Exhibit 160 — In re Bank of America California Unemployment Benefits Litigation (Dkt. 378-5, S.D. Cal. No. 3:21-md-02992)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 378-5 · 2024-11-21 · Docket on CourtListener

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Exhibit 160 
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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 REBUTTAL REPORT OF JANE CLONINGER 
IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 
November 21, 2024 
 
 
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TABLE OF CONTENTS 
I. INTRODUCTION ......................................................................................................................... 1 
II. SUMMARY OF OPINIONS ....................................................................................................... 2 
III. STATEMENT OF OPINIONS AND BASIS FOR OPINIONS ................................................ 6 
A. EMV Chips are Extremely Effective at Preventing Card Present Counterfeit Fraud, 
While Mag-Stripe Only Cards Are Highly Vulnerable to Counterfeit Fraud and Are 
Thus the Frequent Target of Skimming Attacks .................................................................... 6 
B. Adding EMV Chips to EDD Debit Cards Would Have Prevented the Unauthorized  
ATM Withdrawals Class Members Experienced ................................................................... 9 
1. EMV Chips Would Have Prevented All or Nearly All of the Unauthorized ATM 
Withdrawals and Other Card-Present Transactions that Class Members Experienced, 
Because Fallback Transactions Are Limited by Strict Security  
Rules and Controlled in Frequency ............................................................................... 11 
2. Joseph Does Not Present Any Evidence that Non-Counterfeit Fraud Affected 
More than a De Minimis Number of Class Members .................................................... 16 
3. Individual inquiries are not necessary to determine if EMV would have 
prevented these unauthorized transactions .................................................................... 17 
4. Joseph’s Opinions that EMV Chips Would Not Prevent Other Types of Fraud 
Are Irrelevant ................................................................................................................. 19 
C. The Bank’s Failure to Include Industry-Standard EMV Chips in EDD Debit Cards 
in 2020 Caused Those Cards to Be Susceptible to and Targeted for Skimming ................. 19 
IV. CONCLUSION ........................................................................................................................ 23 
Appendix A: List of Additional Materials Considered .................................................................. 25
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I. 
INTRODUCTION 
1. 
I have been retained as an expert in In re Bank of America California 
Unemployment Benefits Litigation, Case No. 3-21-md-02992-GPC-MSB, by co-lead counsel for 
Plaintiffs, Cotchett, Pitre & McCarthy, LLP and Altshuler Berzon LLP (collectively, “Plaintiffs’ 
Counsel”). I submitted my initial expert report to this Court in support of Plaintiffs’ motion for 
class certification on August 29, 2024. Ex. 2 (“Cloninger Rep.”).1  
2. 
 Plaintiffs’ Counsel asked me to review and respond to opinions expressed in the 
Declaration of Pamela Joseph submitted by Defendant Bank of America, N.A. (the “Bank”) in 
support of its opposition to Plaintiffs’ motion for class certification. DX 4 (“Joseph Rep.”).2 
Joseph was retained by the Bank to respond to my initial Cloninger Report, and this rebuttal 
report addresses those responses, as set forth in the Joseph Report. 
3. 
In preparing this rebuttal report, I principally relied upon the knowledge, training, 
experience, and expertise I have developed throughout my 35-year career in the payments 
industry. I also considered documents, testimony, and information produced in discovery in this 
litigation as well as publicly available documents and information. The specific materials I 
considered are cited in this report and in the attached Appendix A. 
4. 
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. 
 
 
 
1 My qualifications and hourly rate were disclosed in my original report and have not changed. I 
have no additional publications or testimony to disclose. 
2 “Ex.” refers to exhibits to the Chan Declaration and Supplemental Chan Declaration in support 
of Plaintiffs’ class certification (“Mot.”); “DX” refers to exhibits to the Brys Declaration in 
support of the Bank’s opposition to class certification (“Opp.”). 
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II. 
SUMMARY OF OPINIONS 
5. 
I have reviewed the Joseph Report and the sources cited therein. Nothing in the 
Joseph Report or the sources on which Joseph relies changes my opinions as expressed in the 
Cloninger Report, which I stand by and reaffirm. I believe that many of the opinions expressed in 
the Joseph Report are misleading, irrelevant, or unsupported by evidence, for the reasons set 
forth below. 
6. 
The Joseph Report opines that “EMV chips do not prevent cards from being 
vulnerable to skimming, shimming, or other forms of information compromise,” Joseph Rep. 
¶14, and that skimming devices are “
” Joseph Rep. ¶37. These statements, while true at a broad level 
of generality, have little if anything to do with the opinions set forth in the Cloninger Report. 
Although the mag-stripe on an EMV chip card can be skimmed and a moment-in-time snapshot 
of an EMV chip can be “shimmed” as well, the crucial fact that Joseph ignores, which was 
critical to many of my opinions in the Cloninger Report, is that EMV chips create dynamic data, 
which make EMV chips nearly impossible to clone. See infra, §III.A. Without the dynamic 
component created by an EMV chip, a counterfeit card that has been created using only the 
information skimmed from a mag-stripe on an EMV chip card cannot be used to engage in 
fraudulent card-present transactions at a chip-enabled ATM except in narrow circumstances, as 
described infra ¶¶23-36. That is why EMV chip cards provide strong protection against card-
present counterfeit fraud, as is widely recognized throughout the payments industry and in the 
Bank’s own documents. By contrast, a skimmed “mag-stripe only” card, such as the EDD debit 
cards at issue in this case, can easily be cloned and used to make fraudulent card-present 
transactions, including unauthorized ATM withdrawals (because skimmers are typically used in 
conjunction with devices that capture the cardholder’s PIN)—making EDD debit cardholders a 
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foreseeably attractive target for fraud during the pandemic. Cloninger Rep. ¶¶14(a), 14(d)-(f), 
15-28. For these reasons, EMV chips are widely regarded as an industry standard security 
measure in payment cards—a critical point that Joseph does not dispute. 
7. 
The Joseph Report opines that “[t]he addition of EMV chips to the EDD prepaid 
debit cards issued by the Bank would not have prevented many of the unauthorized transactions 
that were reported to the Bank,” Joseph Rep. ¶15, and that “in order to determine whether an 
EMV chip would have prevented any of the unauthorized transactions reported to the Bank, one 
would have to look at the circumstances surrounding the transaction, including whether it was 
fraudulent, and where and how it was made,” id. ¶16. To the extent the Joseph Report purports to 
be addressing the facts and circumstances of this case (which is limited to card-present ATM 
unauthorized-transaction fraud) and to the Cloninger Report I prepared to address those specific 
facts and circumstances, I disagree with those opinions. See infra, §III.B 
(a) 
First, every class member in this case reported an unauthorized ATM withdrawal, 
which is necessarily a card-present transaction. For every class member who 
experienced an unauthorized ATM withdrawal, the most likely explanation is that the 
unauthorized transaction was committed by someone using a counterfeit card (and 
that the counterfeit card was most likely created through skimming combined with 
PIN capture, which gives the criminal access to the PIN as well as personal card 
data). Again, for the reasons I previously explained, EMV chips are extremely 
effective at preventing card-present counterfeit fraud. Because nearly all ATMs in the 
U.S. had chip readers by 2020-2021 and because all of Bank of America’s own ATMs 
had chip readers during that period, the addition of EMV chips to EDD debit cards 
would have prevented all or nearly all of the unauthorized ATM withdrawals that 
class members reported and that are at issue in this litigation.  
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(b) 
Second, the addition of EMV chips to EDD debit cards also would have been highly 
effective at preventing any additional unauthorized card-present point-of-sale 
(“POS”) transactions, which I understand some class members may have reported in 
addition to an unauthorized ATM withdrawal (“
”3)—even though 
what the Bank describes as 
 by definition include 
.  
(c) 
The transactions described by Joseph, in which a transaction is made with an EMV 
chip-enabled card yet the chip is not required to be read (either because the ATM or 
POS terminal is not enabled with an EMV chip reader or because the chip is not 
functional, as further described infra) do not detract from these conclusions. Any such 
“fallback” transactions (i.e., where the EMV chip cannot be read, requiring the ATM 
or vendor to fall back to relying only on the mag-stripe for card security) attempted 
with a counterfeit copy of a Bank-issued EMV chip card would have triggered 
additional security rules, such as secondary authentication and strict withdrawal 
limits, if the Bank provided EDD cardholders the same anti-fraud protections it 
provided its non-prepaid consumer debit cardholders. Fallback transactions are also 
subject to industry controls to limit their frequency. Joseph posits two other types of 
infrequent fraud that could possibly have led to an unauthorized transaction and that 
EMV would not have prevented—
. Joseph Rep. ¶¶67, 80. Based on 
my extensive professional experiences and the sources cited in this report, neither of 
these two types of card-present fraud is likely to account for any significant 
 
3 See Ex. 50 at -90640, -90643; Ex. 17 (Letson Tr.) 92:19-23. 
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percentage of the transactions reported by the class. For these reasons and others 
stated in the Cloninger Report and below, it continues to be my view that EMV chips 
would have prevented nearly all the unauthorized ATM transactions class members 
reported to the Bank and that the Bank denied solely because of Indicator 1 of the 
Bank’s automated Claim Fraud Filter (“CFF-1”). 
(d) 
Other types of fraud addressed in the Joseph Report (such as enrollment fraud, first-
party fraud, and fraudulent card-not-present transactions, e.g. online fraud) are 
entirely irrelevant to this case. Although the Joseph Report goes on at length about 
whether the presence of an EMV chip could have prevented these other types of 
fraud, that inquiry has nothing to do with this case or with the opinions stated in the 
Cloninger Report, whose scope was limited to the extent to which including EMV 
chips in the Bank’s EDD debit cards would have prevented the specific types of 
unauthorized-transaction fraud at issue in this litigation: card-present ATM fraud that 
triggered the Bank’s application of CFF-1. For purposes of my Report, it is entirely 
irrelevant whether adding EMV chips to the Bank’s EDD debit cards would have 
prevented other types of fraud that are not at issue here.  
8. 
The Joseph Report also opines that, “[i]n order to determine whether an EMV 
chip would have prevented access to or compromise of information on an EDD prepaid debit 
card, one would have to look at the circumstances surrounding the access or compromise. Joseph 
Rep. ¶16. However, the Bank’s decision not to equip EDD cards with EMV chips made all EDD 
cardholders more vulnerable and significantly increased the likelihood that those cardholders 
would become the victims of having their personal information accessed through skimming. See 
infra, §III.C. 
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9. 
Because skimming and counterfeit fraud on the EDD portfolio was already 
documented in 2019 and highly foreseeable in 2020, it continues to be my opinion that a 
sophisticated financial institution like the Bank would have known that many EDD cardholders 
reporting unauthorized PIN-enabled ATM withdrawals in 2020 and 2021 were true victims of 
counterfeit card fraud (again, fraud that the Bank itself could have prevented simply by issuing 
EMV chip cards requiring an investment of only 
 per card).4 The Bank’s assumption 
underlying CFF-1—that nearly every cardholder reporting an unauthorized ATM withdrawal was 
a fraudster filing a false claim—was therefore unfounded. A sophisticated financial institution in 
the Bank’s position should have known and would have known that an automated filter with such 
a simplistic criterion for disqualifying a claim would likely disqualify many legitimate victims of 
counterfeit fraud—yet another point that Joseph does not dispute. 
III. 
STATEMENT OF OPINIONS AND BASIS FOR OPINIONS 
 
A. 
EMV Chips are Extremely Effective at Preventing Card Present Counterfeit 
Fraud, While Mag-Stripe Only Cards Are Highly Vulnerable to Counterfeit 
Fraud and Are Thus the Frequent Target of Skimming Attacks. 
10. 
EMV chips are widely recognized for their efficacy at preventing the only kind of 
fraudulent transaction relevant in this lawsuit: card-present counterfeit fraud at ATMs.  
11. 
The Joseph Report states that “EMV chip cards can also be skimmed, just as 
magstripe-only cards can,” Joseph Rep. ¶32, and that “EMV chips do not prevent cards from 
being vulnerable to skimming,” Joseph Rep. ¶14. Those statements are irrelevant to the issues in 
this case and to my prior report. EMV technology was not designed to prevent the skimming of 
mag-stripe data, and I have not suggested otherwise. Rather, as explained in the Cloninger 
Report, EMV chips were designed to protect against counterfeit card fraud by making stolen data 
useless for subsequent card-present transactions; and it is widely recognized throughout the 
 
4 Ex. 27 at -351839-40. See also Cloninger Rep. ¶53 n.77. 
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industry that they are highly effective at doing so. Joseph’s focus on the fact that EMV chips do 
not prevent the skimming of mag-stripe data has little if anything to do with the relevant issue, 
addressed in my Report, which is that the use of EMV chips prevents the type of card-present 
transactional fraud that skimming attacks are undertaken to facilitate. 
12. 
As I explained in my original report, EMV chip cards, like non-EMV cards, 
contain magnetic stripes containing cardholder information, such as the cardholder’s name and 
card number. Cloninger Rep. ¶31. Skimming takes place when criminals surreptitiously install a 
device capable of reading the information on a magnetic stripe on an ATM’s card reader and a 
pinhole camera or PIN pad overlay to capture the cardholders’ PIN numbers alongside their card 
data. See Cloninger Rep. ¶¶18-25. After obtaining cardholder data, fraudsters can easily generate 
counterfeit mag-stripe only cards that, in tandem with the captured PIN, can be used to make 
cash withdrawals from ATMs or POS terminals. See id.  
13. 
EMV technology was not designed to prevent the capture of mag-stripe data – it 
was designed to disrupt the second stage of the above-described process: the counterfeit fraud 
itself. Unlike mag-stripe only cards, EMV cards contain an EMV chip, which generates a 
dynamic code unique to each transaction that is required for a normal transaction to proceed. 
Cloninger Rep. ¶¶29-31. The EMV chip prevents any use of information stolen from an EMV 
chip card’s mag-stripe in two ways. First, an EMV chip is next to impossible to clone, so a 
counterfeit card with stolen EMV chip card data will not be capable of generating the appropriate 
dynamic code required for normal transactions. Second, if fraudsters were to attempt to use just 
the stolen mag-stripe data from an EMV card without the dynamic EMV chip code, the resulting 
transaction would either be declined or subject to additional security rules specific to fallback 
transactions. That is because the terminal (POS or ATM) would include a code that informs the 
issuer that that a chip should be present but the magnetic stripe alone was used, and, as a result, 
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the transaction is flagged as fallback. At that point, the issuer (here, Bank of America) can decide 
whether to decline or approve the transaction and/or to impose additional security rules. EMV 
technology thus protects against the creation of functional counterfeit cards, and thereby protects 
against the use of data captured in a skimming attack to facilitate counterfeit fraud. Cloninger 
Rep. ¶¶29-33. 
14. 
For similar reasons, “shimming” attacks are also unable to generate a successful 
clone of an EMV card that can be used to carry out fraudulent ATM withdrawals or other 
transactions, contrary to Joseph’s suggestion. Joseph Rep. ¶¶40, 46, 48, 78. Shimmers are paper-
thin devices that are inserted into the chip card reader. Fraud rings place a shimmer inside the 
chip card reader to record the information transmitted between the chip and the ATM or POS 
terminal. Shimming devices capture the one-time dynamic code (making it fixed and static, not 
dynamic and ever-changing) and other cardholder data that an EMV chip card transmits to an 
ATM or POS terminal during that particular transaction. Fraudsters then copy the chip data, 
including the one-time chip code, onto the magnetic stripe of a counterfeit card. Shimmers do not 
enable the dynamic-functioning EMV chip itself to be cloned.  
15. 
In 2016, NCR Corporation, one of the largest ATM manufacturers, described 
shimming in an alert to customers and wrote: “The only way for this attack to be successful is if 
a [bank card] issuer neglects to check the CVV when authorizing a transaction.”5 The alert 
continued: “All issuers MUST make these basic checks to prevent this category of fraud. Card 
Shimming is not a vulnerability with a chip card, nor with an ATM, and therefore it is not 
necessary to add protection mechanisms against this form of attack to the ATM.”6  
 
5  KrebsOnSecurity, ATM ‘Shimmers’ Target Chip-Based Cards (Jan. 27, 2017), 
https://krebsonsecurity.com/2017/01/atm-shimmers-target-chip-based-cards/ (emphasis added). 
6 Id. (emphasis added). 
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16. 
In questioning the efficacy of EMV chips in preventing fraud, the Joseph Report 
principally focuses on other types of fraud and, with respect to fraud committed through card-
present transactions at chip-reader enabled devices (like most ATMs), her Report focuses on the 
infrequent exceptions to the general rule that the transaction cannot proceed in the absence of a 
valid EMV chip card. I explain in detail why the exceptions on which Joseph relies are unable to 
account for a significant amount of the unauthorized transactions at issue in this case in §III.B, 
infra. 
17. 
Finally, the increase in skimming attacks in 2022 that Joseph discusses does not 
mean that the use of EMV chips has been unsuccessful at preventing fraud. Joseph Rep. ¶30. 
Rather, an increase in skimming activity indicates increased targeting of vulnerable mag-stripe 
only cards. Such a shift was forewarned by industry experts, as discussed in my Cloninger 
Report and below in §III.C. Cloninger Rep. ¶¶69-73. 
18. 
Nothing in the Joseph Report leads me to change my opinion that EMV chips are 
highly effective at preventing card-present counterfeit fraud resulting from skimming attacks. 
Also, much of Joseph’s discussion of EMV obfuscates the reality that EMV chip technology, 
which renders any stolen card information functionally unusable, has significantly reduced card-
present counterfeit fraud in every region of the world where it has been introduced, including in 
the United States. See Cloninger Rep. ¶¶34-35, 37. Although EMV does not prevent skimming, it 
is undisputed that, in the vast majority of cases, it prevents the counterfeit fraud that motivates 
skimming attacks. 
 
B. Adding EMV Chips to EDD Debit Cards Would Have Prevented the 
Unauthorized ATM Withdrawals Class Members Experienced. 
19. 
The Joseph Report does not expressly dispute that EMV technology is an 
effective fraud deterrent, nor could it. Joseph Rep. ¶29. The overwhelming consensus in the 
payments industry is that EMV technology has been extraordinarily effective in reducing card-
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present counterfeit fraud since it was introduced in the 1990s and as its use has become more 
universal. See Cloninger Rep. ¶¶29-45; see also Joseph Rep. ¶20 (recognizing the development 
of EMV in the 1990s and the technology’s subsequent “widespread” adoption). Internal Bank 
documents acknowledge the efficacy of EMV at preventing card-present counterfeit fraud 
resulting from skimming attacks.7 
20. 
Despite clear evidence that EMV technology prevents card-present counterfeit 
fraud, Joseph opines that “EMV chips would not have prevented many of the card-present 
transactions that actually involved 
,” Joseph Rep. ¶15(b), because 
, Joseph Rep. ¶¶15(b), 40. For reasons discussed below, 
Joseph’s statements are grossly exaggerated.  
21. 
The Joseph Report also tries to distract from the established efficacy of EMV at 
preventing counterfeit fraud by discussing other types of fraud that the use of EMV chips would 
not have prevented, including, for example, card-not-present fraud (principally, online fraud) 
resulting from data breaches or the random generation of numbers. Joseph Rep. ¶¶31, 42, 59. But 
those types of fraud are not at issue in this case, and it is therefore irrelevant whether EMV 
technology would prevent them. By definition, the classes in this case only include EDD debit 
cardholders who reported an unauthorized, card-present, PIN-enabled ATM withdrawal 
(sometimes accompanied by additional unauthorized POS transactions, which are also card-
 
7 Ex. 25 at -167022 (
”); Ex. 29 at -12412 (“
”); Ex. 55 at -163307 (“
”); Ex. 56 at -172471-72 (“
 
”); Ex. 164 at -57505 (
 
”).   
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present transactions) – which, in my opinion and as discussed below, an EMV chip almost 
certainly would have prevented.8 
 
1.  EMV Chips Would Have Prevented All or Nearly All of the 
Unauthorized ATM Withdrawals and Other Card-Present Transactions 
that Class Members Experienced, Because Fallback Transactions Are 
Limited by Strict Security Rules and Controlled in Frequency.  
22. 
The Joseph Report opines that “EMV chips would not have prevented many of 
the card-present transactions that actually involved 
 
” Joseph Rep. ¶15(b). In making these assertions, Joseph relies on a grossly 
overstated risk of fraud resulting from “fallback transactions,” or transactions completed using 
the mag stripe of an EMV chip card rather than the chip card itself – which Joseph describes as 
“alternative” transactions. Joseph Rep. ¶24. As I explain below, Joseph ignores that fallback 
transactions are limited by significant security measures over which the Bank would exercise 
control, that the Bank did in fact put such controls in place for its non-prepaid consumer debit 
card portfolio with great success in preventing counterfeit fraud, and, finally, that fallback 
transactions comprise a small number of overall transactions.  
23. 
When an EMV chip cardholder attempts to make a transaction at a chip-enabled 
terminal by swiping the mag-stripe rather than inserting the chip, the data in the mag-stripe from 
the EMV card will indicate to the ATM or POS terminal that a chip should be present, and the 
 
8 Despite Joseph’s extensive discussion of first-party and benefits fraud, neither my previous nor 
this Report addresses such fraud. Joseph Dec. ¶¶15(a), 58, 61-66. My understanding is the class 
definition excludes any individual who the Bank determines 
” Ex. 74 at -102557.  
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ATM or POS terminal will detect that a mag-stripe (as opposed to the chip) has been presented 
and will request that the chip be used.  The same thing happens when a fraudster attempts to 
make a transaction at a chip-enabled terminal using a cloned mag-stripe-only version of an EMV 
chip card. Because the counterfeit mag stripe contains a service code that indicates the card has 
an EMV chip, the ATM or POS terminal will recognize that a mag-stripe on a chip card has been 
presented and will request that the chip be used.  If no chip (or a damaged chip, or a mismatched 
chip with the wrong code, as Joseph theorizes) is then presented, the ATM or POS terminal can 
decline the transaction. 
24. 
The only exception is a “fallback” transaction, which occurs when, instead of 
declining the transaction, the ATM or POS terminal allows the cardholder to “fallback” and use 
the mag-stripe of a detected chip card to make the transaction. Before allowing a fallback 
transaction, the ATM or POS terminal will typically send a code to the card issuer notifying the 
issuer that a mag-stripe transaction has been requested with a chip card because if they do not, 
then liability for any fraudulent fallback transactions falls on the merchant or ATM operator.9  
The issuer can then require additional security checks, decline the transaction, or approve the 
transaction with or without withdrawal limits. If the merchant or ATM operator provides this 
fallback notice code to the issuer and the issuer authorizes the fallback transaction, then liability 
for the fallback transaction, if it proves to be fraudulent, falls on the issuer.  
25. 
Here, Joseph completely ignores that Bank of America was the issuer of all EDD 
debit cards and thus, control over the possibility of fallback fraud would have rested principally 
with the Bank. 
 
9 EMV Implementation Guidance: Fallback Transactions, US Payments Forum 1 (2016), 
https://www.uspaymentsforum.org/wp-content/uploads/2017/03/Fallback-Transaction-Guidance-
FINAL-Dec-2016.pdf; Ann Davidson, Fraud & Fallback: What You Need to Know About 
Skimming Attacks, Credit Union Times (Sept. 16, 2024), 
https://www.cutimes.com/2024/09/16/fraud-fallback-what-you-need-to-know-about-skimming-
attacks/?slreturn=20241116-43702. 
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26. 
Joseph also ignores that the Bank 
 
.10 
27. 
, one Bank employee explained:  
 
 
 
§ 
11 
28. 
The Bank acknowledged 
.”12  
29. 
By 2021, one Bank employee described 
.”13 
30. 
Thus, in 2020, had the Bank equipped its EDD debit cards with EMV chips and 
, any criminal who attempted to use a counterfeit card with a deliberately 
broken chip at an ATM would have been 
 
10 See, e.g., Ex. 32 at -228914. 
11 Id.  
12 Ex. 164 at -57505. 
13 Ex. 165 at -431012. 
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.14 
.  
31. 
Joseph provides no explanation why the Bank would not have 
 I am aware of no reason why 
.   
32. 
The Bank’s 
 The Bank experienced 
 
15 Were fallback transactions as significant a 
weakness in EMV protection against fraud as the Joseph Report suggests, one would expect 
 
significantly undermines Joseph’s argument that EMV would not have similarly protected EDD 
cardholders in 2020. 
 
14 There are three types of “CVV numbers” relevant to a payment transaction. The CVV2 that is 
printed on the back of the card is unrelated to the CVV number written on the mag stripe 
(described in Cloninger Rep. ¶17) and the iCVV (frequently called dynamic CVV) that can be 
generated only by an EMV chip.  When the Bank requests the cardholder to enter their CVV2 
number, it is the number that is printed on the back of the card, as the cardholder cannot see 
either of the other two.  This step provides assurance that the card is in the cardholder’s 
possession. See Mitigating Fraud Risk Through Card Data Verification, Visa Business News 
(Oct. 8, 2015), https://www.cba-ok.org/wp-content/uploads/2016/09/VBN-Mitigating-Fraud-
Risk-Through-Card-Data-Verification-002.pdf.  
15 Ex. 34 at -297295 (“
”).  
My understanding is that “
” refers to the Bank’s non-prepaid consumer debit 
cards, all of which had EMV chips as of 2014. Ex. 23. 
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33. 
Joseph’s discussion of the various scenarios that lead to fallback transactions 
might suggest that such transactions are common, but that is not the case. Fallback transactions 
had been high during the initial years of EMV deployment, largely due to problems with 
implementation.  As a result, 75% of card issuers rolled out new policies to “decline 
authorization of high-dollar fallback purchases,” while others focused on merchants with 
abnormally high fallback rates and other methods to control the use of fallbacks.16 However, by 
2017, fallback transactions represented less than 2% of overall purchase authorizations and fraud 
related to those transactions was falling rapidly as a result of industry mitigation efforts, 
including the use of fallback rules.17 In addition to fallback rules, other industry mitigation 
efforts include imposing transaction fees to penalize frequent fallback transactions. If fallback 
transactions at a given ATM exceed 2.5% for Visa or 3.0% for Mastercard, the networks impose 
penalty fees.18 The penalty fees imposed by the networks provide merchants and ATM operators 
with incentives to ensure that their equipment is properly functioning and to investigate any 
increases in fallback rates. 
34. 
Thus, in 2018, fraud data showed that fallback fraud represented only 11.5% of 
counterfeit fraud, down from more than 20% in 2017, and only 3.2% of overall credit card fraud, 
down from 4.5% in 2017, declines of 45% and 30% year over year.19  There is no reason not to 
 
16 Credit Card “Fallback” Fraud Declines Significantly as Banks Implement New Policies, 
Auriemma Roundtables: Industry Analysis (Nov. 7, 2018), https://roundtables.us/credit-card-
fallback-fraud-declines-significantly-as-banks-implement-new-policies/. 
17 Id.; Ann Davidson, Fraud & Fallback: What You Need to Know About Skimming Attacks, 
Credit Union Times (Sept. 16, 2024), https://www.cutimes.com/2024/09/16/fraud-fallback-what-
you-need-to-know-about-skimming-attacks/?slreturn=20241116-43702 (“Both chip cards and 
readers undergo rigorous testing and certification, making fallback incidents exceptionally 
rare.”). 
18 Id. 
19 Credit Card “Fallback” Fraud Declines Significantly as Banks Implement New Policies, 
Auriemma Roundtables: Industry Analysis (Nov. 7, 2018), https://roundtables.us/credit-card-
fallback-fraud-declines-significantly-as-banks-implement-new-policies/. 
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believe that fraud rates continued at or below these rates over the subsequent two years and 
beyond.    
35. 
 The Joseph Report thus grossly overstates the likelihood of fraud through 
fallback transactions and ignores that the Bank’s own rules significantly limited such fraud in 
2020 and 2021 on its non-prepaid consumer debit card portfolio. It thus continues to be my 
opinion that including EMV chips on the Bank’s EDD debit cards would have been highly 
effective in preventing the vast majority of unauthorized transactions attributable to card-present 
counterfeit fraud that class members experienced. 
2. Joseph Does Not Present Any Evidence that Non-Counterfeit Fraud 
Affected More than a De Minimis Number of Class Members.  
36. 
Joseph contends that the use of EMV chip cards would not have prevented 
unauthorized transactions resulting from lost or stolen cards or from a cardholder’s mistaken 
assertion that a transaction was not authorized. However, Joseph does not cite any evidence 
suggesting that these were circumstances that affected any substantial number of class members. 
As I explain below, neither of these scenarios (lost/stolen cards or mistake/family use), in my 
professional experience, likely account for more than a small percentage of total unauthorized 
transaction claims. 
37. 
First, fraud resulting from a lost or stolen card generally comprises a small 
percentage of overall reports of fraudulent transactions. A 2024 survey conducted by Security.org 
found that “only 7% of fraudulent charges involved stolen or lost credit cards,” meaning the 
remaining 93% of fraudulent charges involved cards still in the owner’s possession.20 Because all 
class members in this case reported PIN-enabled transactions, in Joseph’s hypothetical, fraud 
resulting from lost or stolen cards would also require the cardholder to have 
 
. Joseph Rep. ¶¶80-83. Joseph provides no evidence for why 
 
20 Brett Cruz, 52 Million Americans Experienced Credit Card Fraud Last Year: 2024 Credit Card 
Fraud Report and Statistics, Security.org (Jul. 26, 2024), https://www.security.org/digital-
safety/credit-card-fraud-report/. 
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such a unique factual scenario leading to fraud would comprise any significant portion of the 
unauthorized transactions class members experienced.  
38. 
A claim of an unauthorized transaction resulting from a cardholder’s honest 
mistake (not recognizing the transaction) or from a family member’s authorized use of the card is 
also highly unlikely to explain any significant number of the unauthorized transactions class 
members reported.  
39. 
The lone source that Joseph cites for this possibility is a Lending Tree survey 
about card sharing between parents and children, but Joseph offers no rationale for assuming that 
the survey results are applicable to this particular category of EDD debit cardholders. Joseph 
Rep. ¶67 n.31. According to that Lending Tree survey, instances of children spending without 
permission include “in-app or in-game purchases (28%), ordering food delivery (16%)… making 
purchases through voice-activated speakers (15%),” buying clothes (14%), buying “toys or 
games” (13%), or buying “something else” (1%).21  The survey does not discuss children using 
their parents’ cards to make unauthorized ATM withdrawals.  
40. 
In conclusion, it continues to be my opinion that EMV chips would have 
“prevented virtually all card-present counterfeit fraud (including unauthorized ATM 
withdrawals) for the Bank’s EDD debit cardholders at chip-enabled ATMs and POS terminals.” 
Cloninger Rep. ¶14(h). Nothing in the Joseph Report changes my opinion that EMV is the right 
tool to have prevented the card-present ATM fraud that is at issue in this case. 
3. Individual inquiries are not necessary to determine if EMV would have 
prevented these unauthorized transactions. 
41. 
The Joseph Report opines that determining whether a particular unauthorized 
transaction could have been prevented by an EMV chip card would be a highly fact-dependent 
inquiry into the circumstances of the transaction. Joseph Rep. ¶¶44-50. I disagree. 
 
21 Dawn Papandrea, 46% of Parents Say Their Child Used Their Credit or Debit Card Without 
Permission, Racking Up $500+, Lending Tree (Mar. 1, 2022), 
https://www.lendingtree.com/credit-cards/study/kids-and-credit-cards-survey/.  
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42. 
For all the reasons discussed above, the threshold factual scenario necessary to 
determine whether EMV would have prevented a transaction is simply whether it was card-
present counterfeit fraud. Once that determination is made, no additional inquiry is needed as to 
the ability of EMV to have prevented the resulting fraud. 
43. 
As described in §III.B.2., no other type of fraud (e.g. lost/stolen card) could 
account for a significant, or even more than de minimis, number of the card-present, PIN-
enabled ATM transactions that class members reported.  
44. 
Nonetheless, my understanding is that the Bank has in its records system details 
about each claim, including 
.22 
No intensive fact inquiry would be needed, then, to distinguish the few class members whose 
transactions may have resulted from 
 – 
they would have been recorded as 
. The Bank also 
possesses data collected with every claim as to whether 
 
 
.23 Again, the Bank could easily disaggregate those individuals from the 
people who 
. 
/ / / 
 
22 See Ex. 166 at -205593 (“
”); see, e.g., Ex. 14 (Daniels Tr.) 79:5-80:4 
(
 …”); Ex. 167 at -001199 (“
 
”). 
23 Id. 
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4. Joseph’s Opinions that EMV Chips Would Not Prevent Other Types of 
Fraud Are Irrelevant. 
45. 
The Joseph Report devotes considerable space to addressing irrelevant issues, for 
example, by asserting that EMV chips would not have prevented unauthorized card-not-present 
transactions, which are primarily online transactions. Card-not-present transactions are not 
relevant to this case. By definition, every class member reported an unauthorized ATM 
withdrawal, which is necessarily a card-present transaction. 
46. 
Joseph’s assertion that EMV chips might not have prevented certain other types of 
fraud that might have affected class members, such as 
, is also irrelevant. Joseph Rep. ¶¶31, 42, 51(b), 87. I do not contend in the Cloninger 
Report that EMV chips would prevent data breaches or phishing attacks, which could enable 
fraudsters to create counterfeit cards using the stolen information. My principal opinion has 
consistently been that, for the reasons discussed above, EMV chips are effective at protecting 
against any unauthorized card-present transactions, particularly at an ATM machine, that a 
fraudster may attempt with a counterfeit card created using the information stolen from a data 
breach or phishing attack. If the Bank had issued EDD cards with EMV, either the transaction 
would be declined because no chip was present or the Bank’s fallback rules would stop or 
significantly limit the transaction. Again, because all class members here reported an 
unauthorized ATM withdrawal, which is necessarily a card-present transaction, the inclusion of 
an EMV chip in EDD debit cards would have prevented all or nearly all of those ATM 
withdrawals. 
 
C. The Bank’s Failure to Include Industry-Standard EMV Chips in EDD Debit 
Cards in 2020 Caused Those Cards to Be Susceptible to and Targeted for 
Skimming. 
47. 
As explained in my previous report, EMV technology had by 2019 already 
become the well-established industry standard for card security in the United States—a point that 
Joseph does not dispute. Cloninger Rep. ¶¶36-45.  
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48. 
By early 2020, the Bank understood that counterfeit fraud was a problem for its 
EDD portfolio and that EMV offered a solution, at minimal cost to the Bank.24 For an 
incremental cost of only $
 per card, the Bank predicted 
.25 In one Bank official’s own words, despite 
, “
.” Cloninger Rep. ¶¶48-56. 
49. 
Nevertheless, the Bank chose not to include EMV chips in EDD debit cards in 
2020. I continue to adhere to my prior opinion that the Bank’s decision not to equip EDD cards 
with EMV chips in 2020 was highly irregular and resulted in the issuance of highly vulnerable 
cards with below-industry-standard security. Based on my 35 years of experience in the 
payments industry, it is my view that the Bank’s decision was particularly unreasonable and 
irresponsible given the heightened vulnerability of this cardholder population and the Bank’s 
contractual promises to EDD to provide the “highest level of security and fraud safeguards.”26 
50. 
As already explained above, the lack of an EMV chip in a mag-stripe only card 
renders that card susceptible to skimming and to counterfeit card fraud. The Bank’s failure to 
issue industry-standard EMV chip cards to EDD cardholders subjected all EMV Chip class 
members to an unnecessary and heightened risk of unauthorized access to and disclosure of 
information on their EDD debit cards and in their EDD debit cards accounts—including from 
skimming and from any subsequent uses of their skimmed information.  
 
24 Ex. 25 at -167022 (
)”); Ex. 29 at -124142 (
”); Ex. 27 at 
-351839-40; Ex. 16 (Martin Tr.) 82:8-83:13.  
25 Ex. 27 at -351839-40; Ex. 16 (Martin Tr.) 82:8-83:13.  
26 Cloninger Rep. ¶46 (quoting Ex. 22 at 253-54). 
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51. 
The Joseph Report also opines that, “In order to determine whether an EMV chip 
would have prevented access to or compromise of information on an EDD prepaid debit card, 
one would have to look at the circumstances surrounding the access or compromise. Joseph Rep. 
¶16. For several reasons, I disagree. 
52. 
First, the Bank’s decision not to equip EDD cards with EMV chips made all EDD 
cardholders more vulnerable and significantly increased the likelihood that those cardholders 
would become the victims of having their personal information accessed through skimming. That 
increased vulnerability and susceptibility to unauthorized access of their personal information 
does not depend on those cardholders’ individual circumstances. Rather, that susceptibility 
applies to all class members because they were regularly receiving substantial amounts of money 
on mag-stripe only debit cards without EMV chip protection. Joseph does not take issue with the 
well-documented fact that fraud rings use skimming technology to specifically target mag-stripe 
only cards, particularly where the value loads on those cards are larger (i.e., a combination of 
increased vulnerability and higher pay-off per skimmed card). The Bank’s decision not to include 
EMV chips in the EDD debit cards portfolio, which grew rapidly in value load during the 
pandemic, foreseeably led to increased skimming attacks targeting EDD cards in California, a 
predictable increase that the Bank’s own documents demonstrate the Bank was aware of. 
Accordingly, the issuance of mag-stripe only EDD cards put each EDD cardholder at much 
higher risk for unauthorized access and use and disclosure of personal information. 
53. 
Joseph speculates that EMV chip cards are just as vulnerable as mag-stripe-only 
cards to being skimmed and then cloned for purposes of making counterfeit transactions. As 
explained above, this is untrue. There is little incentive for fraudsters to attempt to make 
fraudulent card-present transactions using counterfeit versions of EMV chip cards, because those 
fraudulent transaction attempts will fail in most instances. There is even less reason for fraudsters 
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to attempt fraudulent transactions with counterfeit versions of EMV chip cards, given that mag-
stripe only cards, like the EDD debit cards at issue here, are far easier and far more profitable 
targets. As the Joseph Report acknowledges, “
” Joseph Rep. ¶72.  By 2020, vulnerable mag-stripe only cards like the EDD 
debit cards that the Bank issued to class members were that “
.” Had 
the Bank issued EMV chip cards to EDD cardholders, criminals would have had little incentive 
to target them with skimming attacks. Thus, it was highly foreseeable that the lack of EMV chips 
on EDD debit cards would lead to increased counterfeit fraud specifically targeting EDD 
cardholders during the pandemic. See Cloninger Rep. ¶¶69-85. 
54. 
This foreseeable outcome of the Bank’s decision not to issue EMV chip cards to 
EDD cardholders is exactly what happened. The Bank had observed that by 2019, counterfeit 
fraud was already a significant problem and rising on the EDD portfolio.27 In 2020 and 2021, the 
Bank observed an “
specifically.28 One Bank 
employee observed that “
 
.”29 Another 
noted that “
.”30 
The Bank’s decision not to issue EMV chip cards thus foreseeably led to an increase in 
skimming attacks on vulnerable EDD cards, particularly as their load value increased during the 
pandemic.  
 
27 See Cloninger Rep. ¶¶78-84; see also Ex. 25 at -167022 (“
)”).  
28 Ex. 168 at -166345 (“
”).  
29 Ex. 26 at -370154. 
30 Cloninger Rep. ¶¶78-80 (quoting Ex. 34 at -297295). 
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55. 
Second, for every class member who experienced an unauthorized ATM 
withdrawal while their EDD debit card was still in their possession, the most likely explanation 
is that the unauthorized transaction was committed using a counterfeit card created as a result of 
skimming. Joseph asserts that “skimming or shimming would not capture the PIN.” Joseph Rep. 
¶77. This assertion completely ignores the widely known fact, explained in the Cloninger Report 
and acknowledged in the Bank’s own documents, that skimmers are typically used in conjunction 
with pinhole cameras or a PIN pad overlay that captures the cardholder’s PIN to be used in 
conjunction with the skimmed magstripe data. See Cloninger Rep. ¶¶18-25.31    
IV. 
CONCLUSION 
56. 
By issuing mag-stripe only cards to EDD debit cardholders, the Bank increased 
the likelihood of unauthorized access, theft, and disclosure of their personal information in two 
ways: first, it issued EDD beneficiaries cards that were extremely susceptible to unauthorized 
disclosure of personal information through skimming and counterfeit attacks, and second, the 
issuance increased the likelihood those cards would in fact be compromised by skimming attacks 
and counterfeit card fraud. From a card-security perspective, the Bank left cardholders entirely 
empty handed while slapping a target on their backs. 
57. 
The Joseph Report’s conclusion that EMV would not have prevented many of the 
unauthorized transactions that class members experienced is unsupported by evidence and is 
directly contradicted by the Bank’s own internal documents, which recognize that the use of 
EMV chips on its non-prepaid consumer debit cards effectively prevented counterfeit fraud even 
when they were skimmed by the same skimmers that resulted in counterfeit fraud being 
perpetrated against EDD debit cardholders. Joseph’s statement that EMV chips can also be 
 
31 Ex. 33 at -455617 (“
”) 
(emphasis added); Ex. 168 at -166345 (“
.”). 
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Appendix A:  List of Additional Materials Considered 
 
Date 
Document 
Type 
Title/Description 
Bates Range 
2/6/2024 Transcript 
Transcript of Rule 30(b)(6) Deposition 
of Shane Daniels  
  
2/29/2024 Transcript 
Transcript of Rule 30(b)(6) Deposition 
of William (“Matt”) Martin 
  
2/16/2024 Transcript 
Transcript of Rule 30(b)(6) Deposition 
of Michael Letson  
  
8/29/2024 Report 
Expert Report of Jane Cloninger in 
Support of Plaintiffs’ Motion for Class 
Certification (Ex. 2 to the Declaration of 
Connie Chan in support of Plaintiffs’ 
Motion for Class Certification) 
(“Cloninger Rep.”) 
  
10/24/2024 Report 
Declaration of Pamela Joseph (DX 4 to 
the Declaration of Laura Brys in support 
of Defendant’s Opposition to Plaintiffs’ 
Motion for Class Certification) ("Joseph 
Rep.") 
  
10/8/2015 Article 
Mitigating Fraud Risk Through Card 
Data Verification 
 
3/1/2022 Article 
"46% of Parents Say Their Child Used 
Their Credit or Debit Card Without 
Permission, Racking Up $500+" 
  
7/26/2024 Article 
"52 Million Americans Experienced 
Credit Card Fraud Last Year" 
  
3/23/2021 Article 
"ATM fallback fees, and how to prevent 
them" 
  
9/16/2024 Article 
"Fraud & Fallback: What You Need to 
Know About Skimming Attacks" 
  
11/7/2018 Article 
"Credit Card “Fallback” Fraud Declines 
Significantly as Banks Implement New 
Policies" 
  
Rep. 2016 
Report 
"EMV Implementation Guidance: 
Fallback Transactions" 
  
1/27/2017 Article 
"ATM ‘Shimmers’ Target Chip-Based 
Cards" 
  
7/10/2015 Document 
Excerpts of BANA’s Response to State 
of California Electronic Benefits 
Payments RFP Vol I & II 
  
12/29/2020 Email 
BANA_EDD_MDL -
090640-90647 
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 26 
 
1/10/2020 Email 
BANA_EDD_MDL -
351839-351840 
3/13/2020 Email 
BANA_EDD_MDL -
167019-167024 
2/21/2020 Email 
BANA_EDD_MDL -
124142 
11/2/2020 Email 
BANA_EDD_MDL -
163307-163308 
7/10/2020 Email 
BANA_EDD_MDL -
172469-172473 
10/12/2022 Document 
BANA_EDD_MDL -
102554-102577 
4/24/2020 Email 
BANA_EDD_MDL -
228914-228915 
4/23/2021 Email 
BANA_EDD_MDL -
297295 
1/10/2020 Email 
BANA_EDD_MDL -
351839-351840 
1/28/2020 Email 
BANA_EDD_MDL -
370150-370155 
8/18/2020 Email 
BANA_EDD_MDL -
455617-455619 
10/30/2020 Email 
BANA_EDD_MDL-
00057504-06 
2/9/2021 Email 
BANA_EDD_MDL-
00431011-14 
9/14/2020 Email 
BANA_EDD_MDL-
00205593-97 
  
Document 
BANA_EDD_MDL-
00001199 
  
Presentation 
BANA_EDD_MDL-
00166345 
 
 
  
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