Court filing
Exhibit B — In re Bank of America California Unemployment Benefits Litigation (Dkt. 620-4, S.D. Cal. No. 3:21-md-02992)
Filed January 8, 2026 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 | 2026-01-08 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 620-4 · 2026-01-08 · Docket on CourtListener
Full text
EXHBIT B
FILED
PROVISIONALLY
UNDER SEAL WITH
REDACTIONS
PURSUANT TO
STIPULATED
PROTECTIVE ORDER
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
In re Bank of America California
Unemployment Benefits Litigation,
This Document Relates to All Actions
Case No. 3-21-md-02992-GPC-MSB
EXPERT CLASS CERTIFICATION REPORT OF
GREG J. REGAN, CPA/CFF, CFE
August 29, 2024
FILED PROVISIONALLY UNDER SEAL
PURSUANT TO STIPULATED PROTECTIVE ORDER
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TABLE OF CONTENTS
PAGE
I.
INTRODUCTION .............................................................................................................. 1
A.
Summary of Plaintiffs’ Allegations ........................................................................ 1
B.
Nature of My Assignment ....................................................................................... 3
C.
Summary of Opinions ............................................................................................. 5
1.
Claim Denial Class: .................................................................................... 5
2.
Credit Rescission Class: .............................................................................. 7
3.
Account Freeze Class:................................................................................. 8
4.
Customer Service Class: ............................................................................. 8
5.
EMV Chip Class, ........................................................................................ 9
D.
Qualifications ........................................................................................................ 10
II.
CLAIM DENIAL CLASS ................................................................................................ 12
A.
Identification of Claim Denial Class Members .................................................... 12
B.
Calculations of Claim Denial Class Damages ...................................................... 16
1.
Principal Amount of Actual Damages ...................................................... 16
2.
Consequential Damages ............................................................................ 16
3.
EFTA Treble Damages ............................................................................. 35
4.
EFTA Statutory Damages ......................................................................... 35
5.
Disgorgement of Profits ............................................................................ 36
III.
CREDIT RECISSION CLASS ......................................................................................... 37
A.
Identification of Credit Recission Class Members ............................................... 37
B.
Calculations of Credit Recission Class Damages ................................................. 39
1.
Principal Amount of Actual Damages ...................................................... 39
2.
Consequential Damages ............................................................................ 39
3.
EFTA Treble Damages ............................................................................. 41
4.
EFTA Statutory Damages ......................................................................... 41
5.
Disgorgement of Profits ............................................................................ 42
IV.
ACCOUNT FREEZE CLASS .......................................................................................... 42
A.
Identification of Account Freeze Class Members ................................................. 42
B.
Calculations of Account Freeze Class Damages .................................................. 45
1.
Principal Amount of Actual Damages ...................................................... 45
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2.
Consequential Damages ............................................................................ 45
3.
Disgorgement of Profits ............................................................................ 49
V.
CUSTOMER SERVICE CLASS ...................................................................................... 50
A.
Identification of Customer Service Class Members ............................................. 50
B.
Calculations of Customer Service Class Damages ............................................... 51
1.
Actual Damages ........................................................................................ 51
2.
Disgorgement of Profits ............................................................................ 51
VI.
EMV CHIP CLASS .......................................................................................................... 52
A.
Identification of EMV Chip Class Members ........................................................ 53
B.
Calculations of EMV Chip Class Damages .......................................................... 53
1.
Actual Damages ........................................................................................ 53
2.
CCPA Statutory Damages......................................................................... 53
3.
Disgorgement of Profits ............................................................................ 54
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I.
INTRODUCTION
A.
Summary of Plaintiffs’ Allegations
1.
Class Plaintiffs Kuang Ting Chong, Candace Koole, Lindsay McClure, Azuri
Moon, Stephanie Moore, Roland Oosthuizen, Vanessa Rivera, Michael Willrich, and Alex Yuan
(collectively, “Plaintiffs”) brought this proposed class action against Defendant Bank of
America, N.A. (“Bank of America” or “Bank”) on behalf of themselves and all other similarly
situated individuals whose California unemployment and other public benefits were paid through
debit cards issued by Bank of America.1
2.
The California Employment Development Department (“EDD”) administers
programs that provide unemployment insurance (“UI”) and state disability insurance (including
disability insurance and paid family leave) benefits (“EDD benefits”) to Californians.2 In 2010,
EDD contracted with Bank of America to provide Bank-administered prepaid debit cards (“EDD
debit cards”) through which individuals entitled to receive EDD benefits could access those
benefits (“EDD cardholders”).3
3.
Plaintiffs allege that, during the Covid-19 pandemic, Bank of America
implemented policies that deprived Plaintiffs of EDD benefits to which they were lawfully
entitled, including by implementing an automated Claim Fraud Filter (“CFF”)4 that it used to
1 Second Amended Master Consolidated Complaint (“SAMCC”) 1-2.
2 Id. ¶¶ 1, 38; see also Emp. Dev. Dep’t (EDD), State of California, About Our Branches,
https://edd.ca.gov/en/about_edd/about_edd/.
3 Id. ¶¶ 2, 39; see also Ex. 22 at 5. In this report, “Ex.” refers to exhibits attached to the
Declaration of Connie K. Chan in Support of Plaintiffs’ Motion for Class Certification (“Chan
Decl.”), which are also listed in Plaintiffs’ concurrently filed Index of Exhibits.
4 I understand that, beginning on approximately September 28, 2020, Bank of America had a
practice of applying its Claim Fraud Filter to unauthorized-transaction claims submitted by EDD
cardholders, which Plaintiffs allege resulted in the improper denial of the class members’
unauthorized transaction claims and other harms. See, e.g., SAMCC ¶ 89. The Claim Fraud Filter
was applied by the Bank to accounts associated with state unemployment programs. See Ex. 19
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summarily close or deny unauthorized transaction claims made by EDD cardholders,5 to rescind
permanent credits previously issued to EDD Cardholder accounts,6 and to freeze EDD
Cardholder accounts cutting off access to the EDD benefits.7 Plaintiffs further allege that the
Bank failed to maintain adequate levels of customer service needed to handle EDD cardholders’
unauthorized transaction claims,8 and that Bank of America failed to take reasonable measures to
secure their EDD Cardholder accounts by issuing EDD debit cards without industry-standard
EMV security chips.9
4.
I understand that Plaintiffs and class members are filing a motion for class
certification.10 I further understand that Plaintiffs and class members belong to one or more of
the following classes, each of which is ascertainable from the Bank’s records, as explained
herein:11
(Deposition of the Bank’s Rule 30(b)(6) Designee Jennifer Lennon, dated February 23, 2024
(“Lennon Tr.”) 75:22-76:7.
5 SAMCC ¶¶ 89-91.
6 Id. ¶ 92
7 Id. ¶¶ 93-96.
8 Id. ¶¶ 97-105.
9 Id. ¶ 69.
10 As discovery in this matter continues, my understanding of the composition of the Classes may
be refined further.
11 Excluded from each Class is any person whom the Bank has determined, pursuant to its
Remediation Plan with the United States Consumer Financial Protection Bureau (CFPB)
Id. at -
102555. Also excluded from each Class is any person whose Claim or Account the Bank closed,
in whole or in part, because the State of California requested that the Bank close that person’s
Claim or Account.
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No.
Class
Class Definition
1
Claim Denial
All Bank of America EDD cardholders who notified the Bank that an
unauthorized transaction had occurred on their Bank of America EDD
debit card account (“Claim”) at an automated teller machine (“ATM”),
and whose Claim the Bank denied or closed at any time from
September 28, 2020 through June 8, 2021, based solely on Indicator 1
of the Bank’s CFF.
2
Credit
Rescission
All Bank of America EDD cardholders who received permanent credit
from the Bank in connection with their Claim, which credit the Bank
rescinded at any time from September 28, 2020 through June 8, 2021,
based solely on Indicator 1 of the Bank’s CFF.
3
Account
Freeze
All Bank of America EDD cardholders whose EDD debit card account
(“Account”) the Bank froze at any time from September 28, 2020
through March 18, 2021, based solely on Indicator 1 of the Bank’s
CFF, and whose Account the Bank (i) subsequently unfroze, or (ii)
subsequently converted from frozen to blocked status on or after March
18, 2021, and then unblocked.
4
Customer
Service
All members of the Claim Denial Class and/or the Credit Rescission
Class who telephoned the Bank’s customer service phone number for
Bank of America EDD cardholders at any time between September 13,
2020 and November 21, 2020, inclusive, and whose telephone call was
routed to the Bank’s Claims Call Center.
5
EMV Chip
All members of the Claim Denial Class and/or the Credit Rescission
Class whose EDD debit card did not include an EMV chip prior to June
9, 2021.
B.
Nature of My Assignment
5.
My firm, Hemming Morse, LLC (“HM”), was retained by Plaintiffs’ counsel in In
re Bank of America California Unemployment Benefits Litigation, Case No. 3-21-md-02992-
GPC-MSB. I have been retained to evaluate appropriate methodologies to measure the impact on
each Class of the Bank’s policies and practices, as alleged by Plaintiffs, of: (1) denying EDD
cardholders’ unauthorized transaction claims without investigation or issuance of provisional
credit, based on the results of the Bank’s “Claim Fraud Filter”; (2) rescinding previously issued
permanent credits on EDD Cardholders’ unauthorized transaction claims, based on the Bank’s
retroactive application of its Claim Fraud Filter; (3) freezing the accounts of EDD cardholders
who submitted unauthorized transaction claims, based on the results of the Claim Fraud Filter;
(4) denying reasonable customer service to EDD cardholders seeking assistance with their
unauthorized transaction claims during certain time periods; and (5) issuing EDD cardholders
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debit cards that did not include an EMV chip prior to July 2021. Specifically, I have been asked
to provide methodologies to calculate classwide damages available to each of the following five
Classes, which I have summarized in the table below and described in the related sub-sections of
this report:12
Class
Claim
Damages Sought
Claim Denial
EFTA13 and Regulation E14 Actual damages + Statutory damages + Treble
Damages
Breach of Fiduciary Duty
Actual damages + Disgorgement +
Punitive damages
Breach of the Implied
Covenant of Good Faith
Actual damages + Disgorgement +
Punitive damages
Negligence
Actual damages + Disgorgement
UCL
Restitution
Credit
Rescission
EFTA and Regulation E
Actual damages + Statutory damages + Treble
damages
Due Process
Actual damages + Punitive damages
Breach of Fiduciary Duty
Actual damages + Disgorgement +
Punitive damages
Breach of the Implied
Covenant of Good Faith
Actual damages + Disgorgement +
Punitive damages
Negligence
Actual damages + Disgorgement
UCL
Restitution
Account Freeze
Due Process
Actual damages + Punitive damages
Breach of Fiduciary Duty
Actual damages + Disgorgement + Punitive
damages
Breach of the Implied
Covenant of Good Faith
Actual damages + Disgorgement + Punitive
damages
Negligence
Actual damages + Disgorgement
UCL
Restitution
Customer
Service
Breach of Fiduciary Duty
Actual damages + Disgorgement + Punitive
damages
Breach of the Implied
Covenant of Good Faith
Actual damages + Disgorgement + Punitive
damages
12 I have not been asked to calculate punitive damages at this time. Although I have also not been
asked to calculate restitution for Plaintiffs’ Unfair Competition Law claim, restitution could be
calculated using the same methodologies described for the Claim Denial, Credit Recission, and
Account Freeze classes below.
13 Electronic Funds Transfer Act (“EFTA”), 15 U.S.C. §§ 1693(a)-(r).
14 12 C.F.R. pt 1005. I understand that the Bank represented to EDD that it would comply with
Regulation E requirements and timelines. See Ex. 22 at 199.
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Class
Claim
Damages Sought
Negligence
Actual damages + Disgorgement
EMV Chip
CCPA
Actual damages + Statutory damages
Breach of Fiduciary Duty
Actual damages + Disgorgement + Punitive
damages
Negligence
Actual damages + Disgorgement
C.
Summary of Opinions
6.
I understand that each of Plaintiffs’ class definitions reference “Indicator 1” of the
Bank’s Claim Fraud Filter (“CFF”). The Bank applied Indicator 1 to all Claims submitted or
pending disposition at any time between September 28, 2020 and June 8, 2021 that involved an
unauthorized
.”15 The Bank has explained
that Indicator 1 applied to Claims involving, in whole or in part, an unauthorized ATM
withdrawal (i.e.,
”).16 Plaintiffs allege that the Bank denied
Claims, rescinded permanent credits, and froze EDD cardholder accounts based solely on its
application of Indicator 1.17
7.
The paragraphs below summarize my present opinions for each class. Each of
these opinions is described in further detail in a related section below:18
1.
Claim Denial Class:
8.
Actual damages may be calculated on a classwide basis as follows. The principal
amount of damages equals the amount of the Plaintiffs’ and class members’ claims that the Bank
15 Ex. 49 Bank of America’s Responses and Objections to Plaintiff Yick’s Fourth Set of
Interrogatories (“4th Rogs”), No. 28.
16 See Ex. 17 (Deposition of Bank’s Rule 30(b)(6) Designee Michael Letson, (“Letson Tr.”)
92:15-94:5
; Ex. 145 at -125186-87 (
Ex. 50 (“
”).
17 SAMCC ¶¶ 89-96.
18 For purposes of my analysis, I assume that Plaintiffs will establish liability based on their
allegations.
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denied based on Indicator 1 of its CFF, which data is available in Bank records that have been
produced to Plaintiffs in this litigation. Consequential damages resulting from loss of access to
this principal amount resulting from the Bank’s denial of claims based on CFF Indicator 1 can be
calculated using either of two alternative methodologies. First, those damages can be calculated
by applying to the principal amounts (i.e., the claim amounts) a compound interest rate that
reflects the time value of money for this population of cardholders, based on the total length of
time the class members were denied access to those funds, which data is also available in Bank
records that have been produced to Plaintiffs in this litigation. A compound interest rate is a
standard way of calculating the harm resulting from denial of access to funds. Second, damages
can be calculated based on the financial harms experienced by these EDD Cardholders as a result
of the Bank’s denial of their claims. In circumstances where funds should have been available,
but were unavailable due to the Bank’s actions, these EDD cardholders would have needed to
obtain alternate funds, incurring associated costs in doing so. In addition, due to the unexpected
unavailability of their funds, the EDD cardholders in these circumstances would likely have
incurred late or overdraft fees. Together, the costs incurred by EDD cardholders constitute my
calculation of consequential damages under this alternative methodology. These calculations are
explained in further detail in §§ II-IV below. This second methodology, which resembles the
methodology the Bank itself used in calculating consequential harm payments to EDD
cardholders under the Remediation Plan it developed pursuant to the CFPB and OCC Consent
Orders, yields a similar sum of damages to the first methodology of using a compound interest
rate.
9.
Treble damages under EFTA, 15 U.S.C. §1693f(e), can be calculated on a
classwide basis by simply multiplying each class member’s actual damages by three.
10.
Statutory damages under EFTA, 15 U.S.C. §1693m(a)(2)(B), can likewise be
calculated on a classwide basis in accordance with the statute, which provides for statutory
damages of up to $500,000 per violation in a class action. The aggregate award of statutory
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damages can be allocated per capita (providing all class members an equal share) or pro rata
among class members in proportion to the value of their actual damages.
11.
Disgorgement can be calculated based on the Bank’s records. Plaintiffs and the
class seek disgorgement of profits that the Bank earned on the claim amounts that the Bank
withheld from Plaintiffs and the class based on its Claim Fraud Filter. The disgorged profits can
be allocated per capita or pro rata among class members in proportion to the value of their actual
damages.
2.
Credit Rescission Class:
12.
Actual damages can be calculated on a classwide basis as follows. The principal
amount of damages equals the amount of the claim credit that the Bank rescinded based on
Indicator 1 of its Claim Fraud Filter, which data is available in Bank records that have been
produced to Plaintiffs in this litigation. Consequential damages can be calculated using the same
two alternative methodologies described above with respect to the Claim Denial class.
13.
Treble damages under EFTA, 15 U.S.C. §1693f(e), can be calculated on a
classwide basis by simply multiplying each class member’s actual damages by three.
14.
Statutory damages under EFTA, 15 U.S.C. §1693m(a)(2)(B), can likewise be
calculated on a classwide basis in accordance with the statute, which provides for statutory
damages of up to $500,000 per violation in a class action. The aggregate award of statutory
damages can be allocated per capita or pro rata among class members in proportion to the value
of their actual damages.
15.
Disgorgement can be calculated based on the Bank’s records. Plaintiffs and the
class seek disgorgement of profits that the Bank earned on the rescinded claim credit amounts
that the Bank withheld from Plaintiffs and the Class based on its Claim Fraud Filter. The
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disgorged profits can be allocated per capita or pro rata among class members in proportion to
the value of their actual damages.
3.
Account Freeze Class:
16.
Actual damages can be calculated on a classwide basis as follows. The principal
amount of damages equals the amount of funds in Plaintiffs’ and class members’ accounts to
which they were denied access when the Bank froze their accounts based on Indicator 1 of its
Claim Fraud Filter, which data is available in Bank records that have been produced to Plaintiffs
in this litigation. Consequential damages can be calculated using the same two alternative
methodologies described above with respect to the Claim Denial class. Further, Account Freeze
class members incurred additional time-value-of-money costs because of the delays in obtaining
EDD benefits payments after EDD became unable to continue depositing funds into their frozen
accounts and had to make subsequent payments by check instead. Those additional consequential
damages can be calculated based on information about the length of delay in subsequent benefit
payments caused by the Bank’s freezing of accounts based on its Claim Fraud Filter.
17.
Disgorgement can be calculated based on the Bank’s records. Plaintiffs and the
class seek disgorgement of profits that the Bank earned on the amounts frozen in their accounts
that the Bank withheld from Plaintiffs and the class based on its Claim Fraud Filter. The
disgorged profits can be allocated per capita or pro rata among class members in proportion to
the value of their actual damages.
4.
Customer Service Class:
18.
Actual damages can be calculated on a classwide basis as follows. An appropriate
measure of damages for this class is compensation for the value of Plaintiffs’ and class members’
lost time spent on hold with the Bank’s Claims call center waiting for their call to be answered
that was greater than the reasonable wait-on-hold time by industry standards. This calculation
can be readily accomplished for all class members. I understand that Plaintiffs’ call center expert
has analyzed the Bank’s call center data during the relevant times and has compared the
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“Average Speed to Answer” (“ASA”) of the Bank’s Claims call center against the industry
average ASA, yielding an average excess hold time of 81.75 minutes per call. The Bank’s
records reflect how many times each class member called during the relevant period. These
figures can be multiplied by the applicable minimum wage—or other reasonable metric—to
calculate the total value of class members’ lost time.
19.
Disgorgement can be calculated based on the Bank’s records. Plaintiffs and the
class seek disgorgement of profits, in the form of avoided costs, that the Bank earned by
understaffing its Claims call center, which caused the long wait times that the Customer Service
class members endured. The disgorged profits can be allocated per capita or pro rata among class
members in proportion to the value of their lost-time actual damages.
5.
EMV Chip Class,
20.
Actual damages can be calculated on a classwide basis as follows. The principal
amount of damages equals the amount of funds that were taken from the class member’s EDD
debit card account through an unauthorized ATM transaction and/or an unauthorized point-of-
sale transaction, as reflected in the amount of the class member’s claim that the Bank denied
based on Indicator 1 of its Claim Fraud Filter, which data is available in Bank records that have
been produced to Plaintiffs in this litigation. Consequential damages can be calculated using the
same two alternative methodologies described above with respect to the Claim Denial class.
21.
Statutory damages under the California Consumer Privacy Act (“CCPA”), Cal.
Civ. Code §1798.150(a), can be calculated on a classwide basis in accordance with the statute,
which provides for statutory damages ranging from a minimum of $100 to a maximum of $750
per violation, or actual damages, whichever is greater.
22.
Disgorgement can be calculated based on the Bank’s records. Plaintiffs and the
class seek disgorgement of profits, in the form of avoided costs, that the Bank earned by not
including EMV chips in its EDD debit cards prior to July 2021 (an estimated $0.39 per card as of
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January 2020, according to Bank records). The disgorged profits can be allocated among the
class members on a per capita basis.
D.
Qualifications
23.
I am a Partner in the Forensic Consulting Services Group of Hemming Morse,
LLC.19 I have been licensed as a CPA in California continuously since 1998. I am also licensed
as a CPA in New York. I hold the Certified in Financial Forensics (“CFF”) certification from the
AICPA, which is the national professional organization for CPAs. I am also a Certified Fraud
Examiner (“CFE”), which is a certification issued by the Association of Certified Fraud
Examiners. I obtained my undergraduate degree from Georgetown University and Masters in
Business Administration with an emphasis in Corporate Finance from the University of San
Francisco.
24.
My work in the accounting profession includes experience as an auditor at Ernst
& Young LLP, as the Controller of a publicly traded company, and as a consultant. My work as a
consultant has involved extensive analysis of various forms of economic damages. Through
these roles, I have gained substantial experience working with complex data systems.
25.
I have been retained to perform these types of damages analyses in matters
involving large companies such as Amazon, Avaya, ASML, Beyond Meat, Cisco, Fitbit, Google,
Intuit, and PNC Bank. I have also been retained as an expert by numerous governmental entities
such as the Securities and Exchange Commission, the Consumer Financial Protection Bureau
(“CFPB”) and Attorney Generals for numerous states (e.g., California, Colorado, and
Massachusetts). For example, I was retained by the Colorado Attorney General in its
investigation of the lending practices of Marlette Funding LLC, a consumer lending company.
Strategic Financial LLC also retained me to analyze allegations by the CFPB. Additionally, I
19 My expert qualifications, including the testimony I have given, are described in Appendix A
hereto.
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have published numerous peer-reviewed analyses of consumer outcomes in debt settlement
programs for the American Association for Debt Resolution.
26.
The AICPA has 650,000 members. The AICPA delegates policy-setting in areas
in which CPAs are active to nineteen different executive committees.20 I have served as a
member of the AICPA’s Forensic & Valuation Services Executive Committee. This nine-
member committee establishes professional standards and guidance for practitioners performing
consulting services that require the application of forensic accounting or valuation-related
methodologies. I was the Chair of the AICPA’s Economic Damages Task Force from 2010-2013
and served as a member of this task force through 2020. I continue to regularly present at the
AICPA’s national forensic and valuation services conference. In 2012, I received the AICPA’s
Forensic Services Volunteer of the Year, which is the award given annually to a member that has
made significant contributions to the advancement of the field of forensic accounting.
27.
I am also a member of the California Society of Certified Public Accountants and
was the Chair of its statewide Forensic Services Section.
28.
The AICPA requires its members to comply with its standards. The AICPA has
determined that the services I am performing in this matter are subject to its Statement on
Standards for Forensic Services. These standards require me, among other things, to operate with
integrity, and to be impartial, intellectually honest, and free of conflicts of interest.
29.
My hourly rate is $625 per hour. My compensation is not dependent on the
calculations I have made, the opinions I express, or the outcome of this matter. A list of the
sources I considered in preparing this report, as required by Federal Rule of Civil Procedure
26(a)(2)(B)(ii), may be found in Appendix B to this report, as well as the footnotes herein.
20 See AICPA & CIMA, AICPA Board of Directors and Volunteer Committees, www.aicpa-
cima.com/resources/landing/aicpa-governance-and-senior-and-executive-committees.
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These sources include documents produced by the Bank, documents that are publicly available
including documents published by the Bank, testimony, and written discovery.21
30.
I am providing this report in support of Plaintiffs’ motion for class certification, in
accordance with the Court’s schedule, and anticipate I may perform further calculations and
analysis in the future.22 This report contains proprietary information designated by the Bank as
“CONFIDENTIAL” and “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under a
Stipulated Protective Order entered in the United States District Court for the Northern District
of California. Accordingly, no part of this report or its contents may be published without
adherence to the applicable legal standards governing such publications.
II.
CLAIM DENIAL CLASS
A.
Identification of Claim Denial Class Members
31.
As described in ¶ 4 above, the Claim Denial class consists of all EDD cardholders
who gave the Bank notice that an unauthorized transaction had occurred on their EDD Debit
Card Account (“Claim”) and whose Claim the Bank closed or denied at any time between
September 28, 2020 and June 8, 2021 based on the Bank’s application of its CFF because the
Claim triggered Indicator 1 of the Bank’s CFF. Excluded from the class is any person whom the
Bank has determined, pursuant to its Remediation Plan under the CFPB Consent Order
21 In addition, other evidence may be produced that could be relevant to my conclusions, including
the testimony and reports of other witnesses. Accordingly, I reserve the right to amend my report
and supplement my opinions after considering such evidence, if necessary. For purposes of clarity,
the Bank has produced supplemental and/or revised information in response to interrogatory
requests. The references to the exhibits to the Bank’s interrogatory responses herein should be
understood to reference the most recent version of that exhibit, as of the date of this report, unless
otherwise noted.
22 I understand the inquiry into the merits of the case will occur at a later date, at which time I may
be called upon to offer further analysis or testimony.
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.23
.24
32.
The members of this Class are ascertainable from the Bank’s records.
Specifically, Bank of America produced data from its claims system of record Wadworth, The
W, which contains transactional data received from Visa, and data from Global Information
Security (“GIS”), that identifies all EDD cardholders whose claims satisfied (“triggered,” in the
Bank’s words) Indicator 1, 2, or 3 of the CFF, and which the Bank then denied based on
application of the Claim Fraud Filter,
25
23 Ex. 74 at -102557.
24 Ex. 98 (Bank of America’s First Set of Responses and Objections to Plaintiff Yick’s Seventh
Set of Interrogatories (“7th Rogs”), No. 46 and Exhibit 16 thereto (as of April 19, 2024)). In
addition to those identified in Exhibit 16, the Bank identified
, who do not appear
in Exhibit 16. For purposes of identifying class members and calculating class damages, I have
also treated
as Excluded Cardholders.
25 Ex.59 (Bank of America’s Responses and Objections to Plaintiff Yick’s Third Set of
Interrogatories (“3rd Rogs”), No. 21); see also Ex. 19 (Lennon Tr.) 30:19-31:8, 208:24-209:14,
210:14-212:7.
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33.
.26
.27
34.
:28
35.
In total, the Bank identified approximately
unique CardAliasIDs whose
claims “triggered” Indicator 1 and did not trigger any other Indicator.29
26 Ex. 19 (Lennon Tr.) 168:17-169:5.
27 Ex. 59 (3rd Rogs, Revised Exhibit 6, Part 1) (
). See also Ex. 19 (Lennon Tr.)
205:22-207:20
28 Ex. 146 (1st Rogs, Revised Exhibit 1).
29 Ex. 59 (3rd Rogs, Revised Exhibit 6, Part 1).
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31
36.
32 Ultimately, the EDD Cardholder
claims relevant to the Claim Denial class damages calculations are identified in Schedule 1.33
Although there are other reasonable methods for identifying Claim Denial class members, for
purposes of illustrating my methodology to calculate classwide damages, I have presently
assumed that the approach in ¶¶ 31-35 is the most reliable method to identify Claim Denial class
members.34
30 For identification of the Credit Recission class, see infra ¶ 1-2. There are approximately
CardAliasIDs with multiple claims each reflecting different circumstances such that the
CardAliasID met the criteria for inclusion in both the Claim Denial class and the Credit
Recission class. In these cases, the CardAliasID is included in each class only to the extent of
underlying relevant claim(s) (i.e., there is no double-counting of claims).
31 See Ex. 98 (7th Rogs, No. 46 and Exhibit 16 thereto).
32 I understand discovery is ongoing and the identification of the members of this Class will be
adjusted as the Bank continues to implement the Remediation Plan. As of the date of this report,
at most
Individual Plaintiffs (see SAMCC ¶¶ 286-524) are members of at least one class.
33 Of this total, there are approximately
cardholders for which there is no claim data in
Revised Exhibit 1 (i.e., the Bank does not appear to have produced sufficient data to calculate
damages for these cardholders). Additionally, if printed, Schedule 1 would exceed 1,000 pages.
Accordingly, I have attached the first 9 printed pages of Schedule 1 to this report and provided a
native copy of the actual schedule to Plaintiffs’ Counsel, which I understand they will provide to
the Bank’s counsel and the Court upon request.
34 Other methods may be used to identify members of this Class. For example, (1) the data
produced by the Bank in Revised Exhibit 6 to the 3rd Rogs at Part 1 may be compared to the
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B.
Calculations of Claim Denial Class Damages
1.
Principal Amount of Actual Damages
37.
The principal amount of damages equals the amount of the class members’ claim
that the Bank denied based on Indicator 1 of its Claim Fraud Filter. The actual amount of each
such denied claim for each cardholder is readily available using data produced by the Bank.
38.
Based on the Bank’s records, the total dollar value of the Claim Denial class’s
claims that the Bank denied based solely on Indicator 1 of the CFF, and thus the total principal
amount of damages for this class, equals $
2.
Consequential Damages
39.
An EDD cardholder who experienced and reported an unauthorized transaction on
their EDD debit card account, which the Bank then wrongfully failed to timely credit, was
deprived of the use of their funds. The funds at-issue originated through unemployment
insurance from the California EDD, which were designed to replace only 60-70% of the
recipient’s wages prior to unemployment.35 Moreover, consumers who lost their jobs during the
pandemic and received unemployment insurance tended to earn less than the median wage (i.e.,
were less likely to have available savings to bridge the time until re-employment).36
Bank’s data in Exhibit 9 to the 4th Rogs (
), (2) the data in Bank of
America’s Revised Second Supplemental Responses and Objections to Plaintiff Yick’s First Set
of Interrogatories (“1st Rogs”), No. 2, Revised Exhibit 1 may be compared to the Bank’s Exhibit
16, or (3) the Bank’s Revised Exhibit 1 may be compared to the Bank’s Exhibit 9. I am able to
readily perform any of these comparisons.
35 Emp. Dev. Dep’t (EDD), State of California Disability Insurance Benefit Payment Amounts,
https://edd.ca.gov/en/disability/Calculating_DI_Benefit_Payment_Amounts/.
36 CFPB, Consumer Finances During the Pandemic: Insights from the Making Ends Meet
Survey, at 29 (Dec. 2021), https://files.consumerfinance.gov/f/documents/cfbp_making-ends-
meet-survey-insights_report_2021-12.pdf.
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40.
Many Americans already live paycheck-to-paycheck.37 Accordingly, consumers
who no longer received a paycheck due to unemployment were under increased stress prior to
being impacted by the Bank’s claim denials.38 A U.S. Department of Labor study performed on
unemployment insurance recipients in California found that 97% of recipients in Los Angeles
and the Central Valley reported benefits were important to being able to meet their financial
obligations.39 Similarly, the CFPB concluded:
Unemployment insurance was crucial in keeping unemployed consumers from
suffering financially.40
41.
Consequently, Claim Denial class members were likely to experience financial
harm after a denial of the reimbursement of their stolen funds. In my opinion, this harm was
most likely to occur in the form of costs associated with obtaining substitute funds (e.g., interest
costs), as well as fees associated with late payments or overdrafts.41
37 For example, a recent study by Payroll.org estimated that 78% of Americans are in this
situation. See Emily Batdorf, Living Paycheck to Paycheck Statistics 2024, Forbes Advisor (Apr.
2, 2024), https://www.forbes.com/advisor/banking/living-paycheck-to-paycheck-statistics-2024/.
Another recent study found that 60% of Americans live paycheck-to-paycheck, including Super
Prime consumers. See LendingClub, 60% of Americans Now Living Paycheck to Paycheck,
Down from 64% a Month Ago, (Feb. 28, 2023), https://ir.lendingclub.com/news/news-
details/2023/60-of-Americans-Now-Living-Paycheck-to-Paycheck-Down-from-64-a-Month-
Ago/.
38 See, e.g., Ex. 74 at -102577 (“
”) (emphasis added); Ex. 17 (Letson Tr.) 100:19-22 (“
”).
39 Mathematica, A Longitudinal Survey of Unemployment Insurance Recipients in Two Regions
in California at 84 (Jan. 30, 2017), https://www.mathematica.org/publications/a-longitudinal-
survey-of-unemployment-insurance-recipients-in-two-regions-in-california. This study found
that the average weekly earnings for recipients ranged from $676 to $1,064. Id. at 24. Moreover,
approximately 75-80% of all recipients had accessible savings less than $5,000. Id. at 71.
40 CFPB, Consumer Finances During the Pandemic at 30.
41 See, e.g., Lindsay Cook, What are Your Rights if Your Bank Account is Frozen?, Financial
Times (July 23, 2020), www.ft.com/content/8fba7cac-83b3-4df3-a1a7-5b6869516085 (“For
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42.
Accessing alternative funds would have come at a cost. The amount of that cost
was a function of the (1) claim denial amount, (2) time the cardholder could not access those
funds, and (3) the applicable interest rate (i.e., amount * time * rate). The actual amount of the
denied claim for each cardholder—the first input in the calculation—is readily available using
data produced by the Bank (see ¶¶ 37-38). The second input, which is the duration of time that
funds were inaccessible because of the claim denial, is also readily available using data produced
by the Bank (see ¶ 34).42
43.
Accordingly, I used this data to calculate the duration of time applicable to each
claim denial as the total number of days from the application of the CFF (“FraudFilterFileDate”)
to the paid date (“Paid_Date”).
44.
Consequential damages resulting from cardholders’ loss of access to the principal
amount described in § II.B.1 resulting from the Bank’s Indicator 1 claims denials can be
calculated using either of two alternative methodologies as described in the sub-sections below.
a)
Methodology 1
45.
The first methodology is to apply to the principal amounts (i.e., the amount of the
CFF-denied claim) a compound interest rate that reflects the time value of money for this
example, the FOS [Financial Ombudsman Service] says if a bank closes a customer’s account
without giving them enough notice this might mean they fail to honour a cheque, direct debit or
standing order payments. It could also lead to a direct loss in the form of interest or late payment
fees and there could be indirect losses like ‘damage to a customer’s reputation or adverse
information on their credit file.’”); CFPB, 2020 Consumer Response Annual Report at 69–72
(Mar. 2021), https://files.consumerfinance.gov/f/documents/cfpb_2020-consumer-response-
annual-report_03-2021.pdf (indicating an inability to access an account, trouble using the card, a
problem with a purchase or transfer and unexpected or other fees as top issues experienced with
prepaid cards); see Brief for CFPB as Amicus Curiae Supporting Plaintiff-Appellant at 13,
Mohamed v. Bank of America, N.A., 93 F.4th 205 (4th Cir. 2021) (No. 22-1954).
42 The Bank’s data show that the duration of time that funds were inaccessible because of the
Banks’ claim denial was more than
of all Claim Denial class members,
and more than
of all class members. Ex. 146 (1st Rogs, No. 2, Revised
Exhibit 1).
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population of cardholders, based on the total length of time the class members were denied
access to those funds.
46.
This method is widely accepted as a reasonable methodology for measuring the
economic harm caused by a wrongful denial of funds.43 Courts in the United States have
recognized that a plaintiff whose money has been wrongfully taken should not only be
reimbursed the principal amount but also be compensated for the lost ability to use their funds
when a wrongful act was committed by a defendant.44
47.
To illustrate my methodology, as described above, I calculated the time value of
money to the Plaintiffs based on the amount of the claim over the period the claim was denied.
First, I made this calculation using a 10% interest rate, which is consistent with the interest rate
applied to judgments in California.45
48.
The 10% rate likely understates the cost a consumer would have incurred during
that same period (i.e., the cost of increased borrowing or the inability to pay down existing debt
such as credit card debt). This is because impacted cardholders would have needed to obtain
alternative funds to mitigate the inability to access their funds otherwise available in their Bank-
43 I was a principal author of the AICPA Practice Aid, Discount Rates, Risk, and Uncertainty in
Economic Damages Calculations, which addresses these generally accepted financial principles.
AICPA & CIMA, Discount Rates, Risks, and Uncertainty in Economic Damages (Jan. 1, 2020),
https://www.aicpa-cima.com/resources/download/discount-rates-risks-and-uncertainty-in-
economic-damages-calculations-or-fvs.
44 See, e.g., Judicial Council of California Civil Jury Instructions (2022) (“CACI”) No. 3935,
Prejudgment Interest (“Prejudgment interest is the amount of interest the law provides to a
plaintiff to compensate for the loss of the ability to use the funds.”).
45 Cal. Civ. Proc. Code § 685.010.(a)(1) (“Except as provided in paragraph (2), interest accrues
at the rate of 10 percent per annum on the principal amount of a money judgment remaining
unsatisfied.”). See, e.g., Cal. Courts Self-Help Guide, Add Costs and Interest to What’s Owed,
https://selfhelp.courts.ca.gov/small-claims/after-trial/collect-money/add-costs-and-interest-
whats-owed (“Generally, any unpaid principal balance collects interest at 10%, or 7% if the
debtor is a government agency.”).
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controlled EDD accounts. Credit cards are the most widely used form of consumer credit.46 As a
result, the most likely source of funds accessible to an impacted cardholder would have been
increased credit card utilization until the time the Bank credited their accounts for their
claim(s).47 This expectation is consistent with the Federal Reserve’s data indicating that lower
income consumers increased credit card spending following the onset of the pandemic.48
49.
The table below summarizes then-applicable credit card interest rates based on
consumer credit scores (i.e., the annual percentage rate or “APR”):49
Consumer Type
Credit Score Range Average APR
Superprime
720 or greater
17.4%
Prime
660 to 719
20.8%
Near Prime
620 to 659
22.4%
Subprime
580 to 619
23.3%
Deep subprime
579 or less
23.6%
46 CFPB, Consumer Finances During the Pandemic at 17, 44.
47 Mathematica at xix (indicating recipients’ average debt and loan amounts increased, while
average savings did not decrease). See also CFPB, Consumer Finances During the Pandemic at
44 (“Consumers who received some form of pandemic assistance between March 2020 and June
2021 had higher credit card debt and higher utilization levels than those not observed in
forbearance or receiving assistance, reflecting higher average levels of financial distress among
this group.”).
48 See, e.g., Joanna Stavins, Credit Card Spending and Borrowing Since the Start of the Covid-19
Pandemic, Fed. Rsrv. Bank of Bos. (Oct. 19, 2023),
https://www.bostonfed.org/publications/current-policy-perspectives/2023/credit-card-spending-
and-borrowing-since-the-start-of-the-covid-19-pandemic.aspx (“Although credit card spending
and debt have risen among consumers in all income cohorts, the rate of increase has been highest
for the bottom-income consumers.”). See also CFPB, Consumer Finances During the Pandemic
at 6 (indicating that credit card debt rose when unemployed consumers ceased receiving
unemployment insurance benefits).
49 See, e.g., CFPB, The Consumer Credit Card Market at 19, Table 1, and 46-50, Figure 3 (Sept.
2021), https://files.consumerfinance.gov/f/documents/cfpb_consumer-credit-card-market-
report_2021.pdf (showing credit score tiers and APR data, respectively).
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50.
The average credit score for California consumers is approximately 712 to 722.50
Consumers with lower incomes, however, receive unemployment insurance at a higher rate than
consumers with higher incomes.51 Additionally, consumer incomes are positively correlated with
credit scores (e.g., higher income is associated with a higher credit score and vice versa).52
51.
Together, this data indicates that the applicable APR for impacted cardholders
would have exceeded 20%. Ultimately, though, to be conservative, I selected 20% as the
representative APR for the purpose of my second calculation to illustrate the cost of the time
value of money. This 20% rate is consistent with my prior experience studying unsecured
consumer debt such as credit cards,53 and lower than APRs associated with alternative lending
sources frequently accessed by the impacted consumers.54
50 E.g., Equifax, What Is the Average Credit Score by State?,
https://www.equifax.com/personal/education/credit/score/articles/-/learn/average-credit-score-
state/ (reporting an average score of 712 in California); Jennifer Streaks, The Average Credit
Score by Age, State, and Year, Business Insider (Jul. 31, 2024),
https://www.businessinsider.com/personal-finance/credit-score/average-credit-score (reporting
an average score of 722 in California); Caitlyn Moorhead, The Average Credit Score in Each
State, Nasdaq (May 6, 2024), https://www.nasdaq.com/articles/the-average-credit-score-in-each-
state-see-where-your-state-ranks (same).
51 Jeff Larrimore, Jacob Mortenson, & David Splinter, Unemployment Insurance in Survey and
Administrative Data, Fed. Rsrv., https://www.federalreserve.gov/econres/notes/feds-
notes/unemployment-insurance-in-survey-and-administrative-data-20220705.html.
52 American Express, Average Credit Scores by Age, State, and Income (Dec. 21, 2022),
https://www.americanexpress.com/en-us/credit-cards/credit-intel/credit-score-by-age-state/.
53 For example, in February 2021, I published a study of economic impacts on consumers in debt
settlement programs. My study was peer reviewed by Professor Will Dobbie at Harvard. At that
time, I observed that APRs ranged up to 29% for distressed consumers. Greg Regan, Options for
Consumers in Crisis: An Updated Economic Analysis of the Debt Settlement Industry (Feb.
2021), https://ghllc.com/wp-content/uploads/2021/02/Options-for-Consumers-Mar-2020.pdf.
54 Fintech companies became an increased source of funding during the pandemic and low- and
moderate- income borrowers may have accessed these additional credit sources at higher rates
than for traditional products. See Ambika Nair & Eldar Beiseitov, The Role of Fintech in
Unsecured Consumer Lending to Low- and Moderate-Income Individuals, Fed. Rsrv. Bank of
N.Y. at 13 (Nov. 2023), https://www.newyorkfed.org/medialibrary/media/outreach-and-
education/household-financial-well-being/the-role-of-fintech-in-unsecured-consumer-lending-to-
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52.
The table below illustrates the two example calculations pursuant to proposed
Methodology 1:55
Claim Denial Class
10% Rate
20% Rate
Claim Amount (see § II.B.1)
Lost Time Value of Money
Total Actual Damages
b)
Methodology 2
53.
The sub-sections below describe my alternative methodology to calculate the
financial harms experienced by cardholders impacted by claim denial. For purposes of this
low-and-moderate-income-individuals. See also, Fed. Rsrv. Bank of Cleveland, Fintech Lending
Expands Small Businesses’ Options (July 8, 2020),
https://www.clevelandfed.org/publications/research-in-brief/2020/rib-20200709-fintech-lending
(“Small businesses that borrow from fintech lenders are much more likely to report encountering
high interest rates or less favorable repayment terms than at banks.”). I have previously been
asked to analyze the consumer lending programs offered by Fintech lenders such as Marlette
Funding, Avant, and Easypay for the Colorado and Massachusetts Attorney Generals Offices. In
my experience, these lending programs involved APRs substantially in excess of 20%. In
addition, consumers may have turned to other alternative sources such as (1) payday lenders, (2)
buy now and pay later, or (3) penalty APRs, which typically exceed 25%. The Bank
. See Ex. 147 at -102534. The products
available from these alternatives also typically featured APRs that exceeded 20% during the
relevant period. See CFPB, What is a Payday Loan?, (May 28, 2024),
https://www.consumerfinance.gov/ask-cfpb/what-is-a-payday-loan-en-1567/ (indicating APRs of
almost 400%); Anne Marie Lee, “Buy Now, Pay Later” Plans Can Rack Up Steep Interest
Charges. Here’s What Shoppers Should Know, CBS News (July 24, 2023),
https://www.cbsnews.com/news/buy-now-pay-later-loans-interest-rate-fees-tips-what-to-know/
(indicating APRs can reach 36.99%); CFPB, Consumer Use of Buy Now, Pay Later at 21 (Mar.
2023), https://files.consumerfinance.gov/f/documents/cfpb_consumer-use-of-buy-now-pay-
later_2023-03.pdf (indicating that the alternative credit card cost for Buy Now Pay Later
opportunities would be approximately 22-24%). See, e.g., Barry Bridges, What is Penalty APR
and How do You Avoid It?, Bankrate (Mar. 12, 2024), https://www.bankrate.com/credit-
cards/zero-interest/what-is-penalty-apr/#consequences (indicating credit card issuers impose
penalty APRs of approximately 29%).
55 The amounts presented in the table below and other tables in this report for the purpose of
illustrating damages may require an offset for amounts that the Bank has paid or presently
expects to pay pursuant to the Remediation Plan. These amounts are calculable if and when an
award is made in this matter.
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methodology, I calculated the financial cost of (1) borrowing substitute funds and (2) late or
overdraft fees.56
(1)
Cost of the Inability to Access Impacted Funds
54.
As described in the previous section related to Methodology 1, the impacted
cardholders would likely have needed alternative funds to mitigate the inability to access their
funds otherwise available in their Bank-controlled EDD accounts. The most likely source of
credit for these consumers was increased utilization of credit cards (see ¶¶ 47-51).
55.
Credit card utilization refers to the amount of a consumer’s credit line that
remains outstanding. For example, if a consumer has a credit limit of $10,000 and an outstanding
balance of $6,000, then the consumer has a utilization rate of 60% and 40% of the credit line
remains available. The table below presents the CFPB’s data on average credit card lines and
utilization rates from 2019 to 2022 based on consumer credit type:57
Consumer Type (%
of Population)
Average
Credit Line
Average
Utilization
Average
Balance
Remaining
Availability
Prime Plus (64%)
$27,732
20%
$5,611
$22,120
Prime (16%)
$20,187
46%
$9,245
$10,942
Near-prime (8%)
$10,437
63%
$6,569
$3,868
Subprime (6%)
$5,817
74%
$4,315
$1,502
Deep subprime (7%)
$3,538
88%
$3,124
$414
56.
As seen in the data above, deep subprime consumers had the least remaining
available credit lines. Based on my analysis, the median claim amount for Claim Denial and
Credit Recission class members was approximately $
58 Accordingly, in these circumstances,
a deep subprime consumer would have had the capacity to increase utilization for approximately
56 The Bank’s Remediation Plan
See Ex. 74 at -102560-564.
57 CFPB, The Consumer Credit Card Market at 19, Table 1, and 89-92, Figures 21, 23 (Oct.
2023), https://files.consumerfinance.gov/f/documents/cfpb_consumer-credit-card-market-
report_2023.pdf.
58 The average Account Freeze balance was $670.
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50% of the claim denial amount (i.e., approximately $900 * 50% or $450).59 For all other types
of consumers, including subprime consumers, the CFPB’s data indicates that it would have been
possible to increase utilization to 100% of the claim denial amount.60
57.
Accordingly, to illustrate the calculation of the cost of the inability to access
impacted funds, I multiplied the 1) claim denial amount (see ¶ 37) by the 2) 50% utilization
factor for 3) the time period between the claim denial and payment (see ¶¶ 42-43) at 4) a 20%
APR (see ¶¶ 47-51).
(2)
Cost of Late or Overdraft Fees
58.
Among all consumers, financially distressed consumers, such as those living
paycheck-to-paycheck, are most likely to incur late fees.61 In the circumstances relevant to this
matter, it is likely that Claim Denial class members relied on their EDD funds to make timely
payments and avoid late fees, but those funds were inaccessible due to the Bank’s denial of their
claims. As a result, it is likely that the impacted cardholders incurred late fees during the time
59 In this instance, the average deep subprime consumer would have been required to take further
steps to mitigate the inability to access his or her funds (e.g., reduce spending).
60 A useful source of information to evaluate the rate of increased credit card utilization would be
the Bank’s data regarding the rate that EDD cardholders withdrew funds prior to an account
freeze. For example, if the average EDD cardholder received average monthly deposits of $1,000
and made average monthly withdrawals of $800, then it would be reasonable to assume the EDD
cardholder would need to replace approximately 80% of the inaccessible funds.
61 CFPB, Consumer Finances During the Pandemic at 5 (“Consumers with a large income drop
due to unemployment, who had to wait longer than four weeks to receive unemployment
insurance benefits, or who never received any, were much more likely to have difficulty paying
their bills.”). See also Lisa L. Gill, How to Avoid Credit Card Late Fees, Consumer Reports
(Oct. 19, 2023), https://www.consumerreports.org/money/credit-cards/how-to-avoid-credit-card-
late-fees-a8219928529/ (“The burden of high late fees appears to fall heavily on communities of
color, and people living paycheck to paycheck, who have less income and assets…These sharp,
back-end penalties for paying late in effect make credit a lot more expensive for these
customers.”).
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when their funds were unavailable with an increased risk of late fee incidence as the length of
time the funds were unavailable extended.62
59.
The typical consumer uses credit cards.63 Each month, a consumer experiencing a
loss in income, such as a consumer receiving unemployment insurance, is exposed to a late fee
on any credit card account. The risk of incurrence of a late fee increases due to factors such as
the 1) consumer’s credit and 2) the duration of the time that the consumer is denied access to his
or her funds (i.e., it becomes increasingly difficult to obtain alternative sources of cashflow). For
example, subprime and deep subprime accounts, which were most at-risk of losing employment,
have the highest incidence of late fees.64 Accordingly, to illustrate my methodology, I have
assumed that those consumers with a claim denial that persisted for more than thirty days
incurred a late fee related to one of their credit cards accounts each month up to six months.
65
60.
The late fee amount typically escalates if a consumer experiences additional
instances of late payments. The CFPB’s data indicates that the average first-time late fee was
approximately $26 and repeat late fees were $35.66 I adopt these inputs as the basis for my
62 This frequency is consistent with other observed data. For example, a 2022 analysis by Forbes
determined that subprime consumers incurred approximately 2.5 late fees per year. See Katharina
Buchholz, 2022 Credit Card Late Fees Cost Consumers Record $15 Billion, Forbes (Mar. 6,
2024), https://www.forbes.com/sites/katharinabuchholz/2024/03/06/2022-credit-card-late-fees-
cost-consumers-record-15-billion-infographic/?sh=6c59c946e68f.
63 CFPB, The Consumer Credit Card Market at 89-92, Figures 21, 22.
64 CFPB, Credit Card Late Fees at 2 (Mar. 2022),
https://files.consumerfinance.gov/f/documents/cfpb_credit-card-late-fees_report_2022-03.pdf
(“Cardholders with subprime and deep subprime scores are far more likely to incur repeat late
fees in a given year than those in higher credit score tiers.”).
65 Ex. 146 (1st Rogs, No. 2, Revised Exhibit 1).
66 CFPB, Credit Card Late Fees at 6.
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calculation of the amount of late fees incurred by impacted cardholders. Limiting an analysis of
the direct impact of late fees on a consumer is a conservative estimate of this type of harm.
Typically, a consumer that is charged a late fee also experiences a higher account APR in
subsequent periods (i.e., higher interest cost).67 The consumer may also experience other
negative consequences such as credit score decline if the delinquency was reported to credit
bureaus.68
67 Credit Card Penalty Fees (Regulation Z), 89 Fed. Reg. 19128, 19131 (Mar. 15, 2024) (“For
cardholders who typically pay their balance in full every month (so-called transactors), a late
payment generally means both a late fee and new interest incurred for carrying or revolving a
balance. For the cardholders who do not roll over a balance in the month before or after a late fee
is assessed, the loss of a grace period and coinciding interest charges may pose a similar or even
greater burden than the late fee itself.”) (footnote omitted).
68 Id. Other negative consequences include application of a penalty rate of interest, reduction of
the credit line, or other costs such as limitation of rewards.
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(3)
Illustrative Cardholder Compensation Scenarios
61.
The table below provides two examples to illustrate my second methodology to
calculate damages incurred by cardholders as a result of the Bank’s claim denial described in the
preceding sub-sections:69
Cardholder Impact
Legend
A
B
Amount of Claim Denied
[a]
Amount Borrowed on Credit Card
[b]=[a]*50%
No. of Days Account Impacted
[c]
Cost to Borrow on Credit Card
[1]=[b]*(1+20%)^[c]/365-[b]
No. of Late Fees
[d]
Total Late Fee Cost
[2]=$26+([d]-1])*$35
Total Compensation
[3]=[1]+[2]
Total Actual Damages
=[a]+[3]
(4)
Summary of Claim Denial Class Actual Damages
62.
The table below summarizes my illustration of the total actual damages for the
Claim Denial class members based on this implementation of Methodology 2:70
Claim Denial Class
Amount
Claim Amount
Cost of Inability to Access Funds
Late Fees
Total Actual Damages
(5)
Methodology 2 is Consistent with the Bank’s Method to
Calculate Consequential Harm Payments
63.
Bank of America and its bank subsidiaries are subject to regulation, supervision,
and examination by the Office of the Comptroller of the Currency (“OCC”).71 The Bank’s
69 These scenarios summarize my calculations for CardAliasIDs
respectively.
70 The Claim Denial Class also includes members of the Account Freeze Class. Accordingly, if
damages are awarded to the Claim Denial Class and the Account Freeze Class, it is appropriate
to disaggregate the damage amounts.
71 Bank of America Corp., Annual Report (Form 10-K) at 4 (Feb. 24, 2021).
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consumer financial products and services are regulated by the Consumer Financial Protection
Bureau (“CFPB”).72
64.
On July 14, 2022, approximately eighteen months after Plaintiffs initiated Yick v.
Bank of America, N.A., Case No. 21-cv-00376-VC (N.D. Cal.) and thirteen months after
Plaintiffs obtained a preliminary injunction against the Bank in that case, the CFPB and the OCC
issued consent orders against the Bank with factual findings that are consistent with the
allegations in this case.73 As stated in the CFPB’s announcement of the enforcement action:
In the fall of 2020, and continuing through mid-2021, Bank of America
changed its practices for investigating prepaid debit cardholder notices of error
to solely rely on an automated fraud filter, which it knew or should have
known would incorrectly determine that no error had occurred and which led
to its incorrectly freezing or blocking accounts. The Bureau found that Bank of
America engaged in unfair acts or practices by denying prepaid debit
cardholders’ notices of error and freezing their prepaid debit card accounts
based solely on the results of the Bank’s flawed fraud filter. The Bank also
engaged in abusive acts or practices by retroactively applying its fraud filter to
deny notices of error submitted by prepaid debit cardholders that it had
previously investigated and paid. Further, Bank of America engaged in unfair
acts and practices by impeding unemployment insurance benefit prepaid debit
cardholders’ efforts to file notices of error concerning their prepaid debit card
accounts. The Bank’s failure to conduct a reasonable investigation of prepaid
debit cardholders’ notices of error and failure to timely investigate and resolve
prepaid debit cardholders’ error claims also violated the Electronic Fund
Transfer Act and its implementing Regulation E. The Bureau’s order requires
Bank of America to redress harmed consumers who suffered hundreds of
millions of dollars in direct and consequential financial harm; harmed
consumers will also be eligible to receive additional remediation through an
individualized review process.74
72 Id.
73 Bank of America, N.A., CFPB No. 2022-CFPB-0004 (Jul. 14, 2022) (“CFPB Consent Order”);
Bank of America, N.A., OCC No. AA-ENF-2022-21 (2022) (“OCC Consent Order”).
74 CFPB, Bank of America, N.A., https://www.consumerfinance.gov/enforcement/actions/bank-
of-america-na-2/; see also CFPB Consent Order at ¶¶ 14-17.
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65.
The OCC imposed a fine of $125 million and the CFPB Consent Order imposed a
$100 million penalty.75
66.
Additionally, the Consent Order required the Bank to provide redress to “Affected
Consumers,” defined under the CFPB Consent Order as “a consumer who during the Relevant
Period: (1) qualified for and received government unemployment insurance benefit payments
electronically through prepaid debit cards issued by Respondent [i.e., Bank of America]; (2) filed
a notice of error concerning alleged unauthorized EFTs with Respondent; and (3) for whom
Respondent incorrectly determined, based solely on the results of Respondent’s Fraud Filter, that
no error occurred, and, as a result, Respondent (i) denied the consumer’s error claim or reversed
permanent credits previously granted to the consumer and (ii) froze or, after March 17, 2021,
blocked the consumer’s unemployment insurance benefit prepaid debit card account.”76
However, the Bank was not required to pay redress to any Affected Consumer who, as of the
date on which the Consent Order was entered, “(i) the state benefit granting agency has
determined or later determines should have been initially disqualified for unemployment
insurance benefit payments, or (ii) whose unemployment insurance benefit prepaid debit card
account is or becomes frozen, blocked, or closed by Respondent at the request of the state benefit
granting agency, or due to suspected fraud, anti-money laundering, or financial crimes inquiries
or determinations made in conjunction with law enforcement, or due to an independent legal
requirement such as receipt of legal process or orders.”77
67.
The Consent Order required the redress to consumers to include “(i)
compensation for the value of unauthorized EFTs alleged by Affected Consumers in notices of
error that Respondent incorrectly denied through its Fraud Filter; (ii) compensation to Affected
75 Bank of America, N.A., OCC No. AA-ENF-2022-22 (2022) (“OCC Consent Order for Civil
Money Penalty”) at Art. III ¶ 1; CFPB Consent Order at Art IX ¶ 99.
76 CFPB Consent Order at Art. III ¶¶ 3(a), 93.
77 Id. at Art VIII ¶ 93.
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Consumers for related Consequential Harm …; and (iii) compensation to Affected Consumers
through an individualized review process ….”78 The Consent Order defined “Consequential
Harm” to mean “the financial harm Affected Consumers incurred due to the time their
unemployment insurance benefit prepaid debit card account remained frozen or blocked after
Respondent incorrectly determined that no error occurred on the consumer’s unemployment
insurance benefit prepaid debit card account, based solely on the results of Respondent’s Fraud
Filter.”79
68.
The Bank agreed to submit a “comprehensive written plan for providing redress
consistent with th[e] Consent Order.”80 The Consent Order required the plan to include, among
other things: (a) “[a] description of the methodology Respondent will use to identify Affected
Consumers”; (b) “[a] description of the procedures and process Respondent will use to remediate
each Affected Consumer, which shall include: (i) calculating the value of unauthorized EFTs
alleged by Affected Consumers in notices of error that Respondent incorrectly denied through its
Fraud Filter; (ii) calculating the lump sum Consequential Harm payment; and (iii) an
individualized review process administered by an independent third-party payment administrator
that allows Affected Consumers to seek additional redress compensation by submitting evidence
of financial harm exceeding Consequential Harm-related payment”; (c) [a] description of the
methodology Respondent will use to calculate the amount of remediation to be paid as
Consequential Harm for each Affected Consumer”; and (d) “[a] description of the methodology
Respondent will use to identify compensable financial impacts to Affected Consumers for the
purpose of additional redress compensation exceeding Consequential Harm-related payments in
connection with the individualized review process.”
78 Id.
79 Id. at Art III ¶ 3(c).
80 Id. at Art VII ¶ 94.
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69.
On October 6, 2022, Bank of America finalized a Remediation Plan with the OCC
and the CFPB (the “Remediation Plan”).81 As required by the Consent Order, in addition to
providing for payment of the value of unauthorized EFTs alleged by Affected Consumers in
notices of error that the Bank incorrectly denied through its Fraud Filter,82 the Bank’s
for calculating the
“Consequential Harm payments.” These payments were designed to address “the financial harm
Affected Consumers incurred due to the time their unemployment insurance benefit prepaid debit
card account remained frozen or blocked after Respondent incorrectly determined that no error
occurred on the consumer’s unemployment insurance benefit prepaid debit card account, based
solely on the results of Respondent’s Fraud Filter.”84
70.
The Bank applied a two-step approach to guide its calculation of cardholder
remediation. First, the Bank
85 Next, the Bank
.86
81 Ex. 74; Ex. 147; Ex. (Dep. Ex. 134). I understand that the Bank’s implementation of the
Remediation Plan is ongoing as of the date of this report. See, e.g., Ex. 59 ( 3rd Rogs, No. 22)
(“
”); Ex. 49 (4th Rogs, No. 30) (“
). Future updates because of the Bank’s activities pursuant to
the Remediation Plan may result in changes to the amounts and numbers presented in this report.
82 CFPB Consent Order at Art VII ¶ 93.
83 Ex. 19 (Lennon Tr.) 59:24-60:10.
84 CFPB Consent Order at Art III ¶ 3(c).
85 Ex. 74 at -102556-57. Approximately
Id. at -102565.
86 Id. at -102556.
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71.
The Bank’s methodology to calculate consequential harm to EDD cardholders
under the Remediation Plan, developed pursuant to the CFPB and OCC Consent Orders, was
¶¶ 53-62).
s:87
72.
As described in the preceding sections of this report (see §§ II.B.2.b)(1) and
II.B.2.b)(2)), the Bank likewise concluded
.88
87 Ex. 49 (4th Rogs, No. 30 and Exhibit 9 thereto). The Bank’s corporate representative
See Ex. 19 (Lennon Tr.) 294:6-295:15. In the excerpt,
88 Ex. 74 at -102559-560; Ex. 147 (Dep. Ex. 133) at -102534. In fact, 4th Rogs, No. 30, Exhibit
10 contains
The other identified harms primarily
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73.
To illustrate this point, the Bank concluded
s.89 The Bank
adopted
.90 The
Bank also estimated
91
74.
The Bank also addressed
.92 To quantify the
impact o
e.93 The Bank concluded that
94 Ultimately, the Bank estimated that
The Bank
did not
95 Additionally, the Bank performed
.96 From this analysis, the Bank concluded
consist of
. Ex. 49 (4th Rogs, No. 30,
Exhibit 10).
89 Ex. 74 at -102561.
90 Id. See also Ex. 19 (Lennon Tr.) 145:1-16 (
).
91 Ex. 74 at -102561.
92 Id. at -102560.
93 Id. at -102577.
94 Id. At this time, the Bank has not
95 Notwithstanding this issue, the Bank’s findings indicate that consumers would have
96 Ex. 74 at -102562-563.
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75.
Finally, the Bank estimated
To do so, the Bank performed
.97 The Bank concluded that t
n.98 On this basis, the Bank’s remediation plan
I estimate the damage to be approximately $22 for delayed payments to impacted
cardholders (see § IV.B.2.b)(3)).
97 Id.
98 Id. I understand that data exists that would enable me to analyze the timing of subsequent
benefit payments.
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3.
EFTA Treble Damages
76.
Treble damages under EFTA, 15 U.S.C. §1693f(e), can be calculated on a
classwide basis by simply multiplying each class member’s actual damages by three.
Methodology 1
Claim Denial Class
Amount (10%)
Amount (20%)
Claim Amount
Lost Time Value of Money
Total Actual Damages
Treble Amount
Methodology 2
Claim Denial Class
Amount
Claim Amount
Cost of Inability to Access Funds
Late Fees
Total Actual Damages
Treble Amount
4.
EFTA Statutory Damages
77.
I understand the Claim Denial class asserts violations of multiple different
provisions of EFTA, each of which gives rise to statutory damages: (1) 15 U.S.C. § 1693f(a)
(failure to investigate Claim Denial class members’ unauthorized transaction claims); (2) 15
U.S.C. §1693f(c) (failure to issue provisional credit if reasonable investigation of alleged error
not completed within 10 business days, and failure to issue permanent credit if reasonable
investigation of alleged error not completed within 45 days); (3) 15 U.S.C. §1693f(d) (failure to
provide a written “explanation of its findings”); and (4) 15 U.S.C. § 1693g(a) (failure to limit
liability for unauthorized transactions to $50). In accordance with 15 U.S.C. §1693m(a)(2)(B), I
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understand statutory damages are calculated as $500,000 multiplied by the number of violations
established .
5.
Disgorgement of Profits
78.
The objective of a disgorgement calculation is to isolate the gain obtained by the
defendant attributable to the alleged harmful act.99 Disgorgement can also be calculated based on
the Bank’s records. Plaintiffs and the class seek disgorgement of profits that the Bank earned on
the Claim amounts that the Bank withheld from Plaintiffs and the class based on its Claim Fraud
Filter.100
79.
The Bank referred to
101 The Bank generated
99 Restatement of the Law (Third), Restitution and Unjust Enrichment § 51 cmt a. (Am. L. Inst.
2011) (“The principal focus of § 51 is on cases in which unjust enrichment is measured by the
defendant’s profits, where the object of restitution is to strip the defendant of a wrongful gain.”).
100 Id. at § 51(4) (“Unless the rule of subsection (2) imposes a greater liability, the unjust
enrichment of a conscious wrongdoer, or of a defaulting fiduciary without regard to notice or fault,
is the net profit attributable to the underlying wrong.” See also id. § 51 cmt a. (“Restitution
measured by the defendant’s wrongful gain is frequently called ‘disgorgement.’ Other cases refer
to an ‘accounting’ or an ‘accounting for profits.’ Whether or not these terms are employed, the
remedial issues in all cases of conscious wrongdoing are the same. They concern the identification
and measurement of those gains to the defendant that should be regarded as unjust enrichment, in
that they are properly attributable to the defendant’s interference with the claimant’s legally
protected rights.”).
101 Ex. 15 (Deposition of Bank of America’s Rule 30(b)(6) Designee Robert Chestnut (“Chestnut
Tr.”) 45:16-46:23.
102 Ex. 15 (Chestnut Tr.) 46:24-48:8.
See also Ex. 149 (May 2018 Standard Agreement Amendment between the Bank and
EDD), Exhibit F (specifying that the revenue sharing calculation will use the Effective Federal
Funds Rate).
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103 The Bank’s records may be used to
104
III.
CREDIT RECISSION CLASS
80.
From approximately
105 the Bank provided
106 Upon application
of its Claim Fraud Filter, the Bank
.107
A.
Identification of Credit Recission Class Members
81.
The members of this class are also ascertainable from the Bank’s records. Bank of
America produced data identifying the CardAliasID for each EDD cardholder who received a
“permanent” credit from the Bank in connection with their claim, which credit the Bank later
rescinded after September 28, 2020 based on its subsequent application of the Claim Fraud
Filter, including:
103 The Bank did not
104 The Bank’s contract with the EDD
See Ex. 15
(Chestnut Tr.) 44:5-45:15, 170:1-13; Ex. 149 (
105 These dates correspond to the Bank’s
. The Bank’s Corporate
Representative testified that
. Ex. 19
(Lennon Tr.) 241:3-248:1 (regarding Dep. Ex. 140-6).
106 Ex. 59 (3rd Rogs, No. 21 and Revised Exhibit 6, Part 2); Ex. (1st Rogs, No. 3 and Revised
Exhibit 2).
107 Ex. 19 (Lennon Tr.) 236:18-240:24 (referencing Dep. Ex. 136-2, which is the Bank’s revised
Exhibit 2 in response to Rog 3).
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109 Bank of America obtained this data
.110
82.
A total of approximately
unique CardAliasIDs submitted claims for which
the Bank rescinded previously issued permanent credits because the claim triggered Claim Fraud
Filter Indicator 1 and no other indicators.111 As described above (see ¶¶ 31, 35), I then removed
Excluded Cardholders.112 After this exclusion, approximately
Although there are other reasonable methods for identifying Claim Denial class
members, for purposes of illustrating my methodology to calculate classwide damages in the
sub-sections below, I have presently assumed that this is the most reliable method to identify
Credit Recission class members.113
108 Ex. 59 (3rd Rogs, No. 21 and Revised Exhibit 6, Part 2); Ex. 146 (1st Rogs, No. 3 and
Revised Exhibit 2).
109 Ex. 59 (3rd Rogs, No. 21 and Revised Exhibit 6, Part 2).
110 Id.
111 Ex. 59 (3rd Rogs, Revised Exhibit 6, Part 2).
112 Ex. 98 (7th Rogs, No. 46 and Exhibit 16). In addition to those identified in Exhibit 16, the
Bank identified
who do not appear in Exhibit 16. For purposes of identifying
class members and calculating class damages, I have also treated those
as
Excluded Cardholders.
113 Alternatively, the members of the Credit Recission class may be identifiable by reconciling
other data sets produced by the Bank
Ex. 59 (3rd Rogs, Revised Exhibit 6), c
Ex. 49 (4th Rogs, No. 30, Exhibit 9),
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B.
Calculations of Credit Recission Class Damages
1.
Principal Amount of Actual Damages
83.
The principal amount of damages equals the amount of the class members’ claim
credit that the Bank rescinded based on Indicator 1 of its Claim Fraud Filter. The actual amount
of each such rescinded credit for each class member is readily available using data produced by
the Bank.114
84.
Based on the Bank’s records, the total dollar value of the Credit Rescission class’s
permanent credits that the Bank rescinded based solely on Indicator 1 of the CFF, and thus the
total principal amount of damages for this Class, equals $
2.
Consequential Damages
a)
Methodology 1
85.
One methodology to measure Credit Recission class damages is by using a
compound interest rate reflecting the time value of money for this population of cardholders as
Ex. 60 (1st Rogs, No. 2, Revised Exhibit 1). These
Ex. 98 (7th Rogs, No. 46, Exhibit 16), and (3) CardAliasIDs that
submitted a claim between January 1, 2020 and June 2, 2021 whose claim triggered the Claim
Fraud Filter and was subsequently paid by the Bank. Ex. 60 (1st Rogs, No. 2, Revised Exhibit 1).
These
. Ex. 49 (4th Rogs, No. 30,
Exhibit 9).
114 See Ex. 60 (1st Rogs, No. 3 and Revised Exhibit 2); Ex. 74 at -102561 n.23 (“
).
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described in § II.B.2.a) above. The table below illustrates my calculations of the damages for the
Credit Recission class applying the methodology described therein:115
Credit Rescission Class
Amount (10%)
Amount (20%)
Claim Amount (see ¶ 83)
2
Lost Time Value of Money
Total Actual Damages
b)
Methodology 2
86.
All members of the Credit Recission class had credit that the Bank subsequently
rescinded based on Indicator 1 of the CFF. From the time of the Bank’s credit reversal until the
Bank eventually reimbursed those funds, those class members were without access to those
funds.
87.
Accordingly, for the same reasons as the Claim Denial class members (see §
II.B.2.b)(1)), the members of the Credit Rescission class would likely have been required to
obtain alternative funds to mitigate the inability to access the credited funds that the Bank had
rescinded from their accounts. I have applied the same methodology as described therein to
calculate the cost of the inability to access impacted funds for the Credit Rescission class.116
88.
Similarly, the members of the Credit Recission class also would likely have
experienced late or overdraft fees for the same reasons as the Claim Denial class and the Account
Freeze class members (see § II.B.2.b)(2)). Accordingly, I have applied the same methodology as
described therein to calculate the cost of late or overdraft fees experienced by members of the
Credit Recission class.
115 Schedule 1.
116 The damages calculated in this section are independent of the damages presented §§ III and
IV of this report.
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89.
The table below illustrates my Methodology 2 to calculate actual damages
experienced by members of the Credit Recission class:117
Credit Rescission Class
Amount
Claim Amount
Cost of Inability to Access Funds
Late Fees
Total Actual Damages
3.
EFTA Treble Damages
90.
Treble damages under EFTA, 15 U.S.C. §1693f(e), can be calculated on a
classwide basis by simply multiplying each class member’s actual damages by three.
Methodology 1
Credit Rescission Class
Amount (10%)
Amount (20%)
Claim Amount
$
Lost Time Value of Money
Total Actual Damages
Treble Amount
Methodology 2
Credit Rescission Class
Amount
Claim Amount
Cost of Inability to Access Funds
Late Fees
Total Actual Damages
Treble Amount
4.
EFTA Statutory Damages
91.
I understand the Credit Rescission class asserts violations of multiple different
provisions of EFTA, each of which gives rise to statutory damages: (1) 15 U.S.C. §1693f(a)-(c)
(failure to issue permanent credit if reasonable investigation of alleged error not completed
within 45 days ); (2) 15 U.S.C. §1693f(b) (failure to permanently correct the error within one
117 Schedule 1.
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business day after determining than an error did occur); (3) 15 U.S.C. §1693f(d) (failure to
provide a written “explanation of its findings”); and (4) 15 U.S.C. § 1693g(a) (failure to limit
liability for unauthorized transactions to $50). In accordance with 15 U.S.C. §1693m(a)(2)(B), I
understand statutory damages are calculated as $500,000 multiplied by the number of violations
established.
5.
Disgorgement of Profits
92.
Disgorgement can also be calculated based on the Bank’s records. Plaintiffs and
the Class seek disgorgement of profits that the Bank earned on the permanent credit amounts that
the Bank rescinded and withheld from Plaintiffs and the class based on its Claim Fraud Filter.
The methodology to calculate disgorgement is set forth in § II.B.5 above. As described therein,
the Bank’s records may be used to calculate the benefit obtained by the Bank in the form of Float
Revenue for each Credit Rescission class member.
IV.
ACCOUNT FREEZE CLASS
A.
Identification of Account Freeze Class Members
93.
As described in § I.A above, this class consists of all EDD cardholders whose
Account the Bank froze at any time between September 28, 2020 and March 18, 2021 based on
the Bank’s application of Indicator 1 of its CFF, and whose Account the Bank (i) subsequently
unfroze, or (ii) subsequently converted from frozen to blocked status on or after March 18, 2021,
and then unblocked.
94.
The members of this class are also ascertainable from the Bank’s records. To
identify these members, I obtained the Bank’s data for all EDD cardholders whose Account was
frozen between September 28, 2020 and March 18, 2021 based on the application of the CFF,
and then isolated the data for only those cardholders whose accounts were frozen based on CFF
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Indicator 1 and no other CFF Indicator.118 This data was obtained from the Bank’s c
.119
95.
The following table reflects an excerpt of the Bank’s data regarding EDD
cardholders whose Account was frozen:120
96.
The data fields in the excerpt above identify the following information:121
118 Ex. 60 (1st Rogs, Nos. 4-5 and Exhibit 3 thereto); Ex. 59 (3rd Rogs, No. 21 and Exhibit 6,
part 3 thereto).
119 Ex. 59 (3rd Rogs, No. 21).
120 Ex. 60 (1st Rogs, No. 4, Revised Exhibit 3) (containing “
”).
121 Id.
122 Revised Exhibit 3 indicates
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97.
As seen in the excerpt above, the data produced by the Bank
There are approximately
123 As described above (see ¶¶ 31, 36), I then removed all Excluded
Cardholders.124 After excluding these
a.125 Although there are other reasonable methods for
identifying Account Freeze class members, for purposes of illustrating my methodology to
calculate classwide damages in the sub-sections below, I have presently assumed that this is the
most reliable method to identify Account Freeze class members.126
123 Ex. 59 (3rd Rogs, Revised Exhibit 6, Part 3).
124 In addition to those identified in Exhibit 16, the Bank identified
Exhibit 16. For purposes of identifying class members and calculating class
damages, I have also treated those
as Excluded Cardholders.
125 Approximately
of these cardholders
(i.e., the Bank does not appear to have produced sufficient data to calculate damages for these
cardholders). As noted above, I understand discovery is ongoing and the identification of the
members of this class will be adjusted as the Bank continues to implement the Remediation Plan.
126 Alternatively, the Account Freeze class may be identifiable by reconciling other data sets
produced by the Bank. These methods may include (1)
Ex. 59 (3rd Rogs, No. 21, Revised Exhibit 6, Part 3), compared with
Ex. 49 (4th Rogs, No. 30, Exhibit 9), (2)
Ex. 60 (1st Rogs, No. 4, Revised Exhibit 3). These
(Exhibit 16), (3)
Ex. 60 (1st Rogs, No. 4, Revised Exhibit 3). These
Ex. 49 (4th Rogs, No. 30, Exhibit 9).
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B.
Calculations of Account Freeze Class Damages
1.
Principal Amount of Actual Damages
98.
The principal amount of damages for the Account Freeze class equals the amount
of funds in their accounts to which class members were denied access when the Bank froze their
account based on Indicator 1 of its CFF. The actual amount of such frozen funds for each
Account Freeze class member is readily available using data produced by the Bank.127
99.
Based on the Bank’s records, the total dollar value of funds in the Account Freeze
class’s accounts to which the Bank denied class members access based solely on Indicator 1 of
the CFF, and thus the total principal amount of damages for this class, equals $
128
2.
Consequential Damages
a)
Methodology 1
100.
One methodology to measure the Account Freeze class’s consequential damages
is to apply a compound interest rate that reflects the time value of money for this population of
cardholders. I have applied the same methodology described in § II.B.2.a) above to make these
illustrative calculations. The resulting amounts are summarized in the table below:129
Account Freeze Class
Amount (10%)
Amount (20%)
Frozen Amount
Lost Time Value of Money
Total Actual Damages
b)
Methodology 2
101.
When the Bank froze EDD cardholders’ accounts based on application of the
Claim Fraud Filter, those cardholders were no longer able to access the funds remaining in their
127 See Ex. 60 (1st Rogs, No. 4-5 and Revised Exhibit 3 thereto); Ex. 47 at -102561 n.23 (
”) This data is identifiable in Ex. 60 (1st Rogs, Revised
Exhibit 3).
128 This amount represents the total of each cardholder’s account balance at the time of the
account freeze, and it is identifiable for each account in Ex. 60 (1st Rogs, Revised Exhibit 3).
129 Schedule 1.
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EDD debit card accounts. In addition, EDD was unable to deposit ongoing benefits payments
into the Bank accounts of EDD cardholders whose accounts the Bank had frozen based on the
Claim Fraud Filter. Although some of those cardholders may eventually have started receiving
ongoing benefits payments from EDD by paper check rather than deposited into their EDD debit
card accounts, those subsequent payments were delayed. Members of the Account Freeze class
thus incurred incremental actual damages due to the lost use of frozen funds, as well as the cost
of a subsequently delayed benefit payment.130 The composition of actual damages incurred by
the Account Freeze class is described in the sub-sections below.
(1)
Cost of the Inability to Access Frozen Funds
102.
For the same reasons as the Claim Denial class members (see § II.B.2.b)(1)), the
members of the Account Freeze class would likely have been required to obtain alternative funds
to mitigate the inability to access their funds in their then-frozen Bank-controlled EDD accounts
that otherwise would have been available. Following the same methodology described therein, I
have identified the amount and duration data specific to each impacted cardholder for this
calculation using the Bank’s data.131 To calculate the frozen period, I compared the
”). For
those accounts that were subsequently blocked
130 The actual damages presented in this section are independent from the actual damages
described in § II.B.
131 Ex. 60 (1st Rogs, Revised Exhibit 3) (
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The table below
provides two examples to illustrate these calculations:132
C
103.
Using the data in the table above, in the case of
s. In the case of
I repeated this calculation for all members
of the Account Freeze class.
(2)
Cost of Late or Overdraft Fees
104.
For the same reasons as the Claim Denial class members (see § II.B.2.b)(2)), the
members of the Account Freeze class would likely have incurred late or overdraft fees while
unable to access their funds otherwise available in their then-frozen Bank-controlled EDD
accounts. I have applied the same methodology as described therein to make the example
calculations of the cost incurred by each EDD Cardholder attributable to such late fees.133
(3)
Cost of Delayed Benefit Payments
105.
If a cardholder’s account
34 In that
event, the EDD Cardholder
132 Id.
133 I calculated late fees for the Claim Denial class based exclusively on the duration of the claim
denial and late fees for the Account Freeze class based exclusively on the duration of the account
freeze. In some instances, the period of the claim denial overlapped with the period of the
account freeze. Accordingly, if damages are awarded to the Claim Denial class and the Account
Freeze class, it is appropriate to reduce the late fee damages in proportion to the overlap.
134 Ex. 19 (Lennon Tr.) 257:23-258:5. I have not calculated this type of damage for those
cardholder accounts that were frozen for less than fifteen days.
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s.135 In total, the Bank
136 The effect of
the delayed receipt of these subsequent benefit payments constituted an additional harm to the
cardholders (i.e., the cardholder was forced to access alternative funds during this time). For
example, the CFPB’s analysis of unemployment insurance payments found that a 30-day delay
caused substantial hardship on consumers.137
138
106.
The cost of delayed payments can be calculated using a common methodology for
all Account Freeze class members based on the amount of each class member’s bi-weekly
benefit payment and the length of the delayed receipt of their subsequent benefit payments. The
benefit payments received by each class member are ascertainable from the Bank’s records, as
well as data from the EDD, which I plan to consider in my methodology to calculate damages at
the time it becomes available. For present purposes, to illustrate my calculation,
139 Accordingly,
140
135 Ex. 74 at -102563.
136 Ex. 98 (7th Rogs, No. 44 and Exhibit 14).
137 CFPB, Consumer Finances During the Pandemic at 32 (“Most consumers who received
unemployment benefits reported having to wait significant periods to get them…Nearly 42
percent of consumers had to wait four or more weeks… These delays appear to have caused
substantial hardship.”).
138 Ex. 60 (1st Rogs, No. 4-5 and Exhibit 3 thereto).
139 Ex. 74 at -102563 (indicating
140 This calculation reflects
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(4)
Illustrative Cardholder Compensation Scenarios
107.
The table below provides two examples to illustrate my calculation of the
damages incurred by the Bank’s account freeze action as described in the preceding sub-
sections:141
Cardholder Impact
Legend
A
B
Amount Frozen
[a]
Amount Borrowed on Credit Card
[b]=[a]*50%
No. of Days Account Impacted
[c]
Cost to Borrow on Credit Card
[1]=[b]*(1+20%)^[c]/365-[b]
No. of Late Fees
[d]
Total Late Fee Cost
[2]=$26+([d]-1])*$35
No. of Delays in Benefit Payments
[e]
Cost to Borrow on Credit Card
[3]=[e]*$21.91
Total Compensation
[4]=[1]+[2]+[3]
Total Actual Damages
=[a]+[4]
(5)
Summary of Account Freeze Class Damages
108.
The table below summarizes my illustration of the total actual damages for
Account Freeze class members based on this implementation of alternative Methodology 2:
Account Freeze
Amount
Frozen Amount142
Cost of Inability to Access Funds
Deferred Benefits
Late Fees
Total Actual Damages
3.
Disgorgement of Profits
109.
Disgorgement can also be calculated based on the Bank’s records. Plaintiffs and
the class seek disgorgement of profits that the Bank earned on the amounts frozen in their
accounts that the Bank withheld from Plaintiffs and the class based on Indicator 1 of its Claim
Fraud Filter. The methodology to calculate disgorgement is set forth in § II.B.5 above. The
141
142 The Frozen Amount represents the total of each cardholder’s account balance at the time of
the account freeze, which is identifiable for each account in Ex. 60 (1st Rogs, Revised Exhibit 3).
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disgorged profits can be allocated either per capita or pro rata among class members in
proportion to the value of their actual damages.
V.
CUSTOMER SERVICE CLASS
A.
Identification of Customer Service Class Members
110.
The Customer Service class consists of members of the Claim Denial and/or
Credit Rescission class members who telephoned the Bank’s customer service phone number for
EDD cardholders at any time between September 13, 2020 and November 21, 2020, inclusive,
and whose telephone call was routed to the Bank’s Claims call center.
111.
I understand that the Bank has records, including call logs, which identify every
EDD Cardholder who called the Bank’s customer service phone number between these dates. I
also understand that it was the Bank’s general practice to
143 Accordingly, I was asked
to assume that the Customer Service class includes at minimum every
. Presently, t
144 This number does not include EDD cardholders who may have called
between those dates to inquire about or seek reconsideration of a claim that the Bank denied or a
143 See Ex. 114 (5th Rogs, No. 34).
144 As described above (n. 33), Revised Exhibit 1 does not
s. The
absence of data in Revised Exhibit 1 for
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credit that the Bank rescinded based on the CFF; such cardholders would also be members of the
Customer Service class.
112.
Accordingly, there are at minimum approximately
0 members of the
Customer Service class, and likely many more, whose identities can be ascertained from Bank
records.
B.
Calculations of Customer Service Class Damages
1.
Actual Damages
113.
I understand that an appropriate measure of damages for this class is
compensation for the value of class members’ lost time spent on hold with the Bank’s Claims
call center that was greater than the reasonable wait-on-hold time by industry standards.
Accordingly, actual damages for the Customer Service class can be calculated on a classwide
basis as follows.
114.
First, I understand that Plaintiffs’ call center expert has analyzed the Bank’s call
center data during the relevant times and compared the “Average Speed to Answer” (“ASA”) of
the Bank’s Claims call center against the industry average ASA, yielding an average excess hold
time of
per call.145 Next, I understand that Plaintiffs’ call center expert has
expressed the opinion that the Bank’s records reflect how many times each class member called
and was transferred to the Claims call center during the relevant time period. These figures can
be multiplied by the applicable minimum wage—or other reasonable metric—to calculate the
total value of class members’ lost time.
2.
Disgorgement of Profits
115.
Disgorgement can also be calculated based on the Bank’s records. Plaintiffs and
the class seek disgorgement of profits, in the form of avoided costs, that the Bank earned by
145 I expect that this analysis will be presented in the Expert Report of Jay Minnucci to be issued
on August 29, 2024.
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understaffing its Claims call center, which caused the excess wait times that the Customer
Service class members endured.146
116.
I understand that Plaintiffs’ call center expert has analyzed the Bank’s call center
data and call center staffing contracts during the relevant times and has calculated the additional
expenditure that would have been required for the Bank to staff its Claims call center from
September 13, 2020 to November 21, 2020 in a manner sufficient to provide EDD cardholders
an ASA and an answer rate consistent with industry standards. I also understand that the
percentage of total calls offered to the Bank’s Claims call center that are attributable to EDD
cardholders can be reasonably estimated. The amount of profits to be disgorged to the Customer
Service class can be calculated by multiplying the total amount of cost savings to the Bank
resulting from understaffing its Claims call center from September 13, 2020 to November 21,
2020, and the percent of total calls to the Claims call center during this period attributable to
Customer Service class members.
117.
The disgorged profits can be allocated either per capita or pro rata among class
members in proportion to the value of their lost-time actual damages.
VI.
EMV CHIP CLASS
118.
All EDD debit cards that the Bank issued prior to July 2021 were mag-stripe-only
cards that did not contain an EMV chip.147 I have been asked to assume that EMV chips would
have prevented the unauthorized ATM withdrawals that were the subject of Claim Denial and
Credit Rescission class members’ claims that triggered the Bank’s CFF Indicator 1, and provide
a methodology to calculate damages as described below.
146 I expect that this analysis will be presented in the Expert Report of Jay Minnucci to be issued
on August 29, 2024.
147 See Ex. 16 (Martin 30(b)(6) Depo Tr.) 65:4-14.
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A.
Identification of EMV Chip Class Members
119.
I was asked to assume that the EMV Chip class consists of all members of the
Claim Denial class and all members of the Credit Rescission class because those individuals had
mag-stripe-only EDD debit cards with no EMV chip at the time they reported the unauthorized
ATM withdrawal from their account. Consequently, there are approximately
CardAliasIDs in the EMV Chip class.148
B.
Calculations of EMV Chip Class Damages
1.
Actual Damages
120.
Actual damages for the EMV Chip class can be calculated on a classwide basis as
follows. The principal amount of damages equals the amount of funds that were taken from the
class member’s EDD debit card account through an unauthorized ATM transaction and/or an
unauthorized point-of-sale transaction, as reflected in the amount of the class member’s Claim
that the Bank denied based on Indicator 1 of its Claim Fraud Filter. These amounts are
identifiable in Bank records that have been produced to Plaintiffs in this litigation. Consequential
damages can be calculated using the same two alternative methodologies described above with
respect to the Claim Denial class (see § II.B.2). For purposes of calculating consequential
damages for the EMV Chip class, the length of time EMV Chip class members were denied
access to their funds can be calculated from the date the Bank opened the claim until the date the
Bank finally reimbursed the class member for the value of the claim.
2.
CCPA Statutory Damages
121.
I understand statutory damages also apply for certain individuals based on the
amount of their actual damages.149 Specifically, if the individual has actual damages less than
$750, their statutory damages are $750. Individuals with actual damages equal to or exceeding
148 The method to identify Claim Denial class members is presented in § II.A and Credit
Rescission class members is presented in § III.A above.
149 See Cal. Civ. Code § 1798.150.
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$750 will not be included in the calculation of statutory damages. These formulaic calculations
can be performed on a classwide basis using the Bank’s data.
3.
Disgorgement of Profits
122.
Disgorgement can also be calculated based on the Bank’s records. Plaintiffs and
the class seek disgorgement of profits, in the form of avoided costs, that the Bank earned by not
including EMV chips in its EDD debit cards prior to July 2021 (an estimated $
per card as of
January 2020, according to Bank documents and testimony150). The disgorged profits can be
allocated among the class members on a per capita basis.
* * *
* * *
Dated: August 29, 2024
____________________________
Greg J. Regan, CPA/CFF, CFE
150 Ex. 27 at -351839–40; Ex. 16 (Martin Tr.) 82:8-83:13.
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HEMMING.COM
PAGE 1 OF 7
GREG REGAN, CPA/CFF, MBA
CURRICULUM VITAE
SAN FRANCISCO OFFICE
201 Spear Street ӏ Suite 1100
San Francisco, CA 94105
T: 415.836.4000
BURLINGAME OFFICE
1290 Howard Ave ӏ Suite 202
Burlingame, CA 94010
T: 415.836.4000
Profile
Greg Regan is a Partner in the Forensic and Financial Consulting Services Group in the San Francisco office
of Hemming Morse. In 2018, Greg became the Chair of California Society of CPAs Forensic Services
Section. In 2013, Greg was appointed to the American Institute of CPA’s (“AICPA”) Forensic and Valuation
Services Executive Committee. This 9-member committee establishes professional standards for practitioners
performing consulting services that require the application of forensic or valuation-related methodologies.
From 2010 to 2013, he served on the AICPA’s Forensic and Litigation Services (“FLS”) Committee.
This 11-member committee provides professional guidance to CPA practitioners who perform accounting
investigations, economic damage analyses such as lost profits calculations, and a variety of other services.
Greg was the Chair of the AICPA’s Damages Task Force from 2010 to 2013 and continues to be an active
member. Greg received the AICPA’s 2012 Award for the FLS Volunteer of the Year.
Greg has testified in federal and state courts as well as in arbitrations regarding these types of forensic
analyses. Greg is a Certified Public Accountant (CPA), a Certified Financial Forensic (CFF), and a Certified
Fraud Examiner (CFE). Greg serves as an Officer of the California Society of Certified Public Accountants
(CalCPA) statewide Forensic Services Committee.
Greg received his B.S. degree in Accounting from Georgetown University, Washington, D.C., and his Masters
in Business Administration with an Emphasis in Finance from the University of San Francisco. When he’s not
working, he enjoys spending time with his wife and coaching the sports teams of his two boys.
Appendix A
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HEMMING.COM
PAGE 2 OF 7
GREG REGAN, CPA/CFF, MBA
CURRICULUM VITAE
SAN FRANCISCO OFFICE
201 Spear Street ӏ Suite 1100
San Francisco, CA 94105
T: 415.836.4000
BURLINGAME OFFICE
1290 Howard Ave ӏ Suite 202
Burlingame, CA 94010
T: 415.836.4000
Employment & Education
■ Hemming Morse 2003 – Present
-Partner
-Director, 2007-2011
-Manager, 2003-2006
■ Golden Gate University 2009 – 2016
-Adjunct Professor
-Introduction to Financial Forensic Accounting, Spring
2009-2016
-An In-Depth Analysis of Economic Damages, Fall 2010
■ SupportSoft, Inc. (Nasdaq: SPRT) 1999 – 2003
■ Ernst & Young, LLP 1995 – 1999
■ University of San Francisco 2004 – 2007
-Masters in Business Administration with emphasis in
Finance
-Beta Gamma Sigma Honor Society
■ Georgetown University, Washington, D.C. 1995
-B.S. Accounting, Minor in Theology
Professional & Service Affiliations
■ Certified Public Accountant, State of California, 1998
State of New York, 2010
■ Certified Fraud Examiner
■ Certified in Financial Forensics, 2008
■ American Institute of Certified Public Accountants
– Forensic & Valuation Services Executive Committee,
2013-2016
– Forensic & Litigation Services Committee,
2010-2013
– Chair, Damages Task Force
– National Forensic & Valuation Conference
– Co-Chair, 2014-2015
– Planning Committee, 2011-2016
■ California Society of Certified Public Accountants
– Co-chair, San Francisco Chapter Litigation
Consulting Services Committee, 2006-2011
– State Steering Committee, 2007-present
Officer, 2012-2020
■ CAMICO
– Board of Directors, 2023 to present
– Risk Management Committee, 2014-2023
■ California CPA Education Foundation
– Accounting & Auditing Curriculum Advisory
Committee, 2007-2010
■ Legal Aid of San Mateo County
– Board of Directors, Treasurer
■ Board of Regents, Junipero Serra High School
Appendix A
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HEMMING.COM
PAGE 3 OF 7
GREG REGAN, CPA/CFF, MBA
CURRICULUM VITAE
SAN FRANCISCO OFFICE
201 Spear Street ӏ Suite 1100
San Francisco, CA 94105
T: 415.836.4000
BURLINGAME OFFICE
1290 Howard Ave ӏ Suite 202
Burlingame, CA 94010
T: 415.836.4000
Testimony
Trial and Deposition
■ Sumotext Corp. v. Zoove, Inc., et al. (2020)
U.S. District Court, Northern District of
California, San Jose Division, Case No. 5:16-cv-
01370-BLF
■ PPFA, Inc. v. Center For Medical Progress, et al.
(2019), U.S. District Court, Northern District San
Francisco, Case No. 3:16-Cv-00236-Who
■ ASML US, Inc, v. XTAL (2018),
Superior Court of California, Santa Clara, Case
No. 16-CV-295051
■ State of Colorado v. Center for Excellence in
Higher Education, Inc., et al. (2017), District
Court, Denver City and State of Colorado, Case
No. 2014cv34530
■ Consumer Financial Protection Bureau v. Stratfs,
LLC (2024), U.S. District Court, Western District of
New York, Case No. 1:24-cv-00040
■ DBI Beverage Inc. v. WSJ, LLC (2023),
Superior Court of California, San Francisco,
Case No. CGC-20-582694
■ Knauf Ventures, LLC v. 154 Almonte Blvd, LLC
(2023), California Superior Court, Marin, Case No.
CIV2003268
■ Virgin Hotels San Francisco, LLC v. 250 Fourth
Development, L.P. et al. (2022), Superior Court of
California, San Francisco, Case No. CGC-20-584350
■ People of the State of California v Zovio, et al. (2021),
Superior Court of California, San Diego, Case No. 37-
2018-00046134-CU-MC-CTL
Arbitration and Deposition
■ Levin Simes v. Peiffer Wolf, et al (2024),
JAMS Arbitration No. 1110029750
■ T.I.M.E. Service Catalyst Handling, LLC v. Scott
Rogers et al. (2022), American Arbitration
Association, Case No. No. 01-18-002-3360
■ Sutter Health and Sutter Health Plan v. Optum
Insight, Inc. (2017), American Arbitration
Association
Case No. 011500034226
■ Cloud Cruiser, Inc. v. Cisco Systems, Inc. (2017)
JAMS Reference No. 1100085560
Appendix A
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HEMMING.COM
PAGE 4 OF 7
GREG REGAN, CPA/CFF, MBA
CURRICULUM VITAE
SAN FRANCISCO OFFICE
201 Spear Street ӏ Suite 1100
San Francisco, CA 94105
T: 415.836.4000
BURLINGAME OFFICE
1290 Howard Ave ӏ Suite 202
Burlingame, CA 94010
T: 415.836.4000
Testimony continued
Deposition
■ Universal Packaging West, Inc. v. Bomatic (2024),
Superior Court of San Diego, Case No. 37-2019-
00050175-CU-BC-CTL
■ Federal Equipment Company v. ImmunityBio, Inc.,
et al (2024), USDC ND of Ohio, Case No. 1:21-cv-01422
■ Primevere LLC v. Rezidential Development, Inc.
(2024), Superior Court of California, Orange County,
Case No. 30-2021-01203514-CU-BC-CJC
■ Autumn Funkhouser-Ward v. Honeywell Interna-
tional, Inc. (2024), USDC, Southern District of Illinois,
Case No. 3:21-cv-00485-SMY
■ State of California ex re Mark Sersansie v. Gardens
Regional Hospital Medical Center et. al. (2024),
Superior Court of California, Los Angeles,
Case No. BC534466
■ SEC v. Barrington Asset Management (2023),
U.S. District Court, Northern District of Illinois, Case
No. 21-cv-3450
■ Hewitt v. Google LLC (2023), U.S. District Court,
Northern District of California,
Case 4:21-cv-02155-YGR
■ Shannon McBurnie, et al. v. RAC Acceptance East
LLC (2022), U.S. District Court, Northern District of
California, Case No. 3:21-cv-01429-JD
■ Steven Gomo v. NetApp, Inc. (2022), Federal
Court, ND CA, Case No. 5:17-cv-02990-BLF
■ Stahl and Reynolds v. Orthopedic Alliance
(2022), U.S. District Court, Central District of
California, Case No. CV16-03966-MWF (SKx)
■ Barry Forman v. Timothy Covington (2022),
Superior Court of California, San Francisco, Case
No. CGC-21-588962
■ Don Lee Farms v. Beyond Meat (2022), Superior
Court of California, Los Angeles, Case No.
BC662838
■ New Prime Inc. v. Amazon Logistics, Inc. (2021),
U.S. District Court, Western District of Missouri,
Case No. 6:19-cv-03236-MDH
■ Kiva Health Brands, LLC v. Kiva Brands Inc.
(2021), U.S. District Court, Northern District of
California, Civil No. 3:19-cv-03459-CRB
■ Class B Investors v. 8minutenergy US Manager,
LLC (2021), JAMS Case Reference No. 1100110779
■ Synchrony Bank v. RevPar Collective, Inc. (2021),
Superior Court of California, San Francisco, Case
No. CGC-18-566487
■ Bridge-Folsom, LP, v. Terra Firma Development
Company, LTD (2021), JAMS Arbritration, No.
1130008587
Appendix A
Case 3:21-md-02992-GPC-MSB Document 620-4 Filed 01/08/26 PageID.44410
Page 71 of 76
HEMMING.COM
PAGE 5 OF 7
GREG REGAN, CPA/CFF, MBA
CURRICULUM VITAE
SAN FRANCISCO OFFICE
201 Spear Street ӏ Suite 1100
San Francisco, CA 94105
T: 415.836.4000
BURLINGAME OFFICE
1290 Howard Ave ӏ Suite 202
Burlingame, CA 94010
T: 415.836.4000
Testimony continued
Deposition continued
■ SRS Acquiom, Inc. v. PNC Financial Services Group,
Inc. (2020), U.S. District Court, District of Colorado,
Civil Action No. 1:19-cv-02005-DDD-SKC
■ United States ex rel. Matthew Macdowell v. Synnex
Corporation (2020), U.S. District Court, Northern
District of California, Case No. 19-cv-00173-WHA
■ Ahmad Hamdan v. Dorothy Reggi, et al. (2020),
Yuba County Superior Court, Case No. CVCV18-01936
■ Aqualegacy Development LLC v. 2012 Canrow
Owner (2020), Superior Court of California,
Monterey, Case No. 16CV001078
■ Cisco Systems, Inc., And Cisco Technology, Inc.
v. ADSI, et al. (2020), U.S. District Court, Northern
District of California, Oakland Division, Case No.
4:18-cv-07602 YGR
■ Administrator v. Marlette Funding, LLC et al. (2020),
District Court, Denver City and State of Colorado,
Case No. 17CV30376
■ In Re: Restasis Antitrust Litigation (2020), U.S.
District Court, Eastern District of New York, Case No.
MDL No. 2819 18-MD-2819 (NG) (LB)
■ Wetlands Preservation Foundation v. Department
of Water Resources, The Nature Conservancy (2019)
Superior Court of California, San Joaquin, Case No.
STK-CV-UWM-2018-8957
■ Healthnet v. American International Specialty
Lines Insurance Company, et al. (2019), Superior
Court of California, Los Angeles, Case No.
Bc357436
■ Fred Sahadi v. Liberty Mutual Insurance. et al
(2019), U.S. District Court Northern District of
California, Case No. 5:18-CV-04061-LHIK
■ Justice Laub v. Drone Racing League, Inc. et
al. (2019), U.S. District Court, Central District of
California, Western Division, Case No. 2:17-CV-
06210-JAK (KSX)
■ United States Of America v. County Of Clark
And Nevada Links, Inc. (2019), U. S. District Court
District Of Nevada, Case No. 2:17-Cv-02303
■ Fuse Chicken, LLC v. Amazon.com, Inc. (2019)
U.S. District Court Northern District of Ohio,
Eastern Division, Case No. 5:17-cv-01538-SL
■ Golden Gateway Center v. San Francisco
Waterfront Partners II, LLC (2018), Superior Court
of California, San Francisco, Case No. CGC 15-548437
■ The Barrel Cellar v. Quince Pacific Avenue (2018),
Superior Court of California, San Francisco, Case No.
CGC-17-561363
■ Just Games Interactive Entertainment, LLC v.
Scopely, Inc. (2018), JAMS Arbitration
Appendix A
Case 3:21-md-02992-GPC-MSB Document 620-4 Filed 01/08/26 PageID.44411
Page 72 of 76
HEMMING.COM
PAGE 6 OF 7
GREG REGAN, CPA/CFF, MBA
CURRICULUM VITAE
SAN FRANCISCO OFFICE
201 Spear Street ӏ Suite 1100
San Francisco, CA 94105
T: 415.836.4000
BURLINGAME OFFICE
1290 Howard Ave ӏ Suite 202
Burlingame, CA 94010
T: 415.836.4000
Publications
■ “Attaining Reasonable Certainty in Economic
Damages, Calculations”, AICPA Practice Aid, 2015
■ “How CPAs can benefi t from Colin Powell’s Rule”,
AICPA “FVS Insider” Article, August 2013
■ “Options for Consumers in Crisis - An Economic
Analysis of the Debt Settlement Industry”,
December 31, 2012
■ “Discount Rates, Risk, and Uncertainty in Economic
Damage Calculations”, AICPA Practice Aid, 2012
■ "Making Sense of Forensic Accounting", CalCPA
Magazine, 2020
■ "Trial Testimony by Financial Experts in California
Court: A Reference Guide to Hearsay Evidence
Objections", CalCPA FSS, 2019
■ “Calculating Lost Profits”, AICPA Practice Aid, 2019
■ Unblurring the Line(s) Between Accounting and Legal
Opinions”, The Witness Chair, Winter 2017
■ “Big Data’s Day in Court”, Plaintiff Magazine, January 2017
Awards
■ AICPA, Forensic & Litigation Services Volunteer
of the Year, 2012
■ Georgetown University, Dean’s Citation, 1995
Testimony continued
Deposition continued
■ Mark de Bibo Company v. Ryan & Ryan
Construction, Inc. (2017), Superior Court of
California, San Mateo, Case No. CIV534040
■ Amedee Geothermal Venture I v. Lassen
Municipal Utility District (2017), Superior Court of
California, Lassen, Case No. 59485
Appendix A
Case 3:21-md-02992-GPC-MSB Document 620-4 Filed 01/08/26 PageID.44412
Page 73 of 76
HEMMING.COM
PAGE 7 OF 7
GREG REGAN, CPA/CFF, MBA
CURRICULUM VITAE
SAN FRANCISCO OFFICE
201 Spear Street ӏ Suite 1100
San Francisco, CA 94105
T: 415.836.4000
BURLINGAME OFFICE
1290 Howard Ave ӏ Suite 202
Burlingame, CA 94010
T: 415.836.4000
Presentations
■ “Aligning Damages to the Claims for Relief”,
AICPA National Forensic & Valuation Services
Conference (2023)
■ “An Exploration of Reliance Damages”,
AICPA National Forensic & Valuation Services
Conference (2022)
■ “The 'State' of Sargon: 8 Years Later", CalCPA (2020)
■ “Damages - When are they Foreseeable?”,
AICPA National Forensic & Valuation Services
Conference, 2018
■ “Linking Causation to Damages”, AICPA National
Forensic & Valuation Services Conference, 2017
■ “Un-blurring the Lines Between Legal and Expert
Opinions”, AICPA National Forensic & Valuation
Services Conference, 2017
■ “Un-blurring the Lines Between Accounting and
Legal Opinions”, CalCPA Forensic Services Steering
Committee, June 2016
■ “Examining Cross-Examination”, AICPA National
Forensic & Valuation Conference, 2015
■ “Experts on Offense, Experts on Defense”,
ABA National Securities Fraud Conference, 2014
■ Fundamentals of the Legal System & Engagement
Administration
■ Reporting, Expert Reports, and the Provision of
Testimony
■ Financial Statement Investigations
AICPA CFF Education, Spring 2010-Present
Appendix A
Case 3:21-md-02992-GPC-MSB Document 620-4 Filed 01/08/26 PageID.44413
Page 74 of 76
In Re: Bank of America California Unemployment Benefits Litigation
Appendix B - Documents Considered
Expert Report of Greg J. Regan, CPA/CFF
Category
File
Case Filings
2021-05-17 [89] Order Re Prelim Inj
2021-06-02 [103] Corrected Preliminary Injunction
2023.10.05 - BANA's Supplemental Responses to Interrogatories 9 and 16
2023.10.05 -Attachment C - BANA Supp. Response to Interrogatory 9
2023-05-25 [126] Order re MTD
2023-06-13 [136] FAMCC
2023-10-10 BANA EDD - Mediation Statement (Merged)
2023-10-10 Pltffs' Mediation Stmt (Merged)
2023-10-13 BANA's 2nd Supp. Response to Pls. First Set of ROGs 2-6, 14-15
2024-01-02 BofA R&Os to Pls Rogs Set 4
2024-02-15 BofA Suppl Response
Attachment A - BANA's Response to Interrogatory No. 7 (CONFIDENTIAL)
Attachment B - BANA Response to Interrogatory No. 8 (CONFIDENTIAL)
BANA - MDL - Plaintiff Alias IDs (10.25.2023).xlsx
BANA Responses to Plaintiff's First Set of Interrogatories
BANA Verification of Responses to Plaintiff's First Set of Interrogatories (9.5.23)
BANA Verification to BANA's Revised Supplemental Responses to Interrogatories 2-6 and 14-15
(12.01.23)
BANA's First Set of Responses to Plaintiffs' Seventh Set of Interrogs (40-41, 44-46) (4.19.24)
BANA's Responses and Objections to Plaintiffs Fourth Set of Interrogatories
BANA's Responses and Objections to Plaintiffs Third Set of Interrogatories
BANA's Revised Supplemental Responses to Interrogatories 2-6_ 14-15 (12.01.23)
BANA's Verification to Plaintiffs' Fifth Set of Rogs (2.3.24)
BANA's Verification to Plaintiffs' Fourth Set of Rogs (1.3.24) (1)
BofA 10/6/22 BofA Remediation Plan to OCC and CFPB Consent Orders
Data Dictionary to Interrogatory 27.xlsx
Exhibit 1 - BANA Response to Interrogs. 2 and 6.xlsx
Exhibit 10 - BANA's Response to Interrog 30 (pt 2).xlsx
Exhibit 11 - BANA's Response to Interrog 32.xlsx
Exhibit 12 - BANA's Response to Interrog 33.xlsx
Exhibit 15 - BANA's Response to Interrog 45.xlsb
Exhibit 16 - BANA's Response to Interrog 46.xlsx
Exhibit 2 - BANA Response to Interrog. 3 .xlsx
Exhibit 3 - BANA Response to Interrogs. 4 and 5.xlsx
Exhibit 4 - BANA Response to Interrogs. 14-15 (Direct Comp.).xlsx
Exhibit 4 Rogs 14-15.xlsx
Exhibit 5 - BANA Response to Interrogs. 14 and 15 (IRP).xlsx
Exhibit 5 - Rogs 14 and 15 (IRP).xlsx
Exhibit 6 - BANA Response to Interrog 21.xlsx
Exhibit 6 - Supplemental BANA Response to Interrog 21.xlsx
Exhibit 7 - BANA Response to Interrog 22.xlsx
Exhibit 8 - BANA Response to Interrog 27.xlsx
Exhibit 8 - BANA's Response to Interrog 27.xlsx
Exhibit 9 - BANA's Response to Interrog 30 (pt 1).xlsx
Federal Register, CFPB Late Fees, 2024-05011.pdf
Plaintiff Alias IDs (10.25.2023).xlsx
Revised Exhibit 1 - BANA Response to Interrogs. 2 and 6 -20231201.xlsx
Revised Exhibit 1 - Rogs 2 and 6 xlsx.xlsx
Revised Exhibit 2 - BANA Response to Interrog 3 (12.20.23).xlsx
Revised Exhibit 3 - BANA Response to Interrogs 4 and 5 (12.20.23).xlsx
Revised Exhibit 4 - BANA Response to Interrogs. 14 and 15
- 20231201.xlsx
Revised Exhibit 4 Rogs. 14 and 15.xlsx
Revised Exhibit 5 - BANA Response to Interrogs. 14 and 15 (
) - 20231201.xlsx
Revised Exhibit 5 Rogs. 14 and 15.xlsx
Rogs 4 and 5 Data Dictionary 96460.xlsx
Case 3:21-md-02992-GPC-MSB Document 620-4 Filed 01/08/26 PageID.44414
Page 75 of 76
In Re: Bank of America California Unemployment Benefits Litigation
Appendix B - Documents Considered
Expert Report of Greg J. Regan, CPA/CFF
Category
File
Depositions & Exhibits
30(b)(6) Deposition of Michael Letson dated February 16, 2024
Deposition of Jennifer Lennon (30)(b)(6) dated February 23, 2024
Deposition of Matthew Martin dated February 14, 2024
Depositon of Robert A. Chestnut dated February 8, 2024
Document Production
BANA EDD MDL VOL027.opt
BANA_EDD_MDL-00019733 -
BANA_EDD_MDL-00102472-587
BANA_EDD_MDL-00282498 -
BANA_EDD_MDL-00510125.xlsx
BANAEDD MDL-00517105
Bank-EDD Contract M6100352 05-14-18 Amendment to Revenue Share
Research
AICPA Practice Aid, Discount Rates, Risk, and Uncertainty in Economic Damages Calculations
American Express, “Average Credit Scores by Age, State, and Income”
Bank_of_America_Corporation_-_Form_10-K(Feb-20-2024)
Bank_of_America_Corporation_-_Form_10-K(Feb-22-2022)
Bank_of_America_Corporation_-_Form_10-K(Feb-22-2023)
CBO, "Characteristics of People Receiving Regular Unemployment Benefits in July 2020"
CFPB amicus brief filed in Mohamed v. Bank of America, N.A., No. 22-1954 (4th Cir.)
CFPB Consent Order
CFPB, "Consumer Credit Card Market Report", September 2023
CFPB, "Consumer Finances During the Pandemic," December 2021
CFPB, "Consumer Response Annual Report", March 2021
CFPB, "Consumer Use of Buy Now Pay Later", March 2023
CFPB, "Credit Card Late Fees", March 2022
CFPB, "The Consumer Credit Card Market," September 2021
CFPB, Consumer Response Annual Report, March 2021
CFPB, Consumer use of buy-now-pay-later, March 2023
CFPB, Making ends meet survey insights report, December 2021
CFPB, Mohamed v. Bank of America N.A.
Consumer Reports, “How to Avoid Credit Card Late Fees,” by Lisa Gill, October 19, 2023
Federal Register, 89 FR 19128
Federal Register, CFPB Late Fees, 2024-05011
Federal Reserve Bank of Boston, Credit Card Spending and Borrowing since the Start of the Covid-19
Pandemic, by Joanna Stavins, October 19, 2023
Federal Reserve Bank of Cleveland, "Fintech Lending Expands Small Businesses’ Options", July 2020
Federal Reserve Bank of New York, "The Role of Fintech in Unsecured Consumer Lending to Low- and
Moderate-Income Individuals", November 2023
Federal Reserve, “Unemployment Insurance in Survey and Administrative Data”
Financial Times, “What are your rights if your bank account is frozen?”, July 23, 2020 by Lindsay Cook
Forbes, "2022 Credit Card Late Fees Cost Consumers Record $15 Billion," by Katharina Buchholz,
March 6, 2024
Forbes, "Living Paycheck to Paycheck Statistics 2024, by Emily Batdorf, April 2, 2024
Lending Club, "60% of Americans Now Living Paycheck to Paycheck, Down from 64% a Month Ago",
February 28, 2023
Lending Club, "Nearly 60% of Credit Cardholders in the U.S. Live Paycheck to Paycheck", December 18,
2023
Mathematica Policy Research Report, “A Longitudinal Survey of Unemployment Insurance Recipients in
Two Regions in California,” January 2017
OCC Consent Order
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