Reply to Response to Motion re 571 Motion to Exclude Testimony — In re BofA Unemployment Litigation (Dkt. 691)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 691 · 2026-02-20 · Docket on CourtListener

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REPLY MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE 
STANGO TESTIMONY 
Case No.: 3:21-md-02992-GPC-MSB
 
JOSEPH W. COTCHETT (SBN 36324) 
jcotchett@cpmlegal.com 
BRIAN DANITZ (SBN 247403) 
bdanitz@cpmlegal.com 
KARIN B. SWOPE (Pro Hac Vice) 
kswope@cpmlegal.com 
VASTI S. MONTIEL (SBN 346409) 
vmontiel@cpmlegal.com 
CAROLINE A. YUEN (SBN 354388) 
cyuen@cpmlegal.com 
COTCHETT, PITRE & McCARTHY, LLP 
840 Malcolm Road, Suite 200 
Burlingame, CA 94010 
Telephone: (650) 697-6000 
Fax: (650) 697-0577 
MICHAEL RUBIN (SBN 80618) 
mrubin@altber.com 
STACEY M. LEYTON (SBN 203827) 
sleyton@altber.com 
CONNIE K. CHAN (SBN 284230) 
cchan@altber.com 
JAMES BALTZER (SBN 332232) 
jbaltzer@altber.com 
KATHERINE BASS (SBN 344748) 
kbass@altber.com 
ALTSHULER BERZON LLP 
177 Post Street, Suite 300 
San Francisco, CA 94108 
Telephone: (415) 421-7151 
Fax: (415) 362-8064  
 
Co-Lead Counsel for Plaintiffs and the Proposed Class  
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-GPC-MSB 
 
PLAINTIFFS’ REPLY 
MEMORANDUM OF POINTS 
AND AUTHORITIES IN 
SUPPORT OF DAUBERT 
MOTION TO EXCLUDE 
CERTAIN TESTIMONY OF 
VICTOR STANGO 
 
This document relates to All Actions 
 
 
Judge:   Hon. Gonzalo P. Curiel 
Ctrm:    12A 
Date:     April 17, 2026 
 
 
 
 
REDACTED PUBLIC VERSION 
 
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REPLY MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE 
STANGO TESTIMONY 
Case No.: 3:21-md-02992-GPC-MSB
 
INTRODUCTION 
Plaintiffs’ narrowly focused Daubert challenge to the Bank’s consumer 
behavioral economist expert, Dr. Victor Stango, seeks to exclude the portions of 
Stango’s report and testimony that purport to characterize as “matter[s] of economic 
fact,” ECF 589-1 at 17, two pure questions of law: (1) whether class members’ “actual 
damages” for purposes of 15 U.S.C. §1693f(e) (EFTA’s treble damages provision) 
accrue at the time the Bank fails to meet the 10-day statutory deadline for conducting 
timely, good-faith investigations as EFTA requires; and  (2) whether the Bank’s 
untimely, post-deadline payments to class members should be offset from any final 
damages award after rather than before such damages are trebled. ECF 571-1. 
Because the answer to both legal questions is unquestionably “yes,” see ECF 633 at 
7-11; ECF No. 494 at 83-85, Stango’s contrary opinions based on supposed 
“economic fact” must be excluded, as they improperly “usurp[] the role of the court,” 
apply an incorrect legal standard, and risk confusing the jury. See ECF 571-1 at 1 
(quoting In re ConAgra Foods, Inc., 302 F.R.D. 537, 558 (C.D. Cal. 2014)). Even if 
those two questions were proper subjects of expert testimony, Stango’s opinions 
should be excluded because they are not supported by the sources he cites. 
The Bank’s principal argument is that the challenged portions of Stango’s 
testimony do not involve “legal conclusions,” but have been incorrectly 
“characterize[ed]” as such by Plaintiffs. ECF 659 at 5-6. According to the Bank, 
Stango “[n]ever states a legal conclusion.” Id. at 1. That is not true. Stango repeatedly 
states his opinion about how “actual damages” should be “accurately define[d],” ECF 
571-3 ¶¶ 34, 72, even though the question of when “actual damages” accrue for 
purposes of §1693f(e) is a legal issue to be decided by the Court under applicable 
precedent, not by a behavioral economist as an “economic fact.” Stango also states 
that, as a matter of economics, the “actual damages” for every class member 
 
 
 
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—
 
 ECF 571-3 ¶ 74 & Figure 2. But that 
assertion necessarily rests upon the legal proposition, which this Court has already 
rejected, that the Bank’s untimely, extra-statutory payments must be deducted from 
each class member’s “actual damages” for purposes of 15 U.S.C. §1693f(e) before 
those damages may be trebled. This is a clear example of an expert improperly 
“rel[ying] on an incorrect legal standard.” Pelican Int’l, Inc. v. Hobie Cat. Co., 655 
F.Supp.3d 1002, 1023 (S.D. Cal. 2023).  
The Bank’s reliance on Stango’s challenged testimony in its summary 
judgment briefing vividly frames the problem. The Bank argues at length that “actual 
damages” under 15 U.S.C. §1693m(a)(1) cannot include “the principal claim amounts 
that have already been refunded” to class members, even though those amounts were 
not refunded within the statutory timelines set by Congress. ECF 589-1 at 16-17. The 
Bank then attempts to supplement that (erroneous) legal argument with the 
remarkable assertion that “[w]hat is true as a matter of law is also true as a matter of 
economic fact,” because there is a factual “difference” between the world in which 
Plaintiffs’ claims were reimbursed outside the statutorily prescribed timelines and the 
hypothetical world in which they were never reimbursed at all—a proposition for 
which the Bank cites only Stango’s report. Id. at 17 (citing SUF ¶173) (citing Stango 
Report ¶¶31-32).  
No one disputes that there is a difference between claims that are not timely 
paid and claims that are never paid. Given the “sheer obviousness” of that proposition 
(in the Bank’s own words), there is no need for an economist expert to assert it. ECF 
659 at 1. In any event, Plaintiffs’ experts’ proposed methodology for calculating 
consequential damages fully accounts for that difference, which is reflected in the 
periods of time between the class members’ accrual of damages and the Bank’s 
subsequent payments to those class members. Infra at 8-9.  
Using an expert to present an insupportable legal conclusion or a factual 
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assertion that contradicts settled law is not permitted under Daubert, which warned 
of the heightened risk that expert testimony poses of “confusion of the issues” and of 
“misleading the jury.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 
(1993) (quoting Fed. R. Evid. 403). “Expert evidence can be both powerful and quite 
misleading because of the difficulty in evaluating it. Because of this risk, the judge in 
weighing possible prejudice against probative force under Rule 403 of the present 
rules exercises more control over experts than over lay witnesses.” Id. (quoting 
Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be 
Amended, 138 F.R.D. 631, 632 (1991)).  
Here, any dispute over when “actual damages” accrue for the purposes of 15 
U.S.C. §1693f(e) treble damages calculations or how payments made after expiration 
of the statutory deadline should be applied to those calculations are legal questions 
for the Court, not factual issues for the jury. The Bank’s efforts to resurrect its 
erroneous (and already rejected, ECF No. 494 at 83-85) legal arguments by invoking 
its expert’s characterization of “economic fact” improperly “usurps the role of the 
court,” ConAgra, 302 F.R.D. at 558, risks confusing and misleading the jury, Daubert, 
509 U.S. at 595, and is thus an “inappropriate subject[] for expert testimony,” Aguilar 
v. Int’l Longshoremen’s Union Local No. 10, 966 F.2d 443, 447 (9th Cir. 1992).  
ARGUMENT 
I. 
The Challenged Portions of Dr. Stango’s Testimony Apply an 
Incorrect Legal Standard and Are Neither Relevant Nor Reliable. 
Applying settled Ninth Circuit precedent, this Court held in its class 
certification order that if an EFTA defendant fails to conduct the required good faith 
investigation within the prescribed statutory deadline but later reimburses claimants 
for all or part of their wrongfully withheld amounts (whether pursuant to an extra-
statutory reconsideration process, a court order, or a settlement reached with the 
defendant’s regulators), that payment should be applied as an offset from the final 
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amount of damages “after” trebling, not before. ECF No. 494 at 83-85 (emphasis in 
original); see also ECF 571-1 at 4-8; ECF 633 at 7-11.  
The Bank’s summary judgment motion cites Stango’s opinions as the basis for 
arguing that, notwithstanding the Court’s legal analysis, the Bank’s belated payments 
to class members retroactively eliminated those claimants’ “actual damages” ab initio 
under 15 U.S.C. §1693m(a)(1) “as a matter of economic fact,” with the result that 
there remain “no actual damages to treble” under §1693f(e). ECF 589-1 at 15-17, 22-
24. But Stango’s opinion is indistinguishable from the Bank’s already-rejected legal 
argument that the Bank’s untimely payments should be offset from actual damages 
before trebling. The Bank cannot transform its legal argument into a factual issue 
simply by funneling it through the report of a consumer behavioral economist, and no 
expert can offer opinions that are directly contrary to law.  
The Bank insists that Stango is not offering a legal opinion about the order of 
applying offsets, only about whether the principal amount of the class members’ 
unauthorized-transaction claims should be included in calculating their “actual 
damages” in the first instance. But as Plaintiffs explained in their opening brief, 
neither the Bank nor Stango dispute that if the Bank had not made any post-violation 
payments to members of the Claim Denial and Credit Rescission classes, those class 
members’ actual damages would be the amount of their unauthorized-transaction 
claims (the principal) plus any proven consequential damages (the lost time value of 
money, under Plaintiffs’ damages model). ECF 571-1 at 3, 5. That a consumer’s 
“actual damages” includes the value of their unauthorized-transaction claim is, of 
course, consistent with the fact that a claimant’s cause of action under §1693f(e)—
and thus their “actual damage[s]” (as that term is used in 15 U.S.C. §1693m(a)(1))—
accrues the moment a defendant (1) fails to issue provisional credit within the 
statutory 10-day deadline, without having made a good faith investigation of the 
unauthorized-transaction claim or without a reasonable basis for believing the 
cardholder authorized the transaction, or (2) knowingly and willfully concludes that 
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REPLY MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE 
STANGO TESTIMONY 
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the cardholder authorized the transaction when such conclusion could not reasonably 
have been drawn from the evidence available to the Bank at the time of its required 
investigation. See ECF 633 at 7-11; 15 U.S.C. §1693f(e)(1)-(2). If either circumstance 
is shown, the consumer “shall be entitled to treble damages” under 15 U.S.C. 
§1693f(e), and as this Court has held, any untimely, extra-statutory payments by the 
Bank would be applied as an offset “after trebling,” not before. ECF 494 at 83-85. 
The Bank asserts that Plaintiffs have sought to make Stango’s opinions “look” 
like legal opinions by “resort[ing] to…their own paraphrase of Stango’s opinions 
rather than his actual statements” and by “insert[ing] legal arguments and even a 
statutory citation where Stango offered neither.” ECF 659 at 1, 6. But Plaintiffs’ 
Daubert motion repeatedly quotes Stango; it does not merely “paraphrase” him. See 
ECF 571-1 at 3-4, 5, 8. And the “statutory citation” to which the Bank refers is to 
EFTA itself, which dictates how actual and treble damages under the statute are 
defined and calculated. ECF 571-1 at 1.  
That Stango applied incorrect legal standards to reach incorrect legal 
conclusions is clearly demonstrated by his opinion about how treble damages should 
be calculated—and by the damages figures resulting from his “economic analysis.” 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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ECF 571-3 ¶ 74 (emphasis added). Under Stango’s stated methodology, 
 
 
 
 
 
 
 
 
 
 
 
—
 
  
This Court has already rejected that methodology, as have the Ninth Circuit 
precedents interpreting other statutory treble damages provisions, many of which this 
Court cited. ECF 494 at 84; see also ECF 633 at 8-11.1 Stango’s methodology is also 
incompatible with EFTA’s statutory text, legislative history, and case law, which 
uniformly teach that “actual damages” within the meaning of 15 U.S.C. 
§§1693m(a)(1) and 1693f(e) accrue when the Bank fails to meet the deadlines 
prescribed by Congress,2 and that EFTA is to be “broadly construe[d] … in 
 
 
1 The Bank never acknowledges this aspect of this Court’s ruling on class 
certification, despite Plaintiffs’ repeated citations in its opening brief. Instead, the 
Bank repeats its summary judgment argument that “the law of the case, as established 
in Judge Burns’[s] 2023 ruling interpreting EFTA” somehow requires that payments 
made outside the timelines prescribed by Congress eliminate ab initio, instead of 
merely offsetting, the class members’ actual damages. As Plaintiffs explained in their 
Opposition to Summary Judgment, ECF 633 at 10, that is a mischaracterization of 
Judge Burns’s holding, which did not address the calculation of actual or treble 
damages under EFTA at all (as that issue was not before him). Rather, Judge Burns 
made the point about additional consequential damages in rejecting the Bank’s 
argument that its belated payment of the claim amounts mooted the claims of plaintiffs 
who pleaded additional consequential harms. ECF 126 at 23. 
 
2 15 U.S.C. §1693f(e)(2) (treble damages liability accrues when a financial 
institution knowingly or willfully denies a claim if such conclusion could not 
reasonably have been drawn from the evidence available to the financial institution 
“at the time” of its investigation) (emphasis added); Electronic Fund Transfer 
Consumer Protection Act: Hearings on S. 2065 Before the S. Subcomm. On 
Consumer Aff. Of the Comm. On Banking, Housing, and Urb. Aff., 95th Cong., 1st 
 
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accordance with its remedial purpose,” Stout v. FreeScore, LLC, 743 F.3d 680, 684 
(9th Cir. 2014); see 15 U.S.C. §1693(b).    
It is no answer to insist that “if Regan’s opinions are relevant, then Stango’s 
rebuttals are at least as relevant.” ECF 659 at 4. Regan’s methodology comports with 
and applies the governing legal standard. Stango’s methodology seeks to replace that 
standard with what the Bank terms “economic fact.” Nor does it help the Bank that 
Stango acknowledged at his deposition testimony that he is “not a lawyer.” See ECF 
659 at 9. If an expert’s opinion contradicts the governing legal standard, it must be 
excluded, whether or not the expert purports to be knowledgeable about the law. Cf. 
Pelican Int’l, 655 F.Supp.3d at 1023. 
For the same reasons, the Bank’s attempt to defend the reliability of Stango’s 
challenged testimony on factual grounds must also fail. As Plaintiffs’ Daubert motion 
explained, Stango’s assertion that 
 
 purports to be derived from a 
source—the Litigation Services Handbook—that does not address the operation of a 
statutory damages provision, and that expressly “put[s] aside punitive issues.” ECF 
571-4, p. 5.1. The Bank now asserts that Stango’s reliance on this source cannot be 
challenged because Regan also relied on it. ECF 659 at 14. That, too, is not the law. 
The issue here is how Stango relies on it—to draw an incorrect legal conclusion not 
supported and expressly disowned by that very source. That is not a reliable 
application of economic expertise. 
 
Sess. At 122 (Oct. 1977) (“If a court finds that a financial institution willfully reported 
to a consumer that his account was correct when such a conclusion could not 
reasonably be drawn, the bank is liable for treble damages.”) (emphasis added); 
Marquess v. PA State Emps. Credit Union, 2010 WL 3448086, at *7-9 (E.D. Pa. Aug. 
31, 2010), rev’d in part on other grounds, 427 F.App’x 188 (3d Cir. 2011) (holding 
that when a bank willfully violates EFTA in denying claims whose principal amounts 
totaled over $25,000, treble damages in the amount of over $75,000 are appropriate). 
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II. 
The Bank’s Own Characterizations of Dr. Stango’s Testimony 
Confirm That It Is Not Relevant. 
The Bank now denies that Stango ever offered the opinions quoted above. ECF 
659 at 1-3, 8-9. The Bank would have the Court believe that the only opinions Stango 
offers in the challenged portions of his testimony are that (1) “funds temporarily lost 
and then recovered do not impose the same economic harm as funds permanently 
lost,” and (2) Regan’s damages methodology “is economically illogical” because it 
fails to distinguish between consumers who received money from the Bank outside 
the timelines prescribed by EFTA and hypothetical consumers who never received 
any payments at all. ECF 659 at 8-9. Even if the Bank’s revisionist 
mischaracterization of Stango’s opinions were accurate, those opinions would still be 
inadmissible because they could not possibly “assist the trier of fact to…determine a 
fact in issue.” Daubert, 509 U.S. at 592. 
First, no one disputes the factual difference between “funds temporarily lost” 
and “funds permanently lost” (even where, as here, the class members had no way of 
knowing at the outset whether the Bank’s refusal to reimburse them for their losses 
would be temporary or permanent). The Bank refers to the “sheer obviousness” of 
that opinion, but that obviousness makes it more rather than less “vulnerable to a 
Daubert attack,” as a trier of fact does not need the help of a behavioral economist to 
grasp it. ECF 659 at 1. Using expert credentials to distort its significance—with the 
attendant risks of confusing the issues and misleading the jury, Daubert, 509 U.S. at 
595—will only confuse rather than help the fact finder. 
Second, the Bank ignores that Regan’s methodology does reflect the obvious 
factual difference between “funds temporarily lost” and “funds permanently lost.” 
Regan’s methodology accounts for the time value of the money to which Plaintiffs 
lost access by applying a compound interest rate to the principal balances for the 
specific periods during which each class member’s access to those funds was denied. 
See ECF 633 at 11. In a hypothetical world in which the Bank never made its untimely, 
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extra-statutory payments, that period would still be ongoing and consequential 
damages would still be accruing. Stango’s assertion that Regan’s methodology 
ignores the distinction the Bank labels an “economic fact” is incorrect, because the 
methodology does not actually “treat customers in the two situations as similarly 
situated” at all. ECF 571-3 ¶32. An expert’s demonstrably false assertions do not 
“help the trier of fact.” Fed. R. Evid. 702. 
III. 
None of the Bank’s Attempts to Distinguish Applicable Legal 
Authority Make the Challenged Portions of Dr. Stango’s Testimony 
Any More Admissible. 
Finally, the Bank tries to distinguish the authorities cited by Plaintiffs for the 
legal proposition that treble damages provisions enacted by Congress require trebling 
before any offset is applied. But those authorities fully support that well-settled 
proposition, as this Court has already concluded. 
In Uthe Tech. Corp. v. Aetrium, Inc., 808 F.3d 755 (9th Cir. 2015), for example, 
the Ninth Circuit held that an offset arising from an untimely payment could not “fully 
extinguish” a plaintiff’s treble damages under RICO because such offsets are to be 
applied only after trebling, not before. Id. at 756-60; see also ECF 494 at 84 (citing 
Uthe). The Bank asserts that Uthe is “entirely irrelevant” because that case involved 
multiple tortfeasors, while this case involves just one. ECF 659 at 12. That is a 
distinction without a difference. The one-satisfaction rule addressed in Uthe applies 
regardless of the number of defendants at issue, and the Bank’s purported distinction 
does nothing to undermine Plaintiffs’ legal position, or the Court’s conclusion, as to 
how offsets interact with a treble damages provision enacted by Congress. 
The Bank also tries to distinguish Uthe, as well as Flintkote v. Lysfjord, 246 
F.2d 368 (9th Cir. 1957), B.P. v. Balwani, 2021 WL 4077008 (9th Cir. 2021)3, and In 
 
 
3 The Bank emphasizes that Balwani was an unpublished decision but cannot 
dispute the merits of its analysis. In any case, Balwani correctly applies Uthe, which 
is published and controlling. 2021 WL 4077008 at *3 (citing Uthe, 808 F.3d at 760).   
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re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig., 2017 WL 
4890594 (N.D. Cal. Oct. 2017), on the ground that in those cases (which the Bank 
does not dispute hold that untimely payments are offset after trebling), the plaintiffs 
established actual damages, while in this case they supposedly have not. As explained 
above and in Plaintiffs’ briefing, though, “actual damages” for purposes of treble 
damages calculations under 15 U.S.C. §1693f(e) accrue at the moment a financial 
institution fails to meet its statutory payment obligations within the deadlines 
prescribed by Congress, and Plaintiffs have presented evidence of (1) the amount of 
their unauthorized-transaction claims that were wrongfully denied without 
investigation based solely on CFF-1, and (2) the consequential harm class members 
suffered from being denied access to those funds between the time of the Bank’s 
improper denials and the time of the Bank’s eventual payments. See ECF 659-4 ¶¶9, 
13 & Schedule 1. That a defendant may later reimburse a plaintiff for accrued 
damages (whether pursuant to an extra-statutory reconsideration process, a 
preliminary injunction, or a settlement with regulators) does not retroactively 
immunize it from liability for its statutory violations; instead, as in any case, a 
defendant’s post-violation payments are treated as offsets against the amounts the 
plaintiffs later recover as damages. Again, when actual damages begin to accrue under 
EFTA and how those actual damages must be treated in any calculation of EFTA 
treble damages (assuming the statutory preconditions for trebling are satisfied) are 
pure questions of statutory interpretation whose resolution has nothing to do with the 
so-called “economic facts” that Stango purports to assert, making his testimony 
neither relevant nor reliable.  
CONCLUSION 
For the reasons stated above and in Plaintiffs’ opening brief, the Court should 
exclude ¶¶ 31-35, 71-74, 82-83, 85-86, 89-90, 95-96 of Stango’s report and any 
testimony based on those paragraphs. 
Respectfully submitted, 
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Dated: February 20, 2026 
COTCHETT, PITRE & McCARTHY, LLP 
 
By: /s/ Brian Danitz 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
VASTI S. MONTIEL 
CAROLINE A YUEN 
 
Dated: February 20, 2026 
ALTSHULER BERZON LLP 
 
By: /s/  Michael Rubin 
 
MICHAEL RUBIN  
STACEY M. LEYTON  
CONNIE K. CHAN 
JAMES BALTZER 
KATHERINE BASS 
 
Co-Lead Counsel for Plaintiffs and the 
Class 
Case 3:21-md-02992-GPC-MSB     Document 691     Filed 02/20/26     PageID.59369     Page
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REPLY MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE 
STANGO TESTIMONY 
Case No.: 3:21-md-02992-GPC-MSB
 
CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the  
court for the United States District Court for the Southern District of California by  
using the CM/ECF system on February 20, 2026. I further certify that all participants 
in the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system. I certify under penalty of perjury that the foregoing is true and 
correct.  
 
Executed: February 20, 2026 
 
 
 
/s/   Michael Rubin  
 
 
Michael Rubin 
Case 3:21-md-02992-GPC-MSB     Document 691     Filed 02/20/26     PageID.59370     Page
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