Memo of Points and Authorities — Bofa Ca Unemployment (Dkt. 571.1)

Summary

Plaintiffs' memorandum of points and authorities in support of their Daubert motion to exclude certain testimony of Victor Stango, redacted public version, filed 10/17/25 as Document 571-1 in In re Bank of America California Unemployment Benefits Litigation, Case No. 3:21-md-02992-GPC-MSB, with an April 17, 2026 hearing date. Plaintiffs ask the court to exclude portions of the bank's damages expert's opinions under Federal Rule of Evidence 702. They argue his opinion is an improper legal conclusion contrary to the court's class certification ruling, which ruled that amounts the bank already reimbursed cardholders are applied as an offset after trebling and punitive damages. They also argue the opinion is not supported by the sources he cites. Advocacy document; claims are the plaintiffs'.

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Case 3:21-md-02992-GPC-MSB       Document 571-1     Filed 10/17/25   PageID.34425
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 1 JOSEPH W. COTCHETT (SBN 36324)    MICHAEL RUBIN (SBN 80618)
 2   jcotchett@cpmlegal.com          mrubin@altber.com
     BRIAN DANITZ (SBN 247403)       STACEY M. LEYTON (SBN 203827)
 3   bdanitz@cpmlegal.com            sleyton@altber.com
 4   KARIN B. SWOPE (Pro Hac Vice)   CONNIE K. CHAN (SBN 284230)
     kswope@cpmlegal.com             cchan@altber.com
 5   VASTI S. MONTIEL (SBN 346409)   JAMES BALTZER (SBN 332232)
 6   vmontiel@cpmlegal.com           jbaltzer@altber.com
     CAROLINE A. YUEN (SBN 354388)   ALTSHULER BERZON LLP
 7   cyuen@cpmlegal.com              177 Post Street, Suite 300
 8   COTCHETT, PITRE & McCARTHY, LLP San Francisco, CA 94108
     840 Malcolm Road, Suite 200     Telephone: (415) 421-7151
 9   Burlingame, CA 94010            Fax: (415) 362-8064
10   Telephone: (650) 697-6000
     Fax: (650) 697-0577
11
     Co-Lead Counsel for Plaintiffs and the Proposed Class
12

13
                         UNITED STATES DISTRICT COURT
14
                      SOUTHERN DISTRICT OF CALIFORNIA
15

16 IN RE BANK OF AMERICA                          Case No. 3:21-md-02992-GPC-MSB
     CALIFORNIA UNEMPLOYMENT
17
     BENEFITS LITIGATION                          MEMORANDUM OF POINTS
18                                                AND AUTHORITIES IN
                                                  SUPPORT OF PLAINTIFFS’
19
                                                  DAUBERT MOTION TO
20                                                EXCLUDE CERTAIN
                                                  TESTIMONY OF VICTOR
21
                                                  STANGO
22

23
     This document relates to All Actions         Judge: Hon. Gonzalo P. Curiel
                                                  Ctrm: 12A
24
                                                  Date: April 17, 2026
25

26

27                          REDACTED - PUBLIC VERSION
28

     MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO     Case No.: 3:21-md-02992-GPC-MSB
     TESTIMONY
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 1                                  INTRODUCTION
 2         Plaintiffs move this Court for an order excluding certain portions of the
 3 testimony and opinions of the Bank’s damages expert, Victor Stango, specifically Dr.

 4 Stango’s testimony and opinion that

 5

 6

 7

 8                                                           See Decl. of James Baltzer
 9 (“Baltzer Decl.”) Ex. 1 (Apr. 4, 2025 Expert Report of Victor Stango) (“Stango Rep.”)

10 ¶¶31-35, 71-74, 82-83, 85-86, 89-90, 95-96. Dr. Stango’s testimony on this point

11 does not meet the requirements of Federal Rule of Evidence 702 under Daubert v.

12 Merrell Dow Pharm, Inc., 509 U.S. 579 (1993), for at least two reasons, either of

13 which is an independently sufficient ground for exclusion.

14         First, Dr. Stango’s opinion does not actually draw upon any economic or
15 financial expertise but instead impermissibly offers a legal conclusion—and an

16 erroneous one at that, as it is directly contrary to Ninth Circuit precedent and this

17 Court’s ruling on class certification, which held as a matter of law that any amounts

18 the Bank has already reimbursed cardholders (whether pursuant to the Yick

19 Preliminary Injunction, the Bank’s own reconsideration processes, the Consent

20 Decrees with the Consumer Financial Protection Bureau and Office of Comptroller

21 of the Currency, or otherwise) are to be applied as an offset “from the total amount of

22 damages after trebling” and after determining punitive damages, not before. ECF No.

23 494 at 83-85 (emphasis in original) (citing cases). Dr. Stango’s legal opinion to the

24 contrary is not a proper subject of expert testimony. See, e.g., In re ConAgra Foods,

25 Inc., 302 F.R.D. 537, 558 (C.D. Cal. 2014) (an expert who “offer[s] an improper legal

26 opinion … usurps the role of the court.”)

27         Second, Dr. Stango’s testimony on this point also should be excluded because
28 it is not supported by the sources he cites and is not based on reliable principles and
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     MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO     Case No.: 3:21-md-02992-GPC-MSB
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 1

 2

 3                Id.
 4                                  LEGAL STANDARD
 5         For expert testimony to be admissible, it must “help the trier of fact to
 6 understand the evidence or to determine a fact in issue”—that is, it must be “relevant

 7 to the task at hand,” “based on sufficient facts or data,” and “the product of reliable

 8 principles and methods” that the expert has “reliably applied to the facts of the case.”

 9 Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).

10 When considering evidence proffered under Rule 702, the Court must make a

11 preliminary determination as to whether the proffered testimony is both relevant and

12 reliable. Elsayed Mukhtar v. Cal. State Univ. Hayward, 299 F.3d 1053, 1063 (9th Cir.

13 2002), as amended, 319 F.3d 1073 (9th Cir. 2003).

14         Matters of law are “inappropriate subjects for expert testimony.” Aguilar v. Int'l
15 Longshoremen's Union Local No. 10, 966 F.2d 443, 447 (9th Cir.1992). “Courts will

16 exclude expert testimony when it relies on an incorrect legal standard.” Pelican Int’l,

17 Inc. v. Hobie Cat Co., 655 F.Supp.3d 1002, 1023 (S.D. Cal. 2023) (quoting YETI

18 Coolers, LLC v. RTIC Coolers, LLC, No. 15-cv-597, 2017 WL 429210, at *2 (W.D.

19 Tex. Jan. 28, 2017)). “Incorrect statements of law are no more admissible through

20 ‘experts’ than are falsifiable scientific theories.” Hebert v. Lisle Corp., 99 F.3d 1109,

21 1117 (Fed. Cir. 1996).

22                                      ARGUMENT
23         I.    Dr. Stango’s Testimony Concerning EFTA Treble Damages Is
24               Irrelevant Because It Applies an Incorrect Legal Standard.

25         EFTA requires financial institutions, upon receipt of a consumer’s notice of an
26 unauthorized transaction, to investigate the alleged error, determine whether an error

27 has occurred, report or mail the results of such investigation and determination to the

28 consumer within 10 business days, and “correct the error” by crediting the consumer’s
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     MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO       Case No.: 3:21-md-02992-GPC-MSB
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 1 contrary, they had been told by the Bank in no uncertain terms that their unauthorized-

 2 transaction claims had (permanently) been denied or that their credits had

 3 (permanently) been rescinded. See, e.g., ECF Nos. 324-55, 324-56. While Dr. Stango

 4 contends that the Remediation Plan payments should have the effect of eliminating

 5 the principal balances of the claims denied or credits rescinded from the damages to

 6 be trebled, he ignores that those payments did not occur until over a year after this

 7 case was filed.

 8         In the Ninth Circuit, courts—not economists—determine the impact of such
 9 untimely payments on the application of treble damages provisions enacted by

10 Congress. In Uthe Tech. Corp v. Aetrium, Inc., 808 F.3d 755, 756-58 (9th Cir. 2015),

11 for example, it was clear that a plaintiff with a claim under the treble damages

12 provision of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) could

13 not duplicate the recovery already obtained in an arbitration in Singapore. “The key

14 question posed” was “how the one satisfaction rule interacts with RICO’s treble

15 damages provision. Specifically, to what extent does the one satisfaction rule operate

16 to diminish the amount of damages claimed against the Defendants? Depending on

17 the order in which the two rules are applied, the one satisfaction rule could either

18 offset part of Uthe’s RICO damages, or it could fully extinguish Uthe’s claim to those

19 damages.” Id. at 760. The Ninth Circuit held that “the full measure of Uthe’s claims…

20 was not satisfied by the Singapore arbitration,” because “[n]o remedy equivalent to

21 RICO treble damages was available under Singapore law.” Id. at 760-61. In other

22 words, the full damages available to Uthe were three times those awarded in the

23 Singapore arbitration, so any offset from the Singapore arbitration award would be

24 deducted from the available damages in the federal action only after those damages

25 had been trebled. The offset did not—as Dr. Stango would have it—“fully extinguish”

26 Uthe’s claim to treble damages. Id.

27         The Ninth Circuit has applied nearly identical reasoning in interpreting the
28 treble damages provision of the Sherman Act. See Flintkote Co. v. Lysfjord, 246 F.2d
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     MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO     Case No.: 3:21-md-02992-GPC-MSB
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 1 368, 398 (9th Cir. 1957). In Flintkote, a plaintiff seeking “threefold the damages by

 2 him sustained” under 15 U.S.C. §15(a) received a $20,000 payment from the

 3 defendant “after the action was filed but before trial.” Id. at 397. “The question

 4 presented” was “whether the $20,000 should be subtracted from the actual damages

 5 fixed by the jury verdict ($50,000) before said damages are trebled, or whether the

 6 award should first be trebled and then the $20,000 deducted from the trebled amount

 7 of $150,000.” Id. The Court held that the damages available as of the date the claim

 8 was filed should be trebled first, and that the $20,000 offset should be applied only

 9 after trebling, explaining that a contrary result would “do violence to the clear intent

10 of Congress.” Id. at 398.

11         Several cases have applied the Ninth Circuit’s settled rule concerning offsets
12 for treble damages in the specific context at issue here, where a settlement with

13 regulators has been reached and paid after the filing of the plaintiffs’ lawsuit. See,

14 e.g., B.P. v. Balwani, No. 20-15974, 2021 WL 4077008 (9th Cir. Sept. 8, 2021)

15 (requiring trebling of actual damages under RICO before offsetting the amount

16 already paid to class members pursuant to a Consent Order with regulators); In re

17 Volkswagen “Clean Diesel” Mktg. Litig., No. mdl-2672-CRB, 2017 WL 4890594, at

18 *4 (N.D. Cal. Oct. 30, 2017) (same).

19         This Court likewise correctly applied that very same precedent when it rejected
20 the Bank’s arguments (which were based on Dr. Stango’s prior declaration in

21 opposition to class certification) and held that any reimbursed amounts paid to Class

22 Members would be applied as an offset “from the total amount of damages after

23 trebling” and determining punitive damages, not before. ECF No. 494 at 83-85

24 (emphasis in original) (citing cases).

25         The Bank cannot avoid application of this controlling law—and this Court’s
26 class certification decision—by re-packaging its previously rejected legal argument

27 in the form of purported expert testimony. Because Dr. Stango’s opinions as set forth

28 in paragraphs 31-35, 71-74, 82-83, 85-86, 89-90, 95-96 of his April 4, 2025 Expert
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     MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO      Case No.: 3:21-md-02992-GPC-MSB
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 1                             CERTIFICATE OF SERVICE
 2         I hereby certify that I electronically filed the foregoing with the clerk of the
 3 court for the United States District Court for the Southern District of California by

 4 using the CM/ECF system on October 17, 2025. I further certify that all participants in

 5 the case are registered CM/ECF users and that service will be accomplished by the

 6 CM/ECF system. I certify under penalty of perjury that the foregoing is true and

 7 correct.

 8

 9 Executed: October 17, 2025                             /s/ Brian Danitz
10
                                                              BRIAN DANITZ

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     MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO        Case No.: 3:21-md-02992-GPC-MSB
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