Court filing
Memo of Points and Authorities — Bofa Ca Unemployment (Dkt. 574.1)
Summary
The redacted public version of the plaintiffs' Daubert motion to exclude testimony of Bank of America's expert Carl Pry, in In re Bank of America California Unemployment Benefits Litigation, Case No. 3:21-md-02992-GPC-MSB, U.S. District Court for the Southern District of California, filed 10/17/25 as Document 574-1 (10 pages) for an April 17, 2026 hearing. The bank retained Pry to rebut the plaintiffs' experts Bill Abernathy, a former senior OCC regulator, and damages expert Greg Regan. The plaintiffs argue Pry's opinions rest on no reliable principles or methods and merely restate declarations of bank employees Michael Letson, William Martin and Jennifer Lennon. They say he admitted requesting no data from the bank and doing no independent analysis. These are the plaintiffs' arguments.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Memo of Points and Authorities — Bofa Ca Unemployment (Dkt. 574.1).”
Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 574-1. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2025-10-17-gov-uscourts-casd-709615-574-1-gov-uscourts-casd-709615-574-1/
, SHA-256 fed4b3d679e336bfb06234a44ae20c393e4fcfda0dd7a257463c4b3b81c38897.Full text
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34723
Page 1 of 10
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
12 Lead Counsel for Plaintiffs and the Class
13
14 UNITED STATES DISTRICT COURT
15 SOUTHERN DISTRICT OF CALIFORNIA
16 IN RE BANK OF AMERICA Case No. 3:21-md-02992-GPC-MSB
17
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION PLAINTIFFS’ DAUBERT MOTION
18 TO EXCLUDE TESTIMONY OF
19
CARL PRY
20 This Document Relates to All Actions Date: April 17, 2026
21 Judge: Hon. Gonzalo P. Curiel
Ctrm: 2D (2nd Floor)
22
23
24
25
26
REDACTED - PUBLIC VERSION
27
28
Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34724
Page 2 of 10
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 Plaintiffs move to exclude the purported expert opinions and testimony of Bank
3 expert Carl Pry on the dual grounds that: (1) they are not based on reliable principles
4 and methods, and (2) Mr. Pry has not otherwise explained why his experience supports
5 his opinions absent a reliable methodology. Mr. Pry’s report and testimony merely
6 restate factual assertions made by various defense witnesses, all of which the trier of
7 fact can weigh for itself. The credibility of those assertions, and any conclusions to be
8 drawn from those assertions, should be left to the trier of fact and not amplified
9 through the testimony of a purported expert witness who conducted no independent
10 investigation or evaluation of his own; but, by own admission, rested many of his
11 disputed assertions on what he described as “common sense” rather than any
12 specialized expertise or accepted methodology.
13 The Bank retained Mr. Pry to rebut the opinions of Plaintiffs’ experts, Bill
14 Abernathy and Greg Regan. Mr. Abernathy is a banking consultant and former senior
15 federal regulator at the Office of the Comptroller of the Currency. Based on more than
16 five decades of banking and regulatory experience, including as the Director of
17 Compliance and Bank Analysis and Director of Bank Supervision for the OCC, Mr.
18 Abernathy offered his opinion that federal regulators do not tolerate payments to
19 fraudsters pursuant to regulatory consent orders and remediation plans. Ex. 3
20 (Abernathy Rpt.) ¶ 4. Mr. Regan is Plaintiffs’ damages expert.
21 Mr. Pry, who was never a regulator, opines that Mr. Abernathy’s “
22 ” Ex. 1 (Pry Rpt.)
23 ¶16.1 Mr. Pry also opines that Mr. Regan’s opinion improperly assumes “
24
25
1
“Ex._” refers to exhibits to the Declaration of Brian Danitz in support of this
26 motion; “Pry Rpt” refers to the Expert Rebuttal Report of Carl Pry (Ex. 1); “Pry
27 Dep.” refers to excerpts of the deposition of Carl Pry (Ex.2), including exhibits
referenced in those deposition excerpts.
28
1 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE PORTIONS OF OPINION OF CARL
PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34725
Page 3 of 10
1
2 . Id. at ¶14.
3 Mr. Pry’s only support for these opinions are the declarations of three Bank
4 employees submitted in support of the Bank’s opposition to Plaintiffs’ Motion for Class
5 Certification: i.e., the declarations of Michael Letson, William Martin, and Jennifer
6 Lennon. Mr. Pry’s deposition testimony confirmed that he did not apply any particular
7 expert methodology in reaching his opinions and his opinions were based only on what
8 the Bank representives previously stated in opposing class certification. Mr. Pry thus
9 simply parrots the testimony of the Bank’s witnesses without independent analysis,
10 essentially taking the Bank’s representatives at face value and then stating their
11 assertions as an expert’s ultimate conclusion.
12 At his deposition, Mr. Pry readily admitted that in preparing his opinions he did
13 not request any data from the Bank and that he did not perform any independent
14 analysis of any data in preparing his report. Ex. 2 (Pry Dep.) 115:2-116:10.
15 Accordingly, Mr. Pry’s testimony merely functions as a mouthpiece for the Bank’s
16 positions on ultimate questions and does not apply any reliable expert principles and
17 methods to the facts of this case. Mr. Pry’s testimony fails to satisfy the requirements
18 of Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995), and should be
19 excluded.
20 ARGUMENT
21 A. Mr. Pry’s Opinions Are Not Based on Any Independent Analysis
22 Experts “may not restate or summarize record evidence and then state a
23 conclusion without applying a methodology that is reliable and which evinces his/her
24 expertise.” Siqueiros v. General Motors, LLC, 2022 WL 74182 (N.D. Cal. Jan. 7,
25 2022); see also Holley v. Gilead Scis., Inc., 2023 WL 2469632 (N.D. Cal. Feb. 27,
26 2023) (noting that it is improper for experts to “merely read, selectively quote from,
27 or regurgitate evidence”). That is just what Mr. Pry did throughout his report and
28
2 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34726
Page 4 of 10
1 testimony—he impermissibly “parrots the evidence in the record and does not actually
2 offer any technical opinions.” Pelican Int'l, Inc. v. Hobie Cat Co., 655 F. Supp. 3d
3 1002, 1030 (S.D. Cal. 2023) (explaining that “[s]uch ‘unhelpful restatement[s] of the
4 facts as [the expert] sees them’ are inadmissible”) (citation omitted). Where, as here,
5 the trier of fact is in as good a position as the expert to draw conclusions from the
6 evidence, and the expert’s testimony is not helpful, there is no need for the expert
7 testimony and it should be excluded. Huawei Techs., Co. v Samsung Elecs. Co., 340
8 F. Supp. 3d 934, 992 (N.D. Cal. 2018).
9 At deposition, Mr. Pry repeatedly testified that he based his opinions about
10 regulator expectations and potential
11 on the statements of the Bank’s witnesses that he simply accepted without any
12 independent investigation or evaluation. Examples of Mr. Pry merely acting as a
13 mouthpiece for the Bank’s positions, without any independent basis for his opinions,
14 are pervasive in his report.
15 Testimony on . Mr. Pry agrees with the Bank’s Rule
16 30(b)(6) representative William Martin that the decision to
17
18 . Ex. 1 (Pry
19 Rpt.) ¶¶ 60-61; Ex. 2 (Pry Dep.) 184:23-185:1. At his deposition, Mr. Pry conceded
20 that he actually had “
21 .” Ex. 2 (Pry Dep.) 186:16-21. Nor had he asked the Bank for any
22 information about any . Id. 186:22-187:1. Mr. Pry also admitted
23 that he had no independent basis for his assertion that the Bank had acted based on
24 . Id. 208:5-9. At deposition, Mr. Pry conceded that
25 he never bothered to request or to analyze any data on these issues. Id. 212:2-22.
26 Significantly, Mr. Pry’s deposition testimony revealed that his opinion that the
27 Bank’s was based on no methodology
28
3 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34727
Page 5 of 10
1 whatsoever aside from what he called “common sense.” Ex. 2 (Pry Dep.) 211:9-17.
2 There is no such thing as a “common sense” expert; that is the jury’s function. In
3 addition to being an improper restatement of Mr. Martin’s declaration, where, as here,
4 an expert offers an opinion based only on common sense—which is quintessentially
5 “within the ken of the jury’s knowledge”—that opinion is properly excluded under
6 Rule 702. United States v. Fuentes-Cariaga, 209 F.3d 1140, 1142 n.3 (9th Cir. 2000).
7 Testimony on . Mr. Pry states that the Bank had “
8
9 ” Ex. 1 (Pry Rpt.) ¶51.
10 According to Mr. Pry, this “ . Id.
11 However, at his deposition, Mr. Pry admitted that the only factual basis for his
12 statement that was a single email from one Bank
13 employee regarding “ ” Ex.
14 2 (Pry Dep.) 222:4-224:10 and exhibit 14 to Pry Dep. This email states in part that “
15
16 ” Id. Mr. Pry did not look at, analyze, or ask for data that would support the
17 observations in the email, nor did he request or obtain information that would explain
18 what specifically the email was referring to. Instead, he simply repeated the e-mail’s
19 assertion as his own opinion. Ex. 2 (Pry Dep.) 224:5-25. Mr. Pry’s opinions related to
20 is thus just an
21 impermissible “parroting” of evidence in the record, without any independent analysis.
22 Testimony on . Mr. Pry opines that the Bank’s
23
24 ” Ex. 1
25 (Pry Rpt.) ¶ 60. This opinion is also unsupported by any methodology other than citing
26 a declaration prepared by Bank representative Martin. When Mr. Pry was asked at his
27 deposition about the basis for this “opinion,” Mr. Pry conceded that he did not know
28
4 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34728
Page 6 of 10
1 how many , Ex. 2 (Pry Dep.) 237:21-
2 23 and exhibit 11 to Pry Dep.; that he did not request any documents explaining the
3 Bank’s , id. at 238:7-9, and that he did not apply any
4 methodology to validate the Bank’s claims regarding , id. at
5 238:10-13. Indeed, Mr. Pry was admittedly “ ” the information
6 contained in Mr. Martin’s declaration.
7
8
9
10 Ex. 2 (Pry Dep.) 236:8-10.
11
12
13
14 Ex. 2 (Pry Dep.) 238:21-25.
15 A trier of fact is perfectly capable of evaluating Mr. Martin’s testimony without
16 hearing it repeated as an “expert opinion” from Mr. Pry.
17 Mr. Pry also opined that the relatively low
18 numbers of applicants for
19 . Ex. 1 (Pry Rpt.) ¶64. To
20 arrive at this conclusion, Mr. Pry testified that he simply took the Declaration of
21 Jennifer Lennon at face value and performed no independent analysis or investigation.
22 He also testified that he never asked the Bank for any information about
23 and that he does not even know what those require. Ex. 2 (Pry
24 Dep.) 243:19-24 and exhibit 15 to Pry Dep. Mr. Pry never conducted any analysis; nor
25 did he investigate Lennon’s analysis. Mr. Pry further testified that he did not know why
26 Ms. Lennon’s report used the numbers it did, that he did not independently perform
27
28
5 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34729
Page 7 of 10
1 any calculations, and that he did not know why those numbers do not align with the
2 class number generated by Plaintiffs’ damages expert Greg Regan. Id. 246:13-25.
3 Mr. Pry so often repeated in his deposition that he had not performed any
4 independent inquiry into the data underlying his opinions that eventually he offered
5 to stipulate to the fact that he did no independent analysis:
6
7
8
9
10 Ex. 2 (Pry Dep.) 116:5-10.
11 As Mr. Pry’s opinions are merely restating the Bank’s own positions through an
12 “expert” mouthpiece, his testimony is being offered “more in the role of an advocate
13 and not as a scientifically valid opinion.” United States v. Rincon, 28 F.3d 921, 923
14 (9th Cir. 1994). As such, Mr. Pry’s report should be excluded under Rule 702 and
15 Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995).
16 B. Mr. Pry’s Opinions Are Not Based on Relevant Experience
17 Expert testimony that does not rely on a particular methodology or framework
18 is sometimes admissible because it relies instead on the witness’s expert knowledge
19 and experience. See Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1018
20 (9th Cir. 2004). However, even in those cases, the expert must still demonstrate “the
21 basis for his specialized knowledge.” United States v. Sayre, 434 Fed. Appx 622, 624
22 (9th Cir. 2011); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 137 (1997)
23 (“[N]othing in either Daubert [v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786,
24 125 L.Ed.2d 469 (1993) ] or the Federal Rules of Evidence requires a district court to
25 admit opinion evidence that is connected to existing data only by the ipse dixit of the
26 expert.”). Here, Mr. Pry fails to demonstrate how his experience “leads to the
27 conclusions reached, why that experience is a sufficient basis for his opinion, and how
28
6 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34730
Page 8 of 10
1 that experience is reliably applied to the facts.” Adv. Comm. Note to 2020
2 Amendment to F.R.E. 702. It is not enough to present “only the expert’s qualifications,
3 their conclusions and their assurances of reliability.” Daubert v. Merrell Dow
4 Pharms., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995). Indeed, Mr. Pry’s repeated
5 invocations of “common sense” confirm that his opinions are not based on specialized
6 knowledge or experience.
7 Banks Mr. Pry has no basis other than his
8 purported experience for his opinion that in
9 .
10 Ex. 2 (Pry Dep.) 157:12-21. Mr. Pry, who has never been a regulator, states
11
12 , and that Mr. Abernathy’s opinion (based on
13 years of experience as a regulator and supervisor of regulators) that
14 . Ex. 1 (Pry Rpt.) ¶43. However,
15 when Mr. Pry was asked whether
16
17 ” Pry Dep. 162:22-
18 163:2. Mr. Pry also agreed that
19
20 . Ex. 2 (Pry Dep.) 48:6-9. While he then tried to soften the impact of his
21 answer by asserting that
22 ” (Ex. 2 (Pry Dep.) 48:10-20 and exhibit 7 to Pry Dep.), he was unable to
23 cite to any specific experience or to any documents or methodology to support this
24 opinion.
25 In sum, Mr. Pry’s report cannot even properly be labeled “junk science,”
26 because it lacks any scientific pretense at all. Instead, Mr. Pry’s report—which seeks
27 to amplify the impact of the Bank’s representative’s testimony by re-stating it through
28
7 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34731
Page 9 of 10
1 an “expert” mouthpiece—stands “more in the role of an advocate and not as a
2 scientifically valid opinion.” United States v. Rincon, 28 F.3d 921, 923 (9th Cir. 1994).
3 For these reasons, Mr. Pry’s report should be excluded under Rule 702 and Daubert.
4
5 Respectfully submitted,
6 Dated: October 17, 2025 COTCHETT, PITRE & McCARTHY, LLP
7 By: /s/ Brian Danitz
JOSEPH W. COTCHETT
8 BRIAN DANITZ
KARIN B. SWOPE
9 BLAIR V. KITTLE
VASTI S. MONTIEL
10 CAROLINE A. YUEN
11
12
Dated: October 17, 2025 ALTSHULER BERZON LLP
13
By: /s/ Michael Rubin
14 MICHAEL RUBIN
STACEY M. LEYTON
15 CONNIE K. CHAN
JAMES BALTZER
16
17 Co-Lead Counsel for Plaintiffs and the Class
18
19
20
21
22
23
24
25
26
27
28
8 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34732
Page 10 of 10
1
2 ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3)
3 I, Brian Danitz, attest that concurrence in the filing of this document has been
4 obtained from the other signatory. I declare under penalty of perjury under the laws
5 of the United States of America that the foregoing is true and correct.
6 Executed this 17th day of October 2025, at Burlingame, California.
7
/s/ Brian Danitz
8
BRIAN DANITZ
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9 Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
File and source
- File
- gov.uscourts.casd.709615.574.1.pdf
- Size
- 321,498 bytes
- SHA-256
- fed4b3d679e336bfb06234a44ae20c393e4fcfda0dd7a257463c4b3b81c38897
- Original
- PACER (login required)