Court filing
14R — In re Bank of America California Unemployment Benefits Litigation (Dkt. 591-52, S.D. Cal. No. 3:21-md-02992)
Filed October 17, 2025 in In re Bank of America California Unemployment Benefits Litigation; one of 1415 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of California |
|---|---|
| Filed | 2025-10-17 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 591-52 · 2025-10-17 · Docket on CourtListener
Full text
DX 14.R
REDACTED VERSION OF
DOCUMENT SOUGHT TO
BE SEALED PURSUANT TO
STIPULATED
PROTECTIVE ORDER
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41985
Page 1 of 54
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
3
SAN DIEGO DIVISION
4
--oOo--
5
IN RE: BANK OF AMERICA
6
CALIFORNIA UNEMPLOYMENT Case Number:
7
BENEFITS LITIGATION 21-MD-02992-GPC-MSB
8
_______________________________/
9
This document relates
10
to All Actions
11
_______________________________/
12
13
14
15
16
17
VIDEO-RECORDED DEPOSITION OF DAVID I. LEVINE, Ph.D.
18
SAN FRANCISCO, CALIFORNIA
19
WEDNESDAY, MAY 28, 2025
20
21
22
23
Reported by:
24
Anrae Wimberley, CSR No. 7778
25
Job No. 7309212
Page 1
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41986
Page 2 of 54
1
haven't talked about? 09:45:50
2
A. No.
3
Q. Have you testified either in a deposition
4
or at trial in anything other than what we've talked
5
about with your expert work? 09:46:09
6
A. I've testified in two trials, I believe.
7
Q. What were those?
8
A. Let's see, when I was an undergraduate, my
9
landlord took a shot at my roommate. I testified in
10
that trial, I believe. 09:46:43
11
And a few years later, I was across the
12
street from where a murder was committed, and I
13
testified about the timing of gunshots in that
14
trial.
15
Q. Exciting, perhaps too exciting. 09:47:02
16
Have you testified under oath in any other
17
scenarios that we haven't talked about yet?
18
A. Not that I recall.
19
Q. What were you hired to do in this case?
20
A. Plaintiffs' attorney asked me to come up 09:47:39
21
with a conservative lower bound on a discount rate
22
for damages for a few class of people who hadn't
23
received their full unemployment insurance benefits
24
and a conservative lower bound for the value of time
25
for people who were kept on hold for unusually long 09:48:04
Page 19
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41987
Page 3 of 54
1
periods of time. 09:48:15
2
Q. Okay. I'm looking in your report -- you
3
can refer to it, too. It will probably be helpful
4
as we get through these questions.
5
I'm looking at the way you phrase those 09:48:27
6
topics in paragraph 5.
7
The first one you described as "an
8
appropriate methodology for determining the value of
9
the lost opportunity costs to the class members
10
whose access to UI benefits was delayed or denied." 09:48:41
11
Explain to me what you mean by "lost
12
opportunity costs" in that phrase.
13
A. So you kind of misused the term
14
"opportunity cost" of choice A as being the value of
15
A compared to what your next best choice, B. 09:49:00
16
So if you choose A, you forego B, and
17
that's the opportunity cost. Or if you would like
18
to choose A and someone takes that option away from
19
you and you're stuck with B, the difference in that
20
value is the opportunity cost itself. 09:49:18
21
A check is supposed to come in the mail
22
today for you, and whoever is sending it says, Oh,
23
it will be a month. So instead of having 1,000 days
24
now, you have 1,000 -- $1,000 today, you'll have
25
$1,000 in a month. 09:49:35
Page 20
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41988
Page 4 of 54
1
away one option, then the opportunity cost is, oh, 09:50:49
2
exactly the same inside, as you had just explained.
3
Q. Okay. So what is -- clarify for me again
4
what the two options are that you're considering
5
here. 09:51:00
6
A. Getting the $1,000 today versus in a
7
month.
8
Q. Okay.
9
A. If I -- if -- and getting it in a month
10
and taking out the loan so that I have as close to 09:51:09
11
$1,000 as I can today and repay the loan with the
12
$1,000 in a month.
13
Q. And it's still accurate to use the phrase
14
"opportunity cost" even though the person didn't
15
have the option between getting the money now and 09:51:24
16
getting the money in a month?
17
MS. HUNSICKER: Objection; confusing.
18
BY MR. LEVENBERG:
19
Q. Is that confusing?
20
A. Can you just say it one more time? 09:51:33
21
Q. Is it still accurate to use the phrase
22
"opportunity cost" if the person isn't making the
23
choice?
24
It just struck me as a little weird.
25
Maybe it's not weird, but it struck me as a little 09:51:52
Page 22
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41989
Page 5 of 54
1
confusing because there was no other opportunity; 09:51:55
2
right?
3
They only had the one opportunity that
4
they were going to get the money when the money was
5
sent. 09:52:03
6
MS. HUNSICKER: Objection; confusing.
7
THE WITNESS: We can say I can choose between
8
the A and B, and the opportunity cost of choosing A
9
is the difference in value of A and B.
10
Or we can say I would choose A. That 09:52:18
11
option disappeared, I'm stuck with B, and it's the
12
same opportunity cost. It's the same arithmetic --
13
BY MR. LEVENBERG:
14
Q. Okay.
15
A. -- as in your example. So that's how I'm 09:52:28
16
using it, and I think that's standard economics.
17
Q. Okay. And you draw a distinction between
18
access to UI benefits being delayed or denied.
19
What do you mean when you say "delayed"?
20
A. If my debit card is supposed to have 09:52:55
21
$1,000 of credit on it and it doesn't have that
22
$1,000 for an extra month, then I would call that a
23
delay in access to benefits.
24
Q. And what would you mean when you say
25
"denied"? 09:53:07
Page 23
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41990
Page 6 of 54
1
A. If the benefits disappeared and you didn't 09:53:10
2
have access to them ever.
3
Q. Do you use the same method for evaluating
4
the lost opportunity costs in the delayed scenario
5
as you do in the denied scenario? 09:53:25
6
MS. HUNSICKER: Objection; compound.
7
THE WITNESS: Yeah, this is -- the word
8
"denied" is not relevant because I only look at
9
delayed in this report.
10
That's sort of a leftover from a -- the 09:53:47
11
word "denied" is an unnecessary word because I don't
12
look at that.
13
(Reporter seeks clarification.)
14
THE WITNESS: Because my method only looked at
15
delayed. 09:54:15
16
BY MR. LEVENBERG:
17
Q. So you're not offering any opinion on the
18
value of lost opportunity costs to people whose
19
access to benefits was denied?
20
A. No. 09:54:33
21
Q. Did you evaluate any data on how many
22
class members had delayed access to UI benefits?
23
A. I very briefly looked at one spreadsheet,
24
but I didn't analyze it in any depth.
25
Q. And what spreadsheet did you look at? 09:55:00
Page 24
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41991
Page 7 of 54
1
A. I think McCrary had -- for this report, I 09:55:07
2
did not look at any data. And after this report I
3
looked at some.
4
I forget what your question was. Can you
5
repeat it? 09:55:21
6
Q. Did you look at any data on the value of
7
lost opportunity cost whose access to UI was
8
delayed?
9
MS. HUNSICKER: Objection; confusing.
10
BY MR. LEVENBERG: 09:55:35
11
Q. You're right, that was confusing.
12
Did you evaluate any data on how many
13
class members had delayed access to UI benefits?
14
A. And are you asking for this report or for
15
my -- 09:55:48
16
Q. At any point did you evaluate that data --
17
those data?
18
A. I looked briefly at a spreadsheet that had
19
some of those data on it, but I didn't analyze it in
20
detail. 09:55:58
21
Q. And that spreadsheet came to you after you
22
wrote this report?
23
A. Yes.
24
Q. And that was a spreadsheet referenced in
25
Professor McCrary's report? 09:56:08
Page 25
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41992
Page 8 of 54
1
I don't remember what these are all called in 10:03:39
2
detail, but those various stages of that process I
3
assume we discussed.
4
Q. Backpedaling a little bit, did you
5
consider or were you given any data about class 10:03:57
6
members themselves?
7
MS. HUNSICKER: Objection; vague.
8
THE WITNESS: No. The class members -- I'm
9
sorry, the class members, the 109,000 or the named
10
plaintiffs? 10:04:34
11
BY MR. LEVENBERG:
12
Q. Any.
13
A. The plaintiffs' attorneys explained to me
14
they had very limited data on the class members
15
themselves, and the named plaintiffs were a 10:04:47
16
nonrandom sample that was small.
17
So I didn't look at their -- any evidence
18
about them when preparing this report.
19
Q. You didn't look at any evidence about the
20
named plaintiffs when preparing this report? 10:05:07
21
MS. HUNSICKER: Objection; vague.
22
THE WITNESS: Unless something was mentioned in
23
the available -- the Stango report available to me
24
last February, I did not.
25
BY MR. LEVENBERG: 10:05:28
Page 30
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41993
Page 9 of 54
1
Q. What information relevant to class members 10:05:28
2
did you consider from the Stango report?
3
MS. HUNSICKER: Objection; vague.
4
BY MR. LEVENBERG:
5
Q. If any. 10:05:36
6
A. Nothing that I recall. You just asked if
7
I had seen any, and if he had quoted any, I would
8
have seen it.
9
Q. But you didn't consider it in preparing
10
your report? 10:05:48
11
MS. HUNSICKER: Objection; vague.
12
THE WITNESS: I did not consider evidence from
13
a small and nonrandom sample that was -- if he did
14
any, it would have been excerpted by proposedly -- I
15
don't know how to say that word -- excerpted with an 10:05:59
16
intent to be informative, no.
17
BY MR. LEVENBERG:
18
Q. And what about the unnamed class members,
19
did you look at any information about them in
20
preparing your report? 10:06:18
21
MS. HUNSICKER: Objection; vague.
22
THE WITNESS: Those 100-plus thousand?
23
BY MR. LEVENBERG:
24
Q. That certainly would be one of the
25
classes, yes. 10:06:31
Page 31
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41994
Page 10 of 54
1
A. No. 10:06:33
2
Q. Now, for any of the other classes, is the
3
answer the same?
4
MS. HUNSICKER: Objection; compound.
5
THE WITNESS: I did not look at information on 10:06:41
6
class members for any of the classes.
7
BY MR. LEVENBERG:
8
Q. You mentioned a few numbers that you said
9
plaintiffs' counsel told you about.
10
What assumptions did the plaintiffs' 10:06:59
11
counsel ask you to make in forming your opinions?
12
MS. HUNSICKER: Objection; vague.
13
THE WITNESS: Can you ask that again? It's
14
a -- I'm not sure what you mean "what assumptions."
15
BY MR. LEVENBERG: 10:07:27
16
Q. Did plaintiffs' counsel ask you to make
17
any assumptions in doing your report?
18
MS. HUNSICKER: Objection; vague.
19
THE WITNESS: They asked me to prepare a
20
conservative lower bound on the cost of not having 10:07:45
21
access to the funds and of the time.
22
So any assumptions implicit in those, but
23
something that would apply to the vast majority of
24
the class members.
25
But they didn't state any particular 10:08:08
Page 32
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41995
Page 11 of 54
1
MS. BRYS: This is the August 2024 one. There 10:12:42
2
are three Regans. I'm not sure which one he's
3
referring to.
4
THE WITNESS: It was available to me in
5
February of this year, so probably this one. 10:12:51
6
MR. LEVENBERG: Mark this one as an exhibit.
7
(Deposition Exhibit 2 was marked.)
8
MS. HUNSICKER: Is this Exhibit 2?
9
MR. LEVENBERG: Yes, despite the confusing
10
"Exhibit 4" label. I assume it was Exhibit 4 to 10:13:29
11
something else.
12
MS. HUNSICKER: The class certification.
13
BY MR. LEVENBERG:
14
Q. Take as much time as you need to look
15
through this, but my question is, when you were 10:13:42
16
referring to a Regan report that you reviewed, is
17
this that report?
18
A. The table on page 3 is the same, so I
19
assume the report is.
20
Yes. 10:14:06
21
Q. Okay. And my original question, rewinding
22
a little bit, I believe you testified in response to
23
my questions about looking at information about
24
class members, that you had considered information
25
from the Regan report. 10:14:17
Page 35
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41996
Page 12 of 54
1
Is that a fair characterization of what 10:14:19
2
you told me?
3
A. Yes, from this Regan report since . . .
4
Q. Can you point me to the portions of the
5
Regan report that had the information about class 10:14:36
6
members that you were referring to?
7
MS. HUNSICKER: Objection; vague.
8
THE WITNESS: Definitely the definitions on the
9
top of page 3.
10
If I can go back to an earlier answer, you 10:15:21
11
asked what was in this spreadsheet that I looked at.
12
It is quite likely it's the spreadsheet
13
Regan refers to on page 14 of this report, in which
14
case, in addition to several dates, it also had
15
which, if any, fraud filters applied. 10:15:47
16
I said I couldn't recall what else was in
17
it. It looks as if it has fraud filters.
18
So in paragraphs 35 and 36, there's some
19
of the counts that I referred to about the number of
20
people in classes. 10:16:10
21
And paragraph 80 has some of the dates.
22
And I must have skipped one, but on --
23
paragraph 84 has some of the dollar amounts,
24
which -- and if you take the total amount times the
25
class size, you can get the average claim. And 10:17:32
Page 36
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41997
Page 13 of 54
1
presumably has similar dollar amounts for all the 10:17:35
2
classes, I just . . .
3
Yeah, in paragraph 76 and . . .
4
Paragraph 100 and 108. And there must be
5
a count. 10:18:28
6
And in paragraph 97, there's a count.
7
And paragraph 111, there's a count and
8
114 -- or paragraph 111 and 112, there's a count,
9
and paragraph 114 is an amount.
10
And paragraph 119 has a count. 10:19:36
11
After page 54, excerpts from this
12
spreadsheet, it looks like, and I assume this is the
13
spreadsheet I looked at, but I . . .
14
I'm not 100 percent certain. I don't
15
think it -- as I said, I looked at it pretty 10:20:32
16
quickly.
17
So I can't promise I found every class
18
size or sum of claims, but that's the sort of data I
19
extracted from the Regan report.
20
And then the Stango report may have had 10:20:50
21
mean or median claim, and it definitely had some --
22
the early Stango report had something about small
23
claims or short claims, I believe.
24
BY MR. LEVENBERG:
25
Q. Now, did you review any of the underlying 10:21:09
Page 37
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41998
Page 14 of 54
1
data in the portions of the report you just 10:21:13
2
mentioned or was your review limited to the report
3
itself?
4
MS. HUNSICKER: Objection; vague.
5
THE WITNESS: After the rebuttal reports from 10:21:30
6
McCrary, I received some of the underlying data and
7
I looked at it briefly.
8
And -- yeah.
9
BY MR. LEVENBERG:
10
Q. But you didn't look at any of that data in 10:21:50
11
creating your own report?
12
MS. HUNSICKER: Objection; asked and answered.
13
THE WITNESS: I did not.
14
BY MR. LEVENBERG:
15
Q. So in paragraph 34, when it references -- 10:22:01
16
A. I'm sorry, which report?
17
Q. I'm looking at the one with the green,
18
Mr. Regan.
19
In paragraph 34, when it references
25
You did not consider any of that data in 10:22:33
Page 38
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.41999
Page 15 of 54
1
creating your report, did you? 10:22:37
2
A. I was asked to derive a methodology to
3
create a conservative lower bound that would apply
4
to the vast majority of the class members.
5
I didn't look at data for each of the 10:23:04
6
109,000.
7
Q. So does that mean I should understand that
8
you did not look at any of the data referenced in
9
paragraph 34?
10
A. Correct. 10:23:22
11
Q. And then I'm looking at the data -- or the
12
spreadsheet that follows the signature page after
13
page 54.
14
Did any of the data here factor in the
15
conclusions in your report? 10:24:14
16
MS. HUNSICKER: Objection; vague.
17
THE WITNESS: I did not look at the microdata,
18
the individual level data.
19
BY MR. LEVENBERG:
20
Q. And why not? 10:24:40
21
A. I was asked to derive a methodology to
22
derive a conservative lower bound, and my
23
methodology is appropriate for the vast majority of
24
the class members. These data would not have helped
25
in that project. 10:25:03
Page 39
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42000
Page 16 of 54
1
Q. What portion of the class would your 10:25:06
2
methodology not be appropriate for?
3
MS. HUNSICKER: Objection; confusing.
4
THE WITNESS: Can you . . . the methodology I
5
used applies to the vast majority of the class. I 10:25:31
6
don't have a specific numeric number.
7
BY MR. LEVENBERG:
8
Q. Aside from a numeric number, what would
9
make somebody belong to the class but have your
10
methodology not be applicable to them? 10:25:48
11
MS. HUNSICKER: Objection; confusing, misstates
12
testimony.
13
THE WITNESS: I have a couple of different
14
opinions. I actually can't answer that. I have two
15
different methods for two different questions. 10:26:38
16
So can you ask that again?
17
BY MR. LEVENBERG:
18
Q. Okay. Well, how would you describe the
19
first of those two methods?
20
A. That the credit card interest rate is a 10:26:56
21
conservative measure of the value of not having
22
access to funds for the vast majority of the class
23
members.
24
Q. And your testimony still is that your
25
methodology is appropriate -- your methodology in 10:27:21
Page 40
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42001
Page 17 of 54
1
reference to the credit card interest rate is 10:27:26
2
appropriate for the vast majority of the class
3
members?
4
MS. HUNSICKER: Objection; misstates testimony.
5
MR. LEVENBERG: It didn't. 10:27:35
6
THE WITNESS: Can you say it again?
7
BY MR. LEVENBERG:
8
Q. Is your testimony still that your
9
methodology in reference to the credit card interest
10
rate is appropriate for the vast majority of the 10:27:48
11
class members?
12
MS. HUNSICKER: Same objection.
13
THE WITNESS: Say it one more time. Let me
14
just see if I can hear it.
15
BY MR. LEVENBERG: 10:27:59
16
Q. You testified before, "my methodology is
17
appropriate for the vast majority of the class
18
members."
19
Is that correct?
20
MS. HUNSICKER: Same objection. 10:28:06
21
THE WITNESS: Now, we're talking about the
22
delays in payment?
23
BY MR. LEVENBERG:
24
Q. Well, I was just talking about that
25
particular statement that you made. 10:28:18
Page 41
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42002
Page 18 of 54
1
A. There's the two methods I used. 10:28:21
2
Q. Right.
3
A. What the plaintiffs' attorney asked me to
4
do was answer two questions with a conservative
5
lower bound on the cost of delayed funds and the 10:28:30
6
opportunity cost, the value of time being on hold.
7
Q. Right. Which means you had two methods
8
to --
9
A. Yes.
10
Q. -- to answer the two questions. 10:28:41
11
A. So I prefer you just do them one at a
12
time.
13
Q. Right.
14
So as to the first method, is that method
15
appropriate for the vast majority of the class 10:28:49
16
members?
17
MS. HUNSICKER: Objection; confusing.
18
THE WITNESS: The credit card interest rate is
19
a conservative lower bound for the vast majority of
20
the class members, yes. 10:28:59
21
BY MR. LEVENBERG:
22
Q. What portion of the class members is that
23
methodology not appropriate for?
24
MS. HUNSICKER: Objection; confusing.
25
THE WITNESS: I don't have a numeric answer to 10:29:14
Page 42
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42003
Page 19 of 54
1
that question. 10:29:17
2
MS. CHAN: Mr. Levenberg, can we go off the
3
record for just a second?
4
MR. LEVENBERG: Sure.
5
THE VIDEOGRAPHER: We're going off the record. 10:29:23
6
The time is 10:29 a.m.
7
(Discussion off the record.)
8
(Recess taken.)
9
THE VIDEOGRAPHER: We're back on the record.
10
The time is 10:45 a.m. 10:45:56
11
BY MR. LEVENBERG:
12
Q. So before we took our break, we were
13
discussing your opinion that the credit card
14
interest rate is a conservative lower bound for the
15
vast majority of the class members. 10:46:12
16
Is that still your opinion?
17
A. Yes.
18
Q. And my question was, what portion of the
19
class members is it not appropriate for?
20
MS. HUNSICKER: Objection; confusing. 10:46:28
21
THE WITNESS: So the method I use is
22
appropriate for the entire class. It's a
23
conservative lower bound. I was asked to come up
24
with a conservative lower bound that would apply to
25
the vast majority, and that method applies to the 10:46:48
Page 43
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42004
Page 20 of 54
1
entire class. 10:46:53
2
BY MR. LEVENBERG:
3
Q. Well, you said before, "my methodology is
4
appropriate for the vast majority of the class
5
members." 10:46:59
6
A. I apologize for the imprecise language.
7
My methodology is appropriate for the
8
entire class. The lower bound applies to the vast
9
majority of the class members.
10
And there's a . . . yeah. 10:47:22
11
Q. Explain what that means, "the lower bound
12
applies to the vast majority of the class members."
13
A. Plaintiffs' attorneys asked me to find a
14
method that would estimate lower bound on the
15
opportunity cost of not having access to funds that 10:47:54
16
would apply to the vast majority of class members,
17
meaning that the vast majority would have an
18
opportunity cost equal to or greater than that bound
19
that I opined on.
20
And so the methodology applies to 10:48:21
21
everyone. The lower bound applies to the -- is the
22
opportunity cost for --
23
Q. What portion of --
24
A. -- the credit card interest rate that I
25
proposed using is a lower bound of the opportunity 10:48:35
Page 44
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42005
Page 21 of 54
1
cost for the vast majority of the class members. 10:48:44
2
Q. What portion of the class would have an
3
opportunity cost less than that lower bound?
4
A. I don't have a numeric number.
5
Q. What characteristics of a class member 10:48:55
6
could cause them to have an opportunity cost less
7
than that lower bound?
8
MS. HUNSICKER: Objection; incomplete
9
hypothetical.
10
THE WITNESS: I was asked to create -- to 10:49:12
11
estimate an opportunity cost that would be a lower
12
bound for the vast majority. I didn't do an
13
analysis of each of the 100,000 plus to say the
14
characteristics.
15
So it's -- I'm glad to go into the basis 10:49:28
16
of my opinion, and -- but I can't sum up all that in
17
one answer easily.
18
BY MR. LEVENBERG:
19
Q. Well, if the lower bound applies to the
20
vast majority of the class members, then there is a 10:49:48
21
portion to whom it does not apply; is that correct?
22
MS. HUNSICKER: Objection; misstates testimony.
23
THE WITNESS: There's two answers, and it's
24
just -- my hesitation, it's a little bit hard for me
25
to respond. 10:50:11
Page 45
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42006
Page 22 of 54
1
My method applies to the entire class 10:50:14
2
because I was supposed -- I was asked to get
3
something that would create an estimate of aggregate
4
harm that was appropriate for the class.
5
So I -- that's what I was asked to do, and 10:50:32
6
that's what I did.
7
Most people would have a higher
8
opportunity cost, some would have that opportunity
9
cost and a small minority could be different.
10
But that wasn't what I was asked to look 10:50:49
11
at. I was asked to look at what would create an
12
estimate of the aggregate harm.
13
BY MR. LEVENBERG:
14
Q. What would cause somebody to belong to
15
that small minority? 10:51:02
16
MS. HUNSICKER: Objection; incomplete
17
hypothetical.
18
THE WITNESS: It's hard for me to answer
19
because there's so many ways to be above the bound,
20
and if I start listing them, I'm afraid -- off the 10:51:42
21
top of my head, I'm afraid I would be missing some.
22
So I would go through the basis of the
23
opinion and at the end, we can return to that.
24
Is that reasonable?
25
BY MR. LEVENBERG: 10:51:53
Page 46
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42007
Page 23 of 54
1
If there's anything else that you want to mention 10:55:33
2
there, I do want to hear it.
3
So if there are any other factors that
4
could make someone a member of the small minority
5
that have an opportunity cost less than the bound, 10:55:44
6
let me know what you can think of.
7
A. I mean, not be reducing consumption in
8
things that are hard to substitute across time, not
9
be relying on sources of credit with high
10
nonmonetary costs in terms of reputation or status 10:56:46
11
or social obligation.
12
And that's what comes to mind.
13
Q. Anything else you can think of?
14
A. No. But I'm pretty sure I'll want to add
15
to this list as the day proceeds. 10:57:16
16
Q. Okay. Well, if you do think of anything
17
more as the day proceeds, feel free to let me know
18
and I'll put in a note to self to ask you if
19
anything else occurred to you.
20
One of the things that you listed was not 10:57:37
21
having transaction costs be a large portion of the
22
opportunity cost of not having access to funds.
23
I think I know what that means, but can
24
you clarify it?
25
A. So you asked whether I had looked at the 10:58:02
Page 48
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42008
Page 24 of 54
1
microdata on the claims, and I said it wasn't 10:58:04
2
necessary for my methodology.
3
But, ultimately, one would take the
4
interest rate that I defend as appropriate -- I
5
don't know you would, one could, I guess a jury will 10:58:21
6
decide what to do if this goes to trial -- and
7
multiply it times the size of the claim and the
8
duration.
9
Some claims have very short duration or
10
small amounts. And so if it's a $1,000 claim for 10:58:42
11
3 days or $100 claim for a month, my interest rate
12
would imply damages of a couple dollars or less.
13
And the transaction costs of having your debit card
14
balance be off is more than $1.50, just in terms of
15
the time involved, ignoring embarrassment or stress 10:59:19
16
or whatever.
17
So the notion that a small or a claim or a
18
short claim, even if none of the other criteria
19
held, the transaction costs are larger than the
20
interest rate I'm proposing, and so the interest 10:59:54
21
rate remains a conservative lower bound.
22
Q. I'm trying to wrap my head around this
23
scenario. Give me a moment.
24
So you referred to somebody who might need
25
to access credit to cover a $1,000 claim for 3 days. 11:00:34
Page 49
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42009
Page 25 of 54
1
A. No, no. I apologize for my lack of 11:00:39
2
clarity.
3
If somebody losses access to $1,000 for
4
3 days -- let me just do the math real quick.
5
I think -- we can check my math more 11:01:07
6
fully -- but I think that means the damages are on
7
the order of $1.50 using my method.
8
And the reason I say the credit card
9
interest rate is lower bound to the opportunity
10
cost, it is not necessarily that they would borrow 11:01:20
11
the $1,000 for 3 days but simply that $1.50 is --
12
the transaction cost of dealing with why your debit
13
card isn't working as expected is more than $1.50
14
for the vast majority of the class.
15
And we haven't talked about my second 11:01:42
16
opinion about the value of time, but just for the
17
moment thinking of the minimum wage as the value of
18
time, they would say, you know, a few minutes of
19
time it takes to figure out why it's denied, even if
20
customer service is working perfectly, if you have 11:02:02
21
to go on a website or visit a -- call a call center
22
to figure out why it was denied and figure it out,
23
that that's more than $1.50 worth of transaction
24
costs.
25
Q. And what's the connection between that and 11:02:17
Page 50
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42010
Page 26 of 54
1
the credit card interest rate? 11:02:19
2
MS. HUNSICKER: Objection; vague.
3
THE WITNESS: The credit card interest rate
4
says such a person has an opportunity cost of not
5
having access to their funds, at least the credit 11:02:30
6
card interest rate, of at least $1.50.
7
And if you work out the transaction cost,
8
they're well over $1.50, so this is a lower bound.
9
This is a conservative amount of damages they have
10
suffered. 11:02:46
11
Even if they are not borrowing, they still
12
suffered damage -- here, it's transaction cost --
13
and this credit card rate is a conservative measure
14
of their damage.
15
So it remains part of this -- this person 11:02:59
16
remains part of this vast majority, even if they
17
didn't need to borrow it for three days. And some
18
would, but even if they didn't.
19
BY MR. LEVENBERG:
20
Q. So this person's damages are not based on 11:03:17
21
the credit card rate, you're just certain that
22
whatever damages those are, they are more than the
23
credit card rate?
24
MS. HUNSICKER: Objection; misstates testimony,
25
vague. 11:03:28
Page 51
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42011
Page 27 of 54
1
THE WITNESS: For the vast majority of people, 11:03:30
2
the transaction cost would be more than what would
3
be implied by the credit card interest rate, yes.
4
BY MR. LEVENBERG:
5
Q. But it's not the case that their damages 11:03:36
6
are based on the credit card interest rate?
7
MS. HUNSICKER: Objection; vague, misstates
8
testimony.
9
THE WITNESS: If we looked merely at the
10
transaction costs, the credit card interest rate 11:03:47
11
would be -- this $1.50 in this example would be a
12
very conservative estimate of the damages they would
13
suffer.
14
BY MR. LEVENBERG:
15
Q. Well, by "very conservative," what do you 11:03:57
16
mean? You mean the damages they suffered are
17
greater than the credit card interest rate?
18
MS. HUNSICKER: Objection; vague.
19
THE WITNESS: Greater or equal to, yes.
20
BY MR. LEVENBERG: 11:04:08
21
Q. Do the damages they suffered have anything
22
to do with the credit card interest rate other than
23
being more than it?
24
MS. HUNSICKER: Objection; vague.
25
THE WITNESS: In this hypothetical, I'm 11:04:23
Page 52
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42012
Page 28 of 54
1
assuming that their only cost are these transaction 11:04:26
2
costs.
3
They could also be -- they might have
4
other costs and then some of those would be tied to
5
the credit card interest rate. But I'm saying, in 11:04:38
6
this simplest example where they have no other cost,
7
the credit card interest rate remains a conservative
8
lower bound.
9
BY MR. LEVENBERG:
10
Q. Where their only costs are their 11:04:54
11
opportunity costs?
12
A. No. Their only costs are the transaction
13
costs.
14
Did I say that wrong? Pardon me.
15
THE REPORTER: No, I wrote it wrong. 11:05:06
16
THE WITNESS: Oh, okay. Thank you both for the
17
correction.
18
BY MR. LEVENBERG:
19
Q. I know this is a complicated concept. I'm
20
just trying to break it up into all of its parts. 11:05:14
21
Where their only costs are the transaction
22
costs, their costs are greater than the credit card
23
interest rate; is that your opinion?
24
A. Yes, for these small or short claims.
25
I mean, if we look at $100 claim for a 11:05:30
Page 53
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42013
Page 29 of 54
1
month, again, it's -- again, it's about $1.50, and 11:05:34
2
so it's a longer claim but it's a smaller amount of
3
money --
4
(Reporter seeks clarification.)
5
A. -- the transaction costs are going to be 11:06:04
6
higher.
7
Let me just check my math here.
8
I think that's right, yeah.
9
So the point is, even for small or short
10
claims, the credit card interest rate, even if they 11:06:20
11
have no need to borrow, remains a very conservative
12
lower bound.
13
Q. Can the credit card interest rate be used
14
to calculate their transaction costs?
15
MS. HUNSICKER: Objection; confusing. 11:06:36
16
THE WITNESS: I'm using it as a conservative
17
lower bound.
18
Does that answer your question?
19
BY MR. LEVENBERG:
20
Q. Not quite. 11:06:50
21
So I understand your opinion that the
22
interest rate is a conservative lower bound, meaning
23
the transaction costs are higher than the figure
24
produced by the interest rate.
25
Am I stating that accurately? 11:07:04
Page 54
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42014
Page 30 of 54
1
longer hours and get another job. That was pretty 11:33:45
2
hard for unemployed people during the pandemic.
3
But those are some of the options. There
4
might be others I haven't thought of.
5
Q. Okay. Can you think of any others? 11:33:57
6
A. Not at this moment. I might -- please
7
proceed.
8
Q. Sure.
9
So in that scenario where someone borrows
10
off of a credit card to pay the $1,000 and pays 11:34:13
11
15.9 percent interest on their borrowing, I
12
understand the basis for your opinion that
13
15.9 percent is a good measure of their cost, or a
14
good minimum measure of their cost to be sure of,
15
stating that accurately. 11:34:34
16
But not everybody is going to choose that
17
option, right? We can assume that?
18
Can we assume that?
19
A. Yes.
20
Q. Okay. So there are some people who would 11:34:46
21
indeed access the $1,000 they have in the bank.
22
Is that a valid assumption?
23
A. I mean, very few people would use
24
100 percent of their bank account, but some might.
25
Q. And do you have any data on how frequently 11:35:16
Page 69
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42015
Page 31 of 54
1
account but they are accessing the account, do you 11:36:46
2
have any data on how many people would choose that
3
option over the other one?
4
A. Not tied to this hypothetical.
5
What we do see is that a very high share 11:37:08
6
of American households have positive bank balances
7
and have positive credit card debt they are paying
8
interest on.
9
So it's -- people having money in the bank
10
doesn't mean they're not borrowing on their credit 11:37:37
11
card.
12
Q. Right.
13
Do you have any data on the proportion of
14
class members who chose to pay on credit cards in
15
lieu of accessing liquid funds? 11:37:52
16
A. No.
17
Q. Okay. I wanted to go through your report
18
more or less in sequence, and I realize we were
19
doing it a little bit out of sequence. So we'll
20
leave that line of questioning there and go back 11:38:22
21
roughly to the beginning.
22
I'm on paragraph 9 now.
23
Your statement there was, "Using an
24
aggregate measure of harm is common practice in the
25
field of economics, and aggregates are an 11:38:44
Page 71
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42016
Page 32 of 54
1
appropriate way to represent classwide harm." 11:38:48
2
Describe what you mean by "aggregate
3
measure of harm."
4
A. The total harm suffered by a group.
5
Q. And do you need to have information about 11:39:17
6
the harm suffered by individual members of the group
7
to form an opinion about the total harm suffered by
8
the group?
9
MS. HUNSICKER: Objection; vague.
10
THE WITNESS: Can you ask that again? 11:39:41
11
You mean individuals as opposed to
12
having . . .
13
BY MR. LEVENBERG:
14
Q. If you have information about the
15
aggregate measure of harm for a group, can you use 11:39:50
16
that to draw conclusions about the harms suffered by
17
individual members of the group?
18
MS. HUNSICKER: Objection; vague.
19
THE WITNESS: So the method I'm proposing is to
20
say that this credit card interest rate is a 11:40:10
21
conservative lower bound on the opportunity cost of
22
funds.
23
My expectation is one would then take the
24
individual claims amounts and durations to create a
25
damage per person. 11:40:30
Page 72
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42017
Page 33 of 54
1
Is that what you're asking? 11:40:34
2
I'm not sure what you're asking.
3
BY MR. LEVENBERG:
4
Q. Well, that is helpful.
5
So I guess let's back up a little. Tell 11:40:42
6
me how you would propose to arrive at the aggregate
7
measure of harm.
8
A. If I can find opportunity cost to funds --
9
a lower bound on the opportunity cost to funds for
10
the vast majority of the class, and we apply that to 11:41:11
11
the total amount of UI payments that were delayed
12
times their delay, we would get an aggregate measure
13
of harm.
14
Q. Okay. And that aggregate measure of harm
15
is basically just the sum total of all individual 11:41:31
16
harms?
17
MS. HUNSICKER: Objection; confusing.
18
THE WITNESS: It is a conservative lower bound
19
on the sum of the individual harms is what it's
20
intended to create. 11:41:51
21
BY MR. LEVENBERG:
22
Q. Can your method be used to measure the
23
individual harms suffered by any individual class
24
member?
25
MS. HUNSICKER: Objection; outside the scope of 11:42:01
Page 73
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42018
Page 34 of 54
1
the report. 11:42:04
2
THE WITNESS: I was asked to create a method to
3
get a conservative lower bound for estimating the
4
aggregate harm.
5
I wasn't asked to -- 11:42:15
6
BY MR. LEVENBERG:
7
Q. Okay. You can finish.
8
So can your method be used to assess the
9
harm experienced by any individual class member?
10
MS. HUNSICKER: Objection; outside the scope of 11:42:29
11
the report.
12
THE WITNESS: I wasn't asked to do that, so I
13
don't . . .
14
BY MR. LEVENBERG:
15
Q. Do you have an opinion on it? 11:42:40
16
MS. HUNSICKER: Same objection.
17
THE WITNESS: Ask the question again.
18
BY MR. LEVENBERG:
19
Q. Can your method be used to assess the harm
20
experienced by any individual class member? 11:42:52
21
MS. HUNSICKER: Same objection.
22
THE WITNESS: I'm hesitant to answer because
23
it's an ill-posed question.
24
My method was trying to create a
25
conservative lower bound for the class and then use 11:43:01
Page 74
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42019
Page 35 of 54
1
the individualized information on claimed amounts 11:43:17
2
and duration.
3
It makes it very hard to say how . . . it
4
was not designed for any other purpose besides that.
5
BY MR. LEVENBERG: 11:43:41
6
Q. Could it be used for any purposes it
7
wasn't designed for?
8
MS. HUNSICKER: Objection; outside the scope of
9
the report.
10
THE WITNESS: I can't answer that. 11:43:51
11
I mean, I'm sorry, I'm just -- ask the
12
question again. It makes sense, but I'm having
13
trouble answering it.
14
BY MR. LEVENBERG:
15
Q. That's fine. 11:44:01
16
Can your method be used to assess the
17
harms experienced by any member of the class?
18
MS. HUNSICKER: Outside the scope of the
19
report; objection.
20
THE WITNESS: I wasn't designing the method 11:44:18
21
with that intent, and I don't have an expert opinion
22
on that.
23
I just -- you guys are welcome to hire me
24
to answer that question, but I just don't have an
25
opinion that I can defend right now. 11:44:33
Page 75
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42020
Page 36 of 54
1
So I will simply say the economic 11:48:13
2
principles remain the same, and I would need to know
3
way more about this to say how I would approach it.
4
You just haven't told me enough and --
5
BY MR. LEVENBERG: 11:48:27
6
Q. Well, what more would you want me to tell
7
you?
8
MS. HUNSICKER: Objection; outside the scope of
9
the report.
10
Asked and answered as well. 11:48:44
11
THE WITNESS: I'm still not even sure what --
12
since I was asked a question about aggregate harm to
13
create a lower bound for a group, to say how I would
14
approach that for an individual is just a very
15
different question. 11:49:02
16
I have not thought deeply about what . . .
17
I just haven't thought deeply about what it would
18
take to answer it.
19
BY MR. LEVENBERG:
20
Q. So do you have an opinion about whether 11:49:43
21
the method described in your report could be used to
22
assess harm experienced by an individual class
23
member?
24
MS. HUNSICKER: Objection; asked and answered.
25
THE WITNESS: The methodology I used was 11:50:10
Page 79
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42021
Page 37 of 54
1
designed to create a conservative lower bound on an 11:50:12
2
interest rate that one could then multiply by an
3
amount of missing -- of delayed funds times the
4
duration of the delay and create an estimate of
5
harms for individuals. 11:50:31
6
But it's designed to create an aggregate
7
measure being a conservative lower bound that
8
applies to the vast majority of the class.
9
Is that responsive to your question?
10
There's many -- I don't know what you mean 11:50:48
11
by individual -- I mean --
12
BY MR. LEVENBERG:
13
Q. Well, it is what it is.
14
A. -- it's what it is designed for.
15
Q. It is a helpful response, but I can't stop 11:50:55
16
asking questions, so I'm going to keep going.
17
So should I interpret that to mean the
18
method was designed to create an aggregate measure
19
of harm for a class of 109,000 people; is that fair?
20
A. Even though I use that number, I forget 11:51:14
21
exactly which, but that was part --
22
Q. Whatever that number is, I know it's --
23
A. For more than 100,000 people, yes.
24
Q. Could that method also be used to create
25
an aggregate measure of harm for a class of 50,000 11:51:29
Page 80
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42022
Page 38 of 54
1
There are a few paragraphs of allegations 13:04:48
2
on page 81 and 82 about Stephanie Moore.
3
You could take your time to read it if you
4
would like. Let me know when you're ready and I'll
5
ask my next question. 13:05:02
6
(Witness reviews document.)
7
A. Okay.
8
Q. Based on what you've read here, can you
9
form an opinion on whether Ms. Moore is in the group
10
of the vast majority of people for whom your 13:05:57
11
conclusions about the credit card interest rate has
12
a lower threshold of damage are appropriate?
13
MS. HUNSICKER: Objection; outside the scope,
14
confusing, incomplete hypothetical.
15
THE WITNESS: The plaintiffs' attorney 13:06:18
16
requested that I determine a conservative lower
17
bound on an appropriate discount rate or interest
18
rate for the vast majority of the class.
19
It's designed to figure out the most -- a
20
very generous amount of aggregate damage for the 13:06:41
21
bank to pay using standard social science methods.
22
It wasn't designed to speak to each of the
23
100,000 people and, in any case, there's vastly too
24
little information here for me to say anything about
25
this case. 13:07:14
Page 85
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42023
Page 39 of 54
1
have to tell me a lot more about what you are 13:09:50
2
interested in, and sitting here right now, I just
3
can't whip out an answer. It takes time for me to
4
think these things through.
5
BY MR. LEVENBERG: 13:10:03
6
Q. If I'm interested in whether Ms. Moore has
7
incurred damages, do you have enough information
8
here to form an opinion about that?
9
MS. HUNSICKER: Objection; same objections,
10
outside the scope, vague. 13:10:12
11
THE WITNESS: Damages meaning nonzero damages?
12
You just mean any damages?
13
BY MR. LEVENBERG:
14
Q. Sure. You can start there.
15
A. There's enough information here to say the 13:10:33
16
damages were above zero.
17
Q. And what information would you need to
18
determine how much above zero they are?
19
A. That's a different question than I was
20
asked to answer, and so I strongly encourage you to 13:10:48
21
hire me to answer that other question.
22
But my expert opinion is about the
23
aggregate damages that would be generous to the bank
24
and a conservative lower bound for the aggregate
25
harm. 13:11:08
Page 88
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42024
Page 40 of 54
1
information that you'd consider relevant to whether 13:21:21
2
she is in the vast majority of people to whom your
3
method applies?
4
MS. HUNSICKER: Objection; confusing, misstates
5
testimony. 13:21:35
6
THE WITNESS: So, again, my method wasn't
7
intended to be applied to each of 100,000 people, it
8
would be a conservative estimate for the aggregate
9
harm.
10
When McCrary was implying that people were 13:21:53
11
not paying the credit card interest rate, thus they
12
had a low opportunity cost, this seemed to show --
13
it was one of several statements here that, if true,
14
would show meaningful opportunity costs above what
15
McCrary was implying. 13:22:15
16
BY MR. LEVENBERG:
17
Q. How can the credit card interest rate be
18
used to measure that opportunity cost?
19
A. The credit card interest rate is not
20
supposed to measure the opportunity costs for each 13:22:36
21
person.
22
What I can say is, when I read this and
23
McCrary -- and, again, I wish I had McCrary.
24
I can't grab McCrary's report to look at
25
exactly what he said? 13:22:54
Page 94
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42025
Page 41 of 54
1
Q. If it would help, we can show you 13:22:55
2
McCrary's report.
3
A. I would appreciate that, if you would be
4
so kind.
5
MR. LEVENBERG: All right. We're going to call 13:23:01
6
it Exhibit 5.
7
(Deposition Exhibit 5 was marked.)
8
THE WITNESS: So what McCrary wrote in
9
paragraph 76, "all of the class representatives used
10
savings or borrowing from friends and family to 13:23:50
11
cover at least some portion of their expenses.
12
These sources of funds would have significantly
13
lower costs than the credit card rate."
14
Continuing after a few sentences, "the
15
credit card borrowing rate is above the upper bound 13:24:26
16
of the cost of borrowing for the class
17
representatives."
18
And continuing that "the named plaintiffs
19
suggest credit card borrowing or any borrowing at a
20
similar or even higher interest rate was not a 13:24:49
21
primary source of borrowing for many class members."
22
And the implication was that if they were
23
not borrowing with a high explicit credit card
24
interest rate, that the opportunity cost was low.
25
And you asked me which of these suggested 13:25:12
Page 95
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42026
Page 42 of 54
1
the opportunity cost was higher and that the summary 13:25:15
2
of returning to live with a person with whom she had
3
an abusive relationship, late payments, a weakened
4
credit rating, inability to look for a job, all
5
seemed to have a positive opportunity cost. 13:25:56
6
My method wasn't designed to value each of
7
these separately but is an extraordinarily
8
conservative bound for someone like this.
9
The interest rate I'm proposing, it's
10
something like $15 a month for the median claim. I 13:26:19
11
don't recall the median claim, but on that order.
12
And that seems to be -- most people would
13
require more than $15 to return to live with an
14
abusive person or defer looking for work.
15
BY MR. LEVENBERG: 13:26:55
16
Q. Is there a connection between the $15 or
17
the credit card interest rate and the harm of being
18
forced to return to living with the person with whom
19
she had an unhealthy relationship?
20
MS. HUNSICKER: Objection; asked and answered. 13:27:10
21
THE WITNESS: There's a very strong connection
22
in that I was asked to get a lower bound, and that
23
is much, much lower than what most people would
24
consider that.
25
So only in the sense that I was asked to 13:27:18
Page 96
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42027
Page 43 of 54
1
find a lower bound, and it seems to satisfy that 13:27:20
2
requirement.
3
BY MR. LEVENBERG:
4
Q. Is there enough information here for you
5
to draw a conclusion about whether Ms. Moore is in 13:27:33
6
the vast majority?
7
MS. HUNSICKER: Objection; vague, incomplete.
8
THE WITNESS: Are we assuming all of this is
9
true for this question?
10
BY MR. LEVENBERG: 13:28:03
11
Q. If you need to assume it's true, tell me
12
if you need to assume it.
13
A. If this were all true, she would suffer
14
more harm than that.
15
Again, my method wasn't designed to go 13:28:12
16
case by case. But I don't know how much her claim
17
was for. I guess you told me that earlier. That
18
was in an earlier thing you showed me and the
19
duration. So I -- without doing some math, I'm a
20
little hesitant to say. 13:28:35
21
Do you want me to do that math?
22
Q. You can.
23
(Pause in proceedings.)
24
A. Again, I hate to do math real-time, but I
25
think the damages in my credit card rate are 13:29:43
Page 97
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42028
Page 44 of 54
1
A. Yes. 14:31:31
2
Q. How would you evaluate -- how would you
3
quantify the value people place on that?
4
MS. HUNSICKER: Objection; vague.
5
THE WITNESS: I mean . . . I would have to 14:32:25
6
ponder how to do that.
7
It's not an important part of . . .
8
If we see somebody undertaking activities
9
that are costly to avoid borrowing, that suggests
10
that they value the borrowing capacity. That's the 14:33:47
11
general principle.
12
Applying it to this case is a little bit
13
subtle because my method isn't designed to look at
14
each of the 100-plus thousand case class members.
15
But the general principle is -- would be to see what 14:34:04
16
people are doing to avoid borrowing and if people
17
change their behavior as they get closer to their
18
borrowing limit but are not yet at it.
19
BY MR. LEVENBERG:
20
Q. Let me approach it from another way. 14:34:24
21
I was talking about two options. The
22
first option was keeping the streaming service and
23
borrowing money to pay for it.
24
And you pointed out, I think very
25
reasonably, that the value of -- that the streaming 14:34:38
Page 123
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42029
Page 45 of 54
1
access to funds was delayed. 14:55:00
2
Is that wrong?
3
A. Okay. You may have to break because I'm
4
getting confused and I just may need more coffee.
5
Ask that one more time. If I don't 14:55:17
6
understand, maybe we'll break.
7
Q. I'm asking about the rate you were
8
applying in the aggregate.
9
The aggregate is the aggregate period of
10
time in which access to funds was delayed for 14:55:26
11
everybody, not just for one person but for
12
everybody; right?
13
A. That wouldn't be how I would phrase it,
14
not just for one person, including each of the one
15
persons to create the aggregate. 14:55:46
16
Q. Right. Yeah. I think we're on the same
17
page on that.
18
A. I'm sorry.
19
Q. Okay. So there's one number, which is
20
basically a number of days that funds were delayed 14:55:57
21
in the aggregate; right?
22
A. I'm sorry, I was unclear.
23
People had different amounts of delay --
24
Q. Right.
25
A. -- so to generate -- it's not you take the 14:56:17
Page 135
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42030
Page 46 of 54
1
aggregate number of days and the aggregate dollar 14:56:20
2
amount, you take each person's delay times dollar
3
amount.
4
Q. Right.
5
A. So you don't sum up days, you sum up 14:56:29
6
dollar days to create the -- yeah -- aggregate
7
amount of days or years' worth of thousands or
8
millions of whatever funds the bank owed that it had
9
removed or not added or not permitted the State to
10
add to various debit cards. 14:56:52
11
Okay. Are we saying the same thing?
12
Q. Yes.
13
A. Okay. So it's not aggregate days, it's
14
aggregate days and dollars.
15
Q. So your method, what you're proposing, is 14:57:07
16
you sum up the dollar days for each person during
17
the period that they lacked access to the funds and
18
then you apply your 15.9 percent interest to that;
19
correct?
20
A. Yes. 14:57:27
21
Q. Okay. But you could also sum up the days
22
a different way.
23
You could say that instead of measuring
24
all of the days they were without access to funds,
25
we'll measure all of the days in which they were 14:57:42
Page 136
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42031
Page 47 of 54
1
BY MR. LEVENBERG: 15:01:43
2
Q. Well --
3
A. -- the situation, and I'm -- you're
4
correct, it's not about an individual, but if you
5
told me all class members were this way, I'd say, 15:01:46
6
you know, that's a different situation than I -- you
7
know -- different situation I haven't thought much
8
about. So I'll try to be responsive.
9
Can you reask the question again? I think
10
that -- 15:02:13
11
MS. HUNSICKER: Can we have a coffee break when
12
you're done with this question?
13
MR. LEVENBERG: Maybe two or three more
14
questions and then let's break.
15
MS. HUNSICKER: Thank you. 15:02:19
16
BY MR. LEVENBERG:
17
Q. You don't have any information about how
18
many class members paid credit card interest though,
19
do you?
20
MS. HUNSICKER: Objection; asked and answered. 15:02:27
21
THE WITNESS: No.
22
BY MR. LEVENBERG:
23
Q. So we also don't have any information
24
about the periods in which class members paid credit
25
card interest, do we? 15:02:43
Page 140
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42032
Page 48 of 54
1
A. If the "we" includes Bank of America, I 15:02:46
2
have no idea how much information they have, but I
3
do not.
4
Q. Okay. That's fine.
5
MR. LEVENBERG: All right. We can take that 15:02:54
6
break.
7
THE VIDEOGRAPHER: We're going off the record.
8
The time is 3:02 p.m.
9
(Recess taken.)
10
THE VIDEOGRAPHER: We're back on the record. 15:19:43
11
The time is 3:19 p.m.
12
BY MR. LEVENBERG:
13
Q. Okay. I'm going to fast forward to part
14
three of your report.
15
Looking at paragraph 47, your opinion is, 15:20:07
16
"I understand that the Customer Service Class is
17
seeking damages for time spent on hold with the
18
Bank's Claims call center."
19
Is it your opinion that class members were
20
damaged by all of the time they spent on hold? 15:20:22
21
MS. HUNSICKER: Objection; vague.
22
THE WITNESS: This is actually poorly written.
23
It should have said excess time on hold or
24
excesses compared to some measure of normal time on
25
hold. 15:20:44
Page 141
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42033
Page 49 of 54
1
A. I'm unsure how they're computing that. I 15:21:55
2
don't know what data they have or experts.
3
Q. Okay. The next paragraph, you refer to
4
several studies that have found that the typical
5
value of time is close to the median wage. 15:22:08
6
What does that mean exactly? Does it mean
7
the typical value of time for everybody, is that the
8
median wage, or does it mean that the typical -- or
9
does it mean that the value of everyone's time is at
10
their own wage, so across a group value is the 15:22:28
11
median?
12
MS. HUNSICKER: Objection; confusing.
13
THE WITNESS: Plaintiffs' attorneys asked me to
14
pick a measure of the value of lost time that would
15
be a conservative measure for the class as a whole. 15:22:48
16
When economists estimate this value of
17
time, they sometimes estimate an aggregate number
18
and they sometimes disaggregate it relative to an
19
individual or a group's own wages.
20
And the relationship is pretty consistent 15:23:15
21
in both methods, that economic theory says that, you
22
know, if somebody is willing to take a wage to work
23
40 hours, that the value of their 40 hours is
24
somewhat close to that wage or -- and that's roughly
25
what we see depending on what the alternative use of 15:23:53
Page 143
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42034
Page 50 of 54
1
time is. 15:23:56
2
So for commuting, it's often somewhat less
3
than the median wage. When you're commuting and
4
stuck in traffic, it's higher than the median wage
5
or above. When it's unproductive and stressful, if 15:24:14
6
you're in an airport and your flight is delayed,
7
then it's quite a bit higher in the one study I saw
8
that looked at that.
9
But across regions and across study
10
methods, it's pretty consistently a bit below the 15:24:37
11
median wage for commuting and above for unpleasant
12
commuting or things like that.
13
BY MR. LEVENBERG:
14
Q. Does it depend on a person's actual wage?
15
A. The disaggregated studies often find that 15:25:04
16
it moves not quite one for one but is higher for
17
people with higher wages.
18
Again, that was why I chose to -- the
19
plaintiffs' attorneys asked me to find a
20
conservative measure that would, in aggregate, be 15:25:24
21
generous to the bank, lower than the average, and
22
also be applied at a vast majority of the class
23
members, which is what I did.
24
Q. So just to be clear, when we are talking
25
about the studies that have found that the typical 15:25:45
Page 144
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42035
Page 51 of 54
1
Q. Somebody else can figure out how important 15:41:14
2
that is to them.
3
Are there any opinions in your report
4
sitting here today that you would revise or change
5
in any way? 15:41:23
6
A. I mean, there's definitely wording and
7
line editing I would do, but no, there are no
8
substantive opinions.
9
You know, in paragraph 47, I should have
10
said excess waiting time and so forth. So there's 15:41:39
11
poorly worded sentences, but there are no opinions
12
that I would change.
13
Q. Are there any additional opinions that you
14
would express in this case that aren't contained in
15
this report? 15:41:52
16
A. No.
17
Q. Do you have any plans to supplement this
18
report?
19
A. I don't even know what that means.
20
Q. Do you have any plans to make any changes 15:42:15
21
or additions to the report?
22
A. No.
23
I'll have to caution that I didn't know
24
that was possible. If there's a possibility, I
25
would definitely do some line editing. 15:42:32
Page 153
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42036
Page 52 of 54
1
Q. Other than line editing, are there any 15:42:35
2
changes or additions you would make?
3
A. Yeah, I should say, I mentioned a couple
4
of cases where after reading McCrary and Stango, you
5
know, the Stavins citation on imperfect recall, that 15:42:47
6
people were optimistic on how much they were saving,
7
and the Federal Reserve data on reservation wages
8
were both things I found in pursuing what they --
9
the sources that they cited, and I would mention
10
those. 15:43:12
11
Q. Is there anything else you would add or
12
change?
13
A. I think some of the wording I used on
14
describing the Pulse Survey, the 66 percent, was
15
literally Stango's words, in which case there should 15:43:27
16
have been quotation marks, and I feel bad about
17
that.
18
But I'm not sure of that. But it looked
19
awfully similar to what he wrote. So it's
20
definitely paraphrasing, maybe a quote, and I should 15:43:40
21
have cited that.
22
Q. Anything else?
23
A. No.
24
MR. LEVENBERG: All right. I think I am
25
probably done. 15:43:56
Page 154
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42037
Page 53 of 54
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I, the undersigned, a Certified Shorthand
Reporter of the State of California, do hereby
certify:
That the foregoing proceedings were taken
before me at the time and place herein set forth;
that any witnesses in the foregoing proceedings,
prior to testifying, were administered an oath; that
a record of the proceedings was made by me using
machine shorthand which was thereafter transcribed
under my direction; that the foregoing transcript is
a true record of the testimony given.
Further, that if the foregoing pertains to
the original transcript of a deposition in a Federal
Case, before completion of the proceedings, review
of the transcript (X) was ( ) was not requested.
I further certify that I am neither
financially interested in the action nor a relative
or employee of any attorney of any party to this
action.
IN WITNESS WHEREOF, I have this date
subscribed my name.
Dated:
June 11, 2025
ANRAE WIMBERLEY, CSR No. 7778
Veritext Legal Solutions
Calendar-CA@veritext.com 866-299-5127
Page 157
Case 3:21-md-02992-GPC-MSB Document 591-52 Filed 10/17/25 PageID.42038
Page 54 of 54File and source
- File
- gov.uscourts.casd.709615.591.52.pdf
- Size
- 194,722 bytes
- SHA-256
- 7f033dc9a3e4e5d23d59280f8f810ba028e7db6e4b808a962f88dbb75b34e38a
- Original
- PACER (login required)