evidence not presented to the trial court absent exceptional circumstances];

In re Noreen G. (2010) 181 Cal.App.4th 1359, 1389, fn. 13 [denying request 

for judicial notice where existence of newspaper article is irrelevant and truth 

of its contents is not judicially noticeable].)
14

In Massachusetts, the action was dismissed after the court found that 

EMMA was “news media” under the public disclosure bar of the 

Massachusetts False Claims Act (MFCA).

8 That ruling was affirmed in 

Rosenberg v. JPMorgan Chase & Co. (2021) 487 Mass. 403 (Rosenberg).)

DISCUSSION

Edelweiss argues that the trial court erred in sustaining defendants’ 

demurrer to the seventh amended complaint for two reasons. First, it argues 

that the trial court applied an overly burdensome particularity requirement, 

effectively adopting the federal plausibility standard that California law does

not support. Second, it argues that the trial court erred in concluding that 

the seventh amended complaint did not adequately plead falsity. Before 

turning to the merits of these arguments, we begin with the applicable 

standard of review.

1. Standard of Review

“In reviewing the sufficiency of a complaint against a general 

demurrer, we are guided by long-settled rules.” (Blank v. Kirwan (1985) 

39 Cal.3d 311, 318.) We review the operative complaint “de novo to 

determine whether the complaint alleges facts sufficient to state a cause of 

action under any legal theory or to determine whether the trial court 

erroneously sustained the demurrer as a matter of law.”9 (Aguilera v. 

Heiman (2009) 174 Cal.App.4th 590, 595.) We construe the complaint in a 

reasonable manner and assume the truth of properly pleaded factual 

allegations that are not inconsistent with other allegations, exhibits, or 

8 The language of the MFCA public disclosure bar mirrors the language

of the CFCA public disclosure bar. (Mass. Gen. Laws ch. 12, § 5G, subd. (c).)

9 While we would apply an abuse of discretion standard to review the 

trial court’s denial of leave to amend, no such argument has been raised in 

this appeal. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
15

judicially noticed facts. (Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 

1015.) We need not accept as true, however, contentions, deductions, or 

conclusions of fact or law. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

Appellant bears the burden of demonstrating that the trial court erred.

(Aguilera v. Heiman, at p. 595.) With this standard in mind, we turn to some 

predicate determinations made by the trial court that affect our review.

2. Implied Certification Claim

As part of its overarching arguments regarding the pleading standard 

and the sufficiency of its allegations, Edelweiss challenges two underlying

determinations made by the trial court regarding what Edelweiss had alleged 

and what it was required to plead. 

First, the trial court determined that Edelweiss had alleged an “implied 

certification” claim. California courts distinguish between express and 

implied certification claims under the CFCA. (San Francisco Unified School 

Dist. ex rel. Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal.App.4th 438 

(Contreras).) An express certification claim may allege, for example, that a 

defendant submitted an invoice for payment under a contract and that the

invoice expressly asserted compliance with the requirements of the contract. 

(Id. at p. 447.) The falsity of the claim thus flows from the expressly false 

statement on the invoice. (Id. at p. 448.) Contreras, however, explained that 

the CFCA also supports an implied certification claim. (Id. at p. 449.) If the 

contractor has knowledge of its non-compliance with the contract but 

nonetheless chooses to seek payment without informing the government—

even if the claim for payment does not contain an expressly false statement—

then “it is a fraud appropriately within the scope of the CFCA.” (Id. at 

p. 453.)
16

Edelweiss argues that it has alleged not only an implied certification 

claim, but also an “ ‘archetypal qui tam False Claims action’ ” based on a 

“ ‘literal false or fraudulent’ ” claim for payment. We are not persuaded. 

“The archetypal qui tam FCA action is filed by an insider at a private 

company who discovers his employer has overcharged under a government 

contract.” (United States ex rel. Hopper v. Anton (9th Cir. 1996) 91 F.3d 1261, 

1265–1266 [explaining that federal FCA was originally enacted during Civil 

War to combat widespread fraud by government contractors submitting 

inflated invoices and shipping faulty goods].)

10 Here, Edelweiss does not 

allege that defendants should have claimed some lower amount for payment 

than they actually did. Nor does it allege any other express false statement in 

defendants’ claims for payment. Instead, it alleges that defendants impliedly 

certified compliance with their contractual obligations by submitting 

payment for those services, and that this implied certification was false 

because defendants knew those services had not been performed as promised. 

Second, the trial court determined that because Edelweiss had alleged 

an implied certification claim, it was required to adequately plead falsity 

based on a failure of defendants’ express contractual “Rate Resetting 

Obligation” as set forth in their RMA agreements: to reset the interest rate 

for California VRDOs at the lowest possible rate that would enable them to 

sell the series at par. In other words, Edelweiss could not plead falsity by 

alleging only the failure of an implied obligation based on its interpretation of

those agreements; namely, that defendants were required to reset the rates of 

each California VRDO “individually.”

10 Given the “very close similarity” of the CFCA to the federal False 

Claims Act, “it is appropriate to turn to federal cases for guidance in 

interpreting the [CFCA].” (Pomona, supra, 89 Cal.App.4th at p. 802.)
17

We begin by observing that the implied certification claim in Contreras

involved an alleged failure to comply with express contractual terms, so the 

court had no occasion to consider the viability of a claim premised on an 

implied obligation. (Contreras, supra, 182 Cal.App.4th at p. 443.) But 

Contreras explained that liability under the CFCA is distinguished from

liability for any run-of-the-mill breach of contract insofar as not every breach 

of a “material” contract term will be material to the government’s decision to 

pay. (Id. at p. 456.) We thus agree with Contreras that “the materiality 

requirement is a meaningful limit to the scope of liability under the CFCA” 

(id. at p. 457), but we find no basis to conclude as a matter of law that 

compliance with an implied contractual term can never be material to the 

decision to pay.

That said, what we view as material to the government’s payment 

decision in this case is defendants’ compliance with the express obligation to 

reset each VRDO’s interest rate at the lowest possible level to enable them to 

sell the series at par; Edelweiss itself acknowledges that the remarketing 

agreements do not mandate a specific process that defendants must use to 

arrive at it. Nonetheless, it follows from defendants’ rate-resetting obligation 

that they must employ some methodology that is in principle capable of 

allowing them to comply with it, and at this stage of the litigation we accept 

as true Edelweiss’s allegation that the amount an interest rate for a 

particular VRDO should rise or fall is a function of changes in that VRDO’s 

“unique characteristics” (or investor preference for those characteristics) 

across the categories Edelweiss identifies. The seventh amended complaint 

alleges that defendants’ approach to rate setting neither did nor could take 
18

into account the relevant factors for each VRDO.

11 But we need not decide

whether such an allegation would suffice to state a claim in the absence of 

additional particularized allegations to support an inference that defendants

failed to reset rates at the lowest possible level because, as explained below, 

we conclude that the seventh amended complaint adequately supplies them.

3. Pleading with Particularity

CFCA actions are subject to “ ‘heightened fraud-like pleading 

requirements.’ ” (State of California ex rel. McCann v. Bank of America, N.A.

(2011) 191 Cal.App.4th 897, 906 (McCann).) “ ‘Every element of the cause of 

action for fraud must be alleged in the proper manner (i.e., factually and 

specifically).’ ” (Committee on Children’s Television, Inc. v. General Foods 

Corp. (1983) 35 Cal.3d 197, 216.) This particularity requirement 

“necessitates pleading facts which ‘show how, when, where, to whom, and by 

what means’ ” the false representations were made. (Lazar v. Superior Court

(1996) 12 Cal.4th 631, 645.) “ ‘As in any action sounding in fraud, the 

allegations of a [CFCA] complaint must be pleaded with particularity. The 

complaint must plead “ ‘the time, place, and contents of the false 

representations, as well as the identity of the person making the 

misrepresentation and what he obtained thereby.’ ” ’ ” (McCann, at p. 906,

quoting Pomona, supra, 89 Cal.App.4th at p. 803.) Allegations of the 

11 To the extent this allegation is merely a conclusion drawn from 

Edelweiss’s analysis of the interest rate data, it adds nothing to that 

analysis. But, as explained further below, the allegation has independent

support in statements by former employees that, for example, the 

remarketing desk was inadequately staffed or could have been “replaced by 

three monkeys,” and that the VRDO market was the “ ‘biggest joke of a 

market of all time’ ” and did not operate on the basis of prevailing market 

conditions. 
19

defendant’s knowledge, however, may use “conclusive language.” (Pomona, 

at p. 803.)

In McCann, this court explained that qui tam actions “are meant to 

encourage private whistleblowers, uniquely armed with information about 

false claims, to come forward,” and thus these insiders “should have adequate 

knowledge of the fraudulent acts to comply with the pleading requirement.” 

(McCann, supra, 191 Cal.App.4th at p. 907.) The heightened pleading 

requirement “ ‘serves not only to give notice to defendants of the specific 

fraudulent conduct against which they must defend, but also “to deter the 

filing of complaints as a pretext for the discovery of unknown wrongs, to 

protect [defendants] from the harm that comes from being subject to fraud 

charges, and to prohibit plaintiffs from unilaterally imposing upon the court, 

the parties and society enormous social and economic costs absent some 

factual basis.” ’ ” (Id. at p. 909.)

Edelweiss argues that the trial court erred by assessing whether it had 

satisfied this particularity requirement under the federal “plausibility”

standard, which requires a complaint to allege sufficient facts to state a claim 

to relief that is plausible on its face. (Bell Atlantic Corp. v. Twombly (2007) 

550 U.S. 544, 570.) Instead, Edelweiss contends, the analysis should have 

followed the California standard: that a demurrer does not “test the truth of 

the plaintiff’s allegations” and we must assume the truth of “facts that 

reasonably can be inferred from those expressly pleaded.” (Franceschi v. 

Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 256.) In its order, the trial court 

explained it was “not evaluating whether the facts Plaintiff pled with 

specificity are plausible, but whether the facts Plaintiff pled with specificity, 

which must be taken as true, provide reasonable support for the conclusions 

Plaintiff draws from them. . . . At a basic level, the particularity requirement 
20

would serve no purpose if there was no connection between the particularized 

factual allegations and the ultimate conclusions.” 

While we see no error in this articulation of the standard, we conclude 

that the trial court required too much to satisfy it. As described above, 

Pomona defines the particularity requirement to include “ ‘ “the time, place, 

and contents of the false representations.” ’ ” (Pomona, supra, 89 Cal.App.4th 

at p. 803.) Edelweiss did that here. It alleged that, between 2009 and 2013, 

defendants submitted false claims for payment, and that those claims were 

false because defendants’ robo-resetting practices caused them to violate 

their express contractual obligations to reset the interest rate for California 

VRDOs at the lowest possible rate that would enable them to sell the series 

at par. These allegations satisfy the dual purposes of the particularity 

requirement: to put defendants on notice of the alleged fraudulent conduct

and deter fishing expeditions for unknown wrongs. (McCann, supra, 

191 Cal.App.4th at p. 909.) There can be no question that Edelweiss’s 

allegations gave defendants sufficient notice of the conduct at issue. 

Moreover, Edelweiss identified the particular alleged wrongs (violation of

defendants’ contractual rate resetting obligations and conspiracy to commit 

said violations) and, as detailed below, provided at least “ ‘ “some factual 

basis” ’ ” to support those alleged wrongs. (Ibid.)

4. “Robo-Resetting” Allegations

The seventh amended complaint contains four categories of allegations 

regarding the “robo-resetting” scheme: (1) Edelweiss’s bucketing analysis; 

(2) Edelweiss’s study of credit rating upgrades; (3) statements from former 

employees; and (4) Edelweiss’s commercial paper comparison. 

As a preliminary matter, we do not find the allegations regarding the 

commercial paper comparison to be sufficient. Edelweiss attempts to show
21

that defendants artificially inflated VRDO rates by alleging that the average 

VRDO rates from 1998 to 2007 were 75 percent of the average commercial 

paper rate, but the average VRDO rates in years 2008 to 2013 were higher 

than the average commercial paper rate. The seventh amended complaint, 

however, also includes alleged statements from three employees 

(Employees 1, 2, and 3) who worked for defendants during the 1998 to 2007 

period indicating that defendants engaged in the same robo-resetting 

practices and inflation of VRDO rates during this time. 

If defendants’ alleged rate-resetting practices were the same both when 

the average VRDO rate was lower than the average commercial paper rate

and when it was higher, it is not reasonable to infer that those practices 

explain the claimed inversion, at least in the absence of additional 

information that the seventh amended complaint does not supply. Moreover, 

Edelweiss’s additional allegations that the VRDO rate remained higher than 

commercial paper after 2013 was contradicted by judicially noticed data

showing that the average VRDO rate was lower than the average commercial 

paper rate in 2014, 2015, 2017, 2018, and 2019. We thus reject Edelweiss’s 

conclusions from the commercial paper rate comparison because they are

contradicted by its own factual allegations and judicially noticed facts. 

(Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Genis v. Schainbaum, supra, 

66 Cal.App.5th at p. 1015.) We address the remaining three categories in 

turn.

a. Bucketing Analysis

Edelweiss alleges that it performed a forensic analysis of defendants’ 

rate resetting from April 1, 2009 to November 14, 2013, which revealed that 

defendants regularly applied the same absolute rate change (a given number 

of basis points) to unrelated California VRDOs. When the pattern continued 
22

often enough, Edelweiss considered those VRDOs to have been “bucketed” 

together. These “buckets” are not necessarily the groupings of VRDOs that

defendants themselves made. Rather, they are patterns in the rate-resetting 

data that meet a definition furnished by Edelweiss. Specifically, Edelweiss 

considered a particular VRDO to be part of the same “bucket” if “its weekover-week rate change in a given week matched the most common week-overweek rate change among the bonds priced by a Defendant RMA that week, 

for at least twenty-six consecutive weeks . . . and at least 80 percent of the 

time.”12 

So defined, Edelweiss’s analysis found “bucketing” for between 

58 percent (126 of 217 for Bank of America) and 100 percent (all 59 for Piper 

Jaffray) of the California VRDOs in the portfolios studied. Edelweiss further 

alleges that California VRDOs in the same “bucket” had “widely divergent 

characteristics,” including issuer credit quality, letter of credit quality, type of 

liquidity support facility, revenue source, economic sector, and size. 

Edelweiss alleges that the “significant differences” in these factors “should 

have led to differences in their interest rate changes over time,” and that 

defendants could not have complied with their rate resetting obligation given 

12 Edelweiss states that it selected these threshold qualifiers “to 

account for the periodic sale of certain bonds or their departure from the 

market,” and that applying them “most accurately captures Defendants’ 

anomalous interest rate resetting practices and the extent of the intentional 

interest rate inflation in which Defendants have engaged.” If Edelweiss had 

employed different qualifying thresholds—if the required period were 

something other than 26 consecutive weeks, or if the rate change were 

required to match the most common rate change something other than 

80 percent of the time—then the percentage of VRDOs that were “bucketed,” 

the number of buckets, and the number of VRDOs in each bucket, would 

likely have been different as well. 
23

that they applied matching rate resets for a months-long period across 841

bucketed California VRDOs. 

Defendants contend that this analysis is inadequate for two principal 

reasons. First, they argue that because Edelweiss is unable to allege how 

defendants actually reset rates, there is no basis to infer that defendants

failed to exercise their judgment when determining the lowest rate, or that 

the rate of any given California VRDO was too high. Second, they contend

that the analysis does not directly identify any California VRDO for which 

the rate was reset higher than it should have been on any particular date. 

We are not persuaded by defendants’ first argument because we must 

credit Edelweiss’s allegations that (1) the “buckets” consisted of VRDOs that 

differed across the multiple characteristics Edelweiss identified; (2) these 

characteristics (or investor demand for them) change in different ways over 

time; (3) the lowest interest rate that would enable the series to be sold at par

in a given week is a function of these changes from week to week (i.e., 

prevailing market conditions for that particular VRDO); and (4) given the 

dynamics of the market, one could not reasonably expect VRDOs with vastly 

different characteristics to require an identical interest rate adjustment in 

absolute terms week after week if the objective were to select the lowest 

interest rate for each VRDO that would enable the series to be sold at par. 

Defendants suggest that “Edelweiss’s point is a little like observing that the 

prices for regular and premium gasoline moved together in a given time

period, and that those products have different characteristics.” Since “the 

prices are already different in absolute terms,” defendants write, “identical 

price changes do not mean that the price for regular gasoline was inflated.” 

But if a plaintiff alleged that the ingredients for regular and premium were 

very different and the cost of each ingredient changed in different ways from 
24

week to week, yet the price charged for regular or premium rose or fell by the 

same amount, it would be reasonable to infer that the price of at least one of 

the two did not accurately reflect changes in the cost of its ingredients.

Moreover, Edelweiss alleges that the interest rate change applied by a 

defendant to every VRDO in a given bucket was “calibrated to ensure the 

lowest quality, riskiest VRDO in the bucket” would trade at par, increasing 

the likelihood that lockstep adjustments would result in an interest rate that 

was higher than necessary for some of the VRDOs in the bucket. 

It is true, as defendants point out, that Edelweiss’s definition of a 

“bucket” allows non-matching rate changes up to 20 percent of the time—a 

threshold that is not particularly well explained—and nothing in the seventh 

amended complaint explains why or under what circumstances a VRDO 

would not receive a matching rate change. But Edelweiss need not allege 

defendants’ exact rate resetting procedure if the allegations it does offer

support the inference that defendants were knowingly failing to reset rates 

on some VRDOs at the lowest possible level, as we believe they do. The same 

is true for defendants’ contention that Edelweiss “cherry-picked” the period it 

studied. Such an argument may have force in the context of a summary 

judgment motion, but at the pleading stage we cannot say that a period of 

twenty-six weeks is so short as to be meaningless. Ultimately defendants 

may be able to offer an “innocent” explanation for the patterns Edelweiss

discerns in the interest rate data, but that explanation, if it exists, likely 

relies on information that we cannot consider when ruling on a demurrer, or 

depends on rejecting allegations that for now we are required to credit. (See 

Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 922.)

As for defendants’ second argument, we agree that the bucketing 

analysis does not identify specific VRDOs for which Edelweiss alleges the 
25

interest rate was too high. But we do not view the bucketing analysis in a 

vacuum; Edelweiss supplied these allegations in its analysis of credit rating 

upgrades, to which we now turn. 

b. Study of Credit-Rating Upgrades

Edelweiss alleges that it performed a study of credit-rating upgrades 

for California VRDO issuers to determine whether an upgrade in the credit 

rating of a VRDO issuer resulted in a decrease in the interest rate on that 

VRDO, which it alleged should occur “[a]ll else being equal.” Edelweiss 

identifies approximately three dozen examples—Exhibit K to the seventh 

amended complaint, which has 39 entries—in which an upgrade by Moody’s 

(a credit rating agency) did not result in a relative interest rate decrease for 

that VRDO, determined by the first rate reset after the upgrade. In other 

words, while the interest rate on the VRDO may have fallen, the decrease 

was not greater (in absolute terms) than the changes defendant applied to 

the interest rates “on the VRDOs of other issuers whose credit ratings were 

not upgraded.” 

Defendants argue that the credit study allegations are flawed because 

Edelweiss failed to include allegations assessing “other characteristics” of the 

bonds and “market forces.” But a demand that Edelweiss exhaustively detail 

its analysis in the complaint—effectively leaving nothing to explore in 

discovery—makes too much of the particularity requirement. Edelweiss 

alleges that the study provides “dozens of specific instances in which a 

Defendant set the interest rate of a VRDO at a level higher than it should 

have been, taking the relevant circumstances into consideration, including 

the characteristics of the VRDO at issue and market preferences for it.” Each 

such alleged instance is set forth in Exhibit K. These allegations are 

sufficient, as they “directly identify” 39 particular rate resets for particular
26

VRDOs where defendants purportedly violated their rate resetting obligation.

(McCann, supra, 191 Cal.App.4th at p. 910.)13

c. Former Employee Statements

Edelweiss alleges that “[s]even former employees of Defendants have 

stated and corroborated that Defendants shirked their contractual and 

regulatory obligations and instead engaged in the rate-setting misconduct 

that Relator’s forensic analyses revealed.” 

Employee 4 worked on the remarketing desk at Wells Fargo from 

approximately 2008 through 2015. This employee described the rate 

resetting process as follows: when Wells Fargo initially became the 

remarketing agent for a California VRDO, it determined by how many basis 

points the VRDO’s interest rate should differ relative to the SIFMA index. 

Thereafter, Wells Fargo “almost never” made adjustments to the spread. The 

weekly rate resetting involved adjusting “large groups of VRDOs, including 

California VRDOs, by the same absolute number of basis points. As a result, 

large groups of VRDOs were adjusted by the same number of basis points 

regardless of the percentage increase, or decrease, that the number of basis 

points represented.” Employee 4 stated that this process “did not result in 

the lowest rate for all the VRDOs for which Wells Fargo was the remarketing

agent, which was required to be obtained by the remarketing agreements.”

Instead, it “was designed to ensure that VRDOs, including California VRDOs, 

13 We note that only some of the bonds in Exhibit K are elsewhere

identified as having been bucketed during the 2009 to 2013 period Edelweiss 

analyzed, and some of the dates listed in Exhibit K are outside that period.

However, even the entries that do not correspond to the bucketing analysis 

are relevant because the seventh amended complaint alleges that “the 

misconduct in which Defendants engaged is ongoing” and that Edelweiss’s 

“claims extend to all VRDOs for which each Defendant served as an RMA 

during the statutory period.”
27

were not ‘put’ back to Wells Fargo as the remarketing agent, which would 

require Wells Fargo to undertake inventory risk.” Employee 4 “closely 

monitored” the rate resetting practices of the other defendants and was 

aware of their methodologies; he believes they engaged in a rate resetting 

process that was “substantially the same.” We conclude that these 

statements support Edelweiss’s allegations that defendants used roboresetting on California VRDO rates and, taken together with the bucketing 

and credit study allegations, support the reasonableness of the inference that 

defendants violated their rate-resetting obligation.

We are not persuaded by defendants’ arguments to the contrary. They

contend that the statements are insufficient because Employee 4 did not

allege exactly how Wells Fargo determined the initial spread to the SIFMA 

index, or exactly how Wells Fargo determined its subsequent rate resets. 

Again, we deem that level of specificity to exceed what is required at the 

pleading stage. Defendants also argue that the example of lockstep rate 

resets described by Employee 4 was contradicted by other judicially noticed 

data. Employee 4 explained that on January 20, 2010, 32 of the 51 California 

VRDOs were adjusted by 10 basis points “without regard” to the relative 

percentage change this represented for each VRDO. Of those 32 California 

VRDOs, 21 had a 100 percent rate increase, 5 had a 77 percent rate increase, 

5 had a 43 percent rate increase, and 1 had a 2 percent rate increase. The 

trial court granted defendants’ request for judicial notice of rate resets the 

week of November 11, 2009 for these VRDOs. Defendants argue that the rate 

resets in this week for the 32 California VRDOs referenced above 

“contradicted” Employee 4’s statement that Wells Fargo “almost never” made 

adjustments to the SIFMA index spread. But the same cherry-picking 

complaints made by defendants can be applied here: a single week of rate 
28

reset data does not render the allegation by Employee 4—that Wells Fargo 

rarely adjusted the SIFMA index spread—defective on its face. With this 

judicially noticed data, defendants provide their counter analysis of a 

different time period using different methodology and reaching a different 

result. Nor does this data necessarily contradict the general allegation that 

defendants used bucketing to reset rates: a majority of the 32 California 

VRDOs had either a 1 or 7 basis point adjustment the week of November 11, 

2009.

Employee 5 is a former senior employee who worked in the remarketing 

function for Barclays from approximately 2008 through 2012. Employee 5 

alleges that Barclays “did not expend sufficient resources to staff the 

remarketing function in a manner that would have resulted in Barclays’ 

setting rates on the VRDOs for which it was the remarking agent at the 

lowest rate,” and that Employee 5 was “regularly ‘yelled at’ ” by management 

that VRDO rates were being reset too low and should be increased. 

Similarly, Employee 7 (employed by Citi for 20 years, and then an unnamed 

financial institution from 2006 to 2016) believed that the VRDO market was 

operated by remarketing agents as the “ ‘biggest joke of a market of all time’ ” 

and did not operate on the basis of prevailing market conditions. Again, 

while not sufficient to state a cause of action in and of themselves, the 

statements by Employees 5 and 7 add allegations regarding the feasibility of

defendants’ compliance with their rate resetting obligations, and if all

Edelweiss’s allegations were proven true, support the reasonableness of the 

inference that those obligations were violated.

14

14 The statements by Employee 6 relate mostly to the commercial paper 

comparison that we deem insufficient, and we do not find that they add 

anything meaningful. 
29

Employees 1 and 2 worked at JPMorgan before the period at issue in 

the seventh amended complaint (2009 onwards). The same is true for 

Employee 3, who worked at Citi from the early 1990s through 2008. Thus, 

while these allegations may add little to what has already been said, the 

employees described practices consistent with those in the period at issue in 

the complaint. According to Employee 1, the VRDOs for which the employee 

was responsible “were divided into a small number of groups (two to four)” 

called “buckets,” each of which was reset based on a spread to the SIFMA 

index that remained static for long periods of time.15 Employee 2 described a 

similar process, and stated that JPMorgan “did not engage in any 

individualized consideration of any particular VRDOs when setting rates.” 

According to this employee, the joke within the business unit was that “the 

whole remarketing desk could be replaced with three monkeys.” Employee 3 

stated that Citi and other remarketing agents “generally did not consider 

VRDOs on an individualized basis, but rather reset rates en masse,” and that 

issuers would have a “coronary” if they were aware that Citi “was not 

watching VRDO rates carefully in order to get the lowest possible rates.” 

Taken together, these statements add support for the inference from 

the rate-resetting data that defendants did not evaluate, for each VRDO, the 

factors that Edelweiss alleges it is necessary to consider in order to reset 

15 The trial court wrote that it saw no allegation that JPMorgan 

“adjusted the rates of large groups of unrelated California bonds,” as bonds 

“were divided into a small number of groups.” But we read Employee 1’s 

statement to mean that JPMorgan divided all of its VRDOs into only two to 

four buckets, and then applied the same rate reset for each bucket. This 

allegation is consistent with the bucketing allegations regarding JPMorgan’s 

practices during the time period at issue in the seventh amended complaint, 

as well as the practices of other defendants.
30

rates at the lowest possible level that would allow the series to be sold at par, 

and that their failure to do so resulted in rates that were too high.

5. Conspiracy Claim

In addition to its claim that defendants violated the CFCA by 

submitting false claims, Edelweiss also alleges that defendants conspired to 

commit a violation of the CFCA by colluding to inflate interest rates on 

California VRDOs. (§ 12651, subd. (a)(3).) “To support a conspiracy claim, a 

plaintiff must allege the following elements: ‘(1) the formation and operation 

of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and 

(3) damages arising from the wrongful conduct.’ ” (AREI II Cases (2013) 

216 Cal.App.4th 1004, 1022.) A conspiracy claim under the CFCA is subject 

to the same heightened standard of pleading with particularity. (McCann, 

supra, 191 Cal.App.4th at p. 906; see also Prakashpalan v. Engstrom, 

Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1136 [“Where fraud is alleged 

to be the object of the conspiracy, the claim must be pleaded with 

particularity”].)

Defendants argue that Edelweiss’s conspiracy claim suffers from a 

“threshold failure” because its underlying allegations for CFCA violation are 

not sufficient. We reject this argument for all the reasons described above. 

Defendants then go on to challenge Edelweiss’s specific allegations regarding

conspiracy. 

Edelweiss alleges that defendants’ conspiracy is evident by the “crossbank bucketing” of VRDO interest rate resets showing “the same kind of lockstep price movements even across banks.” Edelweiss provides two examples 

of cross-bank buckets: (1) 440 VRDOs from JPMorgan, Citi, Morgan Stanley, 

Wells Fargo, and Bank of America with an average maximum 26-week 

matching rate for the 2009 to 2013 period of 95 percent; and (2) 231 VRDOs 
31

from Citi, Morgan Stanley, Wells Fargo, and Bank of America with a 

matching rate of 91.2 percent. Edelweiss also reviewed the rates for

10 VRDOs with dissimilar characteristics selected at “random” for the 

year 2012. Edelweiss alleges that the interest rate changes were “almost 

identical” across the board. In response to these allegations, defendants

repeat their argument that Edelweiss was required to allege a rate for 

particular VRDOs that should have moved differently in a particular week.

But Edelweiss has alleged a coordinated robo-resetting scheme for at least 

710 particular VRDOs (these two examples and the credit-rating upgrade 

study) in a specified time period, and that this scheme resulted in rates that

were higher than they should have been. These allegations are sufficient to 

draw a reasonable inference of wrongful conduct in furtherance of the 

conspiracy. 

Edelweiss offers three other allegations regarding defendants’ 

purported conspiracy.

16 First, it alleges that Moody’s downgraded the shortterm credit rating of Bank of America in June 2012. Despite the downgrade, 

VRDOs with Bank of America credit “continued to move in lock step with the 

other VRDOs in this bucket.” Edelweiss alleges that this was caused by

defendants’ agreement to “ignore the downgrade” and continue its 

coordinated pricing. Second, Edelweiss alleges that defendants used indexing 

services like J.J. Kenny to exchange information about future VRDO ratesetting and adjust planned rates. Third, Edelweiss alleges that defendants 

have opportunity and incentive to inflate VRDO rates because they serve as a 

16 Edelweiss also alleges that defendants coordinated their rate resets 

after the Federal Reserve’s decision in December 2015 to raise the target for 

the federal funds rate by 25 basis points. Because this allegation depends on 

a comparison to commercial paper rates at the time, we do not consider it 

sufficient. 
32

letter of credit provider on VRDOs where another defendant was the RMA, 

and defendant RMAs own money market funds that invest in the same 

VRDOs. 

Defendants argue that these allegations lack particularity. Evidence of

a conspiracy “ ‘ “ ‘ “may be inferred from the nature of the acts done, the 

relation of the parties, the interests of the alleged conspirators, and other 

circumstances.” ’ ” ’ ” (Novartis Vaccines & Diagnostics, Inc. v. Stop 

Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296.) 

While defendants’ alleged interrelationships, opportunities to collude, and 

incentives to do so may not be alone sufficient to plead conspiracy, they again 

support the reasonableness of the inference drawn from all of Edelweiss’s 

allegations that defendants conspired in robo-resetting California VRDO 

rates. (See Balistreri v. Turner (1964) 227 Cal.App.2d 236, 242 [defendant 

had motive because plaintiff supported opponent in reelection to union]; 

AREI II Cases, supra, 216 Cal.App.4th at pp. 1008, 1023 [reasonable 

inference that defendant investment bankers knew officer was a convicted 

felon because they were extensively involved in background checks and 

drafting related memorandum].)

In sum, we conclude that Edelweiss has adequately pleaded its CFCA 

claims based on the alleged violation of defendants’ contractual obligations

and alleged conspiracy to commit such violation. We thus conclude that the 

trial court erred in sustaining defendants’ demurrer to the seventh amended 

complaint.

6. CFCA Public Disclosure Bar

Defendants argue that even if Edelweiss has pled its claims with 

sufficient particularity, those claims are independently foreclosed by the 

CFCA’s public disclosure bar. Defendants concede that this argument was 
33

not repeated in their demurrer to the seventh amended complaint, but state 

that it was expressly reserved for appeal after the trial court rejected the 

argument on defendants’ previous (successful) demurrers. Upon appeal of a 

final judgment, we may review “any intermediate ruling, proceeding, order or 

decision which involves the merits or necessarily affects the judgment or 

order appealed from or which substantially affects the rights of a party.” 

(Code Civ. Proc., § 906.) Under these circumstances, and given that

Edelweiss has not argued or demonstrated any prejudice, we address the 

merits of the argument.

After the parties submitted their briefing on appeal, the Attorney 

General filed a notice opposing dismissal of the action pursuant to the public 

disclosure bar. Section 12652(d)(3)(A) provides for the dismissal of an action 

under the public disclosure bar “unless opposed by the Attorney General or 

prosecuting authority of a political subdivision.” Accordingly, if the Attorney 

General files an opposition to a pending motion to dismiss in the trial court, 

the notice forecloses application of the public disclosure bar. (Ibid.) But 

because the Attorney General filed its notice here for the first time on appeal, 

it raises the question of whether the opposition has been forfeited. (See

Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 319, fn. 13

[government defendants waived argument never raised or asserted below].) 

We need not decide this question, however, as we conclude that the public 

disclosure bar does not apply.17 We begin by addressing two threshold issues.

Defendants first contend, without citation to any California authority, 

that the original complaint is the operative pleading for purposes of the 

17 Given this conclusion, we need not consider defendants’ opposition to 

the Attorney General’s notice, and we deny the application by Edelweiss and 

joinder by the Attorney General for leave to file a reply.
34

public disclosure bar. We reject this contention in light of California cases 

analyzing application of the public disclosure bar to the allegations in 

amended complaints. (E.g., Bartlett, supra, 243 Cal.App.4th at p. 1402 [SEC 

filings cited in first amended complaint did not trigger application of public 

disclosure bar]; City of Hawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 

109 Cal.App.4th 1668, 1686 [public disclosure bar not applicable to claims in 

fourth amended complaint].)

Even considering the allegations of the seventh amended complaint, 

defendants maintain that the action is barred because it relies on publicly 

disclosed data. Specifically, defendants contend that the VRDO interest rate

resets underlying Edelweiss’s bucketing analysis were made available in real 

time and for later review on EMMA. They also contend that the commercial 

paper comparison relied on information available on Bloomberg and the

Federal Reserve Economic Data (FRED) website. In order for the public 

disclosure bar to apply, however, defendants concede that the information

must be “material” to the claim. (State of California v. Pacific Bell Telephone

Co. (2006) 142 Cal.App.4th 741, 745 [qui tam action cannot proceed if the 

material elements of a false claim are already in the public domain].) Given 

our conclusion that the commercial paper allegations are insufficient to 

support Edelweiss’s claim, information from Bloomberg and FRED cannot 

support application of the public disclosure bar here.

That leaves us to decide whether the interest rate reset information on

EMMA triggers application of the public disclosure bar: that substantially 

the same allegations or transactions as alleged in the action were publicly 

disclosed in the certain enumerated categories under section 12652, 

subdivision (d)(3)(B). We turn to those categories, as they “limit our review.” 

(State of California v. Pacific Bell Telephone Co., supra, 142 Cal.App.4th at 
35

p. 749.) “ ‘If those fora are not implicated the inquiry is at an end.’ ” 

(Bartlett, supra, 243 Cal.App.4th at p. 1407.)

Defendants argue that EMMA falls under either of two section 12652, 

subdivision (d)(3)(B) categories: as a “report” of the state, or as “news media.”

We are not persuaded. The interest rate reset information on EMMA is 

clearly not a “report” of the state; it is provided by RMAs and made available 

by MSRB, a non-governmental self-regulatory organization. (BOKF, NA v. 

Estes (9th Cir. 2019) 923 F.3d 558, 561.) Defendants cite no authority to the 

contrary. (Cf. Rosenberg, supra, 487 Mass. at p. 458 [concluding that official 

statements containing remarketing agreements constituted “reports”];

Schindler Elevator Corp. v. United States ex rel. Kirk (2011) 563 U.S. 401, 

414 [written responses by Department of Labor to Freedom of Information 

Act requests are federal “reports” under federal FCA].)

Whether the interest rate reset information on EMMA constitutes a 

public disclosure in “news media” presents a closer question of statutory 

interpretation. In answering such a question, “ ‘our primary task is to 

determine the lawmakers’ intent’ ” and the process “to ascertain that intent 

may involve up to three steps.” (MacIsaac v. Waste Management Collection 

& Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082.) First, we look to the 

words of the statute itself as “chosen language is the most reliable indicator 

of its intent.” (Id. at p. 1082.) “If the statutory language is clear and 

unambiguous, our task is at an end, for there is no need for judicial 

construction.” (Id. at p. 1083.) When the plain meaning of the text does not 

resolve the question, we proceed to the second step and turn to maxims of 

construction and extrinsic aids, including legislative history materials. 

(Ibid.) If ambiguity remains, we “must cautiously take the third and final 
36

step” and “apply ‘reason, practicality, and common sense to the language at 

hand.’ ” (Id. at p. 1084.)

While the plain language of section 12652(d)(3)(A) is not dispositive

here, it supports the conclusion that interest rate reset information on 

EMMA is not a disclosure in “news media.” The term “news media” is not 

defined anywhere in the CFCA. When a term goes undefined in a statute, we 

give the term its “broad ordinary meaning.” (Schindler Elevator Corp. v. 

United States ex rel. Kirk, supra, 563 U.S. at p. 408.) We agree with 

defendants that “news media” must be interpreted “to encompass the many 

ways in which people in the modern world obtain financial news, including 

from publicly available websites on the Internet.” (Rosenberg, supra, 

487 Mass. at p. 460.) The term clearly includes online financial news sources 

“providing summaries or analysis of trends in market transactions.” (Ibid.) 

But we depart from Rosenberg in its comparison of such sources to the online 

repository of interest rate reset data on EMMA; it is not the same thing. 

Bartlett supports our view. In that case, the defendants argued that 

information in SEC filings qualified as a public disclosure by the “news 

media” because those filings were accessible on the SEC’s online public 

database. (Bartlett, supra, 243 Cal.App.4th at p. 1414.) Bartlett explained: 

“To be sure, the advent of online news sites, blogs and social media has 

blurred the line between what has traditionally been considered news media 

and other forms of public discussion. . . . Still, wherever that fuzzy line now 

is between news media and some other form of publicly accessible 

information, we have little difficulty concluding that disclosures in forms 

available only on the SEC’s online public database are not disclosures by the 

news media no matter how broadly that term is interpreted.” (Ibid.) The 

SEC database at issue in Bartlett is an apt comparison: like EMMA, it is an
37

automated collection of information that entities are required to submit, and 

its purpose is to accelerate the receipt, dissemination, and analysis of this 

time-sensitive information for the benefit of investors, corporations, and the 

market. (Id. at p. 1414, fn. 9.)

In ascertaining the meaning of language in a statute, courts also turn 

to general dictionaries but “must exercise ‘great caution’ when relying on a 

dictionary definition of a common term to determine statutory meaning 

because a dictionary ‘ “is a museum of words, an historical catalog rather 

than a means to decode the work of legislatures.” ’ ” (A.S. v. Miller (2019) 

34 Cal.App.5th 284, 293, fn. 4; see also De Vries v. Regents of University of 

California (2016) 6 Cal.App.5th 574, 591.) While the term “news media” is 

not commonly defined in dictionaries, the term “news” has been defined as a

“ ‘report of a recent event,’ ” or “ ‘the presentation of a report on recent or new 

events in a newspaper or other periodical or radio or television.’ ” (Rosenberg, 

supra, 487 Mass. at p. 459, quoting Webster’s New Universal Unabridged 

Dictionary 1295 (2003).) “Media” has been defined as “ ‘[t]he means of 

communication, as radio and television, newspapers, and magazines, that 

reach or influence people widely.’ ” (Ibid.) Read together, the term “news 

media” includes “ ‘methods of communication that are used to convey

information about recent events or other information that would commonly 

be found in newspapers, news broadcast, or other news sources.’ ” (Silbersher 

v. Allergan Inc. (2020) 506 F.Supp.3d 772, 806, revd. on other grounds

(9th Cir. 2022) 46 F.4th 991.) “ ‘Accordingly, the extent to which the 

information typically conveyed by a source would be considered newsworthy

is relevant to whether it is a news media source.’ ” (Ibid.) Again, we see no 

basis to conclude that an online repository containing defendants’ daily or 
38

weekly submission of interest rate reset data would be considered generally 

newsworthy.

Our interpretation is also consistent with the structure of section 

12652(d)(3)(A), which explicitly limits its application to public disclosures in 

particular fora. “It is a maxim of statutory interpretation that courts should 

give meaning to every word of a statute and should avoid constructions that 

would render any word or provision surplusage.” (Tuolumne Jobs & Small 

Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1038.) “ ‘An 

interpretation that renders statutory language a nullity is obviously to be 

avoided.’ ” (Id. at p. 1039.) If the interest rate data here were considered a 

disclosure by “news media” simply because EMMA is a publicly available

website, it would effectively swallow the fora limitations of 

section 12652(d)(3)(A). As Bartlett explained, “the Legislature may well 

conclude it should amend CFCA to include information available through the 

Internet as one of the categories within the public disclosure bar,” but “we 

have no power to do what the Legislature has to date chosen not to do.” 

(Bartlett, supra, 243 Cal.App.4th at p. 1414.)

Finally, the legislative history of section 12652(d)(3)(A) further 

supports the conclusion that interest rate information on EMMA is not a 

disclosure in “news media.” As originally enacted in 1987, the provision did 

not yet allow for opposition by the Attorney General or prosecutor, but 

contained the same prohibition on qui tam actions “based upon the public 

disclosure of allegations or transactions in a criminal, civil, or administrative 

hearing, in an investigation, report, hearing, or audit conducted by or at the 

request of the Senate, Assembly, auditor, or governing body of a political 

subdivision, or from the news media.” (Stats. 1987, ch. 1420, § 1.) This 

provision was “intended to reward the first whistleblower, and to prevent 
39

other ‘bandwagon’ whistleblowers from reaping the benefits of the 

disclosure.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1441 (1987–

1988 Reg. Sess.) as amended July 9, 1987, p. 8.) In other words, the 

Legislature understood that qui tam actions would help protect the public 

treasury, and thus implemented the public disclosure bar to protect the 

incentives for a qui tam plaintiff to “aid the Government in ferreting out 

fraud.” (Assem. Com. on the Judiciary, Hearing on A.B. 1441, the California 

False Claims Act (May 6, 1987), testimony of David Huebner, p. 3.) An online 

repository of interest rate reset information does not, in our view, constitute 

the type of disclosure in “news media” and subsequent “bandwagon” problem

the Legislature sought to preclude.

The CFCA was amended in 2012 to conform its provisions to the federal 

FCA: section 12652(d)(3)(A) now allows the Attorney General or prosecutor

to permit qui tam lawsuits based on publicly disclosed information. 

(Stats. 2012, ch. 647, § 3.) The three fora categories of section 12652(d)(3)(A) 

remained unchanged, as they already mirrored the federal FCA. (31 U.S.C. 

§ 3730, subd. (e)(4)(A).) We agree with defendants that we can turn to 

published federal authority for guidance in interpreting the CFCA’s public 

disclosure bar (Pomona, supra, 89 Cal.App.4th at p. 802), but the cases they 

cite do not alter our conclusion. United States ex rel. Osheroff v. Humana,

Inc. (11th Cir. 2015) 776 F.3d 805, for example, applied the federal FCA 

public disclosure bar to a qui tam action based on advertisements contained 

in newspapers and publicly available websites of health clinics that were 

intended to disseminate information about the services and programs 

provided by the clinic. (Id. at p. 813.) United States ex rel. Green v. Service 

Contract Education & Training Fund (D.D.C. 2012) 843 F.Supp.2d 20 

similarly concluded that a promotional page of an organization’s website 
40

containing information about its operation and training program constituted 

“news media” for the purposes of the federal FCA. (Id. at p. 32.) Unlike the

websites in Osheroff and Green, the interest rate reset data on EMMA is not 

promotional information. And none of the cases cited by defendants support 

their position that all publicly available websites are “news media.” (Cf. 

United States ex rel. Hong v. Newport Sensors, Inc. (2018) 728 Fed.Appx. 660, 

662–663 [declining to address argument as relator did not independently 

challenge holding in unpublished district court decision that most public 

webpages are “news media”].) Indeed, federal courts have explicitly rejected 

that view. (E.g., Silbersher v. Allergan, Inc., supra, 506 F.Supp.3d 772, 807 

[rejecting argument that information disclosed on patent website falls under 

“news media” category “simply because it can be found on the Internet”].) We 

agree with Bartlett that, while the Internet has certainly expanded the 

meaning of “news media” to include certain information publicly available 

online, it does not include the information at issue here. (Bartlett, supra, 

243 Cal.App.4th at p. 1414.)

In sum, we conclude that the interest rate reset information from 

EMMA is not a public disclosure from “news media” as contemplated by 

section 12652(d)(3)(A).

18 The public disclosure bar is thus inapplicable and

does not require dismissal of Edelweiss’s CFCA claim.

18 Given this conclusion, we need not address Edelweiss’s alternative 

arguments that the public disclosure bar does not apply here because (1) the 

interest rate data from EMMA did not disclose “ ‘substantially the same 

allegations or transactions’ ” as alleged in its action; and (2) Edelweiss falls 

within the “ ‘original source’ ” exception. 
41

DISPOSITION

The June 25, 2021 judgment is reversed and the case is remanded for 

further proceedings. Edelweiss is entitled to its costs on appeal.

GOLDMAN, J.

WE CONCUR:

STREETER, Acting P. J.

WHITMAN, J.*

* Judge of the Superior Court of California, County of Alameda, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
42

Trial Court: City and County of San Francisco 

Superior Court

Trial Judge: Honorable Anne-Christine Massullo

Counsel for Plaintiffs and 

Appellants: 

STEYER LOWENTHAL 

BOODROOKAS ALVAREZ & SMITH, 

Allan Steyer, Jill M. Manning, Jill K. 

Cohoe

THE LAWRENCE LAW FIRM,

Jeffrey W. Lawrence

SCHNEIDER WALLACE COTTRELL 

KONECKY, Todd M. Schneider, Jason 

H. Kim, Matthew S. Weiler, James A. 

Bloom 

CONSTANTINE CANNON, Ari 

Yampolsky

Counsel for Defendant and

Respondent Wells Fargo Bank, 

N.A.: 

JONES DAY, Michael P. Conway, 

Matthew J. Silveira, Margaret Adema 

Maloy

Counsel for Defendant and

Respondent JPMorgan Chase 

Bank, N.A. and J.P. Morgan 

Securities LLC

GREENBERG TRAURIG, William J. 

Goines

Counsel for Defendant and

Respondent Bank of America 

Corporation, Bank of America 

N.A., and Merrill Lynch, Pierce, 

Fenner & Smith Inc.

WILLIAMS CUTLER PICKERING 

HALE AND DORR, Matthew Benedetto

Counsel for Defendants and 

Respondents Citigroup Global 

Markets Inc., Citibank N.A., 

Citigroup Financial Products 

Holdings Inc., and RBC Capital 

Markets, LLC

KEESAL, YOUNG & LOGAN, Peter R. 

Boutin, Christopher A. Stecher 

Counsel for Defendants and

Respondents Morgan Stanley & 

Co. LLC, Morgan Stanley Bank, 

N.A., Morgan Stanley Capital 

Services Inc., and Morgan Stanley 

Capital Group Inc.

SIDLEY AUSTIN, Matthew J. Dolan
43

Counsel for Defendant and

Respondent Piper Jaffray & Co., 

and Piper Jaffray Financial 

Products Inc.

KEESAL, YOUNG & LOGAN, Ben 

Suter

Counsel for Defendants and

Respondents Barclays Capital Inc.

and Barclays Bank PLC

SKADDEN, ARPS, SLATE, MEAGHER 

& FLOM, Jack P. DiCanio, Kasonni M. 

Scales

Counsel for Chamber of Commerce 

of the United States of America, 

California Chamber of Commerce, 

and American Bankers 

Association as Amici Curiae on 

behalf of Respondents

KING & SPALDING, Ethan P. Davis, 

Matthew V.H. Noller