Exhibit 158 — In re Bank of America California Unemployment Benefits Litigation (Dkt. 378-3, S.D. Cal. No. 3:21-md-02992)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 378-3 · 2024-11-21 · Docket on CourtListener

Full text

Exhibit 158 
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
IN RE BANK OF AMERICA  
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-GPC-MSB 
EXPERT CLASS CERTIFICATION REBUTTAL REPORT OF 
WILLIAM J. ABERNATHY, JR. 
November 19, 2024 
REDACTED PUBLIC VERSION 
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Table of Contents 
Page(s) 
 
I. 
ASSIGNMENT ...................................................................................... 1 
II. 
QUALIFICATIONS ............................................................................... 2 
III. 
HOURLY RATE ..................................................................................... 6 
IV. 
BASIS FOR OPINIONS ........................................................................ 6 
V. 
SUMMARY OF OPINIONS .................................................................. 7 
VI. 
STATEMENT AND EXPLANATION OF OPINIONS ......................... 8 
A. 
Bank’s Expert Cronan Offered Several Inaccurate Opinions .................... 8 
B. 
The Bank’s Total Reliance on an Automated Claim Fraud Filter was 
Unprecedented and Inexcusable. ......................................................................... 14 
C. 
The Bank Could Have Asked Its Regulators Whether its Claim Fraud 
Filter Complied with The Bank’s Obligations Under EFTA. .................. 16 
D. 
The Bank Could Not Reasonably Have Believed That Its Use of The 
Claim Fraud Filter Would Be Acceptable to The Bank’s  
Regulators. .................................................................................................................... 18 
E. 
Regulators Do Not Expect or Tolerate Payments to Be Made to 
Fraudsters Under a Regulatory Consent Order and Remediation  
Plan. ................................................................................................................................. 22 
 
 
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I. 
ASSIGNMENT 
1. 
Counsel for Class Plaintiffs in this matter have asked me to review the 
Declaration of Russell Cronan (“Cronan Declaration”) , which I understand 
Defendant Bank of America (the “Bank”) submitted to the Court on October 29, 
20241 and to respond to the opinions set forth in Sections IV and V of Mr. Cronan’s 
declaration, including his statement that “It was reasonable for Bank of America to 
believe that its response to the explosion of pandemic-era prepaid card fraud would 
have been acceptable to the Bank’s regulators.”   
2. 
Based on my experience as a long-time senior federal regulator at the 
Office of the Comptroller of the Currency (OCC), including as Director of 
Compliance and Bank Analysis, and for the reasons explained below, my opinion is 
that this statement and others presented in Mr. Cronan’s declaration are 
demonstrably incorrect. 
3. 
Counsel for Class Plaintiffs have also asked me to respond to certain 
statements in the Bank’s Memorandum of Points and Authorities in Opposition to 
Plaintiffs’ Motion for Class Certification (“Opposition Brief”)2 specifically, the 
assertion or implication that the Bank’s processes for identifying “harmed 
 
1 Mr. Cronan’s declaration is filed at ECF 350-4 (“DX 3”). 
2 The Bank’s Opposition Brief is filed at ECF 349. 
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consumers” or fraudsters who should be excluded pursuant to Consent Decrees with 
the OCC and CFPB under the Remediation Plan are not reliable.  
4. 
Based on my experience as a long-time senior federal regulator at the 
OCC, it is my opinion that when regulators require a bank to identify a population 
of “harmed consumers” for remediation, the regulators expect the bank to develop 
and implement a process that will effectively identify and exclude fraudsters. 
Regulators do not expect or tolerate payments to be made to fraudsters pursuant to a 
regulatory Consent Order. 
5. 
My work on this case is ongoing, and I may review additional materials 
or conduct additional analysis. I reserve the right to update, refine, or revise my 
opinions as appropriate including if additional information becomes available to me. 
II. 
QUALIFICATIONS 
6. 
I am the Chief Executive Officer and owner of Abernathy Bank 
Consulting, LLC in Atlanta, Georgia.  I have over 50 years of broad educational, 
technical, and managerial experience in the banking industry as a National Bank 
Examiner (commissioned by the Secretary of the U.S. Treasury), senior district 
federal bank regulator, senior-level banker (Executive VP - Chief Risk Officer), and 
member of the board of directors of banks and a credit union, and I currently serve 
as a bank consultant and banking expert witness in litigation matters.  I am a graduate 
of the University of Alabama with a Bachelor of Science degree in Banking and 
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Finance, and of The Stonier Graduate School of Banking for the American Bankers 
Association at Rutgers – The State University, New Jersey.   
7. 
During my 33-year career with the Office of the Comptroller of the 
Currency (OCC), a bureau of the U.S. Department of Treasury, I served in six 
different senior management positions, including: 
• Director of Compliance and Bank Analysis for over 300 national banks 
within the nine southeastern states.  My responsibilities included supervision 
of these national banks to ensure their compliance with all consumer laws and 
regulations, including the Electronic Fund Transfers Act (“EFTA”), 15 U.S.C. 
§§1693(a)-(r), and its implementing Regulation E (“Reg E”), 12 C.F.R. pt. 
1005, which OCC and CFPB have alleged that Bank of America violated in 
this case.  The banks and the examiners-in-charge of these banks reported to 
me as the Supervisory Officer for compliance examinations in the 
Southeastern District.    
• Director of Bank Supervision – Senior OCC Federal Supervisor of the 15 
largest national banks headquartered in the nine-state district as well as all 
problem banks in the Southeastern District.  I was the responsible official for 
safety and soundness examinations, consumer compliance exams, and direct 
communications with these large bank executive officers and their Board of 
Directors.  
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• Assistant Deputy Comptroller – As the second-highest ranking executive 
for the Southeastern District, I managed the top banking technical experts 
(Lead Experts in consumer compliance, commercial lending, retail lending, 
capital markets, asset management (trust), and bank information systems), and 
all internal district operations including examiner training and development.  
I was also responsible for monitoring and follow-up on consumer complaints 
against all banks in the nine-state district, including complaints filed against 
Bank of America.  My responsibilities included receiving, analyzing, and 
tracking all consumer complaints, as well as requiring the identified bank to 
respond to the consumer and OCC.  This information was given to the bank’s 
Examiner-in-Charge (EIC) for follow-up at the next compliance examination.  
8. 
As a federal bank regulator, I served as the OCC’s designated senior 
official for several Supervisory Offices, using my professional judgment to 
determine and confirm if OCC’s EIC had reached accurate conclusions on safety, 
soundness and compliance examinations, including, if a particular institution had 
complied with the federal laws and regulations, and if OCC should require the bank 
to consent to the execution of a formal enforcement action for correction of material 
deficiencies.  Each of these banks within my area of supervision and OCC’s EIC of 
each of those banks reported to me (as senior official of the Supervisory Office) 
regarding their examination of the bank, the accuracy of their examination report 
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findings, and the recommendations for any proposed supervision action regarding 
the banks under my authority.  
9. 
After my retirement from OCC and over the next decade, I served as a 
senior-level banker (Executive Vice President and Senior VP) at four different banks 
in Metro-Atlanta, including roles as Senior Vice President – Retail Banking 
(supervision of Branches, Branch Administration & Banker Training) and as Chief 
Risk Management Officer (CRO) at three different banks.  As CRO, I generally 
managed the banks’ six internal control departments: Audit, Bank Secrecy Act / 
Anti-Money 
Laundering 
(BSA/AML), 
consumer 
compliance 
regulations, 
operational risk controls (written policies & procedures - bank wide), commercial 
loan review, and regulatory relations (coordinate Federal Reserve and FDIC 
examination process and ensure corrective actions were taken by the Bank, if 
needed).  Also, I implemented Enterprise Risk Management (ERM) at these banks, 
each of which had $1-3 billion in assets. 
10. 
In 2013, I left full-time banking to establish my own firm, Abernathy 
Bank Consulting, LLC, to provide executive consultant services across a broad 
spectrum of the industry, including by assisting banks with risk management, 
compliance with BSA and other regulatory matters, and serving as an expert witness 
in bank litigation.  In the last five years, I have provided expert witness reports in 14 
lawsuits and provided testimony in six depositions involving bank compliance, 
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BSA/AML, Elder Financial Abuse (EFA), internal and external frauds, Ponzi 
schemes, financial institution standards, and other matters.  I have been engaged as 
an expert for cases nationwide, on suits ranging from $250,000 to $7 billion, 
representing both plaintiffs and defendants, in both federal and state courts.  
Additionally, I have served on several boards of directors and as Chair of 
Committees for two banks, a credit union, and two large nonprofits.  As a financial 
institution director, I have chaired the institutions’ Compliance Committee 
(including compliance with Banking Laws & Regulations, Consumer Compliance, 
Bank Secrecy Act, and Regulatory Enforcement Action) and Directors Loan 
Committees, and have served as a member of those institutions’ Executive 
Committees and Audit Committees.   
My current curriculum vitae (CV) is attached as Appendix A.  
III. 
HOURLY RATE 
11. 
The charge for my service on this case is on an hourly basis at a flat rate 
of $700 per hour, whether for review of documents, research, writing this Expert 
Rebuttal Report, consulting, or testifying at deposition or trial.  My compensation is 
not contingent upon my opinions or the outcome of the case.   
IV. 
BASIS FOR OPINIONS 
12. 
In preparing this rebuttal report, I relied upon the materials listed in 
Appendix B. I am also assuming that the class of “harmed consumers” that plaintiffs 
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seek to certify were impacted solely by Indicator 1 of the Bank’s Claim Fraud Filter. 
I also base this rebuttal report on my 50 years of experience in the banking industry, 
including as a senior official of several Supervisory Offices of the OCC where, 
among other duties, I was responsible for bank and examiner oversight and the 
execution of enforcement actions.   
V. 
SUMMARY OF OPINIONS 
1. The Bank’s use of Indicator 1 of its Claim Fraud Filter as the sole basis for 
denying unauthorized-transaction claims by EDD debit cardholders in 2020-
21 and for taking other adverse actions against them (freezing accounts, 
rescinding permanent credit) was highly improper, unprecedented, and 
contrary to my understanding of the governing legal and industry standards. 
2. The Bank could not reasonably have believed that its use of Indicator 1 of its 
Claim Fraud Filter as the sole basis for denying unauthorized-transaction 
claims by EDD debit cardholders in 2020-21 and for taking other adverse 
actions against them (freezing accounts, rescinding permanent credit) would 
be found acceptable or consistent with permissible banking practices by the 
Bank’s regulators. 
3. I strongly disagree with many of the opinions stated by Mr. Cronan in his 
Declaration of October 24, 2024, including his stated belief that “it was 
reasonable for Bank of America to believe that its regulators would consider 
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its (the Bank’s) approach to modifying its Regulation E investigative process 
a reasonable response ….”   In my opinion, it would have been unreasonable 
for the Bank to have such a belief, and none of the Bank documents in this 
case that I reviewed support Mr. Cronan’s assertion that the Bank believed 
that its approach to modifying its Regulation E investigative process during 
that time period was reasonable. Based on my extensive experience as a senior 
bank regulator, coupled with the fact that the OCC and CFPB later fined the 
Bank $225 million for violating its statutory and regulatory obligations under 
EFTA and Reg E – a fine that Mr. Cronan never mentions – I also strongly 
disagree with Mr. Cronan’s suggestion that the Bank had any basis for 
believing that its regulators would have approved its use of Indicator 1 of the 
Claim Fraud Filter as the sole basis for denying claims, rescinding credits, and 
freezing accounts.   
4. Regulators do not expect or tolerate payments to be made to fraudsters under 
a regulatory consent order and resulting remediation plan.  Rather, regulators 
expect the financial institution to develop and implement reliable processes 
for effectively identifying “harmed consumers” and excluding fraudsters. 
VI. 
STATEMENT AND EXPLANATION OF OPINIONS 
A. 
Bank’s Expert Cronan Offered Several Inaccurate Opinions 
13. 
I understand that Mr. Cronan has 30 years of experience as an 
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examiner with the four bank Regulators; however, I find several of his opinions to 
be weak, not supportable, or outright mistaken.  I base my views of his opinions on 
my 50-year career as a senior level official at OCC, as Executive or Senior Vice 
President and Chief Risk Management Officer at three banks, and now as CEO and 
owner of Abernathy Bank Consulting, LLC.  Further as an OCC Senior Supervisory 
Officer, I had authority to overrule and change the examination findings of the bank 
Examiners-in-Charge, i.e., employees in Mr. Cronan’s position, and now, I must 
correct several of the inaccuracies in Mr. Cronan’s Declaration.   
14. 
Section IV, part A of Mr. Cronan’s Declaration is titled “Regulators 
Expect Banks to Manage the Institution’s Safety and Soundness, Including the 
Development of Procedures for Preventing Fraud Losses.”  In this section Mr. 
Cronan tries to make the case that OCC would have had supervisory concerns if the 
Bank had not properly managed “uncontrolled fraud losses” in its administration of 
the California EDD debit card funds in 2020-21.  He implies that the Bank had only 
two choices at that point, either (1) manage “uncontrolled fraud losses” or (2) 
comply with EFTA and Reg E, but not both.  As Mr. Cronan must know, though, it 
is not an “either-or” option. The OCC and other regulators expect the banks under 
their jurisdictions to fully comply with established safety and soundness standards 
while also complying with all legal obligations, including under EFTA/Reg E, in the 
course of addressing whatever circumstances have arisen that may threaten 
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economic losses, whether through fraud or otherwise. I am not aware of any 
circumstances in which a bank has requested, let alone obtained, its regulator’s 
approval to violate EFTA, Reg E, or other safety and soundness standards and 
compliance laws based on the bank’s assertion that special circumstances justify 
abandonment of those legal requirements. 
15. 
In Section IV, part B, paragraph 21, Mr. Cronan states “Notably, 
regulators do not consider accounts established by criminals as a means of 
committing fraud as being subject to Regulation E.”  I do not know what Mr. Cronan 
bases this on, given that banks and regulators generally do not know whether an 
unauthorized-transaction claim is valid or not until after the bank has complied with 
its Reg E investigation requirement. This statement also strikes me as being highly 
insulting to the tens of thousands of honest claimants who needed to have access to 
their funds, but whose claims were denied by the Bank in their time of greatest need, 
i.e., during their unemployment due to the pandemic, based on an automated filter 
that treated every unauthorized-transaction claim as fraudulent if it involved an 
ATM withdrawal.   
16. 
Mr. Cronan’s entire part C of Section IV appears to be devoted to trying 
to explain why his personal understanding of a Regulation E investigation is more 
accurate than the collective judgement reached by the OCC and CFPB.  Mr. Cronan 
states in paragraph 27: 
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“As an examiner, I did not apply a rigid set of criteria as to the specific form 
an investigation must take because I understood from my years of training and 
experience that the reasonableness of a bank’s investigative process was 
dependent on the conditions and circumstances in which the investigation was 
conducted and the bank needed latitude to be able to adapt its approach 
accordingly.” 
Plainly, however, the OCC itself did not agree with Mr. Cronan’s line of thinking. 
To the contrary, the OCC’s Consent Order of July 2022 concluded::  
The Bank “applied an automated fraud filter … to decision UI Prepaid Card 
error claims that met certain criteria (“Fraud Filter”) without conducting a 
sufficient investigation…,”3  and the Bank engaged in “(i) unsafe or unsound 
practice(s), including deficiencies in its risk management, operational 
processes and controls, internal audit, and investigation and resolution of 
consumer claims of unauthorized transactions; and (ii) unfair and deceptive 
practices in violation(s) of Section 5 of the Federal Trade Commission Act 
(“FTC Act”), 15 U.S.C. §45(a)(1)….”4   
 
3 Ex. 73 (OCC Consent Order), p.3. 
4 Ex. 73 (OCC Consent Order), p.1. 
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17. 
In addition, the Bank’s two federal regulators, OCC and CFPB, jointly 
decided to assess a Civil Money Penalty against Bank of America totaling $225 
million dollars due to the Bank’s failure to comply with its regulatory obligations. 
Mr. Cronan’s opinions about what the Bank’s regulators would consider a 
“reasonable investigation” under the circumstances present in 2020-21 are 
completely contradicted by the regulators’ actual findings and standards. 
Inexplicably, Mr. Cronan does not mention those findings and standards, or the 
resulting $225 million fine, at any point in his declaration.  
18. 
Also, in part C, Mr. Cronan states that over his career “some of the very 
real challenges banks’ faced included … distressed economic conditions, and the 
scarcity of qualified personnel ….” Cronan Rep. ¶25.   In other parts of his 
Declaration he also states or implies that, because of the pandemic and increased 
fraud, the regulators should have “lowered the standards” required to satisfy 
Regulation E. See Cronan Rep. ¶27 (“As an examiner, I did not apply a rigid set of 
criteria … the reasonableness of a bank’s investigative process was dependent on the 
conditions and circumstances … and the bank needed latitude to be able to adapt its 
approach accordingly.”).   
19. 
I agree that the banks have faced many difficult challenges over the 
years and that the pandemic created many hardships for people and companies in a 
range of industries. However, in my experience, and based on my understanding of 
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the governing requirements, bank regulators do not change their standards for 
supervising the banks they oversee, even during challenging periods.  As an 
example, due to the impact of the economic recession of 2007-2009, the regulators 
closed 504 banks over the next seven years (2008-2014).  Bank regulators did not 
“change or lower their standards” due to the severe economic conditions of the 
“Great Recession.”  Regulators did not “lower the standards” during the pandemic 
or due to increased fraud.  Nor did they lower their supervisory standards for safety 
and soundness, or for what constitutes a reasonable investigation of claims for 
Regulation E.  The regulators do exercise judgment, but the “standards” are the 
“standards.”  In my opinion, Mr. Cronan’s suggestions in this regard are inaccurate 
and unsupported.   
20. 
The heading of Section IV, part D, “Reasonable Investigations Can 
Include Automated Tools” and the accompanying narrative tries to support this 
statement.  For example, in paragraph 29, Mr. Cronan states: 
“During my 30 years working with each of the current federal banking 
regulatory agencies, no regulator to my knowledge has ever considered such 
features (automated tools) inherently unreasonable in terms of a Regulation E 
investigation.” 
21. 
First, there is general agreement that the use of automated tools in the 
early stages of a legally compliant Regulation E investigation are appropriate to use 
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as an initial screening device to identify accounts that require further review.  
However, the Bank’s use of Indicator 1 of its automated Claim Fraud Filter as the 
sole basis for denying claims, rescinding permanent credit, and freezing accounts 
sets it apart from the use of automated tools as a warning flag requiring manual 
follow-up.  In my opinion, Mr. Cronan’s comparison of the fraud filter that was used 
to decision claims, rescind credits, and freeze accounts with standard screening 
devices to alert the Bank of suspicious activity is an entirely unsupportable false 
equivalent.  
22. 
Second, the absence of any basis for Mr. Cronan’s opinion equating the 
fraud filter to standard screening tools is demonstrated by the fact that the OCC 
found that, “Specifically, the Bank (a) applied an automated fraud filter … to 
decision UI Prepaid Card error claims that met certain criteria (“Fraud Filter”) 
without conducting a sufficient investigation to: (i) deny many consumers’ claims… 
and (ii) “freeze” or “block” the UI Prepaid Card accounts associated with the 
claims.”  Again, Mr. Cronan’s speculation about what the Bank thought the OCC 
and CFPB might do is directly contradicted by what those regulators actually did, a 
critical fact he never mentions. 
B. 
The Bank’s Total Reliance on an Automated Claim Fraud Filter 
was Unprecedented and Inexcusable. 
23. 
The Bank’s use of an Automated Claim Fraud filter beginning in late 
September of 2020 to automatically deny consumers’ claims of unauthorized 
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transactions, rescind permanent credits, and freeze accounts in the circumstances 
covered by this case was without precedent both in the Bank’s own past practice 
and, in my experience, as a banking industry practice.  Banks have long used 
automated systems to assist them as a first step in targeting potentially fraudulent 
unauthorized-transaction claims, but they have not used computer models to 
automatically deny claims of unauthorized transactions, which requires a reasonable 
or adequate investigation under EFTA and Regulation E.  Instead, automated 
systems have historically been used to 
 
 
 
 
 
 
.5 Prior to September of 2020, the Bank followed its “
 
.6 Conducting an EFTA-
complaint investigation to ensure that claims investigations decisions are 
“consistent,” based in fact, and use “all pertinent, available details” is historically 
how the Bank – like other financial institutions throughout the United States – 
addressed claims of unauthorized transactions and is also industry standard. The 
 
5 Ex. 16 (Martin Tr.) 286:17-288:8. 
6 See e.g., Ex. 82 at 559693 (April. 2021 
) (“
 
 
 
 
”) 
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Bank’s employee training materials during the relevant time period further stated: 
 
7  The 
Bank’s decision to implement Indicator 1 of its automated Claim Fraud Filter, 
 
, was unprecedented in the Bank’s own 
history and in industry practice.  
C. 
The Bank Could Have Asked Its Regulators Whether its Claim 
Fraud Filter Complied with The Bank’s Obligations Under EFTA. 
24. 
The Bank’s appointed 30(b)(6) representative Michael Letson testified 
that the Bank never sought out or received approval from any of its regulators, 
including the CFPB and OCC, before deciding to use Indicator 1 of its automated 
Claim Fraud Filter to deny unauthorized-transaction claims, claw back permanent 
credit, and freeze accounts of EDD cardholders: 
 
 
 
 
 
 
 
7 Ex. 84 at -6484 (
); Ex. 80 at -3890 (
); Ex. 47 at -100637 
(
); Ex. 36 at -4542 (
) 
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.8 
25. 
Banks can easily request an official interpretation from the OCC by 
emailing or calling the OCC’s Washington Office or the bank’s supervisory office.  
The CFPB has a similar process where banks can request an official interpretation 
in writing from its Washington Office.  For Bank of America in particular, the 
process of requesting examiner feedback or an official interpretation from the OCC 
is even easier and more straightforward.  The OCC’s Large Bank Supervision 
Program has examiners who are permanently on-site at the largest national banks, 
like Bank of America.  So, Bank management could have literally “walked down the 
hall” to ask the OCC’s examiners if their proposed use of the Claim Fraud Filter to 
deny EDD cardholders’ claims and rescind permanent credits complied with EFTA 
and Reg E, or asked them to forward their request to the Washington Office for an 
official interpretation.   
 
8 Ex. 17 (30(b)(6) Deposition of the Bank by its designee Michael Letson) at 26:5-22. 
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26. 
Perhaps the reason that the Bank did not ask their regulators at OCC or 
CFPB is because the Bank’s management knew or anticipated an answer from the 
regulators that they did not want to hear or accept.  In my opinion, the Bank knew 
or should have known that it would be told that use of Indicator 1 of the Claim Fraud 
Filter as the sole basis for denying EDD cardholders’ claims, rescinding their credits, 
and freezing their accounts would be unacceptable – as it later turned out to be, once 
OCC and CFPB found out what the Bank had done.   
D. 
The Bank Could Not Reasonably Have Believed That Its Use of The 
Claim Fraud Filter Would Be Acceptable to The Bank’s Regulators. 
27. 
In my opinion, it was unreasonable for the Bank to fail to communicate 
with its regulators that it was about to implement a new process of automatically 
denying its customers’ unauthorized transaction claims based solely on a “Claim 
Fraud Filter,” and based solely on the fact that the disputed transaction occurred at 
an ATM utilizing a PIN.  In my opinion, the fact that the Bank could have easily 
communicated this plan to its regulators, but did not, indicates that the Bank was 
aware and concerned that the Claim Fraud Filter did not comply with the Bank’s 
obligations and that the Bank’s regulators would likely advise that implementing the 
Claim Fraud Filter would violate the adequate investigation requirement under     
Reg E.  
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28. 
The fact that the Bank could have and reasonably should have 
communicated its intentions regarding the Claim Fraud Filter to its regulators, but 
failed to do so, is completely ignored by the Bank’s expert, Mr. Cronan.   
29. 
In my opinion, Mr. Cronan’s assertion that “it was reasonable for Bank 
of America to believe” the Claim Fraud Filter “would have been acceptable to its 
regulators” is absolute malarkey.  In my opinion, a reasonable bank in these 
circumstances would have communicated with its regulators and cleared the use of 
this new process that replaced the Bank’s long-standing “adequate investigation” 
procedures with a process of automated “systemic denials” based on limited data.  
The Bank’s failure to do so renders any such “belief” completely unreasonable. 
30. 
The unreasonableness of any “belief” by Mr. Cronan regarding the 
Bank’s assumption of regulatory approval is confirmed by the fact that in July 2022, 
two years before he wrote his Declaration, OCC issued a Consent Order against the 
Bank because the Bank:  
“…applied an automated fraud filter … to decision UI Prepaid Card error 
claims that met certain criteria (“Fraud Filter”) without conducting a sufficient 
investigation to: (i) deny many consumers’ claims … and (ii) freeze or block 
the UI Prepaid Card accounts associated with the claims.”9  
 
9 Ex. 73 (OCC Consent Order) at p.3.  
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The OCC, the Bank’s primary Regulator, further stated in the notice of 
charges in the Consent Order that: 
“[T]he OCC intends to initiate cease and desist proceedings against the Bank 
… related to: (1) the administration of the Bank’s prepaid cards for 
unemployment benefits, specifically engagement in (i) unsafe or unsound 
practice(s), including deficiencies in its risk management, operational 
processes and controls, internal audit, and investigation and resolution of 
consumer claims of unauthorized transactions; and (ii) unfair and deceptive 
practices in violation(s) of Section 5 of the Federal Trade Commission Act 
(“FTC Act”) … (2) engaging in unsafe or unsound practices related to 
deficiencies 
in 
its 
enterprise-wide 
complaints 
risk 
management 
framework….”10   
31. 
Further, the OCC fined the Bank $125 million and the CFPB fined the 
Bank an additional $100 million for this conduct, so Bank of America was required 
to pay a Civil Money Penalty totaling $225 million dollars for their actions. 
32. 
The OCC and CFPB do not levy fines for hundreds of millions of 
dollars for conduct they determine was reasonable.  For example, the OCC Consent 
Order found that: 
 
10 Ex. 73 (OCC Consent Order) at p.1. 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14259 
Page 23 of 33

 
21
“…the Bank engaged in unsafe or unsound practices and engaged in unfair 
and deceptive practices in Section 5 of the FTC Act, 15 U.S.C. §45(a)” and 
that “[t]hese violations and practices support actions against the Bank under 
12 U.S.C. § 1818(b) and (i)(2)(B).”11  
33. 
The specific provision cited, 12 U.S.C. § 1818(i)(2)(B), authorizes 
second-tier penalties for “reckless” violations of law or “breaches of fiduciary duty” 
that are “part of a pattern of misconduct” or “results in pecuniary gain or other 
benefit” to the bank.  The fact that the Bank’s regulators levied significant second-
tier penalties based on this level of misconduct, is also completely ignored by Mr. 
Cronan. In my opinion, Mr. Cronan’s assertion that “it was reasonable for Bank of 
America to believe” the Claim Fraud Filter “would have been acceptable to its 
regulators” is unsupportable given the unprecedented nature of the Claim Fraud 
Filter, the fact that the Bank avoided asking the opinion of its regulators when it 
easily could have at the time, and given the significant adverse findings listed in the 
OCC’s Consent Order, and the assessment of $225 million in Civil Money Penalties 
imposed by the OCC and CFPB against the Bank.   
 
11 Ex. 163 (OCC Civil Money Penalty Order), p.5 (Article II, §6). 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14260 
Page 24 of 33

 
22
E. 
Regulators Do Not Expect or Tolerate Payments to Be Made to 
Fraudsters Under a Regulatory Consent Order and Remediation 
Plan.   
34. 
The Bank’s Remediation Plan pursuant to the CFPB and OCC Consent 
Orders provides that “
 
 
” or “
 
.” “
 
 
 
 
 
 
”12  
35. 
Based on my experience as a long-time senior federal regulator at the 
OCC, which included substantial compliance matters, it is my opinion that when 
regulators require a bank to 
 
 
 The regulators expect the bank to develop and implement a 
 
12 Ex. 74 (Remediation Plan) at 3. 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14261 
Page 25 of 33

reliable and lawful process that will effectively identify "
" and 
exclude fraudsters. Regulators do not expect or tolerate payments to be made to 
fraudsters pursuant to a regulatory consent order and remediation plan, especially 
where the bank has agreed
 as the Bank 
did here. Based on my experience, when a bank such as Bank of America represents 
to its regulators that it will do something (
 
) they do it. 
Executed on November 19, 2024 
23 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14262 
Page 26 of 33

CV – William J. Abernathy, Jr. 
1
Appendix A 
 
WILLIAM J. ABERNATHY, JR. 
 
5507 Martina Way 
  
 
 
 
 
 
Office & Cell:  770-815-6991 
Dunwoody, GA 30338  
       
 
 
           Bill@AbernathyBankConsulting.com       
 
 
 
 
 
 
 
 
 
 
 
 
  
SUMMARY QUALIFICATIONS and ACCOMPLISHMENTS:  
 
• 
50-year career in Banking Industry - experienced OCC Bank Regulator, Banker (Chief Risk Officer), 
Bank Consultant, Expert Witness & Bank Director 
• 
Technical Focus: Risk Management; Regulatory Expertise; Board Governance; Expert Witness 
Management Focus: Leadership; Division & C-Level Management; Led High Performance Teams  
• 
Successfully Led & Directed Strategic and Day-to-Day Operations of twelve (12) different Start-
up & Turn-around Divisions for Banks, Federal Bank Regulator and Consulting Firm. 
• 
Innovative Leadership in solving complex problems and implementing lasting solutions. Led/served 
on eight (8) national-scope OCC project teams; Led six (6) major bank-wide initiatives/teams.  
• 
Received numerous high-performance awards; Taught OCC’s top-rated national management school.  
• 
AMA Executive Assessment identified Strongest Management Competencies: Concern with Impact, 
Proactive, Positive Regard for Others, Use of Verbal Presentations, and Managing Group Processes. 
 
PROFESSIONAL EXPERIENCE:  
 
Principal - Executive Consultant & Expert Witness, 2013- present & 2004-06  
Abernathy Bank Consulting, LLC (ABC), Atlanta, GA           
http://abernathybankconsulting.com/  
      Abernathy Bank Consulting provides services across a broad spectrum, specializing in helping banks 
with Risk Management, Regulatory Issues, & Serve as Banking Expert Witness. Highlights include: 
 
• 
Expert Witness work with Attorneys, Write Expert Reports & Deposition Experience. Expert in Regulatory 
& Industry Standards, Frauds, Ponzi Schemes, BSA/AML Issues, Elder Financial Abuse 
• 
Independent Board & Management Studies, Board & Employee Training, Enhanced Board Governance, 
Management Organizational Structure 
• 
Bank Turnaround, Coordinate Compliance Committee, Monitor & Comply w/ Regulatory Orders 
• 
Enhanced Risk Management Processes, including Bank Policies, Procedures, & Board Reporting 
• 
Bank Director - Colorado National Bank; Denver, Colorado (2018-19) - Chair of Compliance 
Committee, Audit Committee (Recruited as Director for Change of Control & Strategic Focus) 
• 
Bank Director - Loyal Trust Bank; Johns Creek, Georgia (2019-2023) – Chair of Loan Committee, 
BSA Compliance, Executive Committee, Audit Committee (Multicultural De Novo Bank) 
 
Executive VP & Chief Risk Officer, 2009 – 2013   State Bank & Trust Company, Atlanta, GA 
     Chief Risk Officer reporting to Vice Chairman/President.  Led and Managed: Audit, BSA, Consumer 
Compliance, Policy Governance, Loan Review, Regulatory Relations, & Loss Share ($2.7 Billion Assets)  
• 
Organized, Centralized, Staffed, Automated Systems…4 departments within 90 days  
• 
Develop & Control all Policies & Procedures Bank-wide; Lead initiatives to control Fair Lending Risk  
• 
Lead initiative in non-credit areas to quickly unify 13 acquired banks into a One-Bank Operating Culture 
• 
Established & Chaired ERM Committee, Served on Senior Management, Credit & IT Steering Committees   
 
Chief Risk Officer – Senior VP, 2007 – 2009      Brand Banking Company, Lawrenceville, GA   
       Chief Risk Management Officer reporting to Board & CEO.  Led and Managed Audit, BSA, 
Compliance, Loan Review and Regulatory Relations ($1+ Billion Assets) 
• 
Led major turnaround in BSA, two months from Regulatory Issue to Correction (first assignment at bank) 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14263 
Page 27 of 33

CV – William J. Abernathy, Jr. 
2
• 
Hired Top-Flight Staff to Lead Compliance and Internal Audit (Reduced Consultant Expense) 
• 
Chaired the Risk Management Committee, Member of Executive, Loan & IT Committees 
 
Senior Vice President – Risk Management, 2006 – 2007     Flag Bank, Atlanta, GA 
       Senior Risk Officer reporting to Vice Chairman.  Led and managed BSA, Compliance, Credit 
Administration, Loan Review, and Regulatory Relations ($1.7Billion Assets) 
• 
Led major improvements in Loan Portfolio MIS to analyze trends, concentrations, asset quality, etc. 
• 
Improved Independent Loan Review and strengthened Compliance Focus and Fair Lending Processes. 
 
Senior Vice President – Retail Banking, 2003-2004     Fidelity Bank, Atlanta, GA 
Senior Officer reporting to CEO, Led bank’s 19 Branches, Retail Lending, Branch Administration, 
ATMs, Internet Banking, Telephone Banking, and Corporate Cash Management ($1.2 Billion Assets) 
• 
Increased bank’s DDAs by $100 million, 35% annual growth rate in first 6 months of 2004 
• 
Led, motivated and directed 130 people, 40% of bank’s staff 
• 
Developed focused Commercial and Retail Lending Training for all Branch Lenders & Managers 
• 
Served on bank’s ALCO, CRA, and Senior Management Committees 
 
Assistant Deputy Comptroller - 1997– 2003     Comptroller of the Currency (OCC), Atlanta, GA 
Led & Managed District Lead Technical Experts (Commercial Credit, Retail Credit, Capital 
Markets, Compliance, Bank Information Technology & Asset Management), and directed internal district 
Operations for OCC’s (Federal Regulator of National Banks) Southeastern District (9 southern states).  
• 
Served as #2 Executive for district, led nine-state operations, coordinated with Washington Headquarters, 
other banking & insurance regulators, and led Examiner Development Program  
• 
Hired and managed top technical experts who examined the largest and most complex banks, provided 
advanced technical training and advise to examiners . . .most successful group in nation 
• 
Served on District Risk Management Committee, Problem Bank Committee, & Senior Management Group  
 
Director for Compliance and Bank Analysis (300+ banks), 1992-1997    OCC, Atlanta, GA 
       Led District’s Compliance, Trust, IT supervision & implemented bank supervision policy. Managed 
and directed district’s analysis of banks’ corporate expansion (mergers, new de novo bank charters, etc.). 
• 
Designed an operational and communication system for Compliance Team, which was used as national 
“blueprint” for new compliance examiner teams 
• 
Developed and implemented risk management processes for corporate expansion unit which significantly 
improved customer service to banks and reduced application processing time by 25 percent 
 
Director for Bank Supervision, 1988-1992, OCC, Atlanta, GA       
       Led and directed the supervision of the 15 largest regional banks in the Southeast USA (each ranging 
$5-$70 Billion in assets…$250 Billion total assets) and most serious problem banks (rated 4 & 5)  
• 
Focused examinations and meetings with CEOs & boards of directors at largest regional banks on 
strengthening risk management systems, bank management & structure, and board supervision 
• 
Led district using Risk-Focused Supervision to evaluate banks use of Policies & Systems to Manage Risks  
• 
Developed and implemented a process that reduced the average timeframes for rehabilitation of problem 
banks by 40 percent (during major economic recession) 
 
Director, Atlanta Field Office, 1983-1988, OCC, Atlanta, GA 
       Established new Field Office, directed the supervision of 100+ community banks and led a 
professional staff of 60 National Bank Examiners in Georgia, North Carolina and South Carolina. 
• 
Strengthened Bank Supervision by Examiners.  Developed and implemented improved internal 
management systems, organizational structure, and staffing for this new three-state organizational unit 
• 
Organized and chaired first statewide banker CEO & director meetings to communicate supervisory issues   
 
Regional Director for Human Resources, 1979-1982, OCC, Memphis, TN 
       Redirected & provided leadership for five-state region in areas of:  performance management, compensation, 
recruiting, EEO, employee relations, training, and career development. 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14264 
Page 28 of 33

CV – William J. Abernathy, Jr. 
3
• 
Maintained lowest examiner turnover levels in history of region – strong, direct communications system 
• 
Significantly increased recruiting and exceeded EEO hiring goals for minorities and women 
 
 
Regional Director for Corporate Activities (Expansion Licensing), 1976-1979, OCC, Memphis, TN 
 
National Bank Examiner & Assistant National Banker Examiner, 1970-1976 & 1982-1983, OCC, 
Nashville & Memphis, TN, and Washington, DC 
 
 
EDUCATION AND PROFESIONAL ORGANIZATIONS: 
 
• 
University of Alabama, BS Degree, Banking and Finance, Tuscaloosa, Alabama (1970) 
• 
ABA Stonier Graduate School of Banking, Rutgers University, New Brunswick, NJ (1980), 
Written Senior Thesis: “Increasing Your Bank’s Equity Capital Coverage”  
• 
Commissioned National Bank Examiner, U. S. Treasury Department Certification (1975) 
• 
PRMIA - Professional Risk Managers’ International Association, Co-Regional Director, 
Steering Committee of Atlanta Chapter, Conference Speaker & Member 
• 
Risk Management Association (RMA), Conference Speaker & Member 
 
SPECIALIZED TRAINING: 
 
• 
Checks – Endorsements, Fraud, and Compliance Issues, Deborah Crawford, 2021 
• 
Certified At-Risk Adult Crime Specialist (Senior Elder Abuse), State of Georgia, 2021 
• 
Seven Things an Expert Witness Must Know, Expert.com, 2020 
• 
How to be an Effective Expert Witness, Depositions & Trials, SEAK, Inc., 2020 
• 
How to Write a Bullet Proof Expert Witness Report, SEAK, Inc., 2020 
• 
The BSA Experience, Georgia Bankers Association & Secura Risk Management, 2019  
• 
Board & Executive Oversight: Compliance and BSA, Alabama Bankers Association, 2016 
• 
Being an Effective Expert Witness, SEAK, Inc., Falmouth, MA, 2015 
• 
Developing a Successful Expert Witness Practice, SEAK, Inc., 2015 
• 
Southeastern Bank Management & Directors Conference, University of Georgia  
• 
Risk Management Summit, American Strategic Management Institute 
• 
Executive Effectiveness Course, American Management Association 
• 
Commercial Lending, American Bankers Association 
• 
Commercial Real Estate Review School, Comptroller of the Currency 
• 
Advanced Management Seminar, Comptroller of the Currency 
• 
Influencing People, College of Business, University of South Carolina 
• 
Management Workshop, Federal Financial Institutions Examination Council 
• 
Director’s Leadership for Change, Comptroller of the Currency 
• 
Instructor Training, Comptroller of the Currency 
• 
Interview Techniques & Recruitment Workshop, Comptroller of the Currency 
• 
Performance Appraisal: Counseling & Feedback, Office of Personal Management 
 
SPEAKING ENGAGEMENTS: 
 
• 
“Enterprise Risk Management: Where to Start”, Virginia Bankers Association, 2014 
• 
 “Compliance Risk”, Panel Moderator, Risk Management Association, 2014 
• 
“Bank Regulator Hot Topics”, GA Community Bankers Association, numerous dates 
• 
“Management of FDIC Loss Share Agreements”, Risk Management Association 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14265 
Page 29 of 33

CV – William J. Abernathy, Jr. 
4
• 
“Role of Chief Risk Officer”, Panelist, Profession Risk Managers International Association 
• 
“OCC Management School”, Instructor, Comptroller of the Currency, numerous dates 
 
 
 
 
OTHER RECOGNITION (SAMPLES): 
 
• 
Recipient of InCommunity Foundation, Scruggs-Abernathy Generosity Award, Awarded to Bill 
& Shirley Abernathy, Excellence in Philanthropy Award, 2022 
• 
Albert Gallatin Award, Esteemed Federal Service, U.S. Treasury Department, 2003 
• 
Making A Difference Award, Training, OCC, 2003 
• 
On-the-Spot Award, National Task Force, Bridge to Large Bank Supervision, OCC  
• 
Special Act Award, Resolution of Major Issues at Independent IT Data Center, OCC 
• 
Special Act Awards, OCC, Awarded Numerous Times for Leadership on National Task Teams 
• 
On-the-Spot Award, Instructor, Structurally Weak Loan Training, OCC 
• 
Certificate of Appreciation, Instructor for OCC Management School, OCC 
• 
Bank Supervision Operations Manager Award, “Year 2000” Work, OCC 
 
VOLUNTEER EXPERIENCE: 
   
• 
InCommunity, Inc. – Board of Directors, 2018-present (Vice-Chairman-2022, Chairman-2021, 
Executive Committee, Finance Committee), InCommunity Foundation (2018-present) – Meeting 
the Needs of 2,500+ Disabled Adults in Metro-Atlanta by providing Housing, Caregivers, 
Transportation, Day-Programs, Job Support, Social & Sports Activities, etc.  
• 
InCommunity, Inc. – Presenting Sponsor & Co-Chairman; 31st Annual Gala – 2019 Benefit 
Night, Major Fundraiser for Non-Profit Supporting Disabled Adults (raised new record level $$) 
• 
enAble of Georgia, Inc. – Sponsor & Co-Chairman; 30th Annual Gala - Founders Ball 2018, 
Major Fundraiser for Non-Profit Supporting Disabled Adults (raised $300K) 
• 
Georgia Community Support and Solutions – Board of Directors, Chairman Emeritus (2010), 
Chairman (2009), Vice Chairman (2008), Member (5 Years), Largest Non-profit in State of 
Georgia Serving Disable People and Their Families (Serving 20 Metro Atlanta Counties)         
• 
Associated Credit Union, Atlanta, GA - Board of Directors (served 3-year term); Credit 
Committee, Chairman (2 years) and member (8 years)  
• 
Murphey Candler Little League, Atlanta, GA - Board of Directors & Challenger League 
Director (2 years); Managed and Coached Baseball Team for disabled children (8 years) 
• 
Canine Assistants, Alpharetta - Certified Volunteer Service Dog Trainer…to help disabled 
children and adults 
• 
Atlanta Track Club – Member & Runner: marathon, several Half-Marathons, 21 Peachtree Road 
Races (10K) 
 
 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14266 
Page 30 of 33

APPENDIX B: MATERIALS RELIED UPON 
Production Materials 
BANA_EDD_MDL-00004996 
BANA_EDD_MDL-00005390 
BANA_EDD_MDL-00005509 
BANA_EDD_MDL-00020097 
BANA_EDD_MDL-00020123 
BANA_EDD_MDL-00020150 
BANA_EDD_MDL-00020177 
BANA_EDD_MDL-00020204 
BANA_EDD_MDL-00020231 
BANA_EDD_MDL-00020257 
BANA_EDD_MDL-00020285 
BANA_EDD_MDL-00020312 
BANA_EDD_MDL-00020338 
BANA_EDD_MDL-00020364 
BANA_EDD_MDL-00020391 
BANA_EDD_MDL-00020418 
BANA_EDD_MDL-00020445 
BANA_EDD_MDL-00020473 
BANA_EDD_MDL-00020500 
BANA_EDD_MDL-00020527 
BANA_EDD_MDL-00020554 
BANA_EDD_MDL-00020580 
BANA_EDD_MDL-00020605 
BANA_EDD_MDL-00020631 
BANA_EDD_MDL-00020655 
BANA_EDD_MDL-00020681 
BANA_EDD_MDL-00020707 
BANA_EDD_MDL-00020732 
BANA_EDD_MDL-00020756 
BANA_EDD_MDL-00020780 
BANA_EDD_MDL-00020804 
BANA_EDD_MDL-00020828 
BANA_EDD_MDL-00020853 
BANA_EDD_MDL-00020877 
BANA_EDD_MDL-00020901 
BANA_EDD_MDL-00020925 
BANA_EDD_MDL-00020949 
BANA_EDD_MDL-00028846 
BANA_EDD_MDL-00028867 
BANA_EDD_MDL-00028946 
BANA_EDD_MDL-00042508 
BANA_EDD_MDL-00054544 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14267 
Page 31 of 33

BANA_EDD_MDL-00054844 
BANA_EDD_MDL-00057837 
BANA_EDD_MDL-00060229 
BANA_EDD_MDL-00061453 
BANA_EDD_MDL-00100634 
BANA_EDD_MDL-00102520 
BANA_EDD_MDL-00102544 
BANA_EDD_MDL-00102554 
BANA_EDD_MDL-00102578 
BANA_EDD_MDL-00117131 
BANA_EDD_MDL-00117168 
BANA_EDD_MDL-00117173 
BANA_EDD_MDL-00381795 
BANA_EDD_MDL-00420534 
BANA_EDD_MDL-00420570 
BANA_EDD_MDL-00420651 
BANA_EDD_MDL-00450146 
BANA_EDD_MDL-00510120 
BANA_EDD_MDL-00578389 
 
Publicly available materials 
Corrected Declaration of Shane Daniels [N.D. Cal. Dkt. 76-16] 
OCC Consent Order (#2022-024) 
Order re Preliminary Injunction [N.D. Cal., Dkt. 89] 
Order re Motion to Dismiss [Dkt. 126] 
Order re Prelminary Injunction [N.D. Cal., Dkt. 103] 
First Amended Master Consolidated Complaint [Dkt. 136] 
CFPB Consent Order 
OCC Consent Order (#2022-023) 
CFPB Press Release 
Plaintiffs' Notice of Motion and Motion for Class Certification 
Memorandum of Points and Authorities in Support of Motion for Class Certification 
Ex 16 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 36 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 47 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 74 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 80 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 82 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 84 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 6 to the Declaration of Laura Brys in support of Defendant’s Opposition to Plaintiffs’ Motion for Class 
Certification 
Defendant's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Class 
Certification 
 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14268 
Page 32 of 33

Discovery 
Bank of America's Responses to Plaintiffs' Interrogatories, Set 1 
BofA's Revised Supplemental Responses to Interrogatories 2-6, 14-15 
Matthew Riffee Email re BofA Response to Plaintiffs' Interrogatories, Set 3 
BofA's Responses and Objections to Plaintiffs' Interrogatories, Set 3 
BofA's Responses and Objections to Plaintiffs Third Set of Interrogatories 
Exhibit 6 - BofA's Response to Interrogatory 21 
Exhibit 7 - BofA's Response to Interrogatory 22 
Exhibit 8 - BofA's Response to Interrogatory 27 
Matthew Riffee Email re BofA's Responses to ROGs, Set 4 & Exs 9-10 
BofA's Responses and Objections to Plaintiffs' Interrogatories, Set 4 
Exhibit 9 - BofA's Response to Interrogatory 30 (pt 1) 
Exhibit 10 - BofA's Response to Interrogatory 30 (pt 2) 
BofA's Responses and Objections to Plaintiffs Fifth Set of Interrogatories 
Exhibit 11 - BofA's Response to Interrogatory 32 
Exhibit 12 - BofA's Response to Interrogatory 33 
Transcript of Rule 30(b)(6) Deposition of Michael Letson 
Declaration of Russell Cronan 
Case 3:21-md-02992-GPC-MSB     Document 378-3     Filed 11/21/24     PageID.14269 
Page 33 of 33

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