Exhibit PX4 — In re Bank of America California Unemployment Benefits Litigation (Dkt. 634-5, S.D. Cal. No. 3:21-md-02992)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 634-5 · 2026-01-09 · Docket on CourtListener

Full text

PX 4 
 
 
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
IN RE BANK OF AMERICA  
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-GPC-MSB 
EXPERT REPORT OF  
WILLIAM J. ABERNATHY, JR. 
March 3, 2025 
REDACTED PUBLIC VERSION
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i 
Table of Contents 
Page(s) 
 
I. 
ASSIGNMENT ...................................................................................... 1 
II. 
QUALIFICATIONS ............................................................................... 2 
III. 
HOURLY RATE ..................................................................................... 6 
IV. 
BASIS FOR OPINIONS ........................................................................ 6 
V. 
SUMMARY OF OPINIONS .................................................................. 6 
VI. 
STATEMENT AND EXPLANATION OF OPINIONS ......................... 8 
A. 
The Bank’s other Regulatory Obligations Do not Justify Violations of 
EFTA and Reg. E. ................................................................................... 8 
B. 
The Bank’s Total Reliance on an Automated Claim Fraud Filter was 
Unprecedented and Inexcusable. ..........................................................10 
C. 
The Bank Could Have Asked Its Regulators Whether its Claim Fraud 
Filter Complied with The Bank’s Obligations Under EFTA. ...............13 
D. 
The Bank Could Not Reasonably Have Believed That Its Use of The 
Claim Fraud Filter Would Be Acceptable to The Bank’s Regulators. ..15 
E. 
Regulators Do Not Expect or Tolerate Payments to Be Made to 
Fraudsters Under a Regulatory Consent Order and Remediation Plan.
 ..............................................................................................................18 
 
 
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I. 
ASSIGNMENT 
1. 
Counsel for Class Plaintiffs in this matter have asked me to opine on 
the actions the Bank took with regard to pandemic-era prepaid card fraud, and to 
opine on whether these actions would have been acceptable to the Bank’s regulators, 
had the Bank asked them for guidance.  
2. 
I am qualified to give theses opinions based on my experience as a long-
time senior federal regulator at the Office of the Comptroller of the Currency (OCC), 
including as Director of Compliance and Bank Analysis, and for the reasons 
explained below, my opinion is that the Bank’s actions would not have been 
acceptable to the Bank’s regulators.  
3. 
Counsel for Class Plaintiffs have also asked me to opine on whether the 
Bank’s processes for identifying “harmed consumers” or fraudsters who should be 
excluded pursuant to Consent Decrees with the OCC and CFPB under the 
Remediation Plan, are reliable.  
4. 
Based on my experience as a long-time senior federal regulator at the 
OCC, it is my opinion that when regulators require a bank to identify a population 
of “harmed consumers” for remediation, the regulators expect the bank to develop 
and implement a process that will effectively identify and exclude fraudsters. 
Regulators do not expect or tolerate payments to be made to fraudsters pursuant to a 
regulatory Consent Order. 
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5. 
My work on this case is ongoing, and I may review additional materials 
or conduct additional analysis. I reserve the right to update, refine, or revise my 
opinions as appropriate including if additional information becomes available to me. 
II. 
QUALIFICATIONS 
6. 
I am the Chief Executive Officer and owner of Abernathy Bank 
Consulting, LLC in Atlanta, Georgia.  I have over 50 years of broad educational, 
technical, and managerial experience in the banking industry as a National Bank 
Examiner (commissioned by the Secretary of the U.S. Treasury), senior district 
federal bank regulator, senior-level banker (Executive VP - Chief Risk Officer), and 
member of the board of directors of banks and a credit union, and I currently serve 
as a bank consultant and banking expert witness in litigation matters.  I am a graduate 
of the University of Alabama with a Bachelor of Science degree in Banking and 
Finance, and of The Stonier Graduate School of Banking for the American Bankers 
Association at Rutgers – The State University, New Jersey.   
7. 
During my 33-year career with the Office of the Comptroller of the 
Currency (OCC), a bureau of the U.S. Department of Treasury, I served in six 
different senior management positions, including: 
x Director of Compliance and Bank Analysis for over 300 national banks 
within the nine southeastern states.  My responsibilities included supervision 
of these national banks to ensure their compliance with all consumer laws and 
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regulations, including the Electronic Fund Transfers Act (“EFTA”), 15 U.S.C. 
§§1693(a)-(r), and its implementing Regulation E (“Reg E”), 12 C.F.R. pt. 
1005, which OCC and CFPB have alleged that Bank of America violated in 
this case.  The banks and the examiners-in-charge of these banks reported to 
me as the Supervisory Officer for compliance examinations in the 
Southeastern District.    
x Director of Bank Supervision – Senior OCC Federal Supervisor of the 15 
largest national banks headquartered in the nine-state district as well as all 
problem banks in the Southeastern District.  I was the responsible official for 
safety and soundness examinations, consumer compliance exams, and direct 
communications with these large bank executive officers and their Board of 
Directors.  
x Assistant Deputy Comptroller – As the second-highest ranking executive 
for the Southeastern District, I managed the top banking technical experts 
(Lead Experts in consumer compliance, commercial lending, retail lending, 
capital markets, asset management (trust), and bank information systems), and 
all internal district operations including examiner training and development.  
I was also responsible for monitoring and follow-up on consumer complaints 
against all banks in the nine-state district, including complaints filed against 
Bank of America.  My responsibilities included receiving, analyzing, and 
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tracking all consumer complaints, as well as requiring the identified bank to 
respond to the consumer and OCC.  This information was given to the bank’s 
Examiner-in-Charge (EIC) for follow-up at the next compliance examination.  
8. 
As a federal bank regulator, I served as the OCC’s designated senior 
official for several Supervisory Offices, using my professional judgment to 
determine and confirm if OCC’s EIC had reached accurate conclusions on safety, 
soundness and compliance examinations, including, if a particular institution had 
complied with the federal laws and regulations, and if OCC should require the bank 
to consent to the execution of a formal enforcement action for correction of material 
deficiencies.  Each of these banks within my area of supervision and OCC’s EIC of 
each of those banks reported to me (as senior official of the Supervisory Office) 
regarding their examination of the bank, the accuracy of their examination report 
findings, and the recommendations for any proposed supervision action regarding 
the banks under my authority.  
9. 
After my retirement from OCC and over the next decade, I served as a 
senior-level banker (Executive Vice President and Senior VP) at four different banks 
in Metro-Atlanta, including roles as Senior Vice President – Retail Banking 
(supervision of Branches, Branch Administration & Banker Training) and as Chief 
Risk Management Officer (CRO) at three different banks.  As CRO, I generally 
managed the banks’ six internal control departments: Audit, Bank Secrecy Act / 
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Anti-Money 
Laundering 
(BSA/AML), 
consumer 
compliance 
regulations, 
operational risk controls (written policies & procedures - bank wide), commercial 
loan review, and regulatory relations (coordinate Federal Reserve and FDIC 
examination process and ensure corrective actions were taken by the Bank, if 
needed).  Also, I implemented Enterprise Risk Management (ERM) at these banks, 
each of which had $1-3 billion in assets. 
10. 
In 2013, I left full-time banking to establish my own firm, Abernathy 
Bank Consulting, LLC, to provide executive consultant services across a broad 
spectrum of the industry, including by assisting banks with risk management, 
compliance with BSA and other regulatory matters, and serving as an expert witness 
in bank litigation.  In the last five years, I have provided expert witness reports in 14 
lawsuits and provided testimony in six depositions involving bank compliance, 
BSA/AML, Elder Financial Abuse (EFA), internal and external frauds, Ponzi 
schemes, financial institution standards, and other matters.  I have been engaged as 
an expert for cases nationwide, on suits ranging from $250,000 to $7 billion, 
representing both plaintiffs and defendants, in both federal and state courts.  
Additionally, I have served on several boards of directors and as Chair of 
Committees for two banks, a credit union, and two large nonprofits.  As a financial 
institution director, I have chaired the institutions’ Compliance Committee 
(including compliance with Banking Laws & Regulations, Consumer Compliance, 
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Bank Secrecy Act, and Regulatory Enforcement Action) and Directors Loan 
Committees, and have served as a member of those institutions’ Executive 
Committees and Audit Committees.   
My current curriculum vitae (CV) is attached as Appendix A.  
III. 
HOURLY RATE 
11. 
The charge for my service on this case is on an hourly basis at a flat rate 
of $700 per hour, whether for review of documents, research, writing reports, 
consulting, or testifying at deposition or trial.  My compensation is not contingent 
upon my opinions or the outcome of the case.   
IV. 
BASIS FOR OPINIONS 
12. 
In preparing this report, I relied upon the materials listed in Appendix 
B. Based on my review of the documents in this case, I understand that the class of 
“harmed consumers” were impacted solely by Indicator 1 of the Bank’s Claim Fraud 
Filter. I also base this report on my 50 years of experience in the banking industry, 
including as a senior official of several Supervisory Offices of the OCC where, 
among other duties, I was responsible for bank examinations and examiner 
supervision and the execution of enforcement actions.   
V. 
SUMMARY OF OPINIONS 
1. The Bank’s use of Indicator 1 of its Claim Fraud Filter as the sole basis for 
denying unauthorized-transaction claims by EDD debit cardholders in 2020-
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21 and for taking other adverse actions against them (freezing accounts, 
rescinding permanent credit) was highly improper, unprecedented, and 
contrary to my understanding of the governing legal and industry standards. 
2. The Bank could not reasonably have believed that its use of Indicator 1 of its 
Claim Fraud Filter as the sole basis for denying unauthorized-transaction 
claims by EDD debit cardholders in 2020-21 and for taking other adverse 
actions against them (freezing accounts, rescinding permanent credit) would 
be found acceptable or consistent with permissible banking practices by the 
Bank’s regulators. 
3. In my opinion, the Bank could not have reasonably believed that its approach 
of using Indicator 1 of the Claim Fraud Filter as a substitution for its normal 
Regulation E investigative process in response to pandemic-era prepaid fraud 
was reasonable or would be approved by its regulators, and none of the Bank 
documents in this case that I reviewed support any conclusion that the Bank’s 
substitution was reasonable. Based on my extensive experience as a senior 
bank regulator, coupled with the fact that the OCC and CFPB later fined the 
Bank $225 million for violating its statutory and regulatory obligations under 
EFTA and Reg E, I conclude that the Bank had no basis for believing that its 
regulators would have approved its use of Indicator 1 of the Claim Fraud Filter 
as the sole basis for denying claims, rescinding credits, and freezing accounts.   
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4. Regulators do not expect or tolerate payments to be made to fraudsters under 
a regulatory consent order and resulting remediation plan.  Rather, regulators 
expect the financial institution to develop and implement reliable processes 
for effectively identifying “harmed consumers” and excluding fraudsters. 
VI. 
STATEMENT AND EXPLANATION OF OPINIONS 
A. 
The Bank’s Other Regulatory Obligations Do Not Justify Violations 
of EFTA and Reg. E.  
13. 
Banks, including Bank of America, have a regulatory obligation to 
manage risk and demonstrate this to their regulators. This regulatory obligation can 
be referred to as “safety and soundness.”  It is my opinion that “safety and 
soundness” is not a regulatory obligation that competes with the Bank’s obligations 
under Reg E and is not a valid justification for the Bank to have believed it could 
violate EFTA and Reg E in response to pandemic-era fraud targeting the prepaid 
card program or to have believed that EFTA and Reg E did not apply or applied with 
lesser force because of the pandemic circumstances. The OCC and other regulators 
expect the banks under their jurisdictions to fully comply with established safety and 
soundness standards while also complying with all legal obligations, including under 
EFTA/Reg E, in the course of addressing whatever circumstances have arisen that 
may threaten economic losses, whether through fraud or otherwise. I am not aware 
of any circumstances in which a bank has requested, let alone obtained, its 
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regulator’s approval to violate EFTA, Reg E, or other safety and soundness standards 
and compliance laws based on the bank’s assertion that special circumstances justify 
abandonment of those legal requirements. 
14. 
Notably, the OCC has weighed in on this particular circumstance and 
issue, concluding in its July 2022 Consent Order:  
The Bank “applied an automated fraud filter … to decision UI Prepaid Card 
error claims that met certain criteria (“Fraud Filter”) without conducting a 
sufficient investigation…,”1  and the Bank engaged in “(i) unsafe or unsound 
practice(s), including deficiencies in its risk management, operational 
processes and controls, internal audit, and investigation and resolution of 
consumer claims of unauthorized transactions; and (ii) unfair and deceptive 
practices in violation(s) of Section 5 of the Federal Trade Commission Act 
(“FTC Act”), 15 U.S.C. §45(a)(1)….”2   
15. 
In addition, the Bank’s two federal regulators, OCC and CFPB, jointly 
decided to assess a Civil Money Penalty against Bank of America totaling $225 
million dollars due to the Bank’s failure to comply with its regulatory obligations. It 
is my opinion that the regulators’ conclusions are correct.  
 
1 OCC Consent Order, p.3. 
2 OCC Consent Order, p.1. 
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16. 
Banks have faced many difficult challenges over the years and that the 
pandemic created many hardships for people and companies in a range of industries. 
However, in my experience, and based on my understanding of the governing 
requirements, bank regulators do not change their standards for supervising the 
banks they oversee, even during challenging periods.  As an example, due to the 
impact of the economic recession of 2007-2009, the regulators closed 504 banks 
over the next seven years (2008-2014).  Bank regulators did not “change or lower 
their standards” due to the severe economic conditions of the “Great Recession.”  
Regulators did not “lower the standards” during the pandemic or due to increased 
fraud.  Nor did they lower their supervisory standards for safety and soundness, or 
for what constitutes a reasonable investigation of claims for Regulation E.  The 
regulators do exercise judgment, but the “standards” are the “standards.”   
B. 
The Bank’s Total Reliance on an Automated Claim Fraud Filter 
was Unprecedented and Inexcusable. 
17. 
The Bank’s use of an Automated Claim Fraud filter beginning in late 
September of 2020 to automatically deny consumers’ claims of unauthorized 
transactions, rescind permanent credits, and freeze accounts in the circumstances 
covered by this case was without precedent both in the Bank’s own past practice 
and, in my experience, as a banking industry practice.  Banks have long used 
automated systems to assist them as a first step in targeting potentially fraudulent 
unauthorized-transaction claims, but they have not used computer models to 
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automatically deny claims of unauthorized transactions, which requires a reasonable 
or adequate investigation under EFTA and Regulation E. Instead, automated 
systems have historically been used to 
 
 
 
3 Prior to September of 2020, the Bank followed its “
 
.4 Conducting an EFTA-
complaint investigation to ensure that claims investigations decisions are 
“consistent,” based in fact, and use “all pertinent, available details” is historically 
how the Bank – like other financial institutions throughout the United States –
addressed claims of unauthorized transactions and is also industry standard. The 
Bank’s employee training materials during the relevant time period further stated:
“
 
.”5  The 
3 Martin Tr. 286:17-288:8.
4 See e.g., BANA_EDD_MDL-00559693 (April. 2021
 
 
 
5 BANA_EDD_MDL-00006484 (
); BANA_EDD_MDL-00003890 (
 
 
); BANA_EDD_MDL-00100637 (
); BANA_EDD_MDL-
00004542 (
)
 
 
 
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Bank’s decision to implement Indicator 1 of its automated Claim Fraud Filter, 
 
, was unprecedented in the Bank’s own
history and in industry practice.
1.
In my opinion, the use of automated tools in the early stages of a legally 
compliant Regulation E investigation is appropriate as an initial screening 
device to identify accounts that require further review.  However, the Bank’s 
use of Indicator 1 of its automated Claim Fraud Filter as the sole basis for 
denying claims, rescinding permanent credit, and freezing accounts sets it apart 
from the use of automated tools as a warning flag requiring manual follow-up.  
There is no reasonable comparison that can be made between the fraud filter 
that was used to decision claims, rescind credits, and freeze accounts with 
standard screening devices to alert the a bank of suspicious activity prior to 
conducting a sufficient investigation. Comparing the fraud filter with standard 
screening is an entirely unsupportable false equivalent. 
2.
My conclusion is supported by the OCC’s findings, specifically the finding 
that “the Bank (a) applied an automated fraud filter … to decision UI Prepaid 
Card error claims that met certain criteria (“Fraud Filter”) without conducting 
 
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a sufficient investigation to: (i) deny many consumers’ claims… and (ii) 
“freeze” or “block” the UI Prepaid Card accounts associated with the claims.”6  
C.
The Bank Could Have Asked Its Regulators Whether its Claim 
Fraud Filter Complied with The Bank’s Obligations Under EFTA.
24.
The Bank’s appointed 30(b)(6) representative Michael Letson testified 
that the Bank never sought out or received approval from any of its regulators, 
including the CFPB and OCC, before deciding to use Indicator 1 of its automated 
Claim Fraud Filter to deny unauthorized-transaction claims, claw back permanent 
credit, and freeze accounts of EDD cardholders:
 
 
 
 
 
6 OCC Consent Order at p.3.
 
 
 
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.7
25.
Banks can easily request an official interpretation from the OCC by 
emailing or calling the OCC’s Washington Office or the bank’s supervisory office.  
The CFPB has a similar process where banks can request an official interpretation 
in writing from its Washington Office.  For Bank of America in particular, the 
process of requesting examiner feedback or an official interpretation from the OCC 
is even easier and more straightforward.  The OCC’s Large Bank Supervision 
Program has examiners who are permanently on-site at the largest national banks, 
like Bank of America.  So, Bank management could have literally “walked down the 
hall” to ask the OCC’s examiners if their proposed use of the Claim Fraud Filter to 
deny EDD cardholders’ claims and rescind permanent credits complied with EFTA 
and Reg E, or asked them to forward their request to the Washington Office for an 
official interpretation.  
26.
Perhaps the reason that the Bank did not ask their regulators at OCC or 
CFPB is because the Bank’s management knew or anticipated an answer from the 
regulators that they did not want to hear or accept. In my opinion, the Bank knew 
or should have known that it would be told that use of Indicator 1 of the Claim Fraud 
Filter as the sole basis for denying EDD cardholders’ claims, rescinding their credits, 
7 30(b)(6) Deposition of the Bank by its designee Michael Letson at 26:5-22.
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and freezing their accounts would be unacceptable – as it later turned out to be, once 
OCC and CFPB found out what the Bank had done.   
D. 
The Bank Could Not Reasonably Have Believed That Its Use of The 
Claim Fraud Filter Would Be Acceptable to The Bank’s Regulators. 
27. 
In my opinion, it was unreasonable for the Bank to fail to communicate 
with its regulators that it was about to implement a new process of automatically 
denying its customers’ unauthorized transaction claims based solely on a “Claim 
Fraud Filter,” and based solely on the fact that the disputed transaction occurred at 
an ATM utilizing a PIN.  In my opinion, the fact that the Bank could have easily 
communicated this plan to its regulators, but did not, indicates that the Bank was 
aware and concerned that the Claim Fraud Filter did not comply with the Bank’s 
obligations and that the Bank’s regulators would likely advise that implementing the 
Claim Fraud Filter would violate the adequate investigation requirement under     
Reg E.  
28. 
No reasonable banking expert think it was reasonable for Bank of 
America to believe that the Claim Fraud Filter would have been acceptable to its 
regulators.  In my opinion, a reasonable bank in these circumstances would have 
communicated with its regulators and cleared the use of this dramatically different 
new process that replaced the Bank’s long-standing “adequate investigation” 
procedures with a process of automated “systemic denials” based on limited data.  
The Bank’s failure to do so renders any such belief completely unreasonable. 
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29. 
The unreasonableness of the Bank’s failure to obtain regulatory 
approval further supported by the fact that in July 2022, OCC issued a Consent Order 
against the Bank because the Bank:  
“…applied an automated fraud filter … to decision UI Prepaid Card error 
claims that met certain criteria (“Fraud Filter”) without conducting a sufficient 
investigation to: (i) deny many consumers’ claims … and (ii) freeze or block 
the UI Prepaid Card accounts associated with the claims.”8  
The OCC, the Bank’s primary Regulator, further stated in the notice of 
charges in the Consent Order that: 
“[T]he OCC intends to initiate cease and desist proceedings against the Bank 
… related to: (1) the administration of the Bank’s prepaid cards for 
unemployment benefits, specifically engagement in (i) unsafe or unsound 
practice(s), including deficiencies in its risk management, operational 
processes and controls, internal audit, and investigation and resolution of 
consumer claims of unauthorized transactions; and (ii) unfair and deceptive 
practices in violation(s) of Section 5 of the Federal Trade Commission Act 
(“FTC Act”) … (2) engaging in unsafe or unsound practices related to 
 
8 OCC Consent Order at p.3.  
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deficiencies 
in 
its 
enterprise-wide 
complaints 
risk 
management 
framework….”9   
30. 
Further, the OCC fined the Bank $125 million and the CFPB fined the 
Bank an additional $100 million for this conduct, so Bank of America was required 
to pay a Civil Money Penalty totaling $225 million dollars for their actions. 
31. 
The OCC and CFPB do not levy fines for hundreds of millions of 
dollars for conduct they determine was reasonable.  For example, the OCC Consent 
Order found that: 
“…the Bank engaged in unsafe or unsound practices and engaged in unfair 
and deceptive practices in Section 5 of the FTC Act, 15 U.S.C. §45(a)” and 
that “[t]hese violations and practices support actions against the Bank under 
12 U.S.C. § 1818(b) and (i)(2)(B).”10  
32. 
The specific provision cited, 12 U.S.C. § 1818(i)(2)(B), authorizes 
second-tier penalties for “reckless” violations of law or “breaches of fiduciary duty” 
that are “part of a pattern of misconduct” or “results in pecuniary gain or other 
benefit” to the bank.  The fact that the Bank’s regulators levied significant second-
tier penalties based on this level of misconduct, is telling. In my opinion, it was 
simply not reasonable for Bank of America to believe the Claim Fraud Filter would 
 
9 OCC Consent Order at p.1. 
10 OCC Civil Money Penalty Order, p.5 (Article II, §6). 
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have been acceptable to its regulators, given the unprecedented nature of the Claim 
Fraud Filter, the fact that the Bank avoided asking the opinion of its regulators when 
it easily could have at the time, and given the significant adverse findings listed in 
the OCC’s Consent Order, and the assessment of $225 million in Civil Money
Penalties imposed by the OCC and CFPB against the Bank.
E.
Regulators Do Not Expect or Tolerate Payments to Be Made to 
Fraudsters Under a Regulatory Consent Order and Remediation 
Plan.
33.
The Bank’s Remediation Plan pursuant to the CFPB and OCC Consent 
Orders provides that “
 
 
 
 
 
 
 
 
 
”11
11 BANA_EDD_MDL-00102554 at Remediation Plan at 3.
 
 
 
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34. 
Based on my experience as a long-time senior federal regulator at the 
OCC, which included substantial compliance matters, it is my opinion that when 
regulators require a bank to 
 for 
 
 The regulators expect the bank to develop and implement a 
reliable and lawful process that will effectively identify "harmed consumers" and 
exclude fraudsters. Regulators do not expect or tolerate payments to be made to 
fraudsters pursuant to a regulatory consent order and remediation plan, especially 
where the bank has agreed
 as the Bank 
did here. Based on my experience, when a bank such as Bank of America represents 
to its regulators that it will do something (l
 
) they do it. 
Executed on March 3, 2025 
WILLIAM J. ABERNATHY, 
19 
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1 
Appendix A 
 
WILLIAM J. ABERNATHY, JR. 
 
5507 Martina Way 
  
 
 
 
 
 
Office & Cell:  770-815-6991 
Dunwoody, GA 30338  
       
 
 
           Bill@AbernathyBankConsulting.com       
 
 
 
 
 
 
 
 
 
 
 
 
  
SUMMARY QUALIFICATIONS and ACCOMPLISHMENTS:  
 
x 
50-year career in Banking Industry - experienced OCC Bank Regulator, Banker (Chief Risk Officer), 
Bank Consultant, Expert Witness & Bank Director 
x 
Technical Focus: Risk Management; Regulatory Expertise; Board Governance; Expert Witness 
Management Focus: Leadership; Division & C-Level Management; Led High Performance Teams  
x 
Successfully Led & Directed Strategic and Day-to-Day Operations of twelve (12) different Start-
up & Turn-around Divisions for Banks, Federal Bank Regulator and Consulting Firm. 
x 
Innovative Leadership in solving complex problems and implementing lasting solutions. Led/served 
on eight (8) national-scope OCC project teams; Led six (6) major bank-wide initiatives/teams.  
x 
Received numerous high-performance awards; Taught OCC’s top-rated national management school.  
x 
AMA Executive Assessment identified Strongest Management Competencies: Concern with Impact, 
Proactive, Positive Regard for Others, Use of Verbal Presentations, and Managing Group Processes. 
 
PROFESSIONAL EXPERIENCE:  
 
Principal - Executive Consultant & Expert Witness, 2013- present & 2004-06  
Abernathy Bank Consulting, LLC (ABC), Atlanta, GA           
http://abernathybankconsulting.com/  
      Abernathy Bank Consulting provides services across a broad spectrum, specializing in helping banks 
with Risk Management, Regulatory Issues, & Serve as Banking Expert Witness. Highlights include: 
 
x 
Expert Witness work with Attorneys, Write Expert Reports & Deposition Experience. Expert in Regulatory 
& Industry Standards, Frauds, Ponzi Schemes, BSA/AML Issues, Elder Financial Abuse 
x 
Independent Board & Management Studies, Board & Employee Training, Enhanced Board Governance, 
Management Organizational Structure 
x 
Bank Turnaround, Coordinate Compliance Committee, Monitor & Comply w/ Regulatory Orders 
x 
Enhanced Risk Management Processes, including Bank Policies, Procedures, & Board Reporting 
x 
Bank Director - Colorado National Bank; Denver, Colorado (2018-19) - Chair of Compliance 
Committee, Audit Committee (Recruited as Director for Change of Control & Strategic Focus) 
x 
Bank Director - Loyal Trust Bank; Johns Creek, Georgia (2019-2023) – Chair of Loan Committee, 
BSA Compliance, Executive Committee, Audit Committee (Multicultural De Novo Bank) 
 
Executive VP & Chief Risk Officer, 2009 – 2013   State Bank & Trust Company, Atlanta, GA 
     Chief Risk Officer reporting to Vice Chairman/President.  Led and Managed: Audit, BSA, Consumer 
Compliance, Policy Governance, Loan Review, Regulatory Relations, & Loss Share ($2.7 Billion Assets)  
x 
Organized, Centralized, Staffed, Automated Systems…4 departments within 90 days  
x 
Develop & Control all Policies & Procedures Bank-wide; Lead initiatives to control Fair Lending Risk  
x 
Lead initiative in non-credit areas to quickly unify 13 acquired banks into a One-Bank Operating Culture 
x 
Established & Chaired ERM Committee, Served on Senior Management, Credit & IT Steering Committees   
 
Chief Risk Officer – Senior VP, 2007 – 2009      Brand Banking Company, Lawrenceville, GA   
       Chief Risk Management Officer reporting to Board & CEO.  Led and Managed Audit, BSA, 
Compliance, Loan Review and Regulatory Relations ($1+ Billion Assets) 
x 
Led major turnaround in BSA, two months from Regulatory Issue to Correction (first assignment at bank) 
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Hired Top-Flight Staff to Lead Compliance and Internal Audit (Reduced Consultant Expense) 
x 
Chaired the Risk Management Committee, Member of Executive, Loan & IT Committees 
 
Senior Vice President – Risk Management, 2006 – 2007     Flag Bank, Atlanta, GA 
       Senior Risk Officer reporting to Vice Chairman.  Led and managed BSA, Compliance, Credit 
Administration, Loan Review, and Regulatory Relations ($1.7Billion Assets) 
x 
Led major improvements in Loan Portfolio MIS to analyze trends, concentrations, asset quality, etc. 
x 
Improved Independent Loan Review and strengthened Compliance Focus and Fair Lending Processes. 
 
Senior Vice President – Retail Banking, 2003-2004     Fidelity Bank, Atlanta, GA 
Senior Officer reporting to CEO, Led bank’s 19 Branches, Retail Lending, Branch Administration, 
ATMs, Internet Banking, Telephone Banking, and Corporate Cash Management ($1.2 Billion Assets) 
x 
Increased bank’s DDAs by $100 million, 35% annual growth rate in first 6 months of 2004 
x 
Led, motivated and directed 130 people, 40% of bank’s staff 
x 
Developed focused Commercial and Retail Lending Training for all Branch Lenders & Managers 
x 
Served on bank’s ALCO, CRA, and Senior Management Committees 
 
Assistant Deputy Comptroller - 1997– 2003     Comptroller of the Currency (OCC), Atlanta, GA 
Led & Managed District Lead Technical Experts (Commercial Credit, Retail Credit, Capital 
Markets, Compliance, Bank Information Technology & Asset Management), and directed internal district 
Operations for OCC’s (Federal Regulator of National Banks) Southeastern District (9 southern states).  
x 
Served as #2 Executive for district, led nine-state operations, coordinated with Washington Headquarters, 
other banking & insurance regulators, and led Examiner Development Program  
x 
Hired and managed top technical experts who examined the largest and most complex banks, provided 
advanced technical training and advise to examiners . . .most successful group in nation 
x 
Served on District Risk Management Committee, Problem Bank Committee, & Senior Management Group  
 
Director for Compliance and Bank Analysis (300+ banks), 1992-1997    OCC, Atlanta, GA 
       Led District’s Compliance, Trust, IT supervision & implemented bank supervision policy. Managed 
and directed district’s analysis of banks’ corporate expansion (mergers, new de novo bank charters, etc.). 
x 
Designed an operational and communication system for Compliance Team, which was used as national 
“blueprint” for new compliance examiner teams 
x 
Developed and implemented risk management processes for corporate expansion unit which significantly 
improved customer service to banks and reduced application processing time by 25 percent 
 
Director for Bank Supervision, 1988-1992, OCC, Atlanta, GA       
       Led and directed the supervision of the 15 largest regional banks in the Southeast USA (each ranging 
$5-$70 Billion in assets…$250 Billion total assets) and most serious problem banks (rated 4 & 5)  
x 
Focused examinations and meetings with CEOs & boards of directors at largest regional banks on 
strengthening risk management systems, bank management & structure, and board supervision 
x 
Led district using Risk-Focused Supervision to evaluate banks use of Policies & Systems to Manage Risks  
x 
Developed and implemented a process that reduced the average timeframes for rehabilitation of problem 
banks by 40 percent (during major economic recession) 
 
Director, Atlanta Field Office, 1983-1988, OCC, Atlanta, GA 
       Established new Field Office, directed the supervision of 100+ community banks and led a 
professional staff of 60 National Bank Examiners in Georgia, North Carolina and South Carolina. 
x 
Strengthened Bank Supervision by Examiners.  Developed and implemented improved internal 
management systems, organizational structure, and staffing for this new three-state organizational unit 
x 
Organized and chaired first statewide banker CEO & director meetings to communicate supervisory issues   
 
Regional Director for Human Resources, 1979-1982, OCC, Memphis, TN 
       Redirected & provided leadership for five-state region in areas of:  performance management, compensation, 
recruiting, EEO, employee relations, training, and career development. 
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Maintained lowest examiner turnover levels in history of region – strong, direct communications system 
x 
Significantly increased recruiting and exceeded EEO hiring goals for minorities and women 
 
 
Regional Director for Corporate Activities (Expansion Licensing), 1976-1979, OCC, Memphis, TN 
 
National Bank Examiner & Assistant National Banker Examiner, 1970-1976 & 1982-1983, OCC, 
Nashville & Memphis, TN, and Washington, DC 
 
 
EDUCATION AND PROFESIONAL ORGANIZATIONS: 
 
x 
University of Alabama, BS Degree, Banking and Finance, Tuscaloosa, Alabama (1970) 
x 
ABA Stonier Graduate School of Banking, Rutgers University, New Brunswick, NJ (1980), 
Written Senior Thesis: “Increasing Your Bank’s Equity Capital Coverage”  
x 
Commissioned National Bank Examiner, U. S. Treasury Department Certification (1975) 
x 
PRMIA - Professional Risk Managers’ International Association, Co-Regional Director, 
Steering Committee of Atlanta Chapter, Conference Speaker & Member 
x 
Risk Management Association (RMA), Conference Speaker & Member 
 
SPECIALIZED TRAINING: 
 
x 
Checks – Endorsements, Fraud, and Compliance Issues, Deborah Crawford, 2021 
x 
Certified At-Risk Adult Crime Specialist (Senior Elder Abuse), State of Georgia, 2021 
x 
Seven Things an Expert Witness Must Know, Expert.com, 2020 
x 
How to be an Effective Expert Witness, Depositions & Trials, SEAK, Inc., 2020 
x 
How to Write a Bullet Proof Expert Witness Report, SEAK, Inc., 2020 
x 
The BSA Experience, Georgia Bankers Association & Secura Risk Management, 2019  
x 
Board & Executive Oversight: Compliance and BSA, Alabama Bankers Association, 2016 
x 
Being an Effective Expert Witness, SEAK, Inc., Falmouth, MA, 2015 
x 
Developing a Successful Expert Witness Practice, SEAK, Inc., 2015 
x 
Southeastern Bank Management & Directors Conference, University of Georgia  
x 
Risk Management Summit, American Strategic Management Institute 
x 
Executive Effectiveness Course, American Management Association 
x 
Commercial Lending, American Bankers Association 
x 
Commercial Real Estate Review School, Comptroller of the Currency 
x 
Advanced Management Seminar, Comptroller of the Currency 
x 
Influencing People, College of Business, University of South Carolina 
x 
Management Workshop, Federal Financial Institutions Examination Council 
x 
Director’s Leadership for Change, Comptroller of the Currency 
x 
Instructor Training, Comptroller of the Currency 
x 
Interview Techniques & Recruitment Workshop, Comptroller of the Currency 
x 
Performance Appraisal: Counseling & Feedback, Office of Personal Management 
 
SPEAKING ENGAGEMENTS: 
 
x 
“Enterprise Risk Management: Where to Start”, Virginia Bankers Association, 2014 
x 
 “Compliance Risk”, Panel Moderator, Risk Management Association, 2014 
x 
“Bank Regulator Hot Topics”, GA Community Bankers Association, numerous dates 
x 
“Management of FDIC Loss Share Agreements”, Risk Management Association 
Case 3:21-md-02992-GPC-MSB     Document 634-5     Filed 01/09/26     PageID.51860 
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“Role of Chief Risk Officer”, Panelist, Profession Risk Managers International Association 
x 
“OCC Management School”, Instructor, Comptroller of the Currency, numerous dates 
 
 
 
 
OTHER RECOGNITION (SAMPLES): 
 
x 
Recipient of InCommunity Foundation, Scruggs-Abernathy Generosity Award, Awarded to Bill 
& Shirley Abernathy, Excellence in Philanthropy Award, 2022 
x 
Albert Gallatin Award, Esteemed Federal Service, U.S. Treasury Department, 2003 
x 
Making A Difference Award, Training, OCC, 2003 
x 
On-the-Spot Award, National Task Force, Bridge to Large Bank Supervision, OCC  
x 
Special Act Award, Resolution of Major Issues at Independent IT Data Center, OCC 
x 
Special Act Awards, OCC, Awarded Numerous Times for Leadership on National Task Teams 
x 
On-the-Spot Award, Instructor, Structurally Weak Loan Training, OCC 
x 
Certificate of Appreciation, Instructor for OCC Management School, OCC 
x 
Bank Supervision Operations Manager Award, “Year 2000” Work, OCC 
 
VOLUNTEER EXPERIENCE: 
   
x 
InCommunity, Inc. – Board of Directors, 2018-present (Vice-Chairman-2022, Chairman-2021, 
Executive Committee, Finance Committee), InCommunity Foundation (2018-present) – Meeting 
the Needs of 2,500+ Disabled Adults in Metro-Atlanta by providing Housing, Caregivers, 
Transportation, Day-Programs, Job Support, Social & Sports Activities, etc.  
x 
InCommunity, Inc. – Presenting Sponsor & Co-Chairman; 31st Annual Gala – 2019 Benefit 
Night, Major Fundraiser for Non-Profit Supporting Disabled Adults (raised new record level $$) 
x 
enAble of Georgia, Inc. – Sponsor & Co-Chairman; 30th Annual Gala - Founders Ball 2018, 
Major Fundraiser for Non-Profit Supporting Disabled Adults (raised $300K) 
x 
Georgia Community Support and Solutions – Board of Directors, Chairman Emeritus (2010), 
Chairman (2009), Vice Chairman (2008), Member (5 Years), Largest Non-profit in State of 
Georgia Serving Disable People and Their Families (Serving 20 Metro Atlanta Counties)         
x 
Associated Credit Union, Atlanta, GA - Board of Directors (served 3-year term); Credit 
Committee, Chairman (2 years) and member (8 years)  
x 
Murphey Candler Little League, Atlanta, GA - Board of Directors & Challenger League 
Director (2 years); Managed and Coached Baseball Team for disabled children (8 years) 
x 
Canine Assistants, Alpharetta - Certified Volunteer Service Dog Trainer…to help disabled 
children and adults 
x 
Atlanta Track Club – Member & Runner: marathon, several Half-Marathons, 21 Peachtree Road 
Races (10K) 
 
 
Case 3:21-md-02992-GPC-MSB     Document 634-5     Filed 01/09/26     PageID.51861 
Page 26 of 29

APPENDIX B: MATERIALS RELIED UPON 
Production Materials 
BANA_EDD_MDL-00004996 
BANA_EDD_MDL-00005390 
BANA_EDD_MDL-00005509 
BANA_EDD_MDL-00020097 
BANA_EDD_MDL-00020123 
BANA_EDD_MDL-00020150 
BANA_EDD_MDL-00020177 
BANA_EDD_MDL-00020204 
BANA_EDD_MDL-00020231 
BANA_EDD_MDL-00020257 
BANA_EDD_MDL-00020285 
BANA_EDD_MDL-00020312 
BANA_EDD_MDL-00020338 
BANA_EDD_MDL-00020364 
BANA_EDD_MDL-00020391 
BANA_EDD_MDL-00020418 
BANA_EDD_MDL-00020445 
BANA_EDD_MDL-00020473 
BANA_EDD_MDL-00020500 
BANA_EDD_MDL-00020527 
BANA_EDD_MDL-00020554 
BANA_EDD_MDL-00020580 
BANA_EDD_MDL-00020605 
BANA_EDD_MDL-00020631 
BANA_EDD_MDL-00020655 
BANA_EDD_MDL-00020681 
BANA_EDD_MDL-00020707 
BANA_EDD_MDL-00020732 
BANA_EDD_MDL-00020756 
BANA_EDD_MDL-00020780 
BANA_EDD_MDL-00020804 
BANA_EDD_MDL-00020828 
BANA_EDD_MDL-00020853 
BANA_EDD_MDL-00020877 
BANA_EDD_MDL-00020901 
BANA_EDD_MDL-00020925 
BANA_EDD_MDL-00020949 
BANA_EDD_MDL-00028846 
BANA_EDD_MDL-00028867 
BANA_EDD_MDL-00028946 
BANA_EDD_MDL-00042508 
BANA_EDD_MDL-00054544 
Case 3:21-md-02992-GPC-MSB     Document 634-5     Filed 01/09/26     PageID.51862 
Page 27 of 29

BANA_EDD_MDL-00054844 
BANA_EDD_MDL-00057837 
BANA_EDD_MDL-00060229 
BANA_EDD_MDL-00061453 
BANA_EDD_MDL-00100634 
BANA_EDD_MDL-00102520 
BANA_EDD_MDL-00102544 
BANA_EDD_MDL-00102554 
BANA_EDD_MDL-00102578 
BANA_EDD_MDL-00117131 
BANA_EDD_MDL-00117168 
BANA_EDD_MDL-00117173 
BANA_EDD_MDL-00381795 
BANA_EDD_MDL-00420534 
BANA_EDD_MDL-00420570 
BANA_EDD_MDL-00420651 
BANA_EDD_MDL-00450146 
BANA_EDD_MDL-00510120 
BANA_EDD_MDL-00578389 
 
Publicly available materials 
Corrected Declaration of Shane Daniels [N.D. Cal. Dkt. 76-16] 
OCC Consent Order (#2022-024) 
Order re Preliminary Injunction [N.D. Cal., Dkt. 89] 
Order re Motion to Dismiss [Dkt. 126] 
Order re Prelminary Injunction [N.D. Cal., Dkt. 103] 
First Amended Master Consolidated Complaint [Dkt. 136] 
CFPB Consent Order 
OCC Consent Order (#2022-023) 
CFPB Press Release 
Plaintiffs' Notice of Motion and Motion for Class Certification 
Memorandum of Points and Authorities in Support of Motion for Class Certification 
Ex 16 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 36 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 47 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 74 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 80 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 82 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 84 to the Declaration of Connie Chan in support of Plaintiffs' Motion for Class Certification 
Ex 6 to the Declaration of Laura Brys in support of Defendant’s Opposition to Plaintiffs’ Motion for Class 
Certification 
Defendant's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Class 
Certification 
 
Case 3:21-md-02992-GPC-MSB     Document 634-5     Filed 01/09/26     PageID.51863 
Page 28 of 29

Discovery 
Bank of America's Responses to Plaintiffs' Interrogatories, Set 1 
BofA's Revised Supplemental Responses to Interrogatories 2-6, 14-15 
Matthew Riffee Email re BofA Response to Plaintiffs' Interrogatories, Set 3 
BofA's Responses and Objections to Plaintiffs' Interrogatories, Set 3 
BofA's Responses and Objections to Plaintiffs Third Set of Interrogatories 
Exhibit 6 - BofA's Response to Interrogatory 21 
Exhibit 7 - BofA's Response to Interrogatory 22 
Exhibit 8 - BofA's Response to Interrogatory 27 
Matthew Riffee Email re BofA's Responses to ROGs, Set 4 & Exs 9-10 
BofA's Responses and Objections to Plaintiffs' Interrogatories, Set 4 
Exhibit 9 - BofA's Response to Interrogatory 30 (pt 1) 
Exhibit 10 - BofA's Response to Interrogatory 30 (pt 2) 
BofA's Responses and Objections to Plaintiffs Fifth Set of Interrogatories 
Exhibit 11 - BofA's Response to Interrogatory 32 
Exhibit 12 - BofA's Response to Interrogatory 33 
Transcript of Rule 30(b)(6) Deposition of Michael Letson 
Declaration of Russell Cronan 
Case 3:21-md-02992-GPC-MSB     Document 634-5     Filed 01/09/26     PageID.51864 
Page 29 of 29

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