Response in Opposition re 567 Motion to Exclude the Purported Expert Opinions — In re BofA Unemployment Litigation (Dkt. 620)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 620 · 2026-01-08 · Docket on CourtListener

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE 
EXPERT OPINIONS OF GREG J. REGAN 
Case No.: 3:21-md-02992-GPC-MSB
 
JOSEPH W. COTCHETT (SBN 36324) 
jcotchett@cpmlegal.com 
BRIAN DANITZ (SBN 247403) 
bdanitz@cpmlegal.com 
KARIN B. SWOPE (Pro Hac Vice) 
kswope@cpmlegal.com 
VASTI S. MONTIEL (SBN 346409) 
vmontiel@cpmlegal.com 
CAROLINE A. YUEN (SBN 354388) 
cyuen@cpmlegal.com 
COTCHETT, PITRE & McCARTHY, LLP 
840 Malcolm Road, Suite 200 
Burlingame, CA 94010 
Telephone: (650) 697-6000 
Fax: (650) 697-0577 
MICHAEL RUBIN (SBN 80618) 
mrubin@altber.com 
CONNIE K. CHAN (SBN 284230) 
cchan@altber.com 
JAMES BALTZER (SBN 332232) 
jbaltzer@altber.com 
KATHERINE G. BASS (SBN 344748) 
kbass@altber.com 
ALTSHULER BERZON LLP 
177 Post Street, Suite 300 
San Francisco, CA 94108 
Telephone: (415) 421-7151 
Fax: (415) 362-8064  
 
Co-Lead Counsel for Plaintiffs and the Proposed Class  
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-GPC-MSB 
 
PLAINTIFFS’ OPPOSITION TO 
DEFENDANT’S DAUBERT 
MOTION TO EXCLUDE 
CERTAIN EXPERT OPINIONS 
OF GREG J. REGAN 
 
This document relates to All Actions 
 
 
Judge:   Hon. Gonzalo P. Curiel 
Ctrm:    12A 
Date:     April 17, 2026 
Time:    1:30 p.m. 
 
 
 
 
FILED PROVISIONALLY UNDER SEAL
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO 
EXCLUDE EXPERT OPINIONS OF GREG J. REGAN 
Case No.: 3:21-md-02992-GPC-MSB
 
TABLE OF CONTENTS 
INTRODUCTION ............................................................................................................................. 1 
BACKGROUND ............................................................................................................................... 3 
LEGAL STANDARD ....................................................................................................................... 6 
ARGUMENT  ................................................................................................................................... 7 
I. 
As the Court Held, It Is the Bank’s Burden, Not Regan’s, to Identify Any 
Fraudsters Remaining in the Class ............................................................................ 7 
II. 
Regan’s Testimony Concerning Consequential Damages is Admissible ................. 9 
III. 
Regan’s Testimony as to Disgorgement Based on “Float Revenue” Is 
Admissible ............................................................................................................... 13 
IV. 
The Bank’s Challenges to Regan’s Customer-Service Class Methodology 
Also Fail .................................................................................................................. 15 
CONCLUSION ............................................................................................................................... 16 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 
738 F.3d 960 (9th Cir. 2013) ........................................................................................... 6, 9, 15 
Belyea v. GreenSky, Inc., 
2025 WL 589037 (N.D. Cal., 2025) ........................................................................................ 11 
Bonner v. ISP Tech., Inc., 
259 F.3d 924 (8th Cir. 2001) ............................................................................................... 7, 12 
Briseno v. ConAgra Foods, Inc., 
844 F.3d 1121 (9th Cir. 2017) ................................................................................................. 11 
City of Pomona v. SQM North America Corp., 
750 F.3d 1036 (9th Cir. 2014) ......................................................................................... 3, 7, 13 
In re ConAgra Foods, Inc., 
90 F.Supp.3d 919 (C.D. Cal. 2015) ................................................................................... 11, 12 
Daubert v. Merrell Dow Pharm., Inc., 
509 U.S. 579 (1993) ......................................................................................................... passim 
Duncan v. Blackbird Prods. Grp., LLC, 
2021 WL 7708670 (W.D. Mo. Mar. 4, 2021) ......................................................................... 15 
Elosu v. Middlefork Ranch Inc., 
26 F.4th 1017 (9th Cir. 2022) .................................................................................................... 9 
Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 
326 F.R.D. 592 (N.D. Cal. 2018) ............................................................................................ 11 
Flintkote Co. v. Lysfjord, 
246 F.2d 368 (9th Cir. 1957) ..................................................................................................... 2 
Hartley v. Dillard’s, Inc., 
310 F.3d 1054 (8th Cir. 2002) ................................................................................................. 12 
Jinro Am., Inc. v Secure Invs., Inc., 
266 F.3d 993 (9th Cir. 2001) ..................................................................................................... 6 
Korea Supply Co. v. Lockheed Martin Corp., 
29 Cal.4th 1134 (2003) ............................................................................................................ 14 
Lambert v. Nutraceutical Corp., 
870 F.3d 1170 (9th Cir. 2017) ................................................................................................. 14 
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McMorrow v. Mondelez International, Inc., 
2021 WL 859137 (S.D. Cal. Mar. 8, 2021) ............................................................................. 11 
Meister v. Mensinger, 
230 Cal.App.4th 381 (2014) .............................................................................................. 14, 15 
Nguyen v. Nissan North America, Inc., 
932 F.3d 811 (9th Cir. 2019) ............................................................................................... 5, 11 
Primiano v. Cook, 
598 F.3d 558 (9th Cir. 2010) ....................................................................................... 3, 7, 8, 15 
SEC v. Platforms Wireless Int’l Corp., 
617 F.3d 1072 (9th Cir. 2010) ................................................................................................. 15 
United States v. 17.69 Acres of Land, 
2004 WL 5632928 (S.D. Cal. 2004) ..................................................................................... 3, 7 
Van v. LLR, Inc., 
962 F.3d 1160 (9th Cir. 2020) (Van I) ............................................................................. passim 
Van v. LLR, Inc., 
61 F.4th 1053 (9th Cir. 2023) (Van II) .......................................................................... 5, 10, 16 
Statutes 
15 U.S.C. §1693 .............................................................................................................................. 2 
 
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE 
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Case No.: 3:21-md-02992-GPC-MSB
 
INTRODUCTION 
The Bank’s Daubert challenge to damages expert Greg Regan rehashes the 
same arguments this Court already considered and squarely rejected in granting 
Plaintiffs’ motion for class certification. While the Bank now cloaks those arguments 
in the trappings of Federal Rule of Evidence 702 and Daubert rather than Rule 
23(b)(3) predominance, that repackaging is more stylistic than substantive. The 
Bank’s meritless arguments should once again be rejected. 
First, the Bank contends that Regan’s expert opinions should be precluded 
because his proposed damages methodology does not include a mechanism for 
independently detecting which class members are secret fraudsters—those whom the 
Bank has long insisted (without providing supporting evidence) may be lurking 
among the certified class members. Not only does this recycled argument ignore the 
Court’s prior ruling that EFTA places the burden on the Bank to identify any such 
fraudsters, but it also ignores that Regan’s damages methodology includes an easily 
applied mechanism for carving out from the classwide damages calculations all 
damages attributable to any individuals who are at any point eliminated from the class 
or whose damages turn out to be zero when Regan’s formulas are applied (say, 
because there were no funds in an Account Freeze class member’s account when it 
was wrongfully frozen). As an accounting expert, Regan’s testimony need not and 
could not go beyond that.    
Second, the Bank contends that “Regan’s methodologies produce no evidence 
of damages.” Regan Mot. at 13. Initially, this contention fails because it entirely 
ignores Regan’s methodology for calculating the principal amount of damages for 
members of the Claim Denial, Credit Rescission, and Account Freeze classes, Decl. 
of James Baltzer (“Baltzer Dec.”) Ex. A (Regan Report dated March 4, 2025) ¶¶38-
39, 66-67, 78-79, a methodology the Bank does not challenge. The Bank’s contention 
also fails as to Regan’s methodology for calculating those class members’ 
consequential lost-time-value-of-money damages, because the Bank simply repeats 
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the same challenges to that methodology that this Court rejected in its class 
certification order. In that order, this Court emphasized that the Ninth Circuit in Van 
v. LLR, Inc., 962 F.3d 1160 (9th Cir. 2020) (Van I), had approved that same approach 
for calculating the class members’ lost time value of money in the aggregate, while 
concluding that any dispute over “which interest rates should be applied is an issue 
for the fact finder.” Infra at 5. Because the Court has already accepted Regan’s 
classwide interest rate Methodology 1 as a valid basis for calculating classwide 
damages, any arguments the Bank offers to dispute Regan’s underlying assumptions 
go to the weight of Regan’s opinions (i.e., to reduce or increase the interest rates he 
proposes) rather than their admissibility. Once Plaintiffs establish the fact of damages, 
as they unquestionably can, their proof of the amount of damages is subject to a far 
lesser burden, and Regan’s methodologies are certainly sufficiently supported to meet 
that burden. See, e.g., Flintkote Co. v. Lysfjord, 246 F.2d 368, 392 (9th Cir. 1957). 
Third, the Bank’s objections to Regan’s methodologies for calculating 
disgorgement and for calculating Consumer Service class damages also repeat the 
same arguments this Court has already rejected. Infra at 4.  
The Bank does not challenge Regan’s proposed calculation of: (1) statutory 
damages under 15 U.S.C. §1693m(a)(2)(B); (2) the principal amounts of the class 
members’ unauthorized ATM transaction claims at issue; or (3) the lengths of time 
those amounts were withheld from class members (as the first two amounts are set by 
statute and the latter is based on the Bank’s own discovery responses). 
The Bank also makes no effort to challenge Regan’s experience and expertise 
as a damages expert (and could not plausibly do so given his vast experience in the 
field and as a testifying expert). Instead, the Bank picks away at a few points as to 
which it contends Regan’s methodology is inadequate, like his supposed failure to 
independently determine which, if any, of the roughly 
 class members are 
hidden fraudsters. But Regan’s methodology for determining class membership 
appropriately relies on the Bank’s own data reflecting the Bank’s determinations of 
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fraud and expressly excludes all fraudsters identified to date; that same methodology 
can be applied to exclude any additional individuals the Bank determines to be 
fraudsters. Infra at 8-9. It was not Regan’s job to ferret out whether any of the 
remaining class members should be excluded from the class. So even if the Bank were 
right that “Plaintiffs carry the burden of proffering a methodology that culls uninjured 
plaintiffs from the class,” Regan Mot. at 1, which is contrary to this Court’s previous 
burden-of-proof rulings, that would still not be a basis for excluding Regan’s 
testimony.  
The law is clear that an expert’s testimony “need not establish every element 
that the plaintiff must prove[] in order to be admissible.” Primiano v. Cook, 598 F.3d 
558, 565 (9th Cir. 2010). It is also well accepted that, “[a]s a general rule, questions 
relating to the basis and sources of an expert’s opinion affect the weight to be assigned 
that opinion rather than its admissibility and should be left for the jury’s 
consideration.” United States v. 17.69 Acres of Land, 2004 WL 5632928 at *1 (S.D. 
Cal. 2004). Thus, even if the Bank’s misplaced arguments as to the nature of 
Plaintiffs’ burdens of proof were accepted, those arguments would go to the weight 
of Regan’s testimony, not to its admissibility. City of Pomona v. SQM North America 
Corp., 750 F.3d 1036, 1044 (9th Cir. 2014). 
For these reasons, as further explained below, none of the Bank’s renewed 
efforts to relitigate its repeatedly rejected legal arguments come close to requiring the 
exclusion of Greg Regan, an undisputedly qualified damages expert. The Bank’s 
motion should therefore be denied. 
BACKGROUND 
Greg Regan is a Certified Public Accountant. See Baltzer Dec. Ex. A ¶24 & 
Appendix A. He has previously been retained as an expert by governmental entities 
such as the SEC, the CFPB, and numerous State Attorneys General, and he has 
performed expert analyses in cases involving a broad range of companies, including 
Amazon, Avaya, ASML, Beyond Meat, Cisco, Fitbit, Google, Intuit, and PNC Bank.  
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Id. ¶26. The Bank does not dispute Regan’s expertise or qualifications to testify as an 
expert. Instead, it contends that his “methodologies and conclusions” are so 
“flaw[ed]” in this particular case as to require their exclusion. See Regan Mot. at 5, 7. 
Regan submitted his initial report on August 29, 2024 in support of Plaintiffs’ 
motion for class certification. Baltzer Dec. Ex. B (Regan Report dated August 29, 
2024). That report proposed two alternative methodologies for calculating the Bank’s 
total damages liability, including the classwide damages attributable to the Claim 
Denial, Credit Rescission, and Account Freeze class members’ lost access to their 
unemployment insurance (“UI”) funds. His “Methodology 1” proposed to calculate 
class members’ consequential damages by applying to their principal damages a 
uniform, compound interest rate reflecting the time value of money for this particular 
population (unemployment insurance beneficiaries during the height of the pandemic) 
deprived of these particular funds (UI benefits). The time value of money is the 
uncontroversial concept that a dollar now is worth more than a dollar later, and a 
compound interest rate reflecting that concept is a “standard way of calculating the 
harm resulting from denial of access to funds.” Baltzer Dec. Ex. B ¶¶8, 45-52, 85, 90, 
100. His “Methodology 2,” by contrast, proposed to calculate the actual costs most 
likely incurred by class members (credit card debt and late fees) as a result of being 
denied access to their funds, based on the assumptions 
 
 
 
 Id. ¶¶8, 53-
75, 86-89, 101. The Court found that the assumptions underlying Methodology 2 were 
not sufficiently supported by evidence in the class certification record.  Id. ¶¶8, 53-
75; see also ECF 494 at 87-88. 
While the Bank emphasizes the Court’s rejection of Methodology 2, it ignores 
that the Court accepted Methodology 1, the only methodology that Regan advocates 
in his merits report presently at issue. The Court based its approval of Methodology 
1 on the Ninth Circuit’s decision in Van I, in which “[t]he Ninth Circuit [] recognized 
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injury in the form of ‘the lost time value of money’ and an award of interest as a way 
of measuring and remedying that injury.” ECF 494 at 86 (quoting Van I, 962 F.3d at 
1162).  
In Van, a class action against a company that charged an improper sales tax to 
many customers but later refunded the overcharged amounts, the Ninth Circuit 
approved the use of a classwide interest rate to calculate the lost time value of the 
delayed refunds, despite variations in the individual economic situations of class 
members and the absence of any proof of any particular class members’ borrowing 
practices. Van v. LLR, Inc., 61 F.4th 1053, 1061 (9th Cir. 2023) (Van II) (approving 
a classwide annualized interest rate of 4.35%); accord Nguyen v. Nissan North 
America, Inc., 932 F.3d 811, 821 (9th Cir. 2019) (approving classwide benefit-of-the-
bargain damages in defective auto part case, in which plaintiffs proposed using 
average cost of replacing defective clutch system as proxy for the amounts of 
customer overpayment, despite classwide variations in cost, timing, and fact of 
replacement). 
As in Van, this Court concluded in its class certification order that the class 
members’ “varying economic circumstances” could not preclude Plaintiffs from 
calculating the lost time value of unlawfully withheld funds through application of a 
classwide interest rate, and that any dispute over “which interest rates should be 
applied is an issue for the factfinder” at trial. ECF 494 at 86-87. After all, if damages 
in cases like this and Van could not be based on generalized classwide assumptions 
(the underpinnings of which can be probed on cross-examination), no case involving 
the lost time value of money could ever proceed to trial on a classwide basis. 
Regan’s March 4, 2025 merits report, here at issue, is fully consistent with Van 
and this Court’s class certification order. Baltzer Dec. Ex. A. That report no longer 
relies on assumptions 
 and no longer proposes 
Methodology 2 as a mechanism for calculating classwide damages. Instead, Regan 
draws upon the extensive economic literature analyzed by Plaintiffs’ expert labor 
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economists—Profs. Chloe East and David Levine—to present an evidence-based 
calculation of a classwide interest rate based on the lost time value of money for the 
population affected by the Bank’s misconduct. Id.  ¶¶40-51. Given the evidence of 
that population’s “lower incomes” in general and the associated likelihood that their 
lost access to the wrongfully held principal would require them to borrow, reduce 
consumption, or forgo payments that would have reduced existing debt, Regan 
proposes that a 20% interest rate would be an appropriate approximation of the time 
value of money for this particular population. He also illustrates his calculations with 
a 10% interest rate as an alternative. Id.  
Nothing in Regan’s report or analysis conflicts with the basic premise, 
embraced by this Court and the Ninth Circuit, that the specific interest rate to be used 
to calculate classwide lost time-value damages is ultimately for the trier of fact to 
determine. Id. ¶46 & n.46. Should the trier of fact determine that a different interest 
rate should be used—if not the rates proposed by Regan, then perhaps the rates 
proposed by Prof. East, Prof. Levine, or 
 
 
 
 
—that interest rate can be inserted into 
Regan’s formulas to determine that element of classwide damages (amount of funds 
withheld x length of time withheld x interest rate). Baltzer Dec. Ex. A ¶¶44, 69, 80; 
see also ECF 494 at 86-87. 
LEGAL STANDARD 
To be admissible, testimony from a qualified expert need only “help the trier 
of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702; 
see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). As the Supreme 
Court has explained, Rule 702’s application must be consistent “with the liberal thrust 
of the Federal Rules and their general approach of relaxing the traditional barriers to 
opinion testimony.” Daubert, 509 U.S. at 588 (cleaned up). Expert witnesses are thus 
“permitted wide latitude to offer opinions, including those that are not based on 
firsthand knowledge or observation,” so long as “the expert’s opinion [has] a reliable 
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basis in the knowledge and experience of his discipline.” Id. at 592; see also, e.g., 
Jinro Am., Inc. v Secure Invs., Inc., 266 F.3d 993, 1004 (9th Cir. 2001). 
Under this standard, a district court’s task is not to “decid[e] whether the expert 
is right or wrong, just whether his testimony has substance such that it would be 
helpful to a jury.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 
969-70 (9th Cir. 2013). Expert testimony “need not establish every element that the 
plaintiff must prove[] in order to be admissible.” Primiano, 598 F.3d at565. “As a 
general rule, questions relating to the basis and sources of an expert’s opinion affect 
the weight to be assigned that opinion rather than its admissibility and should be left 
for the jury’s consideration.” 17.69 Acres, 2004 WL 5632928, at *1 (emphasis added). 
“[I]t is up to the opposing party to examine the factual basis for the opinion in cross 
examination. Only if the expert’s opinion is so fundamentally unsupported that it can 
offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Tech., 
Inc., 259 F.3d 924, 929-30 (8th Cir. 2001) (citations omitted); see also City of 
Pomona, 750 F.3d at 1044 (“Challenges that go to the weight of the evidence are 
within the province of the fact finder… A district court should not make credibility 
determinations that are reserved for the jury.”) 
ARGUMENT 
I. 
As the Court Held, It Is the Bank’s Burden, Not Regan’s, to Identify 
Any Fraudsters Remaining in the Class. 
The Bank begins with the brazen assertion that Regan’s EFTA-related 
methodologies must be excluded in their entirety because they do not “reliably” 
identify “cardholders who either intended to file fraudulent disputes or who simply 
reported authorized transactions by mistake,” Regan Mot. at 10, thus repackaging into 
Daubert trappings an argument the Court squarely rejected on class certification.  
In opposing certification, the Bank had argued that Plaintiffs’ EFTA claims 
could not be certified because individualized inquiries would be required to determine 
which, if any, class members were in fact undiscovered fraudsters. ECF 347 at 19-23. 
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In support, the Bank pointed to photographic evidence from a few ATM withdrawals 
that it contended were proof that some class members’ purportedly unauthorized 
ATM transactions were in fact authorized. Id. In reply, Plaintiffs pointed out that 
under EFTA, it is the Bank’s burden to establish that any disputed transactions were 
in fact authorized and that the Bank, despite having many opportunities, had 
repeatedly failed to meet that burden as to the class members. ECF 392 at 6-7 (citing 
15 U.S.C. 1693g(b) (“[T]o deny a claim, ‘the burden of proof is upon the [bank] to 
show the [disputed transaction] was authorized.’”)). Plaintiffs further explained that 
“the Bank has had ample opportunity to identify” any fraudsters: “first, pursuant to 
its reconsideration process; second, pursuant to the June 2021 Yick injunction (which 
required the Bank to investigate any claim by authenticated cardholders previously 
denied based solely on the CFF); and third, by the OCC/CFPB consent orders, which 
in July 2022 required the Bank to identify all those harmed by its use of CFF-1 and 
” Id. at 7. Plaintiffs also pointed out that if 
the Bank were right that the law required each class member to individually prove 
that their claim arose from a genuinely unauthorized transaction, “nothing would stop 
financial institutions from summarily denying all error claims without investigation, 
forcing each denied claimant to proceed individually or not at all, thereby completely 
nullifying EFTA’s consumer protection goals.” Id. at 6. 
This Court agreed with Plaintiffs. It explained: “Contrary to BANA’s 
argument, the burden of proving each disputed transaction was ‘unauthorized’ is on 
BANA, not Plaintiffs, the EDD debit cardholders.… BANA, not EDD cardholders, 
has to [] ‘show that claims are unauthorized before denying claims[.]’” ECF 494 at 
51-52. That burden belongs to the Bank, not to Plaintiffs’ damages expert. Nothing 
prevents the Bank from attempting to meet its burden of identifying fraudsters going 
forward, and if it does, those fraudsters would be excluded from Regan’s damages 
calculations under his proposed methodology. Baltzer Dec. Ex. A ¶¶ 4 & nn.10, 32.  
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The Bank’s argument thus ignores the basic principle that an expert’s testimony 
“need not establish every element that the plaintiff must prove[] in order to be 
admissible.” Primiano, 598 F.3d at 565; see also Daubert, 509 U.S. at 596 (“Vigorous 
cross-examination, presentation of contrary evidence, and careful instruction on the 
burden of proof are the traditional and appropriate means of attacking shaky but 
admissible evidence.”). Regan’s testimony need not itself establish liability or defeat 
every defense the Bank might assert for his testimony to assist the trier of fact.  See 
Alaska Rent-A-Car, Inc., 738 F.3d at 969-70. That is especially true because Regan’s 
formula for calculating damages stands ready to accommodate any evidence the Bank 
might ultimately muster as to any class members it can establish are ineligible 
fraudsters.1 
II. 
Regan’s Testimony Concerning Consequential Damages is 
Admissible. 
The Bank asserts that Regan’s compound-interest-rate-based methodology is 
inadmissible because Regan “is not claiming that every class member (or even any 
class member)” actually “had to borrow money” at the specific interest rates Regan 
identifies. Regan Mot. at 14. According to the Bank, because Regan relies on 
“generalizations” without “validating them by reference to the specific facts and 
circumstances of even a single…proposed class member,” the factfinder must be 
precluded from considering his testimony. Regan Mot. at 16; see also id. at 20-22. 
This argument misstates the law. It is commonplace for experts to rely on data and 
draw conclusions that are not specific to any particular party. Courts routinely reject 
attempts to exclude expert testimony on the grounds that the testimony is 
 
1 The Bank has not yet identified any such evidence. See RSUF 9, 134-35; PSAF 95. 
Although it now asserts that Regan “acknowledge[d]” in his deposition testimony the 
“existence” of “hundreds of likely fraudsters ” Regan Mot. at 12, in fact, Regan 
conceded only that 
 
 
 
 
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“speculative” or “not sufficiently corroborated,” as such “concerns go to the weight 
of the testimony and its credibility, not its admissibility.” Elosu v. Middlefork Ranch 
Inc., 26 F.4th 1017, 1025-28 (9th Cir. 2022) (citations omitted).  
The Bank’s argument also ignores the Court’s previous ruling as to Regan’s 
Methodology 1. An interest rate—any interest rate—necessarily reflects a 
generalization about the time value of money that is not strictly tied to the specific 
economic circumstances of each individual to whom it is paid. In Van, for example, 
the economic circumstances of the class members who were deprived for different 
lengths of time of the sales taxes they were unlawfully required to pay surely varied. 
Some may have had more “liquid savings”; others perhaps “could have borrowed 
funds from family members” or could more readily have “reduced consumption”; and 
so forth. Regan Mot. at 15. Like the Bank here, the defendant in Van argued that 
plaintiffs’ failure to make “specific allegations regarding how [each class member] 
would have earned interest on the money but for the defendant’s wrongful conduct” 
defeated their claims. Van I, 962 F.3d at 1164. The Ninth Circuit rejected that 
argument, holding that it “misstate[d] Van’s claimed injury,” explaining: 
Van does not assert that she is injured because she lost interest income. 
She asserts that she is injured because she lost the use of her money… 
Interest is simply a way of measuring and remedying Van’s injury, not 
the injury itself. 
Id. at 1164-65. In Van, then, the inevitable individual variations in the class members’ 
economic situations did not preclude the use of a uniformly applied interest rate to 
approximate the lost time value of money on a classwide basis. Van II, 61 F.4th at 
1061, 1063-68. The Bank offers no reason why this Court should reconsider its 
previous reliance on that binding precedent. ECF 494 at 86-87.2 
 
2 For the same reasons, the Bank’s reliance on class representatives’ interrogatory 
responses indicating that they did not actually borrow at the particular interest rates 
proposed by Regan misses the point. No class representative in Van claimed to have 
actually experienced a loss of interest income at precisely the classwide interest rate 
 
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The Bank’s argument is also contrary to the established case law holding that 
expert opinions—particularly the opinions of economic and accounting experts—are 
admissible even when based on “generalizations” rather than on adding together the 
precise amount of damages suffered by each individual class member (a requirement 
that would eliminate classwide relief in a broad swath of circumstances). Regan Mot. 
at 16. In Briseno v. ConAgra Foods, Inc., for example, the Ninth Circuit held that it 
was consistent with due process for plaintiffs to measure, on a classwide basis, the 
aggregate liability attributable to an allegedly false representation that certain cooking 
oils were “100% natural” by “(1) calculating the price premium attributable to the 
allegedly false statement…and (2) multiplying that premium by the total number of 
units sold during the class period.” 844 F.3d 1121, 1123, 1132 (9th Cir. 2017); accord, 
Nguyen, 932 F.3d at 821. In ConAgra, too, the individual circumstances of class 
members surely varied. After all, not everyone could be expected to attach precisely 
the same value to a representation that a cooking oil is “100% natural.” The court 
nonetheless concluded that the injury arising from such classwide misrepresentations 
may be determined on a classwide basis, regardless of each class member’s individual 
experiences and belief system, based on generalizations about the economic behavior 
of the relevant population. 844 F.3d at 1123, 1132.3 Notably, ConAgra had attempted 
 
ultimately embraced by the court either. As the Ninth Circuit explained, “[i]nterest is 
simply a way of measuring and remedying[the] injury, not the injury itself.” Van I, 
962 F.3d at 1165. 
3 See also, e.g., Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 326 F.R.D. 592 
(N.D. Cal 2018) (certifying a 23(b)(3) class and approving the use of market data to 
calculate a “price premium” approximating the value to consumers of Dr. Pepper’s 
false representation that a beverage was “made from real ginger”); McMorrow v. 
Mondelez International, Inc., 2021 WL 859137 (S.D. Cal. March 8, 2021) (approving 
a class-wide damages model approximating the value to consumers of the 
representation that a product was “nutritious.”); Belyea v. GreenSky, Inc., 2025 WL 
589037 at *6 (N.D. Cal., 2025) (denying motion to exclude damages expert and 
finding that, although individualized questions as to damages may be relevant to the 
appropriateness of class certification, “they are not a basis for challenging the 
reliability of [the expert’s] assessment of classwide damages”). 
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in the district court to exclude a damages expert on the ground that her proposed 
analysis would impermissibly seek to approximate the value to consumers of the 
allegedly false representation by relying in part on “future data” to estimate the 
“historical” price premium—that is, by relying on data concerning the market 
behavior of persons outside the class to make classwide generalizations untethered 
from the specific circumstances of any particular class member. In re ConAgra Foods, 
Inc., 90 F.Supp.3d 919, 1028 (C.D. Cal. 2015). The district court held that the expert’s 
generalizations based on market data “d[id] not make her methodology unreliable,” 
even though neither the data nor the generalizations were class member-specific. Id. 
Similarly, in Hartley v. Dillard’s, Inc., the defendant attempted to exclude an 
expert economist’s proffered testimony—consisting of economic generalizations 
about national trends affecting “mall and retail store sales”—because it did not 
address the “specific financial conditions” of the defendant’s retail store. 310 F.3d 
1054, 1060-61 (8th Cir. 2002). The Eighth Circuit nonetheless held that “the jury 
could consider” such economic generalizations, and that “it [was] up to the opposing 
party to examine the factual basis for the opinion in cross-examination”—not through 
a Daubert motion. Id. (citing Bonner, 259 F.3d at 929-30). 
Here, the Bank has not identified any authority that so much as suggests that 
Regan’s “generalizations” about the financial circumstances of class members—
which the Bank does not dispute are supported by the “reports and studies” he cites, 
Regan Mot. at 15—are so unreliable as to be inadmissible. The factfinder should 
therefore be permitted to “consider” such generalizations and to give them whatever 
persuasive weight is appropriate, even though they are not—and realistically, could 
not be—based on the “specific financial conditions” of each of the approximately 
109,000 individual class members. Hartley, 310 F.3d at 1061. At trial, the Bank may 
challenge Regan’s testimony through cross-examination or through the presentation 
of its own experts’ testimony (testimony which includes those experts’ own economic 
generalizations about class members, which are also not rooted in any class member’s 
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specific financial situation). Bonner, 259 F.3d at 929-30.4 Such arguments necessarily 
go to the weight the factfinder should give the experts’ testimony—not to 
admissibility. City of Pomona, 750 F.3d at 1044. After all, even if the trier of fact 
ultimately determines that a lower interest rate than those Regan proposes should be 
used, the formula he offers for calculating the lost time value of money will still 
“assist the trier of fact,” because whatever interest rate the factfinder adopts can be 
inserted into that three-variable formula (amount, time, rate). See Daubert, 509 U.S. 
at 591.  
III. 
Regan’s Testimony as to Disgorgement Based on “Float Revenue” 
Is Admissible. 
Regan has explained that disgorgement damages for the Claim Denial, Credit 
Rescission, and Account Freeze classes may be calculated based on the “float 
revenue” earned by the Bank on the balance of funds to which class members lost 
access as a result of the Bank’s wrongdoing, for the period of time in which those 
funds were wrongfully withheld. Baltzer Dec. Ex. A ¶¶60-62, 72, 87.5 In stating this 
opinion, Regan noted the deposition testimony of the Bank’s Rule 30(b)(6) designee 
Robert Chestnut, who testified that 
 
 
 
 
Id. ¶40 & n. 34.  
 
4 See, e.g.  
 
 
    
5 The Bank does not challenge Regan’s proposed disgorgement methodologies for the 
Customer Service and EMV Chip classes.  
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The Bank seeks to exclude Regan’s testimony about disgorgement of float 
revenue on the theory that he needed to cite evidence establishing that every member 
of those three classes would have immediately withdrawn the Bank’s provisional 
credit payments had the Bank timely complied with its obligation to make those 
payments rather than wrongfully withholding them in reliance on CFF-1. Regan Mot. 
at 23-25. That, too, is a repackaging of the same argument the Bank presented and 
lost on class certification through its economic expert Victor Stango. Baltzer Dec. Ex. 
C ¶81 (asserting that “not all proposed class members [immediately] withdrew all 
available funds from their EDD accounts”). Plaintiffs countered that the assertion was 
“legally irrelevant,” because the object of the disgorgement remedy in California is to 
“eliminate” even the “possibility of profit from conscious wrongdoing.” ECF 392 at 
20-21 (quoting Meister v. Mensinger, 230 Cal.App.4th 381, 398 (2014)) (emphasis 
added). Because Plaintiffs had an “ownership interest” in the wrongfully withheld 
funds on which the Bank earned float revenue, they had the right to withdraw those 
funds at any time. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 
1148 (2003). By unlawfully withholding those funds, the Bank converted them from 
a potential source of Bank revenue (with respect to those class members who had 
chosen not to withdraw their provisional credit payments) into a certain source of 
revenue (because the Bank, by its unlawful conduct, thereby ensured that no class 
members could exercise their ownership rights). Under California law, all revenue 
thereby generated is fairly “attributable to the underlying wrong.” Mensinger, 230 
Cal.App.4th at 398; see also Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1183 
(9th Cir. 2017) (classwide calculations under the UCL are “particularly forgiving”). 
This Court agreed, holding that Regan’s disgorgement damages model for float 
revenue satisfied predominance. ECF 494 at 93. The Bank offers no basis for this 
Court to reconsider that ruling. 
The Bank also contends that Regan’s disgorgement calculation should be 
excluded because, according to the Bank, it “fails to deduct BANA’s operational 
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costs” and thus does not measure “net profits.” Regan Mot. at 25. The Bank further 
asserts, remarkably, that the float revenue it might have earned on funds that would 
have been deposited if not for the Bank’s own misconduct (depending on when those 
funds would have been withdrawn) must be deducted from any damages. But in the 
disgorgement context, any “risk of uncertainty should fall on the wrongdoer whose 
illegal conduct created that uncertainty.” SEC v. Platforms Wireless Int’l Corp., 617 
F.3d 1072, 1096 (9th Cir. 2010) (quoting SEC v. First City Fin. Corp., 890 F.2d 1215, 
1232 (D.C. Cir. 1989)); see also Restatement (Third) of Restitution § 51 (explaining 
that the burden of dispelling any uncertainty in disgorgement calculations is assigned 
to the wrongdoer). Any lost profits the Bank would have earned but-for its misconduct 
are “attributable to the underlying wrong.” Mensinger, 230 Cal.App.4th at 398. In any 
event, even if such costs were relevant, Regan’s methodology would still be helpful 
to the factfinder and therefore admissible, because such costs could simply be 
deducted from the damages figures Regan’s methodology produces. Alaska Rent-A-
Car, Inc., 738 F.3d at 969-70; Primiano, 598 F.3d at 565.6 
IV. 
The Bank’s Challenges to Regan’s Customer-Service Class 
Methodology Also Fail 
Regan has proposed to calculate damages for the Customer Service Class by 
taking the average length of excess hold time caused by the Bank’s failure adequately 
to staff its call centers and multiplying that figure by “the applicable minimum wage 
or other reasonable metric.” Baltzer Dec. Ex. A ¶¶ 92-93. On class certification, this 
Court held that Regan’s proposed methodology satisfied the predominance 
requirement, because the Plaintiffs’ damages theory concerns “not just time lost but 
 
6 The only case identified by the Bank that so much as suggests that an expert’s failure 
to measure “net profits” could render his testimony inadmissible does not even 
involve disgorgement. Regan Mot. at 25 (citing Duncan v. Blackbird Prods. Grp., 
LLC,, 2021 WL 7708670 at *4 (W.D. Mo. Mar. 4, 2021)). That holding was instead 
specific to “Missouri law” concerning the elements of claims for lost profits, not 
disgorgement. Duncan, 2021 WL 7708670 at *2. 
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an excessive amount of lost time” and because the use of “the applicable minimum 
wage or other reasonable metric,” as applied to the average length of excess hold time, 
offers a legally permissible mechanism for approximating the harm inflicted on a 
classwide basis. ECF 494 at 89-91. Again, the alternative would be no damages at all, 
even though the evidence of liability and fact of damages is compelling. 
 
Despite this Court’s prior ruling, the Bank again asserts that damages cannot 
be measured on a classwide basis because “Regan’s methodology assumes that ‘lost 
time’ resulted in the same ‘economic harm’ to each class member.” Regan Mot. at 22. 
It assumes no such thing. Neither Plaintiffs nor Regan contend that every class 
member would have spent the excess hold time wasted by the Bank by working a job 
that paid precisely the minimum wage. As with the interest-rate-based approach 
approved by the Ninth Circuit in Van and similar cases, “[Plaintiffs] do[] not assert 
that [they are] injured because [they] lost…income. [The reasonable metric proposed 
by Regan] is simply a way of measuring and remedying [the] injury, not the injury 
itself.” Van I, 962 F.3d at 1164-65; see also Van II, 61 F.4th at 1063. The law fully 
tolerates such classwide approximations of aggregate damages. Supra at 2, 9-13. As 
Plaintiffs’ expert Prof. Levine has explained, economists routinely “use wage data to 
represent the value of time,” even for the unemployed, and unemployed persons 
whose time was wrongfully denied to them by the Bank likely faced higher costs. 
Baltzer Dec. Ex. E (Levine Report) ¶¶14-30. Should the Bank argue at trial that a 
lower reasonable metric for approximating the value of excess hold time should be 
used, it must do so through cross-examination or through the introduction of its own 
evidence or expert testimony—not by repackaging its rejected class certification 
arguments as a Daubert challenge. Supra at 12-13. 
CONCLUSION 
For the reasons stated above, the Bank’s motion to exclude the expert testimony 
of Regan should be denied in its entirety. 
 
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE 
EXPERT OPINIONS OF GREG J. REGAN 
Case No.: 3:21-md-02992-GPC-MSB
 
Respectfully submitted, 
Dated: January 7, 2026 
COTCHETT, PITRE & McCARTHY, LLP 
 
By: /s/ Brian Danitz 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
VASTI S. MONTIEL 
CAROLINE A YUEN 
 
Dated: January 7, 2026 
ALTSHULER BERZON LLP 
By: /s/  Michael Rubin 
 
MICHAEL RUBIN  
CONNIE K. CHAN 
JAMES BALTZER 
KATHERINE G. BASS 
 
Co-Lead Counsel for Plaintiffs and the 
Proposed Class 
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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE 
EXPERT OPINIONS OF GREG J. REGAN 
Case No.: 3:21-md-02992-GPC-MSB
 
CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the  
court for the United States District Court for the Southern District of California by  
using the CM/ECF system on January 8, 2026. I further certify that all participants in 
the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system. I certify under penalty of perjury that the foregoing is true and 
correct.  
 
Executed: January 8, 2026 
 
 
 
   
  
 
 
/s/     Brian Danitz
  Brian Danitz  
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