Memo of Points and Authorities — Bofa Ca Unemployment (Dkt. 563.1)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 563-1 · 2025-10-17 · Docket on CourtListener

Summary

Bank of America, N.A.'s memorandum supporting its motion to exclude the opinions of an expert retained by the plaintiffs, filed October 17, 2025 as Document 563-1 in In re: Bank of America California Unemployment Benefits Litigation, Case No. 21-MD-02992-GPC-MSB, in the U.S. District Court for the Southern District of California. The brief argues under Federal Rule of Evidence 702 and Daubert that the expert is not qualified to opine on the causes of fraud or on operational feasibility. It states that the plaintiffs claim the bank should have issued Employment Development Department prepaid cards with EMV chip technology before 2021, and that the expert opined chips would have prevented virtually all of the alleged fraud. It argues she conducted no analysis and followed no discernible methodology. The 25-page brief requests oral argument.

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BANA’S MEM. ISO MOT. TO EXCLUDE CLONINGER  
CASE NO. 21-MD-02992-GPC-MSB 
 
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GOODWIN PROCTER LLP 
ATTORNEYS AT LAW 
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA 02210 
Tel. +1 617 570 1000 
Fax: +1 617 523 1231 
SABRINA M. ROSE-SMITH (pro hac vice) 
SRoseSmith@goodwinlaw.com 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N Street, NW 
Washington, DC 20036 
Tel.: +1 202 346 4000 
Fax: +1 202 346 4444 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
 
UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF CALIFORNIA 
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 21-MD-02992-GPC-MSB 
DEFENDANT BANK OF 
AMERICA, N.A.’S 
MEMORANDUM OF POINTS 
AND AUTHORITIES IN SUPPORT 
OF MOTION TO EXCLUDE 
PURPORTED EXPERT OPINIONS 
OF JANE CLONINGER 
Date: 
April 17, 2026 
Time: 
1:30 p.m. 
Ctrm: 
12A – 12th Floor 
Judge: 
Hon. Gonzalo P. Curiel 
 
ORAL ARGUMENT REQUESTED 
 
FILED PROVISIONALLY UNDER SEAL 
PURSUANT TO STIPULATED PROTECTIVE 
ORDER 
 
 
 
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TABLE OF CONTENTS 
Page 
 
INTRODUCTION ...................................................................................................... 1 
BACKGROUND ........................................................................................................ 2 
I. 
Plaintiffs’ EMV Chip Claims ........................................................................... 2 
II. 
Cloninger’s Opinions ....................................................................................... 2 
STANDARD OF LAW .............................................................................................. 4 
ARGUMENT .............................................................................................................. 5 
I. 
Cloninger Should Not Be Permitted to Opine on a Causal Relationship 
Between EMV Chips and the Alleged Fraud Given Her Lack of Experience 
and Failure to Follow Any Methodology. ........................................................ 6 
A. 
Cloninger is not qualified to opine on the causes of fraud. ..................... 6 
B. 
Cloninger simply assumed that EMV chip technology would have 
prevented all fraud, without conducting any analysis or following any 
methodology at all. ................................................................................... 8 
C. 
The causation opinions are impermissible legal opinions. .................... 13 
II. 
Cloninger Cannot Opine on the Feasibility of Chip Implementation When 
She Has No Experience and Failed to Conduct Any Analysis. ..................... 13 
A. 
Cloninger is not qualified to opine on operational matters. ................... 13 
B. 
Cloninger failed to conduct any analysis to determine whether 
implementation of EMV chip technology at the onset of the pandemic 
would have been feasible. ...................................................................... 15 
CONCLUSION ......................................................................................................... 18 
 
 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
AFMS LLC v. United Parcel Serv. Co., 
2014 WL 12515335 (C.D. Cal. Feb. 5, 2014) .......................................... 7, 10, 14 
Aguilar v. Int’l Longshoremen's Union Loc. No. 10, 
966 F.2d 443 (9th Cir. 1992) .............................................................................. 13 
Avila v. Willits Env’t Remediation Tr., 
633 F.3d 828 (9th Cir. 2011) .......................................................................... 7, 11 
Bona Fide Conglomerate, Inc. v. SourceAmerca, 
2019 WL 1369007 (S.D. Cal. Mar. 26, 2019) (Curiel, J.) ........................... 13, 14 
Brighton Collectibles, Inc. v. RK Tex. Leather Mfg., 
923 F. Supp. 2d 1245 (S.D. Cal. 2013) (Curiel, J.) .......................................... 4, 5 
Claar v. Burlington N. R. Co., 
29 F.3d 499 (9th Cir. 1994) ............................................................................ 8, 12 
Daubert v. Merrell Dow Pharms., Inc., 
509 U.S. 579 (1993) ......................................................................................... 4, 5 
Daubert v. Merrell Dow Pharms., Inc. (Daubert II), 
43 F.3d 1311 (9th Cir. 1995) ................................................................................ 5 
Domingo v. T.K., 
289 F.3d 600 (9th Cir. 2002) ................................................................................ 5 
Engilis v. Monsanto Co., 
151 F. 4th 1040 (9th Cir. 2025) .......................................................................... 12 
GPNE Corp. v. Apple, Inc., 
2014 WL 1494247 (N.D. Cal. Apr. 16, 2014) ............................................... 8, 10 
Morgan v. U.S. Soccer Fed’n, Inc., 
445 F. Supp. 3d 635 (C.D. Cal. 2020) .................................................................. 6 
Mosier v. S. California Physicians Ins. Exch., 
63 Cal. App. 4th 1022 (1998) ............................................................................... 2 
Nationwide Transp. Fin. v. Cass Info. Sys., 
523 F.3d 1051 (9th Cir. 2008) ............................................................................ 12 
Ollier v. Sweetwater Union High Sch. Dist., 
267 F.R.D. 339 (S.D. Cal. 2010), aff’d, 768 F.3d 843 (9th Cir. 
2014) ................................................................................................... 8, 10, 15, 18 
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Palos v. United States, 
2025 WL 2681974 (C.D. Cal. Sept. 15, 2025) ................................................. 2, 3 
Rogers v. Raymark Indus., Inc., 
922 F.2d 1426 (9th Cir. 1991) ............................................................................ 14 
San Diego Comic Convention v. Dan Farr Prods., 
2018 WL 4091734 (S.D. Cal. Aug. 23, 2018) ..................................................... 9 
United States v. Valencia-Lopez, 
971 F.3d 891 (9th Cir. 2020) ............................................................................ 8, 9 
Zaragoza v. Cnty. of Riverside, 
2024 WL 661177 (C.D. Cal. Jan. 4, 2024) ........................................................... 7 
Statutes 
Cal. Bus. & Prof. Code §§ 17200 et seq. ................................................................... 2 
Cal. Civ. Code §§ 1798.100 et seq. ........................................................................... 2 
Rules 
FED. R. EVID. 702 .......................................................................................... 5,6,10,15 
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Plaintiffs allege that Bank of America (BANA) should have implemented 
EMV chip technology in EDD prepaid cards before 2021, and that the failure to do 
so resulted in the fraud reported by class members—a causal link that is critical for 
their EMV claims to survive. In support, Plaintiffs offer “expert” opinions from Jane 
Cloninger, a former consultant. Cloninger’s experience, however, is limited to 
preparing cost-benefit analyses to be used by her clients in evaluating whether to 
implement EMV chip technology in their card products. Cloninger has no experience 
analyzing the causes of fraud, including the determination of whether and how much 
fraud can be avoided by EMV chips. She also has no experience deciding whether to 
implement EMV chips, nor does she have any experience with the actual 
implementation process. 
Despite the limits of her experience—including the complete lack of any 
experience with fraud analysis—Cloninger offers several opinions about a causal link 
between the absence of EMV chips on California’s Employment Development 
Department (EDD) prepaid cards and the alleged fraud at issue in this case. She 
opines, for example, that the absence of EMV chips led to an increase in skimming 
attacks on these cards, and that EMV chip technology would have prevented “all or 
virtually all” of the fraud allegedly experienced by class members. Cloninger also 
opines that it would have been “feasible” to implement EMV chip technology into 
EDD prepaid cards during the COVID-19 pandemic—even though she has no 
operational experience on which to base such an opinion. 
Not only are these opinions far outside the scope of Cloninger’s expertise, they 
also are not based on a reliable methodology or, indeed, any discernable methodology 
at all. Cloninger conducted no analysis whatsoever before concluding that adding 
EMV chips before 2021 would have prevented “all or virtually all” of the alleged 
fraud—failing to consider (and rule out) other causes of fraud, despite admitting that 
EMV chip technology does not prevent all fraud. She similarly conducted no analysis 
before surmising that it would have been “feasible” to implement EMV chip 
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technology during the height of the pandemic in the spring of 2020. These opinions 
are inadmissible and must be excluded. 
BACKGROUND 
I. 
Plaintiffs’ EMV Chip Claims 
Plaintiffs assert that they received unemployment benefits from the California 
Employment Development Department (EDD) via prepaid cards issued by BANA, 
and that they experienced fraudulent or unauthorized transactions on their cards. ECF 
406 (TAMCC) ¶¶ 2, 59-69, 553, 556, 581, 582(f)-(g), 587-9; ECF 324 at 3, 5-6, 17-
19, 27-31, 34-35, 40-41, 43. They allege, among other things, that BANA should 
have included EMV chip technology on their EDD prepaid cards, and that the 
decision not to do so resulted in the fraud that they claim to have experienced. 
TAMCC ¶¶ 2, 69, 553, 581, 582(f)(i), 588. They assert that BANA’s issuance of 
EDD prepaid cards without EMV chip technology prior to 2021 was a violation of 
the California Consumer Privacy Act (CCPA; Cal. Civ. Code §§ 1798.100 et seq.) 
and the California Unfair Competition Law (UCL; Cal. Bus. & Prof. Code §§ 17200 
et seq.), as well as negligence and negligence per se, and breach of fiduciary duty. 
TAMCC ¶¶ 553, 556, 581, 587-89, 632. These causes of action all require Plaintiffs 
to prove causation. For example, the CCPA indicates that disclosure of information 
must occur “as a result of” the defendant’s breach, and to succeed on a negligence 
claim, Plaintiffs must prove that the alleged breach (issuance of non-EMV cards) 
caused their harm. Cal. Civ. Code § 1798.150(a)(1); see also Palos v. United States, 
2025 WL 2681974, *5 (C.D. Cal. Sept. 15, 2025).1 
II. 
Cloninger’s Opinions 
In support of their EMV claims, Plaintiffs disclosed Cloninger as an expert 
 
1 The UCL also requires that an individual must have “lost money or property as a 
result of the unfair competition” to seek relief. Cal. Bus. & Prof. Code § 17204 
(emphasis added). The same is true of claims for breach of fiduciary duty, which 
require “damage proximately caused by th[e] breach.” Mosier v. S. California 
Physicians Ins. Exch., 63 Cal. App. 4th 1022, 1044 (1998). 
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on EMV chip technology. See HX2 1; HX 2. Cloninger was a career consultant, a 
role in which she prepared “business cases” for her clients to consider as those 
clients (not Cloninger) made decisions about whether or not to implement EMV 
chip technology. HX 3 at 22:6-17, 28:18-21. The “business cases” were cost-benefit 
analyses in which Cloninger “calculate[d] the net incremental difference” between 
the costs of EMV chip implementation (such as the costs of new cards, updating 
consumer communications, training, and changing other operational processes) and 
the benefits (the “primary” one being the amount of fraud loss that would be 
avoided). Id. at 22:6-23:22, 40:3-7. The inputs into Cloninger’s model were 
provided by others; for example, the “fraud experts” (not Cloninger) would 
determine the amount of counterfeit fraud loss that they believed might be avoided 
by EMV chip technology, and Cloninger would use that information as her 
“starting point.” Id. at 41:1-43:5. 
Each “business case” model was different, such that Cloninger would “never” 
take a business case that was produced for one client and present the same analysis 
to another. Id. at 36:10-20. Cloninger also had no involvement in deciding whether 
to implement EMV chip technology, or the actual implementation of EMV chips. Id. 
at 28:18-21, 36:21-37:10, 43:6-12. Rather, she “la[id] out the parameters and le[ft] 
the decision to the client.” Id. at 37:8-10. When Cloninger’s clients (and not 
Cloninger) considered whether to implement EMV chip technology, her 
“impression” was that they considered her business case model as only “one of many 
parts of their decision.” Id. at 32:10-17. Some of those clients chose not to implement 
EMV chip technology even when presented with positive business cases for EMV 
implementation. Id. at 28:22-29:5. 
Plaintiffs have offered Cloninger’s opinions on a broad range of topics that go 
beyond the preparation of cost-benefit analyses or models. For example, even though 
Cloninger has no experience with fraud analysis, identifying the causes of fraud, or 
 
2 Exhibits to the Declaration of Lindsay E. Hoyle shall be referred to as “HX.” 
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calculating the impact of EMV chip technology on fraud loss, Cloninger offers 
multiple opinions describing a causal connection between BANA’s issuance of cards 
without EMV chip technology and the fraud that Plaintiffs allege that they suffered. 
She opines, without conducting any analysis, that both card skimming3 and 
counterfeit fraud increased “as a result of the Bank’s failure to issue EMV-chip-
enabled cards” (which she further opines was foreseeable), that card skimming is the 
“best explanation” for the fraud that class members allegedly experienced, and that 
the addition of EMV chips “would have prevented virtually all” of that fraud. See, 
e.g., HX 1 ¶¶ 14(f)-(g), (i)-(j); HX 2 ¶¶ 6(e), 7. Likewise, despite having no
experience in the operational aspects of implementing EMV chip technology,
Cloninger opines that it would have been “feasible” for BANA to implement EMV
chip cards during the spring and summer of 2020—at the height of the COVID-19
pandemic. See, e.g., HX 2 ¶ 6(e).
STANDARD OF LAW 
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 
U.S. 579 (1993), “impose[] a special ‘gatekeeping obligation’ on trial judges” 
presented with expert testimony. Brighton Collectibles, Inc. v. RK Tex. Leather Mfg., 
923 F. Supp. 2d 1245, 1253 (S.D. Cal. 2013) (Curiel, J.). Under Rule 702, a witness 
proffered as an expert must satisfy the following requirements: 
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue; (b)
the testimony is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.
Under Daubert, district courts must “carefully apply[] Federal Rule of Evidence 702 
to ensure that specialized and technical evidence is ‘not only relevant, but reliable.’” 
Brighton Collectibles, 923 F. Supp. 2d at 1253. The reliability standard tests: 
(1) whether the scientific theory or technique can (and has been) be tested; (2) 
whether the theory or technique has been subjected to peer review and
3 Card skimming is a type of fraud that “occurs when criminals surreptitiously install 
a device capable of reading the information on a magnetic stripe on an ATM’s card 
reader.” HX 1 ¶ 18.  
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publication; (3) whether there is a known or potential error rate; and (4) 
whether the theory or technique is generally accepted in the relevant scientific 
community. 
Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002). In addition, “[o]ne very 
significant fact to be considered is whether the experts are proposing to testify about 
matters growing naturally and directly out of research they have conducted 
independent of the litigation, or whether they have developed their opinions 
expressly for purposes of testifying.” Daubert v. Merrell Dow Pharms., Inc. (Daubert 
II), 43 F.3d 1311, 1317 (9th Cir. 1995). 
“[T]he burden of proving the expert’s testimony satisfies Rule 702” and the 
Daubert standard rests on the Plaintiffs, as “[t]he proponent of the evidence.” 
Brighton Collectibles, 923 F. Supp. 2d at 1253. 
ARGUMENT 
The standard outlined in Rule 702 and Daubert requires that expert testimony 
be based on “scientific, technical, or other specialized knowledge” and be “the 
product of reliable principles and methods” and the “reliable application” of those 
principles and methods. FED. R. EVID. 702(a), (c), (d). Cloninger’s opinions regarding 
causation and feasibility fail to meet these requirements. She has no “specialized” 
knowledge that would allow her to determine whether the fraud alleged by Plaintiffs 
was caused by the absence of EMV chip technology. Further, she simply assumed 
that EMV chips would have prevented that fraud—despite acknowledging that EMV 
chips do not prevent all fraud, even counterfeit fraud—without applying any 
principles or methodology to analyze this question. As for her opinion that it was 
“feasible” for BANA to implement EMV chip technology into millions of cards at 
the onset of the COVID-19 pandemic, that, too, is based entirely on unfounded 
speculation. Cloninger has zero experience in any operational matters and failed to 
conduct any analysis—such as assessing how long it would have taken to implement 
EMV chip technology during the pandemic—before reaching that conclusion. These 
opinions must therefore be excluded. 
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I. 
Cloninger Should Not Be Permitted to Opine on a Causal Relationship 
Between EMV Chips and the Alleged Fraud Given Her Lack of 
Experience and Failure to Follow Any Methodology. 
Cloninger offers multiple opinions which purport to draw a causal connection 
between BANA’s issuance of EDD prepaid cards without EMV chip technology 
prior to 2021 and the fraud allegedly experienced by class members. She opines, for 
example, that: (a) “[s]kimming and card-present counterfeit fraud targeting 
California EDD cards increased as a result of the Bank’s failure to issue EMV-chip-
enabled cards” (HX 1 ¶¶ 14(g), 96-102); (b) “[c]ard skimming is the best explanation 
for the type of fraud class members experienced on their EDD cards in 2020-2021” 
(id. ¶¶ 14(i), 96; HX 2 ¶ 97); (c) “[t]he addition of EMV chips to the Bank’s EDD 
Debit Cards would have prevented virtually all the card-present counterfeit fraud” 
(HX 1 ¶¶ 14(j), 103-113; HX 2 ¶¶ 6(e), 7); (d) “[h]ad the Bank issued … EMV chip 
cards…, EDD debit cardholders would have been protected from such fraud” (HX 1 
¶ 95); and (e) implementation of EMV chips during the spring or summer of 2020 
“would have averted virtually all the card-present counterfeit fraud at ATMs” 
experienced by class members between summer 2020 and July 2021 (HX 2 ¶¶ 6(e), 
56). (emphasis added).  
These opinions should be excluded because Cloninger is not qualified to opine 
on the causes of fraud, her opinions are not based on a reliable methodology (or any 
methodology at all), and her opinions constitute impermissible legal opinion. 
A. Cloninger is not qualified to opine on the causes of fraud. 
Cloninger does not have the “knowledge, skill, experience, training, or 
education” to “qualif[y] as an expert” on the causes of fraud or whether the alleged 
fraud in this case would have been prevented by EMV chip technology. FED. R. EVID. 
702. For an expert to qualify under Rule 702, the court must “determine that the 
witness is qualified by special knowledge as an expert in the relevant area of 
expertise.” AFMS LLC v. United Parcel Serv. Co., 2014 WL 12515335, *6 (C.D. Cal. 
Feb. 5, 2014); see also Morgan v. U.S. Soccer Fed’n, Inc., 445 F. Supp. 3d 635, 662 
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(C.D. Cal. 2020) (expert with “no specialized knowledge” on subject matter was 
“therefore not qualified to opine”). Testimony can be excluded for lack of expert 
qualification when the expert fails to “stay[] within the reasonable confines of his 
subject area”—and may be excluded “for this reason alone.” Avila v. Willits Env’t 
Remediation Tr., 633 F.3d 828, 839 (9th Cir. 2011) (no abuse of discretion in holding 
that opinions on the contents of chrome-plating waste exceeded the expertise of an 
expert with degrees in chemistry, but no training specific to metal working). While 
courts have broad discretion in allowing expert testimony, the burden falls on the 
proffering party to prove that the expert is qualified to speak on the subject matter at 
hand. Zaragoza v. Cnty. of Riverside, 2024 WL 661177, *3 (C.D. Cal. Jan. 4, 2024). 
Here, Cloninger readily admits that she is not a fraud expert. HX 3 at 171:8-
23, 306:7-9. She has no experience investigating fraud. Id. at 171:5-7. She “ha[s] not 
been in fraud operations” and is “not a hands-on fraud person.” Id. at 171:8-15. Nor 
does she have any experience identifying or calculating the amount of fraud that 
could be prevented by EMV chip technology. Id. at 42:6-43:5. When she prepared 
business cases (cost-benefit analyses) as a consultant, she relied on the “fraud 
experts” at her clients to identify the losses attributable to counterfeit fraud (as that 
was the only type of fraud potentially addressed by EMV chips), which served as the 
“starting point” for her analysis. Id. In other words, as a consultant, Cloninger relied 
on others to determine the amount of fraud that could potentially be prevented by 
EMV chips; she has no experience making that determination herself. Because 
nothing in Cloninger’s background qualifies her to opine on the causes of fraud, or 
whether or how much fraud would have been averted, and she has no expertise in 
assessing the quality and validity of fraud data, this topic exceeds the “reasonable 
confines of [her] subject area” (payment technologies cost-benefit analyses) and her 
opinions should be excluded. Avila, 633 F.3d at 839. 
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B. Cloninger simply assumed that EMV chip technology would have 
prevented all fraud, without conducting any analysis or following any 
methodology at all. 
Given Cloninger’s lack of experience, it is unsurprising that her attempts to 
draw a causal connection between an absence of EMV chip technology and the fraud 
allegedly experienced by class members are not based on a reliable methodology. In 
fact, they are not based on any methodology at all. 
To satisfy the strictures of Rule 702, an expert’s conclusions must be more 
than “mere subjective beliefs or unsupported speculation,” and an expert must 
“explain the reasoning and methods underlying [her] conclusions.” Claar v. 
Burlington N. R. Co., 29 F.3d 499, 502 (9th Cir. 1994). Courts have excluded 
opinions when they “c[ould not] discern what, if any, method [the witness] employed 
in arriving at his opinions.” Ollier v. Sweetwater Union High Sch. Dist., 267 F.R.D. 
339, 341 (S.D. Cal. 2010), aff’d, 768 F.3d 843 (9th Cir. 2014); see also United States 
v. Valencia-Lopez, 971 F.3d 891, 900-01 (9th Cir. 2020) (district court abused its 
discretion by admitting an expert’s testimony when the expert “never explained the 
methodology, if any, that he relied on”). When no methodology is offered, the 
expert’s “conclusions appear to be based on his personal opinions and speculation 
rather than on a systematic assessment.” Ollier, 267 F.R.D. at 342; see also GPNE 
Corp. v. Apple, Inc., 2014 WL 1494247, *5 (N.D. Cal. Apr. 16, 2014) (excluding 
testimony of expert who “admit[ted] that there [was] no methodology other than his 
‘30 years of experience’”). 
 
Cloninger’s opinions regarding the alleged causal connection between the 
issuance of cards without EMV chips and the fraud allegedly experienced by class 
members are not based on any methodology at all, never mind a reliable one. For 
instance, Cloninger opines that card skimming “increased as a result of” BANA’s 
purported decision not to implement EMV chip technology for EDD prepaid cards 
prior to 2021.4 HX 1 ¶¶ 14(g), 96, 99. But Cloninger acknowledged that EMV chip 
 
4 Cloninger’s assertion that BANA “made a deliberate choice not to adopt EMV chips 
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cards can also be skimmed—and thus, simply adding EMV chip technology would 
not eliminate card skimming. HX 3 at 163:16-24; HX 1 ¶ 33; HX 2 ¶ 77. Yet instead 
of analyzing the amount of skimming that impacted EDD prepaid cards to determine 
whether any increase was attributable to the absence of EMV chips in EDD prepaid 
cards—or whether the increased skimming would have occurred even with EMV 
chip cards—Cloninger simply reviewed documents discussing skimming and relied 
on her “knowledge of the fact that the industry was reporting increased skimming” 
overall (not just for EDD prepaid cards) to conclude that (1) there was an increase in 
skimming of EDD prepaid cards, and (2) the increase was a result of BANA’s alleged 
decision to not implement EMV chip technology. HX 3 at 291:17-292:10; HX 1 ¶¶ 
14(g), 99.5 Cloninger’s opinion is an unsupported leap, not backed by the application 
of any methodology, and must be excluded. See, e.g., Valencia-Lopez, 971 F.3d at 
901 (district court abused discretion in admitting testimony of expert who gave “no 
explanation of his methodology” such that “‘there is simply too great an analytical 
gap between’ his experience and his conclusion”) (quoting United States v. 
Hermanek, 289 F. 3d 1076, 1095 (9th Cir. 2002)). 
Similarly, Cloninger followed no discernable methodology in reaching her 
opinions that (1) skimming was the cause of the alleged counterfeit fraud experienced 
by cardholders, and that (2) the failure to implement EMV chips prior to July 2021 
resulted in the card-present counterfeit fraud that class members experienced, such 
that (3) “virtually all” of the alleged card-present counterfeit fraud would have been 
 
in EDD debit cards” is also wrong as the choice of card technology was not the 
Bank’s to make. HX 1 ¶ 95. EDD decided when it issued its RFP in 2015 to require 
magnetic stripe technology and not EMV chip technology—despite the fact that, as 
Cloninger notes, EMV chip technology was well-known in the industry at that time. 
HX 3 at 83:15–18, 125:12–127:24; HX 1 ¶¶ 49–51.  
5 The documents that Cloninger relied on do not state that skimming increased as a 
result of the lack of EMV chips; but even if they did, the role of an expert is not to 
simply parrot a party’s theory without doing her own independent analysis. San 
Diego Comic Convention v. Dan Farr Prods., 2018 WL 4091734, *10 (S.D. Cal. 
Aug. 23, 2018) (the expert “cannot forgo his own independent analysis and rely 
exclusively on what an interested party tells him”) (internal quotations omitted). 
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avoided with the addition of EMV chips to the EDD prepaid cards. See supra at 6. 
Cloninger admitted at her deposition that she performed no analysis into how many 
of the allegedly fraudulent transactions would actually have been prevented by the 
addition of EMV chips on the cards. HX 3 at 275:4-8, 284:8-13 (“I don’t have the 
actual data”); see GPNE, 2014 WL 1494247, *4 (excluding expert who conceded 
“[t]here’s no specific math”); FED. R. EVID. 702(b) (requiring expert testimony to be 
“based on sufficient facts or data”). She did not review (or ask to review) any 
 to analyze whether 
EMV would have prevented the fraud they allegedly experienced. HX 3 at 62:6-
63:21, 297:16-18.   
Instead, Cloninger’s reports simply recite the ways in which EMV chip 
technology can potentially prevent fraud, and then conclude, without any further 
analysis, that “virtually all” of the transactions disputed by class members would 
have been prevented by EMV chips. That does not reflect a proper methodology. 
AFMS LLC, 2014 WL 12515335, *7 (excluding opinion as unreliable where expert 
“offer[ed] no explanation for how he arrived at his conclusions” and “admit[ted] that 
his opinions are not based on economic theories or principles”). That this assumption 
is unwarranted and flawed is demonstrated by Cloninger’s own acknowledgment that 
. HX 3 at 108:2-13, 274:23-
275:1. As Cloninger testified, “
 
” HX 3 at 108:7-9. Yet rather than conducting any 
analysis to determine what amount of fraud would have been avoided, she applied 
her own personal opinions about the benefits of EMV chip technology to make an 
unsupported leap and conclude, without any support, that “virtually all” fraud would 
have been prevented. This is not a reliable methodology or basis for expert opinion, 
and thus should be excluded. See Ollier, 267 F.R.D. at 341-42 (excluding expert 
where “the Court cannot discern what, if any, method he employed” and “[h]is 
conclusions appear to be based on his personal opinions and speculation”).  
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all counterfeit fraud, as 
 
. As 
Cloninger explained, when a magstripe on an EMV chip card is used for transactions, 
the card issuer is alerted and can opt to “require additional security checks, decline 
the transaction, or approve the transaction with or without withdrawal limits.” HX 
2 ¶ 84 (emphasis added); see also HX 3 at 241:2-12. 
 
 
. HX 3 at 242:6-243:7. It is therefore 
 
. But Cloninger, who has no experience 
in developing fallback rules (which vary by product and by issuer), 
 
 
 
. Id. at 
245:23-246:6, 248:12-19, 250:14-251:22, 252:19-253:2.  
Experts “must provide reasons for rejecting alternative hypotheses using 
scientific methods and procedures and must rely on more than ‘subjective beliefs or 
unsupported speculation.’” Engilis v. Monsanto Co., 151 F. 4th 1040, 1053-55 (9th 
Cir. 2025) (excluding opinion where expert “rejected . . . a possible cause, but 
inadequately explained his reasons for doing so,” thereby “fail[ing] to establish that 
his testimony was based on sufficient facts or data”). Cloninger’s failure to follow a 
reliable methodology to conduct any analysis of the impact of implementing chip 
technology, including consideration and elimination of other potential causes of the 
fraud allegedly experienced by class members, is grounds for exclusion of her 
opinion. See Claar, 29 F.3d at 502 (excluding expert opinions, including because 
witnesses failed to “ma[k]e any effort to rule out other possible causes for the injuries 
plaintiffs complain of”). 
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C. The causation opinions are impermissible legal opinions. 
Cloninger’s opinions are also “impermissible legal opinion evidence.” 
Nationwide Transp. Fin. v. Cass Info. Sys., 523 F.3d 1051, 1058, 1065 (9th Cir. 2008) 
(“[A]n expert witness cannot give an opinion as to her legal conclusion, i.e., an 
opinion on an ultimate issue of law”). Legal opinions on an ultimate issue must be 
excluded because offering such testimony improperly “invades the province of the 
trial judge.” Bona Fide Conglomerate, Inc. v. SourceAmerca, 2019 WL 1369007, *3 
(S.D. Cal. Mar. 26, 2019) (Curiel, J.). Thus, experts may not offer opinions on legal 
issues such as foreseeability that veer into matters of law. See, e.g., Aguilar v. Int’l 
Longshoremen's Union Loc. No. 10, 966 F.2d 443, 447 (9th Cir. 1992) (court did not 
abuse discretion in excluding opinions on reasonableness and foreseeability as 
“utterly unhelpful,” as these “were inappropriate subjects for expert testimony”). 
Cloninger’s opinions do just that. She opines, for example, that the alleged 
fraud was the “result of” BANA’s issuance of cards without EMV chips. HX 1 ¶ 
14(g). She also opines that it was “highly foreseeable” to “everyone in the industry, 
including the Bank,” that “fraud targeting EDD cards would continue to increase 
during the pandemic” and during 2020. Id. ¶¶ 14(f), 100, 120, 123; HX 2 ¶ 65. These 
are plainly inadmissible legal opinions, on an ultimate issue of law, that “merely [tell] 
the jury what verdict to reach.” Bona Fide, 2019 WL 1369007, *15. 
II. 
Cloninger Cannot Opine on the Feasibility of Chip Implementation When 
She Has No Experience and Failed to Conduct Any Analysis. 
Cloninger’s opinion that it was “feasible” for BANA to implement EMV chips 
on EDD prepaid cards “during the spring or summer of 2020” (HX 2 ¶¶ 6(e), 54) 
should be excluded for the reasons discussed above (supra Section I.A), as she has 
no experience necessary to qualify her to opine on operational feasibility and did not 
conduct any analysis to test her speculative assumptions.  
A. Cloninger is not qualified to opine on operational matters. 
Cloninger is not qualified to opine on chip implementation because she has 
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zero experience in any operational matters involving card issuance or card 
technology. As a consultant, Cloninger’s clients were mostly card brands (e.g., Visa, 
Mastercard), rather than the card issuers that actually issued cards to consumers under 
one of those brands and who would be dealing with the operational and financial 
considerations of doing so. HX 3 at 18:2-8, 19:2-15. Cloninger has also never worked 
with any client on the implementation of EMV chip technology into a card program. 
Id. at 43:6-12. Her role was to prepare the “business cases” (cost/benefit analyses) 
that were then considered by others who were responsible for deciding whether to 
implement EMV chips. Id. at 27:2-11, 28:18-21. Cloninger played no role in her 
clients’ decisions whether to implement EMV chips—a decision that was based not 
just on the business case model she prepared, but on other considerations as well. Id. 
at 28:18-21, 32:10-17, 36:21-37:10, 43:6-12. Rather, she had only an outsider’s view 
of EMV implementation decisions. For example, she was not told why her clients 
would ask her to update the business case “several times,” and would only assume 
that this was in response to “change in the market.” Id. at 27:2-28:10, 32:10-17.   
Cloninger also has no experience with the operational issues that card issuers 
and banks were facing at the onset of the COVID-19 pandemic in 2020. Id. at 52:7-
11, 182:2-15. Her understanding of these challenges is based solely on media reports 
and “general knowledge” from her work in consulting—which had ended more than 
a year earlier. Id. She therefore does not have the type of “special knowledge” 
required to offer testimony on these topics. See AFMS LLC, 2014 WL 12515335, *6. 
Assessing the feasibility of massive operational undertakings such as the 
implementation of EMV chip technology across a card portfolio that was growing 
exponentially in 2020 requires at least some experience with the unique challenges 
posed by the unprecedented situation at the time. See Rogers v. Raymark Indus., Inc., 
922 F.2d 1426, 1430 (9th Cir. 1991) (expert not qualified to opine on conditions 
during World War II where “primary experience came from working on ships long 
after World War II in shipyards other than [the one at issue],” and thus “his testimony 
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would have been one step removed”). Cloninger has none, and therefore is ill-
qualified to opine on the feasibility of chip implementation because she has no 
experience with or special knowledge about decisions on whether to implement chip 
technology (including whether implementation would be feasible) or in the actual 
implementation of chip technology (either before or during the pandemic).  
B. Cloninger failed to conduct any analysis to determine whether 
implementation of EMV chip technology at the onset of the pandemic 
would have been feasible. 
Cloninger also failed to employ a reliable methodology to reach her conclusion 
that the implementation of EMV chip technology would have been “feasible” in the 
spring and summer of 2020, during the early months of the COVID-19 pandemic. 
She simply applied 
 
 
 and assumed that the same timeline would have been possible in the spring and 
summer of 2020 (during the unprecedented early stages of the pandemic). HX 3 at 
201:8-202:13. At best, her opinion amounts to reading a calendar in the same way 
that any juror could—
—and therefore does not 
“help the trier of fact to understand the evidence or to determine a fact in issue.” FED. 
R. EVID. 702(a). But her opinion is more than just unhelpful: the absence of any 
reliable methodology makes the opinion so flawed that it must be excluded. See 
Ollier, 267 F.R.D. at 342 (excluding expert opinion “based on his personal opinions” 
where “he has not provided a reliable methodology to apply to the facts of the case”). 
Cloninger conducted no analysis other than 
 
to arrive at a date in the summer of 2020. HX 3 at 189:18-25, 190:8-15, 217:12-22. 
She admits that she “didn’t analyze” 
 
 
 because she “wasn’t asked to do that.” Id. at 189:18-25, 190:8-15. Instead, she 
applied a 
 that was taken from a different time period that did 
not present the same challenges as the early days of the pandemic (see infra), and 
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also did not involve the migration of the entire program to EMV chip technology. 
Indeed, the 
 
—a much smaller number than the 
entire portfolio of active cards. See HX 6 at -4545. Further, the 
 
 
. See HX 7. 
In contrast, in March 2020 
 
 
. See HX 3 at 205:20-
206:14; HX 8 at -2965. Cloninger offered no basis to assume that the estimate for 
converting 
 could reasonably 
apply to the conversion of the entire program in the spring of 2020, or even to the 
conversion of the massive volume of new and replacement cards at that time. Instead, 
she admitted that she “didn’t analyze” 
 
—and tellingly, Plaintiffs’ counsel 
objected that this was outside Cloninger’s scope. HX 3 at 189:18-25.  
Further, although Cloninger opined that implementation would have been 
“feasible” in the spring and summer of 2020, she admits that she did not consider 
whether BANA could have started the process of implementing EMV chips in March 
2020 when the pandemic began. HX 2 ¶¶ 6(e), 54; HX 3 at 200:20-24, 209:4-8, 
212:2-9. She also admitted that, due to operational challenges during COVID-19, the 
implementation process “might have taken a little bit longer to get done,” but 
maintained that EMV chip implementation could have been complete by the summer 
of 2020 if BANA had started in January 2020—two months before the pandemic 
started. HX 3 at 183:17-184:24. Cloninger’s opinion that implementation would have 
been feasible “during the first months of the pandemic” (including “had the Bank 
begun the migration in March 2020”) is therefore unreliable as (1) it is based on an 
assumption that implementation would have started before, not “during,” the 
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implementation in 2020 also exacerbates the unreliability of the causation opinions 
discussed above. She opines that the implementation of chips in 2020 would have 
“averted virtually all” counterfeit fraud beginning in the summer of 2020. HX 2 
¶ 6(e). Yet she failed to consider how long the migration would have taken and thus 
has no basis for concluding that migration would have been complete by the summer 
of 2020, when she claims that fraud would have been averted. Cloninger also 
acknowledged that BANA could have implemented EMV chip technology by 
 
, rather than across the entire 
portfolio—which she admitted was common in the industry. HX 3 at 213:12-16. 
Thus, even if EMV chip implementation were “feasible” in the spring of 2020, it 
would have impacted only a portion of EDD prepaid cards—
 
 Id. In other words, the entire card 
program would not have been converted to EMV chip technology by the summer of 
2020. Cloninger admitted at her deposition that, in that scenario, adding EMV chips 
“wouldn’t have alleviated all of” the fraud but instead “would be affecting a slightly 
different segment”—meaning that EMV chips would not have prevented “virtually 
all” of the fraud reported between the summer of 2020 and July 2021. Id. at 212:15-
213:16. Because Cloninger does not offer any assessment to support her opinions on 
feasibility and causation, those opinions should be excluded. See Ollier, 267 F.R.D. 
at 342 (excluding expert conclusions based on “personal opinions and speculation 
rather than on a systemic assessment” of the subject matter). 
CONCLUSION 
For the reasons detailed above, this Court should grant this motion and exclude 
Cloninger’s opinions regarding (1) any causal connection between BANA’s issuance 
of EDD prepaid cards without EMV chip technology and the alleged fraud 
experienced by class members, and (2) the feasibility of implementing EMV chip 
technology prior to 2021. 
 
 
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Dated: October 17, 2025 
By: 
Respectfully submitted, 
 
/s/ Matthew L. Riffee 
 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
SABRINA M. ROSE-SMITH (pro hac vice)  
SRoseSmith@goodwinlaw.com 
KEITH LEVENBERG (pro hac vice) 
KLevenberg@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N St. NW  
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444 
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA 02210 
Tel.: +1 617 570 1000 
Fax: + 1 617 523 1231 
 
LAURA G. BRYS (SBN 242100) 
LBrys@goodwinlaw.com 
GOODWIN PROCTER LLP 
601 S Figueroa St., Suite 4100 
Los Angeles, CA 90017 
Tel.: +1 213 426 2500 
Fax: +1 617 346 4444 
VALERIE A. HAGGANS (pro hac vice) 
VHaggans@goodwinlaw.com 
LINDSAY E. HOYLE (pro hac vice) 
LHoyle@goodwinlaw.com 
GOODWIN PROCTER LLP 
620 Eighth Avenue 
New York, NY 10018 
Tel: +1 212 813-8800 
Fax: +1 212 355-3333 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA 02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
MATTHEW B. NAZARETH (SBN 278405) 
mnazareth@myersnave.com 
MEYERS NAVE 
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600 B Street, Suite 1650 
San Diego, CA 92101 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on October 17, 2025. I further certify that all participants 
in the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system. I certify under penalty of perjury that the foregoing is true and 
correct. 
 
Executed: October 17, 2025  /s/ Matthew L. Riffee 
 
 
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