Exhibit PX8 — In re Bank of America California Unemployment Benefits Litigation (Dkt. 634-9, 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. 634-9 · 2026-01-09 · Docket on CourtListener

Full text

PX 8 
 
 
 
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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 REBUTTAL REPORT OF J. DANIEL KREIS 
April 4, 2025 
REDACTED PUBLIC VERSION
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Table of Contents 
Page 
 
I. 
ASSIGNMENT ................................................................................................................... 1 
II. 
SUMMARY OF OPINIONS .............................................................................................. 2 
III. 
STATEMENT AND EXPLANATION OF OPINIONS ................................................... 3 
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I. 
ASSIGNMENT 
1. 
I have been retained by Plaintiffs’ counsel in In re Bank of America 
California Unemployment Benefits Litigation, Case No. 3-21-md-02992-GPC-
MSB. On March 4, 2025, I issued an expert report on this matter (“Kreis Report”) 
which provided my qualifications, compensation, materials relied upon,1 analyses 
and opinions in this matter. That same day, Bank of America (“the Bank”) issued 
reports it had obtained from Russell Cronan (“Cronan Report”) and Teresa A. Pesce 
(“Pesce Report”). In this Rebuttal Report, I respond to statements and opinions in 
the Cronan Report and the Pesce Report. 
2. 
This Rebuttal Report is provided in conjunction with the Kreis Report. 
None of Mr. Cronan’s or Ms. Pesce’s opinions change the opinions I provided in the 
Kreis Report.  As set forth further below, many of the statements and opinions in the 
Cronan and Pesce Reports are incorrect and/or contradicted by information produced 
in this matter. 
3. 
This Rebuttal Report addresses the following sections of the Cronan 
and Pesce Reports:  
a. Section IV.B. of Cronan Report 
i. “The Regulation E Investigative process” 
b. Section VI. of Cronan Report  
 
1 Any additional materials considered in preparing this Rebuttal Report are set forth in footnotes 
and/or in Appendix A.  
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i. “It was Reasonable for Bank of America to Believe that Its 
Response to the Explosion of Pandemic-Era Prepaid Card 
Fraud Would have been Acceptable to the Bank’s 
Regulators” 
c. Section I. of Pesce Report  
i. “California’s Employment Development Department” 
ii. “Bank of America’s Role in Distributing EDD Benefits” 
d. Section 2.c. of Pesce Report  
i. “The Bank Took Reasonable Steps to Analyze and Address 
Fraud”  
II. 
SUMMARY OF OPINIONS2 
4. 
Mr. Cronan and Ms. Pesce’s emphasis on the Bank’s duty to control 
fraud losses and manage risk fails to take sufficient account of the Bank’s obligation 
to protect consumers under Reg E. The Bank’s responsibility to combat fraud does 
not excuse the Bank from complying with Reg E. 
5. 
Mr. Cronan’s opinion that it was reasonable for the Bank to believe that 
the Bank’s implementation of the Claim Fraud Filter (“CFF”) and specifically the 
Bank’s implementation of CFF Indicator 1 (“CFF-1”) would have been acceptable 
to the Bank’s regulators is unfounded and ignores the reality of the Bank’s resources 
and its access to and relationship with its regulators.  
 
2 All opinions stated in this report, including all opinions about what is consistent with or 
contrary to industry standards or contrary to industry standards, apply to the Class Period, unless 
otherwise indicated. 
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6. 
Ms. Pesce’s opinion that the Bank could not verify that EDD prepaid 
cardholders were who they said they were, conflates enrollment fraud with 
transaction fraud, ignores the information the Bank did have, and is otherwise 
unfounded. 
7. 
Mr. Cronan and Ms. Pesce’s emphasis throughout their report on the 
unprecedented nature of the pandemic and its resultant challenges is misplaced.  
While the pandemic brought about a spike in claims volume, Bank of America is the 
second largest bank in the United States; it has tremendous resources and 
capabilities; and there were many other strategies that the Bank could have used to 
handle such a spike without implementing the CFF-1. 
III. 
STATEMENT AND EXPLANATION OF OPINIONS 
A. Regulators Expect Banks to Manage Risk While Complying with its 
Obligation to Protect Consumers Under Reg E 
8. 
The Cronan and Pesce Reports emphasize the Bank’s duty to control 
fraud losses and manage risk. The Cronan Report states that regulators such as the 
OCC expect banks to identify, measure, monitor, and control risk through risk-
management programs, and expect banks’ risk-management programs to adapt to 
changing circumstances and fraud losses. (Cronan Report ¶¶ 14, 16-17). The Pesce 
Report makes the same point, and states that “regulators do not expect banks merely 
to report repeated or egregious instances of criminal activity; regulators expect banks 
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to have processes in place to close accounts and/or terminate relationships.” (Pesce 
Report ¶¶ 22-24). 
9. 
This one-sided argument ignores the obligations the Bank owes to 
legitimate cardholders. While financial institutions have a responsibility to manage 
risk, they also have a responsibility to protect the interests and rights of legitimate 
cardholders who are themselves the victims of fraud, especially here, where the 
cardholders are vulnerable UI recipients. The Bank’s responsibility to combat fraud 
does not excuse the Bank from complying with Reg E and its duties to legitimate 
cardholders.  
1. The Bank Acted Contrary to Industry Standards. 
10. 
It is one thing to terminate a banking relationship after the Bank 
investigates and determines that there has been criminal activity; it is another to do 
what the Bank did here through its implementation of CFF-1: deny all UI cardholder 
claims, rescind credits and freeze accounts based on an uninvestigated suspicion 
based on the mere fact that the claim involved an ATM transaction. As discussed in 
my earlier Kreis Report and based on my decades of experience working with 
financial institutions claims processes, cardholder claims based on ATM transactions 
are common and, for that reason, are specifically addressed in industry-standard 
claims procedures such as the 
 
 
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. These and other industry standards discussed in the Kreis 
Report have developed over time to balance the Bank’s responsibility to manage 
fraud with its legal and contracted responsibility to protect its legitimate cardholders. 
In my opinion, by implementing CFF-1, the Bank completely abandoned these 
reasonable industry standard procedures and substituted a blunt, over-inclusive fraud 
rule that did not consider the evidence in the Bank’s own records as required to 
evaluate claims and to protect the legitimate interests of these UI cardholders.  
11. 
The Cronan Report also fails to consider the industry-standard practice 
that developed following the financial crisis of 2008 for large banks to have a 
disaster recovery plan in place for dramatic events that might impact a financial 
institution. Such a recovery plan should have provided vetted procedures for 
responding to a spike in the volume of unauthorized-transaction claims. Such as that 
which occurred during the pandemic. 
2. The Bank Had Ample Resources to Handle Unauthorized Transaction 
Claims. 
12. 
It is also my opinion, as stated further below (¶¶ 17-18, 40-43), that the 
Bank had ample resources and many alternative industry-standard options available 
to handle the number of unauthorized-transaction claims while mitigating fraud that, 
in my experience, would have been consistent with the Bank’s obligations. During 
my career, I directly managed the planning, solution development, business 
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document development execution and rapid scaling of two financial institutions’ 
capabilities over short periods of time in response to extreme external pressures. 
These two operations involved business challenges that can be analogized to those 
faced by Bank of America during the COVID-19 pandemic. First, at First Omni 
Bank, I personally managed all aspects of the scaling of a Credit Operation, moving 
the bank from a manual process capable of handling fewer than 90 new accounts per 
day in August of 1985, to a semi-automated process capable of handling over 10,000 
per day by December of 1985. In other words, I have direct experience scaling a 
bank operation by 11,000% in just four months. Second, working with the FDIC, I 
oversaw an operation that closed several hundred thousand accounts in a single day, 
and I developed the call center expansion to handle the resulting dramatic increase 
in calls.  
B. The Bank is Required to Comply with the Reg E Investigative Process  
13. 
The Cronan Report states that Reg E applies only to prepaid card 
accounts established for personal, family, or household purposes. (Cronan Report ¶ 
22). I strongly disagree with the implication that this scope-of-coverage provision 
somehow relieved the Bank of its obligations under Reg E to conduct a reasonable 
investigation of plaintiffs’ and class members’ unauthorized-transaction claims in 
the first instance. 
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14. 
As explained in the Kreis Report, Reg E creates significant regulatory 
compliance obligations for banks and consumer-facing financial institutions because 
when a cardholder makes an unauthorized-transaction claim, Reg E automatically 
triggers a series of consumer rights and bank obligations under its “error resolution” 
procedures. Financial institutions cannot selectively comply with Reg E based on an 
uninvestigated “suspicion” based solely on the fact that the claim involved a disputed 
ATM transaction, as the Bank is alleged to have done here. It is known in the 
industry that a financial institution has the affirmative burden and obligation under 
Reg E to conduct a reasonable investigation based on its available records upon 
receiving an unauthorized-transaction claim. As detailed in the Kreis Report, in 
order to assist financial institutions in conducting their investigations of 
unauthorized-transaction claims, financial industry standards have developed to 
provide required procedures for conducting an adequate investigation of such claims 
that make full use of the institution’s own available records, such as those that would 
be indicated for review under the Bank’s 
, a procedure the Bank abandoned 
during the Class Period for all claims involving an ATM transaction. 
15. 
If Reg E were interpreted in the way that Mr. Cronan suggests, a bank 
could simply opt out of Reg E’s investigation requirement entirely based on its vague 
suspicions regarding entire populations or groups of transactions, without ever 
having to conduct a reasonable investigation. This would undercut the entire purpose 
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of Reg E’s error resolution procedure, which is to protect consumers. Mr. Cronan’s 
further assertion that he is aware of “no regulator that would have regarded it as 
consistent with the intent and purpose of Regulation E for its consumer protections 
to apply to criminals” (Cronan Report ¶ 23) is similarly flawed to the extent it 
suggests that financial institutions have discretion to deny any unauthorized-
transaction claim (let alone tens of thousands of such claims over the course of six 
months until enjoined by  federal court) without first conducting a reasonable 
investigation that complies with EFTA and Reg E. 
C. It was Not Reasonable for Bank of America to Believe that its Use of 
Claim Fraud Filter Indicator 1 to Decision Claims Would Have Been 
Acceptable to the Bank’s Regulators. 
1. COVID-19 Was Not An Excuse To Abandon Industry Standards. 
16. 
Mr. Cronan claims in his report that it was reasonable for the Bank to 
implement CFF-1 because of the extraordinary circumstances that existed during the 
COVID-19 Pandemic in the summer of 2020. (Cronan Report ¶¶ 34-42, 49). As 
stated in the Kreis Report, I understand that the Bank faced elevated claims volume 
and other operational challenges during the Class Period, but that did not entitle the 
Bank to summarily deny claims without conducting the required Reg E 
investigation. An elevated claims volume did not release the Bank from its 
obligations to legitimate cardholders.   
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17. 
The Cronan Report asserts that given the “rapidly unfolding 
circumstances and emerging scale of the unprecedented fraud” at the start of the 
class period, the Bank risked regulatory action if it did not act to mitigate fraud. 
(Cronan Report ¶ 49). This opinion is flawed for several reasons. First, it is entirely 
speculative.  I have seen no documents suggesting that the Bank faced pressure from 
its regulators requiring it to automatically deny unauthorized-transaction claims 
made by UI prepaid cardholders. Second, as stated in the Kreis Report and further 
below (Section E), mitigating fraud does not mean abandoning industry standards 
and statutory requirements; the Bank had many options available to it to handle the 
number of unauthorized-transaction claims it was receiving and to mitigate fraud, 
options that would have been entirely consistent with the Bank’s obligations under 
Reg E and other obligations, including its anti-money laundering obligations.  Third, 
this assertion by Mr. Cronan ignores the Bank’s obligations towards its legitimate 
customers, in this case unemployment insurance beneficiaries who received UI 
benefits through the Bank’s prepaid cards during the COVID-19 Pandemic.  
2. The Bank Could Have Sought, but Did Not Seek, Regulatory Approval 
of CFF-1. 
18. 
Finally, if the Bank believed it was forced to take the unprecedented 
step of automatically denying every unauthorized-transaction claim involving an 
ATM transaction without first conducting a reasonable investigation due to other 
regulatory obligations, the Bank certainly could have reached out and asked for the 
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guidance of its regulators, including regulators from the Office of the Comptroller 
of the Currency (“OCC”) and the Consumer Financial Protection Bureau (“CFPB”).  
As stated in the Kreis Report, seeking such approval from the OCC and CFPB would 
have been a reasonable and relatively effortless step for the Bank to take before 
abandoning its industry-standard AISOP procedures and implementing an 
unprecedented policy of automatically denying every unauthorized-transaction 
claim that involved an ATM, notwithstanding that the Bank knew that many 
legitimate cardholders would be adversely impacted.3 
19. 
As stated in the Kreis Report at ¶ 49, institutions much smaller than the 
Bank have the ability to and do reach out to regulators to approve new systems for 
reviewing claims. If the Bank were truly concerned about potential regulatory action 
for a failure to mitigate fraud, it is surprising, in my experience, that the Bank chose 
not to seek to obtain any approvals for its implementation of the CFF.4 The Bank’s 
failure to seek approval for the unprecedented CFF that affected so many UI 
cardholders is even more extraordinary given that the Bank had OCC examiners 
permanently onsite and readily available in 2020.5  
 
3 See, e.g., Holt Tr. 134:20-135:11 (“And there’s going to be legitimate people in this segment 
that will – that we knew that was going to happen. That was not a surprise.”), 94:11-95:25, 
139:14-140, 226:21-227:1, 295:10-14; Ahmad Tr. 56:1-7; 61:5-24; 69:14-17; Martin Tr. 308:9-
18. 
4 Letson Tr. 26:5-22. 
5 See, e.g., Fox Tr. 19:7-20:9 (OCC examiners “were in space that the bank paid for that is very 
near”) 
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3. The Bank Ignored Industry-Standard Methods for Dealing With Fraud. 
20. 
The Cronan Report claims that the Bank was forced to modify its pre-
pandemic investigation approach because of unprecedented levels of fraud, 
including “double dipping.” (Cronan Report ¶¶ 39-42). In my experience, and as 
stated in the Kreis Report, banks and financial institutions sometimes face unusual 
circumstances that cause substantial spikes in claim volume or increased concerns 
about fraudulent claims, but banking is an industry that has weathered many storms, 
including “natural disasters, system failures, distressed economic conditions” 
(Cronan Report ¶ 27). In my experience, these dramatic events all result in spikes in 
claims, and industry-standard methods have developed to deal with such challenges 
(Kreis Report ¶¶ 52-54).  
21. 
Additionally, to the extent that the Cronan Report suggests that double-
dipping was a new fraud scheme that the Bank had just “began to observe,” I 
disagree (Cronan Report ¶ 39). Double-dipping is a well-known risk in the financial 
services industry, which EFTA-compliant manual investigation protocols such as 
the Bank’s AISOP are designed to identify. In my opinion, if the Bank had continued 
to utilize the AISOP to manually investigate unauthorized-transaction claims on the 
scale that was necessary, it would have succeeded in identifying most of the 
transactions that involved double-dipping without unnecessarily harming tens of 
thousands of UI cardholders. Indeed, according to senior members within the Bank, 
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the scenario of double-dipping is simply a “variation of the Reg E scam for [demand 
deposit accounts]”6 that the Bank was already familiar with where the Bank takes on 
the loss.7 In my experience, double-dipping is a known risk and one that the Bank 
knows, and should have been well-equipped to deal with.  
(i) 
CFF-1 was not an automated “detection mechanism” but a decisioning 
mechanism. 
 
22. 
The Cronan Report further asserts that the Bank was justified in 
“leveraging automation and other tools to identify indicia of potential fraud.” 
(Cronan Report ¶ 47). The Pesce Report similarly claims that “automated detection 
mechanisms are routinely used by banks to attempt to detect and prevent fraud.” 
(Pesce Report ¶ 54).  As stated in the Kreis Report at ¶ 44, however, the Bank did 
not use the CFF merely to identify or detect red flags indicative of fraud, which 
would require follow-up inquiries or investigation. Instead, it used CFF-1 for the 
unprecedented purpose of decisioning unauthorized-transaction claims for automatic 
denial without any further inquiry/investigation. As a general matter, Ms. Pesce and 
Mr. Cronan’s opinions conflate the use of automated tools as one step in a bank’s 
investigation, which is not unusual, with what the Bank did here, which was to rely 
on the CFF-1 to the exclusion of all other information available to the Bank as a 
 
6 BANA_EDD_MDL-00169898 (“[EDD double-dipping is] a variation of the Reg E scam for 
DDAs that I think [Anne Holt and Michael Letson are] already familiar with. The bank eats the $ 
here, and it’s substantial.”); id. (Anne Holt writes that she “worked card cracking [another term 
for double-dipping] for years”).  
7 Id.  
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basis for automatically denying UI cardholders’ claims. (Cronan Report ¶¶ 43-55; 
Pesce Report ¶¶ 20, 54-59). Moreover, as explained in the Kreis Report at ¶¶ 71-73, 
in my opinion any financial institution would have known that CFF-1 would impact 
large numbers of legitimate cardholders; and here, the Bank knew early on that CFF-
1 was overbroad in decisioning claims as fraudulent, 8 considerations that the Cronan 
and Pesce Reports ignore. 
4. The Bank had Numerous Options to Deal With UI Cardholder Claims 
Other than Automatically Denying Claims with CFF-1 
23. 
As discussed further below (Section E), the Bank had numerous tools 
available to it in 2020-2021 to handle the increased claims volumes in a manner that 
complied with industry standards under Reg E.  In addition to substantially 
increasing the number of fraud analysts and customer service representatives 
through an industry provider such as Accenture, the Bank could have used other 
tools readily available to authenticate callers’ identities. As stated in the Bank’s own 
analysis when it switched from freezing UI prepaid cardholder accounts (under 
which the cardholder had to verify their identity with EDD) to blocking accounts 
 
8 See e.g., BANA_EDD_MDL-00554835; BANA_EDD_MDL-00159110; BANA_EDD_MDL-
00876614. Bank’s assessment from December 2020 of CFF-1 uses reconsideration request rates 
as a proxy for CFF-1 effectiveness. See also BANA_EDD_MDL-00460916; 
BANA_EDD_MDL-00501938. Bank’s slide deck showing significant numbers of escalations 
received relating to accounts frozen and reconsiderations. See also Chestnut Tr. 154:11-157:14; 
BANA_EDD_MDL-00060514.  The Bank knew by September 2020 that EDD’s call centers 
were so “overwhelmed” that no more than “1 in 1,000 people that are trying to reach [the EDD] 
call center on a given day are getting through,” resulting in “600,000 unique callers a month [] 
waiting on hold for hours without a statistically significant chance of being served.” 
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(under which the cardholder could verify their identity with the Bank), the Bank’s 
agent could “[l]everage sophisticated tools to authenticate caller[s,]” which 
according to the Bank’s own documents include using “
 
 
 
 
”9 Other steps include the Bank’s “
” steps, which 
required the Bank to check the 
 
 
 
 
10 The Bank also could have leveraged ANI 
data, which the Bank’s fraud expert stated was the “best indicator” for determining 
whether a claim was false.”11  The Bank also could have leveraged its own client 
database; as stated by the Bank’s fraud expert: “honestly, the best fraud detection we 
could do would be to leverage our client base, [F]aiz keeps saying they arent our 
clients but logically we are in 1 of 2 households, so 1/2 probably are.”12  In my 
 
9 BANA_EDD_MDL-00090722 at -00090723; see also BANA_EDD_MDL-00405160. 
10 Id. 
11 BANA_EDD_MDL-00169898 
12 BANA_EDD_MDL-00631444 at -00631445; and Holt Tr. 276:19-277:1. The expert testified 
that she could not recall this ever being implemented. 
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opinion, these are just a few of the many sophisticated resources to detect fraud at 
the Bank’s disposal which were not deployed when the Bank decided to implement 
the unprecedented and 
 CFF-1. 
5. The Bank’s Decision Not to Conduct a Reasonable Investigation Would 
Not Be Considered by Regulators as an Exercise of Discretion Within 
Regulation E 
(i) 
CFF-1 involved no investigation.  
24. 
The Cronan Report claims that neither the statute (EFTA) nor Reg E 
set specific parameters on what an investigation should entail. (Cronan Report ¶ 25). 
While I agree that neither the statute nor regulation prescribes a specific list of 
investigative parameters, it is well understood in the financial industry that EFTA 
and Reg E require the financial institution to conduct a reasonable investigation 
before a claim may be denied. While financial institutions are afforded some latitude 
in determining the scope of a reasonable investigation that is compliant with EFTA 
and Reg E, they are not afforded latitude to decide whether to conduct an 
investigation at all.  
25. 
The Cronan Report further asserts that the reasonableness of a bank’s 
investigative process depends on the conditions and circumstances in which the 
investigation was conducted.  (Cronan Report ¶ 29). I agree that banks are required 
to conduct a reasonable review of relevant information within the financial 
institutions’ own records or readily available to it and that banks are expected to 
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exercise a degree of judgment in interpreting the results of their investigations. 
However, in my opinion, the Bank’s use of CFF-1 to automatically decision claims 
for denial without first conducting a reasonable case-by-case investigation, such as 
is required by industry standards and the Bank’s own AISOP procedures, was not an 
exercise of such discretion. As stated in the Kreis Report, the Bank’s AISOP had 
numerous investigation points for claim analysts to review. Each investigation point 
could reveal information that was relevant or potentially outcome-dispositive. Under 
industry standards and the Bank’s own AISOP procedures, the Bank was required 
to exercise judgment after reviewing all available details to determine whether there 
has been an error.  
26. 
It is my opinion that there is a clear difference between a bank 
exercising discretion and judgment after conducting a reasonable investigation, and 
a bank deciding not to conduct any case-specific investigation at all based solely on 
the fact that the claim involved an ATM transaction. The Bank’s own documents 
show that it knew that “[i]f we do not consistently review all available details, we 
risk missing information vital to the investigation, resulting in an incorrect decision 
made.”13 Indeed, as explained in the Kreis Report, where the Bank conducts a 
reasonable investigation and consequently denies the claim, the Bank must continue 
to follow Reg E procedures, which requires the Bank to provide the claimant notice 
 
13 BANA_EDD_MDL-00004542; Kreis Report ¶ 37. 
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and the reasons for denial (Kreis Report ¶¶ 77-80). In order to provide such a notice 
to claimants, the Bank must first investigate the claim to develop a factual basis for 
its decision. In my opinion, the Bank’s decision to implement CFF-1 and to resolve 
claims solely on the basis of CFF-1 would not have been regarded by regulators as 
an exercise of discretion allowed within Reg E, but rather as an unprecedented 
procedure that was inconsistent with industry standards as well as the Bank’s own 
practices for complying with Reg E’s investigation requirement.   
(ii) 
CFF-1 was a rule; other industry standard methods were available to 
handle increased claims volume.  
 
27. 
The Cronan Report asserts that regulatory agencies expect institutions’ 
risk management systems to adapt to changing circumstances, and that regulators 
expect institutions to innovate to respond to dynamic and novel challenges. (Cronan 
Report ¶¶ 14, 26, 50,  51, 60). As stated above (¶ 3) and in the Kreis Report at ¶¶ 52-
54, and as Mr. Cronan also recognizes, the financial and banking industry is resilient. 
The Cronan Report explicitly confirms that “some of the very real challenges banks 
faced included natural disasters, system failures, distressed economic conditions, 
and the scarcity of qualified personnel, among several others.” (Cronan Report ¶ 27). 
In my opinion, industry-standard methods have developed to deal with those difficult 
challenges that large financial institutions inevitably have to face. It would be an 
untenable situation if large financial institutions, such as the Bank of America, were 
permitted to abandon well-developed industry standards and forego investigating 
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claims for an entire population—as it did in implementing and using the CFF-1—
each time it encountered a “very real challenge” simply by asserting that it was 
“innovating.”  
28. 
The Cronan Report posits that “if a bank introduces a new card product 
that, based on the sheer volume of new transactions, results in a surge in the number 
of error claims, regulators will expect the bank to adapt its processes in order to 
effectively handle the increased volume of claims.” (Cronan Report ¶ 26). I agree 
and as set out in Kreis Report and below, there were various industry standard 
options available to the Bank to adapt accordingly. However, the Cronan Report 
goes further to assert that one way a bank might adapt “would be to automate aspects 
of the investigative process to increase the efficiency of its claims-handling process.” 
(Cronan Report ¶ 26). This is a mischaracterization of what the Bank did and is 
contrary to the documents produced by the Bank. The Bank did not automate aspects 
of the investigative process, as stated in Kreis Report. In my opinion, the Bank 
substituted a blunt automated rule for the investigative process: if an EDD 
cardholder claimed that there was an unauthorized transaction involving an ATM, 
the Bank would deny the claim, rescind credits, and freeze the account without any 
further factual investigation. In my opinion, CFF-1 was not part of an investigative 
process; but a blunt, overbroad rule that denied any claim that involved an ATM 
transaction without investigation. 
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29. 
The Cronan Report’s reference at ¶ 28 to comments made by the Board 
of Governors of the Federal Reserve System (“FRB”) clarifying that the scope of an 
investigation may vary and that institutions have flexibility to determine what 
information is relevant to a meaningful investigation does not change or undermine 
my opinion in any way. The FRB comments support my opinion as they clearly 
assume that a reasonable and meaningful investigation must still take place.  
6. CFF-1 was Not an Automated Feature of a Reasonable Investigation 
30. 
The Cronan Report states that banks had “automated various elements 
of the investigation process.” (Cronan Report ¶ 30). The Cronan Report further 
claims that use of automation in conducting Reg E investigations would not be a per 
se violation of Reg E. However, as explained above at ¶ 28, the Bank did not 
automate elements of the Reg E investigation process; instead, the Bank replaced 
the entire investigative process for ATM claims with CFF-1. Prior to the CFF’s 
implementation, the only automated process the Bank had used was to automatically 
pay claims,14 which is consistent with their obligation not to deny claims before 
conducting a reasonable investigation. In my long experience in claims processing, 
I am aware of no use of an automated process to evade a financial institution’s 
reasonable investigation requirement under Reg E and to deny a claim automatically 
without looking into the bank’s own records. Indeed, the examples of permissible 
 
14 See Ehresman Tr. 18:18-19:12 
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20 
automation provided in the Cronan Report—automated information gathering 
through web interfaces, automated calculation of provisional credits and consumer 
liability, and automated generation of consumer communications—are all examples 
of automation that merely assists and complements a manual investigation. (Cronan 
Report ¶ 30). These examples are completely different than CFF-1, which 
automatically decisioned ATM claims for denial without any investigation.  
31. 
The Cronan Report’s reliance on the existence of companies that sell 
automated solutions is inapt for these same reasons. (Cronan Report ¶ 32). 
Automated products that assist institutions in organizing or conducting Reg E 
compliant investigations are not analogous to the use of CFF-1 to auto-deny tens of 
thousands of claims without conducting any investigation. Notably, Mr. Cronan does 
not point to any vendor that offered a product that simply automatically denied all 
ATM claims, as CFF-1 did.  
32. 
The Pesce Report also claims that the CFF created friction that 
“fraudsters encountered” when they were required to verify their identities with the 
EDD after triggering CFF-1. (Pesce Report ¶ 58). Ms. Pesce’s opinion, however, is 
circular, as it presupposes that everyone who triggered CFF-1 was a fraudster. The 
Pesce Report does concede that any fraud strategy has false positives. (Pesce Report 
¶ 59) However, in the same paragraph of her report, Ms. Pesce claims that a “wide 
net must be cast to prevent true criminal activity from going undetected” even if the 
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21 
casting of that net would result in a “significant number of false positive alerts.” This 
view appears to ignore the Bank’s obligations to protect its legitimate EDD 
cardholders. It also ignores that the Bank used CFF-1 to automatically deny all ATM 
claims, not to merely “detect” or flag claims for further investigation to identify any 
that actually involved “true criminal activity.”  
7. The Bank Easily Could Have Consulted With Regulators Prior to 
Implementing CFF-1 but Chose Not To 
33. 
The Cronan Report acknowledges the consent orders with the Bank’s 
regulators, which made specific factual findings regarding the impropriety of the 
Bank’s unilateral actions and resulted in the Bank being fined $225 million in 
connection with its implementation of the CFF (Cronan Report ¶¶ 33 and 54).  Mr. 
Cronan argues that because these regulatory actions were taken after the fact, they 
have no bearing on whether the Bank had a reasonable basis to believe it was 
complying with regulations. (Cronan Report ¶ 56). The Cronan Report then asserts 
the belief that the Bank would not willfully implement a process in violation Reg E. 
(Cronan Report ¶ 57). This opinion is pure conjecture that disregards much of the 
evidence to the contrary. The Cronan Report strays further into the realm of 
unsupported speculation when it refers to bank examiners’ “virtually unfettered 
access to a bank’s books and records” to perhaps suggest, without explicitly stating, 
that the Bank’s regulators must have changed their minds about the claim fraud filter. 
(Cronan Report ¶ 57.)  Nowhere in the Cronan Report, or elsewhere in the record of 
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22 
which I am aware, is there any indication that the Bank approached its regulators for 
any kind of pre-approval (or post-approval) of the Bank’s plan to implement the 
CFF.  Instead, the Bank’s representative specifically testified that the Bank never 
sought approval to use the CFF as the following deposition excerpt confirms: 
Q. 
 
 
A. 
 
Q. 
 
 
Q. 
 
A. 
 
Q. 
 
 
A. 
 
Q. 
 
 
A. 
.15 
 
34. 
Based on my experience, it is implausible that Bank of America, the 
second largest bank in the country, would have been unable to consult its regulators 
prior to implementing CFF-1. In my opinion, the Bank’s failure to do so indicates 
 
15 Letson Tr. 26:5-22. 
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23 
that the Bank itself believed that its regulators would not have approved the Bank’s 
implementation of CFF-1.  
D. The Bank Possessed Sufficient Data to Assess Claims  
35. 
Ms. Pesce claims that the Pandemic Unemployment Assistance 
(“PUA”) program eliminated traditional safeguards and that as a result the Bank was 
unable to verify EDD cardholders, which Ms. Pesce claims was not the Bank’s 
responsibility in any case. (Pesce Report ¶¶ 26, 30). She further asserts that the Bank 
did not have information available to conduct investigations into potential benefits 
fraud, identity theft, or alleged unauthorized transactions. (Pesce Report ¶ 30). 
However, Ms. Pesce herself concedes that the Bank did have “some identifying 
information on cardholders from EDD” while not specifying the information that the 
Bank had (Id. at ¶ 30). Ms. Pesce also appears to contradict herself, when she states 
later in her report that the Bank’s Global Financial Crimes experts analyzed patterns 
and evidence of likely fraudulent behavior and suspicious activity using available 
data and admits that the Bank had sufficient data to identify “thousands of instances 
where unemployment benefits were provided to children as young as four months 
old, as well as elderly individuals” (Pesce Report ¶ 51). The Bank, therefore, must 
have possessed sufficient data to identify at least some instances of fraudulent 
behavior.  
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24 
36. 
First, as I explained in my Opening Report, enrollment fraud is to be 
distinguished from transaction fraud. Both Mr. Cronan and Ms. Pesce appear to 
conflate these two distinct types of fraud. (Cronan Report ¶¶ 43-55; Pesce Report ¶¶ 
20, 54-59). Second, 
 
 
,16 
 
.17 This is further borne out by the fact that in March 2021, 
the Bank 
 
 
 
).18 Required procedures, 
 
 
.19 (Cronan Report ¶ 70). As stated above at ¶ 23, 
 
16 Daniels Tr. 155:23-156:21. 
17 Daniels Tr. 90:1-91:5 (
 
”) 
18 BANA_EDD_MDL-00125921; Martin Tr. 301:18-302:25; also see 
BANA_EDD_MDL_00417555 
19 See, e.g., BANA_EDD_MDL-00100663 (Bank instructing analysts to “
 
.”). See also, Kreis Report ¶ 36(6) “
.” 
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25 
the Bank had sophisticated tools that it could have used for identity verification, and 
as the Bank’s fraud expert suggested, the Bank could likely have cross-referenced 
EDD cardholders against existing Bank of America cardholders. The Bank’s 
documents further suggest that it could also have used other data at its disposal, 
including the use of ANI data, which as mentioned above and according to the 
Bank’s fraud expert was the “best indicator” for a claim being false,20 and that, based 
on the Bank’s size, it was also likely that many EDD cardholders were also bank 
customers outside of the UI program, which would have provided many other 
investigatory data points in the Bank’s own records.21 
37. 
It is also my understanding based on the Bank’s records that the Bank 
applied its 
 
 
.22 This further demonstrates 
that the Bank possessed sufficient data and tools to assess claims without having to 
automatically deny all ATM claims with CFF-1.  
 
 
 
 
20 BANA_EDD_MDL-00169898. 
21   BANA_EDD_MDL-00631444 at -00631445; and Holt Tr. 276:19-277:1. 
22 Id. 
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26 
E. The Bank Did Not Take Reasonable Steps to Analyze and Address 
Fraud  
 
38. 
 Both Mr. Cronan and Ms. Pesce emphasize throughout their report the 
“unprecedented” and “extraordinary” nature of the pandemic and the resultant spike 
in claims volumes. (Pesce Report  ¶¶ 15-16, 19, 25, 46,; Cronan Report ¶ 11, 35-37, 
42, 44-46, 49, 51, 53, 55). 
39. 
While I agree that the challenges presented by the pandemic were 
substantial, so too are the resources, experience and abilities of Bank of America, 
the second largest Bank in the United States. As explained above at ¶ 3 and in my 
opinion, the financial and banking industry is resilient, and the Bank had ample 
resources and ability to address the challenges created by the pandemic without 
resorting to implementing CFF-1. Banks and financial institutions do sometimes 
deal with spikes in claims volume, but industry standards have developed to deal 
with unusual circumstances.  
40. 
The Cronan Report discusses the Bank’s safety and soundness 
obligations as a balancing factor against the Bank’s consumer protection obligations 
(Cronan Report ¶¶ 14-19 and 55). While Mr. Cronan claims that the OCC could 
consider uncontrolled fraud losses an unsafe and unsound banking practice, he 
concedes that an unsafe and unsound practice in itself does not indicate that a bank 
is in an unsafe and unsound condition, and he does not suggest that Bank of 
America’s safety and soundness was ever threatened by the circumstances he 
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27 
described. (Cronan Report at ¶ 19). Mr. Cronan also concedes that in typical 
circumstances, a bank’s adherence to safety and soundness principles would not 
affect the conduct of its Reg E investigations. (Cronan Report at ¶ 43). Nonetheless, 
Mr. Cronan claims that “the Bank’s approach to modifying its Regulation E 
investigative process was a reasonable response in light of the unprecedented 
fraud… and its urgent need to address its safety and soundness obligations.” (Cronan 
Report at ¶ 55). As stated above, it is my opinion that by implementing CFF-1, the 
Bank did not simply “modify” its normal Reg E investigations. Rather, it abandoned 
any industry-standard investigation for all ATM claims. Mr. Cronan appears to 
accept that the Bank was never in an unsafe and unsound condition. (Cronan Report 
at ¶ 19). Finally, as described above and further in this section, the Bank could have 
adopted alternative industry standard strategies to address the rising volume of 
claims. In my opinion, it was therefore not reasonable for the Bank to believe that 
its regulators would consider its elimination of any manual investigation process for 
EDD debit cardholders reporting ATM transaction errors to be a “reasonable and 
compliant response” (Cronan Report ¶ 55).  
41. 
To support his claim, Mr. Cronan repeatedly refers to “criminal 
fraudsters []infiltrating state unemployment benefits at an unprecedented rate” and 
states that this led the Bank to believe that many of the new EDD prepaid debit card 
accounts were fraudulent. (Cronan Report ¶¶ 36, 42, 50). However, this is a reference 
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28 
to benefits enrollment fraud rather than transaction fraud.  As I explained in Kreis 
Report at ¶ 34, these are two distinct types of fraud, and cardholder claims based on 
an unauthorized ATM transactions involve transaction fraud. Yet both the Cronan 
and Pesce Reports conflate the two to suggest that growth in benefits or enrollment 
fraud somehow required the Bank to implement a rule related to transaction fraud. 
(Cronan Report ¶¶ 43-55; Pesce Report ¶¶ 20, 54-59). In my opinion, this reasoning 
does not hold water. 
42. 
Moreover, as I stated in my opening report, there were and are many 
different industry-standard strategies that would have been available to the Bank for 
dealing with a spike in claims, including prioritizing the investigation of higher-
dollar-value claims. As I explained in my Opening Report, increasing the dollar 
value threshold would have alleviated some of the burden the Bank faced in 
manually investigating claims and would have provided an opportunity to triage the 
Bank’s exposure to fraud by ensuring it was focused on the most significant claims. 
Additionally, as I explained, low-dollar-value claims are the least likely to be 
fraudulent, as fraudsters typically are trying to extract maximum value in each 
fraudulent transaction. Notably, this strategy of prioritizing the investigation of 
higher-dollar-value claims would also ensure that legitimate EDD cardholders were 
timely receiving their funds in their time of need during the Pandemic.  
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29 
43. 
Another strategy would have been to increase the monetary threshold 
at which lower dollar value claims are auto-paid. These strategies would have 
ensured that legitimate EDD cardholders were receiving their much-needed funds, 
rather than suffering the consequences they were not responsible for creating. The 
Bank also had sophisticated identity-verification and fraud-detection tools at its 
disposal.23 Ms. Pesce speculates that increasing the threshold for low-dollar-value 
transactions would not have solved the problem and would have meant that more 
unauthorized-transaction claims would be paid out to fraudsters. (Pesce Report ¶ 
47). As above, Ms. Pesce’s focus on fraudsters completely ignores legitimate claims 
and the Bank’s Reg E obligations. CFF-1 denied legitimate claims without the Bank 
conducting any investigation of the Bank’s own records.24 While increasing the 
threshold for low-dollar-value transactions might have meant that more 
unauthorized-transaction claims were paid out, it would also mean fewer legitimate 
claims being arbitrarily denied, and far fewer legitimate cardholders having to suffer 
the grave consequence of their EDD card being frozen for extended periods of time.25  
 
23 See Ramirez Tr. 83:24-85:10 and BANA_EDD_MDL-00127437 (referencing the Bank’s 
Fraud High Risk Verification Process). See also Simpson Tr. 84:21-85:4 (confirming that the 
Bank had sophisticated tools to authenticate callers); BANA_EDD_MDL-00405158-00405160 
and BANA_EDD_MDL-00090722 at -00090723 (Bank documents listing Experian KIQ and 
Lexis Nexis phone finder as “sophisticated tools to authenticate caller”). 
24 See BANA_EDD_MDL-00592327 (describing the CFF as a rule). 
25 See BANA_EDD_MDL-00077066 (Bank emails describing a “process gap” that existed when 
cardholders whose accounts were wrongly frozen applied for reconsideration, resulting in delays 
in unfreezing the cardholder’s account); Ehresman Tr. 106:2-110:4.  
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30 
44. 
Ms. Pesce claims that “[l]ocating and hiring trained personnel to 
address the daunting volume of unauthorized transaction claims over a short 
timeframe is simply unrealistic” and that “[h]iring enough contractors was also not 
a viable solution” since consulting firms were implementing cutbacks due to 
COVID-19. (Pesce Report ¶ 45). Based on over a decade of experience at First 
Annapolis Consulting and Accenture (which acquired First Annapolis Consulting), 
I know that consulting firms such as Accenture could have quickly built a team of 
senior bank experts to train enough analysts to manage the spike in claims the Bank 
experienced. With hundreds of thousands of employees worldwide, this is well 
within Accenture’s capability and is exactly the type of full-service solution it 
provides to banks as an integral part of its business. As I stated in my opening report, 
Bank of America has long been a highly profitable financial institution; it is the 
second largest bank in the United States. In my opinion, the Bank has ample 
resources to bear the costs of implementing strategies other than CFF-1 to deal with 
the increased claims volume, including increasing the number of claims analysts 
through professional staffing companies such as Accenture. It is my opinion that 
Bank could have hired sufficient numbers of highly trained claims analysts in the 
relevant time from this or another highly specialized global professional services 
company.   
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31 
45.
Prior to implementing CCF-1 on September 28, 2020, the Bank had
known for months that the COVID-19 pandemic had resulted in record levels of 
unemployment and concomitant increases in claims volumes.  The Bank had ample 
time to marshal its resources and respond proactively.  It is my opinion that the 
Bank’s decision to implement CFF-1 in late September 2020 was the result of the 
Bank’s failures to respond adequately or proactively to these challenges. 
46.
Mr. Cronan claims that the Bank’s pre-pandemic manual investigation
process became “inadequate” in the face of the pandemic. (Cronan Report ¶ 46). Ms. 
Pesce similarly claims that by the time the Bank was able to complete a manual 
investigation, the fraudsters would have already stolen the funds. (Pesce Report ¶ 
46). As discussed above, both experts seem to assume that the only alternative option 
to the Bank’s pre-pandemic Reg E compliant manual investigation process was to 
dispense with a manual investigation. As discussed above, the Bank had many 
alternative industry standard options available to deal with the foreseeable spike in 
claims volume and transaction fraud, including hiring the required number of agents 
to conduct industry standard investigations rather than automatically denying all 
claims involving an ATM transaction without conducting any investigation. 
Executed on April 4, 2025. 
J. DANIEL KREIS
Case 3:21-md-02992-GPC-MSB     Document 634-9     Filed 01/09/26     PageID.52043 
Page 34 of 37

APPENDIX A: MATERIALS RELIED UPON 
Production Materials 
BANA_EDD_MDL-00001312 
BANA_EDD_MDL-00004535-4580 
BANA_EDD_MDL-00004535-4580 
BANA_EDD_MDL-00005509-5545 
BANA_EDD_MDL-00006482 - 6535 
BANA_EDD_MDL-00012738-12739 
BANA_EDD_MDL-00028946-28949 
BANA_EDD_MDL-00057504-57506 
BANA_EDD_MDL-00057837-57878 
BANA_EDD_MDL-00077223-77225 
BANA_EDD_MDL-00090135-90137 
BANA_EDD_MDL-00090640-90647 
BANA_EDD_MDL-00090695-90698 
BANA_EDD_MDL-00090721-90724 
BANA_EDD_MDL-00100390; BANA_EDD_MDL-00100634 -100679  
BANA_EDD_MDL-00100506-529 
BANA_EDD_MDL-00100530 
BANA_EDD_MDL-00100616-00100633 
BANA_EDD_MDL-00100634-100679 
BANA_EDD_MDL-00100741 
BANA_EDD_MDL-00104526 - 104527 
BANA_EDD_MDL-00107327-107335 
BANA_EDD_MDL-00125177-125179 
BANA_EDD_MDL-00125919-125923 
BANA_EDD_MDL-00129437-129440 
BANA_EDD_MDL-00159469-159474 
BANA_EDD_MDL-00163307-163308 
BANA_EDD_MDL-00181896 
BANA_EDD_MDL-00218256 
BANA_EDD_MDL-00225047-225048 
BANA_EDD_MDL-00225867 
BANA_EDD_MDL-00228914 
BANA_EDD_MDL-00273305-273307 
BANA_EDD_MDL-00297295 
BANA_EDD_MDL-00406128-406130 
"BANA_EDD_MDL-00411205,  
-005560, -00556122, -00556152,  
-00556324, -00558991, -00558996,  
-00559094, -00559101; PLFF00000008;  
Yuan—A-0000003, -0000004" 
BANA_EDD_MDL-00417487-417490 
BANA_EDD_MDL-00450516-450518 
Case 3:21-md-02992-GPC-MSB     Document 634-9     Filed 01/09/26     PageID.52044 
Page 35 of 37

BANA_EDD_MDL-00455617 
BANA_EDD_MDL-00510141-510148 
BANA_EDD_MDL-00517105-517126 
BANA_EDD_MDL-00556536-556537 
BANA_EDD_MDL-00559693-559980 
BANA_EDD_MDL-00571310 
BANA_EDD_MDL-00572766-572770 
BANA_EDD_MDL-00592192-592194 
BANA_EDD_MDL-00592324-592330 
BANA_EDD_MDL-00718756-718770 
BANA_EDD_MDL-00863943-863948 
BANA_EDDMDL-00003887 - 3911 
BANA_EDDMDL-00003912 - 3937 
BANA_EDDMDL-00570333 - 570334 
BANA_MDD_MDL-00012790 
Moore_S_0000367 
PLFF00000011 
BANA_EDD_MDL-00077066 
BANA_EDD_MDL-00127437 
BANA_EDD_MDL-00405158 
BANA_EDD_MDL-00405159 
BANA_EDD_MDL-00405160 
BANA_EDD_MDL-00169898 
BANA_EDD_MDL-00554835 
BANA_EDD_MDL-00159110 
BANA_EDD_MDL-00876614 
BANA_EDD_MDL-00460916 
BANA_EDD_MDL-00501938 
BANA_EDD_MDL-00060514 
BANA_EDD_MDL-00631444 
BANA_EDD_MDL-00417555 
 
Publicly available materials 
"Employment Development Department Strike Team Detailed Assessment & Recommendations" 
Order re Preliminary Injunction [Yick, N.D. Cal., Dkt. 89] 
Order re Preliminary Injunction [Yick, N.D. Cal., Dkt. 103] 
CFPB Consent Order 
Order re Motion to Dismiss [Dkt. 126] 
First Amended Master Consolidated Complaint [Dkt. 136] 
Defendant's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Class 
Certification 
Bank of America Q3-2020 Press Release 
Alan S. Kaplinsky, "CFPB issues new no-action letter to Upstart" 
Case 3:21-md-02992-GPC-MSB     Document 634-9     Filed 01/09/26     PageID.52045 
Page 36 of 37

"Federal Regulators Fine Bank of America $225 Million Over Botched Disbursement of State 
Unemployment Benefits at Height of Pandemic" 
Accenture Fact Sheet Fiscal 2025 - First Quarter 
 
Discovery 
BofA's Responses and Objections to Plaintiffs' Fifth Set of Interrogatories 
BofA's Responses and Objections to Plaintiffs' Fifth Set of Interrogatories (Exhibit 11) 
Plaintiffs' Revised Rule 30(b)(6) Deposition Notice 
BofA's Responses and Objections to Plaintiffs' Seventh Set of Interrogatories  
Transcript of Rule 30(b)(6) Deposition of Shane Daniels 
Transcript of Rule 30(b)(6) Deposition of Robert Chestnut 
Transcript of Rule 30(b)(6) Deposition of Matthew Martin 
Transcript of Rule 30(b)(6) Deposition of Michael Letson 
Transcript of Rule 30(b)(6) Deposition of William Golden 
Expert Declaration of Teresa A. Pesce 
Expert Declaration of Russell Cronan 
Expert Class Certification Report of J. Daniel Kreis 
Transcript of Ryan Schwartz 
Transcript of Anne Holt 
Transcript of William Fox 
Transcript of Melissa Ramirez 
Transcript of Faiz Ahmad 
Transcript of Paul Simpson 
Transcript of Jennifer Ehresman 
Russell Cronan Expert Report (March 4, 2025) 
Teresa A. Pesce Expert Report (March 4, 2025) 
 
 
Case 3:21-md-02992-GPC-MSB     Document 634-9     Filed 01/09/26     PageID.52046 
Page 37 of 37

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