Response in Opposition re 566 Motion to Exclude the Purported Expert — In re BofA Unemployment Litigation (Dkt. 617)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 617 · 2026-04-17 · Docket on CourtListener

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Opposition to Def’s Motion to Exclude Opinions of David I. Levine; 
Case No. 3:21-md-02992-GPC-MSB 
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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 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’ MEMORANDUM OF 
POINTS AND AUTHORITIES IN 
OPPOSITION TO DEFENDANT’S 
MOTION TO EXCLUDE CERTAIN 
EXPERT OPINIONS OF DAVID I. 
LEVINE  
This Document Relates to All Actions 
Date: 
April 17, 2026 
Time: 
1:30 p.m. 
Judge: 
Hon. Gonzalo P. Curiel 
Ctrm: 
2D (2nd Floor) 
REDACTED PUBLIC VERSION
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Table of Contents 
Page 
I. 
INTRODUCTION ...................................................................................................... 1 
II. BACKGROUND ......................................................................................................... 2 
III. LEGAL STANDARD ................................................................................................. 5 
IV. ARGUMENT .............................................................................................................. 6 
A. Dr. Levine’s Testimony Will Assist the Trier of Fact.......................................... 6 
B. Dr. Levine’s Opinions Are Not Inadmissible Merely Because They Are 
Conservative ......................................................................................................... 8 
1. Dr. Levine’s Interest-Rate Opinions are the Product of Reliable  
Principles and Methods ............................................................................... 10 
2. Dr. Levine’s Testimony Need Not Be Based on Each Class Member’s 
Individual Financial Circumstances to Be Admissible .............................. 11 
3. Dr. Levine’s Minimum Wage Measure is Similarly Reliable .................... 18 
V. CONCLUSION ......................................................................................................... 19 
 
 
 
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Table of Authorities 
Cases  
 
 
 
 
 
 
 
 
 
 
        Page(s) 
Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 
738 F.3d 960 (9th Cir. 2013) ................................................................................ 5, 6, 17 
Ayers v. Robinson, 
887 F.Supp. 1049 (N.D. Ill. May 23, 1995) ................................................................... 9 
Beijing Meishe Network Tech. Co. v. TikTok Inc., 
2025 WL 2522375 (N.D. Cal. Sept. 2, 2025) ................................................................. 8 
Belyea v. GreenSky, Inc., 
2025 WL 589037 (N.D. Cal., 2025) ............................................................................. 13 
In re Blackbaud, Inc. Cust. Data Breach Litig., 
2024 WL 2155221 (D.S.C. May 14, 2024) ............................................................ 15, 16 
Bonner v. ISP Tech., Inc., 
259 F.3d 924 (8th Cir. August 3, 2001) .................................................................... 5, 14 
Briseno v. ConAgra Foods, Inc., 
844 F.3d 1121 (9th Cir. January 3, 2017) ......................................................... 12, 13, 15 
Chandler Gas and Store Incorporated v. Treasure Franchise Company LLC, 
2025 WL 3018829 (D. Ariz., October 29, 2025) ......................................................... 17 
City of Pomona v. SQM North America Corp., 
750 F.3d 1036 (9th Cir. May 2, 2014) ........................................................................ 5, 6 
Comcast Corp. v. Behrend, 
569 U.S. 27 ..................................................................................................................... 6 
In re ConAgra Foods, Inc., 
90 F.Supp.3d 919 (C.D. Cal. 2015) ........................................................................ 13, 14 
Daubert v. Merrell Dow Pharms., Inc., 
509 U.S. 579 (June 28, 1993) ................................................................................ passim 
Dorn v. Burlington N. Santa Fe R.R. Co., 
397 F.3d 1183 (9th Cir. February 7, 2005) ................................................................... 16 
EFCO Corp. v. Symons Corp., 
219 F.3d 734 (8th Cir. 2000) .......................................................................................... 7 
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Elosu v. Middlefork Ranch, Inc., 
26 F.4th 1017 (9th Cir. February 23, 2022) ................................................ 10, 11, 16, 17 
United States ex rel. Fitzer v. Allergan, Inc., 
2024 WL 1156310 (D. Md. Mar. 18, 2024) ................................................................... 9 
Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 
326 F.R.D 592 (N.D. Cal 2018) .................................................................................... 13 
Guardant Health, Inc. v. Foundation Medicine, Inc., 
2020 WL 2461551 (D. Del., May 7, 2020) .................................................................... 9 
Hangarter v. Provident Life & Acc. Ins. Co., 
373 F.3d 998 1017 ........................................................................................................ 16 
Higley v. Cessna Aircraft Company, 
2013 WL 12112167 (C.D. Cal., July 8, 2013) .............................................................. 19 
Hunt Foods, Inc. v. Phillips, 
248 F.2d 23 (9th Cir. August 7, 1957) ............................................................................ 6 
Hyer v. City & Cnty. of Honolulu, 
118 F.4th 1044 (9th Cir. September 23, 2024) ....................................................... 17, 19 
Jinro America, Inc. v Secure Investments, Inc., 
266 F.3d 993 (9th Cir. September 14, 2001) .................................................................. 1 
Khadera v. ABM Industries Inc., 
2011 WL 6813454 (W.D. Wash., December 28, 2011) ............................................... 19 
Kumho Tire Co., Ltd. v. Carmichael, 
526 U.S. 131 (1999) ...................................................................................................... 10 
Lewert v. Boiron, Inc., 
212 F.Supp.3d 917 (C.D.Cal., May 12, 2016) .............................................................. 18 
M. G. v. Bodum USA, Inc., 
2021 WL 718839 (N.D. Cal. Feb. 24, 2021) .................................................................. 8 
McMorrow v. Mondelez International, Inc., 
2021 WL 859137 (S.D. Cal. March 8, 2021) ............................................................... 13 
MedImpact Healthcare Sys., Inc. v. IQVIA Holdings Inc., 
2022 WL 5460971at (S.D. Cal. Oct. 7, 2022) .............................................................. 16 
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Monroe v. Zimmer U.S. Inc., 
766 F.Supp.2d 1012 (E.D. Cal. February 14, 2011) ..................................................... 18 
Orshan v. Apple Inc., 
2024 WL 4353034 (N.D. Cal. Sept. 30, 2024) ............................................................... 9 
Primiano v. Cook, 
598 F.3d 558 (9th Cir. June 19, 2010) .................................................................. 5, 9, 14 
Rocky Mountain PSI, LLC v. Thayer, 
No. CV 13-23, 2015 WL 1579492 (D. Mont. Apr. 9, 2015) ........................................ 16 
Rodriguez v. Google LLC, 
2024 WL 38302 (N.D. Cal., January 3, 2024) ................................................................ 8 
San Francisco Baykeeper v. City of Sunnyvale, 
627 F.Supp.3d 1085 (N.D. Cal. 2022) ............................................................................ 8 
Sentius Int’l, LLC v. Microsoft Corp., 
2015 WL 451950 (N.D. Cal. Jan. 27, 2015) ................................................................... 8 
Southland Sod Farms v. Stover Seed Co., 
108 F.3d 1134 (9th Cir. May 11, 1997) ........................................................................ 18 
Stokes v. John Deere Seeding Group, 
2014 WL 675820 (C.D .Ill., February 21, 2014) ............................................................ 9 
Stragent, LLC v. Intel Corporation, 
2014 WL 1389304 (E.D. Tex., March 6, 2014) ............................................................. 9 
Todd v. Tempur-Sealy Int’l, Inc., 
2016 WL 5462428 (N.D. Cal. Sept. 28, 2016) ............................................................... 8 
In re Toyota Motor Corp. Hybrid Brake Marketing, Sales Practices and Products Liability 
Litigation, 
2012 WL 4904412 (C.D. Cal., September 20, 2012) ................................................... 16 
Treviso v. National Football Museum, Inc., 
2018 WL 4608197 (N.D. Ohio, 2018) .......................................................................... 15 
U.S. v. 17.69 Acres of Land, 
2004 WL 5632928 (S.D. Cal. December 20, 2004) ....................................................... 5 
United States v. Alatorre, 
222 F.3d 1098 (9th Cir. 2000) ........................................................................................ 8 
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United States v. Romero-Lobato, 
379 F.Supp.3d 1111 (D. Nev. 2019) ............................................................................... 8 
United States v. Sandoval-Mendoza, 
472 F.3d 645 (9th Cir. December 27, 2006) ............................................................... 7, 9 
Unknown Party v. Arizona Bd. of Regents, 
641 F.Supp.3d 702 (D. Ariz. November 18, 2022) ...................................................... 17 
Unwired Planet, LLC v. Apple Inc., 
2017 WL 589195 (N.D. Cal. Feb. 14, 2017) .................................................................. 9 
Van v. LLR, Inc., 
61 F.4th 1053 (9th Cir. 2023) (Van II) ................................................................... 12, 15 
Van v. LLR Inc., 
962 F.3d 1160 (9th Cir. June 24, 2020) .............................................................. 6, 11, 12 
Other Authorities 
Federal Rule of Evidence 702 .......................................................................... 1, 5, 8, 16, 17 
Federal Rule of Evidence 703 ...................................................................................... 17, 19 
 
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I. 
INTRODUCTION 
The Bank seeks to exclude three opinions offered by Dr. David I. Levine: (1) that, 
consistent with ‘well-established concept[s] in economics,’ a compound interest rate is an 
appropriate measure of the opportunity cost of delayed access to Unemployment Insurance 
(“UI”) benefit funds, Declaration of Vasti S. Montiel (“Montiel Decl.”) Ex. A (Levine 
Report ¶¶9-11, 15-30), (2) that the credit card interest rate of 15.9% is a reasonable, indeed 
conservative, proxy for the opportunity costs suffered by class members who were deprived 
of access to their UI benefits, and (3) that the minimum wage is a reasonable, and again, 
conservative measure of the value of lost time for the customer service class.1 
Under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 
U.S. 579, 580 (June 28, 1993), expert testimony is admissible if it can “assist the trier of 
fact to understand the evidence or determine a fact in issue.” The Bank contends that each 
of Dr. Levine’s opinions is inadmissible because they are not sufficiently tied to specific 
experiences of individual class members and because they are “conservative.” But expert 
witnesses are “permitted wide latitude to offer opinions, including those that are not based 
on firsthand knowledge or observation,” so long as “the expert’s opinion [has] a reliable 
basis in the knowledge and experience of his discipline.” Id. at 592; see also, e.g., Jinro 
America, Inc. v Secure Investments, Inc., 266 F.3d 993, 1004 (9th Cir. September 14, 
2001).  
Dr. Levine, who is undisputedly qualified to testify as a labor and household 
economist, applied reliable principles and methods that are widely accepted in his 
discipline to the facts and data he reviewed. His opinions are fully consistent with this 
Court’s rulings on class certification that (a) the Bank’s classwide damages liability for the 
Credit Denial, Credit Rescission, Account Freeze, and EMV Chip classes may be 
calculated by multiplying the principal amounts by a compound interest rate that 
 
1 The Bank does not seek to exclude Dr. Levine’s opinion that UI benefits were used during 
the pandemic to cover the cost of such necessities as bills, rent, childcare, and healthcare. 
Montiel Decl. Ex. A (Levine Report ¶¶33, 36-37, 40, 42). 
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approximates, on a classwide basis, the time value of the money to which class members 
were denied access, and that the question of “which interest rates should be applied is an 
issue for the fact finder,” ECF 494 at 86-87 and (b) damages for the Customer Service 
Class can be measured classwide by multiplying “the average excess hold time” by the 
minimum wage or some “other reasonable metric.” ECF 494 at 88-91. At best, the Bank’s 
arguments go only to the weight that the fact finder should assign to Dr. Levin’s 
testimony—not to its admissibility. The Bank’s Daubert motion should be denied.  
II. 
BACKGROUND  
This class action challenges the Bank’s treatment of unauthorized transaction claims 
by unemployed Californians during the COVID-19 pandemic. From 2011 to February 
2024, the California Employment Development Department (“EDD”) exclusively 
contracted with the Bank to distribute unemployment insurance, disability insurance and 
paid family leave benefits to Californians through bank-issued EDD prepaid debit cards. 
Plaintiffs allege that the Bank implemented practices that systemically deprived more than 
100,000 Californians of access to their benefits. On June 16, 2025, this Court certified five 
classes: (1) Claim Denial class, (2) Credit Recission class, (3) Account Freeze class, (4) 
Customer Service class, and (5) EMV Chip Class. ECF 494 at. 96-97. The class period is 
from September 28, 2020, when the Bank implemented the Claim Fraud Filter Indicator 1 
(“CFF-1”), to June 8, 2021, when the Preliminary Injunction issued in this case, preventing 
the Bank from continuing to use CFF-1 to automatically deny unauthorized transaction 
claims, rescind permanent credits, and freeze accounts. ECF 494 at 9-14.  
 
In its order on class certification, this Court recognized that consequential damages 
for the Credit Denial, Credit Rescission, Account Freeze, and EMV Chip classes could be 
calculated by multiplying the principal amount of actual damages by a compound interest 
rate. ECF 494 at 85-87. The Court held that the precise compound interest rate to be applied 
was “an issue for the fact finder.” Id. at 86. As discussed further in Plaintiffs’ opposition 
to the Bank’s motion to exclude the testimony of Greg Regan, the Court rejected a second 
methodology proposed by Mr. Regan that would have been based on the assumptions the 
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Bank itself had used in calculating payments under the 
 
 with its two government agency regulators, the CFPB and OCC. Id. at 86-
87. 
Dr. Levine is an expert in the field of labor and household economics. Montiel Decl. 
Ex. A (Levine Report ¶¶ 1-3, 7 & App. A). He has a B.S. in Economics from the University 
of California, Berkeley, and an M.A. and Ph.D. in Economics from Harvard University. 
He has been the Trefethen Professor at the Haas School of Business, University of 
California, Berkeley, since 2006. He has published widely in labor and household 
economics and has consulted with a myriad of public and private organizations, including 
the US Department of Labor, the World Bank, the Bill and Melinda Gates Foundation, and 
UBS. The Bank does not dispute Dr. Levine’s qualifications as an economic expert.  
In arriving at his opinions, Dr. Levine analyzed case materials, including the expert 
reports of Plaintiffs’ damages expert Greg Regan and the Bank’s expert economist Victor 
Stango, literature concerning the behavior and necessities of recipients of UI benefits 
during the relevant time period (both in California and nationally), literature on UI 
recipients’ borrowing needs while unemployed; studies showing what alternative options 
are available to UI recipients who are denied access to their funds, academic studies and 
literature regarding the value individuals and institutions place on time, and data from the 
U.S. Census Bureau and the CFPB regarding the employment status and borrowing needs 
of households during the pandemic (again, both in California and nationally). Montiel Decl. 
Ex. A (Levine Report ¶¶ 19-30, 37-40, 49-52 & App. B.).  
Dr. Levine does not purport to opine on the legal questions of whether the use of a 
compound interest rate is a permissible methodology by which to approximate damages on 
a classwide basis, or whether a “reasonable metric,” like the minimum wage, may 
permissibly be used to approximate on a classwide basis the value of the excess waiting 
time to which the Customer Service class was subjected—questions this Court has already 
settled. ECF 494 at 86-87, 89-91. Instead, drawing upon the sources identified above, he 
explains that reliance upon “aggregate measure[s] of harm” is “common practice in the 
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discipline of economics,” and that a compound interest rate is economically “an appropriate 
way to measure the harm caused by the Bank’s policies and practices.” Montiel Decl. Ex. 
A (Levine Report ¶¶9-11). Based on his analysis of scholarship and data concerning “how 
recipients use UI benefits and what alternative options are available to recipients who are 
denied access to their funds,” he concludes that it is unlikely that “the typical class 
member…could fall back on savings to cover expenses the whole time their UI benefits 
were denied,” both because “UI recipients in general have lower levels of savings than 
those who were employed” and because, in general, “families with uncertain delays [in 
receiving UI benefits] will not want to deplete all of their savings—especially if they have 
children or other reasons to be risk averse.” Id. ¶¶17, 34-35. Relying on that same literature 
and data—which show that the population of UI recipients is especially likely to be denied 
credit, to receive less credit than they seek, and to be forced to cut spending on necessities 
such as food and medical care—Dr. Levine concludes that a 15.9% interest rate (the lower 
end of credit card interest rates he finds California UI recipients would have faced) is “a 
conservative lower bound on the average opportunity cost” of being denied access to UI 
benefits. Id. ¶¶36-45. After all, class members faced with “sudden” loss of access to the 
benefits on which they depended could not have known in advance, at the time of the 
deprivation, “if and when their UI [benefits] would arrive,” much less that they would 
arrive only after a preliminary injunction or after the Bank 
 
with its regulators—a fact that surely compounded the adverse impacts associated with the 
dire circumstances they faced. Id.  ¶¶19-30, 36, 43 
As to the Customer Service Class, Dr. Levine explains that “[e]conomists frequently 
measure the value of time” and that it is “typical,” even for economists who use “very 
different methodologies,” to measure the value of time with the median wage. Id. ¶¶46-49 
(citing analyses performed by the National Academies of Sciences, Engineering, and 
Medicine, the U.S. Department of Transportation, and the National Bureau of Economic 
Research). “To err on the side of a conservative estimate,” he opines that the minimum 
wage, rather than the median wage, “is an appropriate measure of the value of time UI 
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beneficiaries in the Customer Service Class spent waiting on hold for the Bank’s 
assistance.” Id. ¶¶53-55. 
III. 
LEGAL STANDARD 
Under Federal Rule of Evidence 702, a witness who is “qualified as an expert by 
knowledge, skill, experience, training, or education” may testify if the proponent 
demonstrates it is more likely than not that (1) “the expert’s scientific, technical, or other 
specialized knowledge will help the trier of fact to understand the evidence or to determine 
a fact in issue;” (2) “the testimony is based on sufficient facts or data;” (3) “the testimony 
is the product of reliable principles and methods;” and (4) “the expert’s opinion reflects a 
reliable application of the principles and methods to the facts of the case.” As the Supreme 
Court has explained, Rule 702’s application must be “consistent with the liberal thrust of 
the Federal Rules and their general approach of relaxing the traditional barriers to opinion 
testimony.” Daubert, 509 U.S. at 588 (cleaned up). 
Under this standard, a district court’s task is not to “decid[e] whether the expert is 
right or wrong, just whether his testimony has substance such that it would be helpful to a 
jury.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969-70 (9th Cir. 
2013). Expert testimony “need not establish every element the plaintiff must prove[] in 
order to be admissible.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. June 19, 2010). “As 
a general rule, questions relating to the basis and sources of an expert’s opinion affect the 
weight to be assigned that opinion rather than its admissibility and should be left for the 
jury’s consideration.” U.S. v. 17.69 Acres of Land, 2004 WL 5632928 at *1 (S.D. Cal. 
December 20, 2004) (emphasis added). “[I]t is up to the opposing party to examine the 
factual basis for the opinion in cross examination. Only if the expert’s opinion is so 
fundamentally unsupported that it can offer no assistance to the jury must such testimony 
be excluded.” Bonner v. ISP Tech., Inc., 259 F.3d 924, 929-30 (8th Cir. August 3, 2001) 
(citations omitted); see also City of Pomona v. SQM North America Corp., 750 F.3d 1036, 
1044 (9th Cir. May 2, 2014) (“Challenges that go to the weight of the evidence are within 
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the province of the fact finder… A district court should not make credibility determinations 
that are reserved for the jury.”) 
IV. 
ARGUMENT 
A. 
Dr. Levine’s Testimony Will Assist the Trier of Fact  
In assessing whether an expert’s opinion satisfies the Daubert standard, “‘[t]he 
district court is not tasked with deciding whether the expert is right or wrong, just whether 
his testimony has substance such that it would be helpful to a jury.’” City of Pomona, 750 
F.3d at 1044 (citing Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969-
70 (9th Cir. 2013)). An expert’s testimony should be admitted where Plaintiffs’ damages 
model for assessing consequential damages for the lost time value of money is attributable 
to their theory of liability and can be calculated for the class as a whole. Comcast Corp. v. 
Behrend, 569 U.S. 27, 35; Van v. LLR Inc., 962 F.3d 1160, 1164-1165 (9th Cir. June 24, 
2020); Hunt Foods, Inc. v. Phillips, 248 F.2d 23, 33 (9th Cir. August 7, 1957) (“The fact 
that the amount of damage may not be susceptible of exact proof or may be uncertain, 
contingent or difficult of ascertainment does not bar recovery.”)  
In support of Plaintiffs’ motion for class certification, Plaintiffs’ damages expert, 
Greg Regan, proposed two alternative methodologies for calculating the Bank’s total 
damages liability, including the aggregate classwide damages attributable to the Claim 
Denial, Credit Rescission, and Account Freeze class members due to their lost access to UI 
benefit funds. His “Methodology 1” proposed to calculate those damages by applying to 
the class members’ principal damages amounts a uniform, compound interest rate that 
reflected the time value of money for this particular population (unemployment insurance 
beneficiaries during the height of the pandemic) who were deprived of access to UI benefit 
funds without any basis for knowing when or if such access would be restored. ECF 494 
at 86. In accepting this proposed methodology for calculating aggregate classwide 
damages, the Court recognized that consequential damages for the Credit Denial, Credit 
Rescission, Account Freeze, and EMV Chip classes could be calculated by multiplying the 
principal amount of actual damages by a compound interest rate. ECF 494 at 85-86. Unlike 
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Regan’s “Methodology 2,” which 
 
 into which it entered with the CFPB and the OCC, nothing about 
“Methodology 1” or in Dr. Levine’s testimony has anything to do with the Bank’s 
 
. Supra at 2-3. 
Instead, as explained above, Dr. Levine analyzed substantial data in formulating his 
expert opinion on an appropriate interest rate that reflects the “time value” of the UI 
benefits that were delayed or denied by the Bank’s challenged treatment of unauthorized 
ATM transaction claims. Montiel Decl. Ex. A (Levine Report ¶¶5, 16). Based on his 
expertise as a labor economist, economic studies analyzing how recipients use UI benefits 
and what alternative options are available to recipients who are denied access to their funds, 
studies concerning California UI benefits recipients, and information concerning this case 
and the class, Dr. Levine opines that a 15.9% interest rate is an appropriate measure of the 
“time value” or “opportunity costs” of the class members’ lost access to those funds. Id. 
¶¶1-3, 5, 7, 15, 16, 17, 29, 33, 45. This interest rate falls squarely between the 10% and 
20% interest rates proposed by Mr. Regan. ECF 494 at 86.  Dr. Levine’s well-founded 
opinion is relevant and will assist the factfinder in determining what interest rate should 
apply to Plaintiffs’ damages model. ECF 494 at 86 (determining which interest rates should 
apply to be “an issue for the fact finder.”); Daubert, 509 U.S. at 587 (evidence is relevant 
if it has “any tendency to make the existence of any fact that is of consequence to the 
determination of the action more probable or less probable than it would be without the 
evidence.”); United States v. Sandoval-Mendoza, 472 F.3d 645 (9th Cir. December 27, 
2006) (“Expert opinion testimony is relevant if the knowledge underlying it has a ‘valid 
connection to the pertinent inquiry.’”); EFCO Corp. v. Symons Corp., 219 F.3d 734, 739 
(8th Cir. 2000) (district court did not abuse its discretion by allowing plaintiff’s expert who 
possessed adequate credentials to testify where defendant’s expert, who disputed plaintiff’s 
expert’s methodology, also testified; jury left with “ultimate decision as to which theory 
was the sounder”). Dr. Levine’s expert opinion is therefore admissible under Daubert and 
should not be excluded. 
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B. 
Dr. Levine’s Opinions Are Not Inadmissible Merely Because They Are 
Conservative 
Dr. Levine does not, as the Bank contends (Levine Mot. at 2, 10), contend that his 
opinion is reliable because it is conservative. Dr. Levine’s opinions are reliable and 
conservative. Courts do not exclude expert testimony simply because it is conservative. To 
the contrary, experts routinely provide conservative opinions and courts routinely admit 
them. See, e.g., Beijing Meishe Network Tech. Co. v. TikTok Inc., 2025 WL 2522375, at *5 
(N.D. Cal. Sept. 2, 2025) (denying motion to exclude where defendant argued expert was 
“dressing up his revised damages calculation in a ‘cloak of conservativism,’” finding “these 
concerns go to the weight, not the admissibility, of Dr. Putnam’s report.”); San Francisco 
Baykeeper v. City of Sunnyvale, 627 F.Supp.3d 1085, 1101 (N.D. Cal. 2022) (finding 
expert’s “conservative approach is not an analytical gap”); M. G. v. Bodum USA, Inc., 2021 
WL 718839, at *13 (N.D. Cal. Feb. 24, 2021) (denying motion to exclude where “Dr. Ganot 
appears to have accounted for variations . . . including adopting the most conservative 
values possible . . . This is sufficient to satisfy the requirements of Rule 702.”); United 
States v. Romero-Lobato, 379 F.Supp.3d 1111, 1121 (D. Nev. 2019) (denying motion to 
exclude where the “CMS method was later modified and refined to establish a 
‘conservative quantitative criteria for identification’”); United States v. Alatorre, 222 F.3d 
1098, 1100 (9th Cir. 2000) (affirming decision to admit expert’s testimony that “he used 
the low-end figure cited by the Narcotics Information Network to estimate conservatively 
the wholesale value of the marijuana seized”); Sentius Int’l, LLC v. Microsoft Corp., 2015 
WL 451950, at *9 (N.D. Cal. Jan. 27, 2015) (denying motion to exclude expert’s opinion 
that ‘an effective $0.44 per-copy royalty is a ‘conservative outcome’”); Todd v. Tempur-
Sealy Int’l, Inc., 2016 WL 5462428, at *6 (N.D. Cal. Sept. 28, 2016) (denying motion to 
strike expert opinions, finding arguments regarding expert’s “conservative estimate” [] 
“should be raised on cross-examination, not at the Daubert stage”); Rodriguez v. Google 
LLC, 2024 WL 38302, at *12 (N.D. Cal., January 3, 2024) (denying motion to exclude 
expert opinion because expert’s reference to “$3 valuation as ‘conservative’ in his 
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deposition’” did not mean it was inaccurate where expert provided sufficient analysis to 
explain why he settled on...the $3 figure).  
 “Expert opinion testimony is reliable if the knowledge underlying it has a reliable 
basis in the knowledge and experience of the relevant discipline.” Primiano, 598 F.3d at. 
565, citing Sandoval-Mendoza, 472 F.3d 645 (reversing district court’s decision to 
exclude expert witness testimony and finding that defendant’s experts were well qualified 
and had sufficient expertise in their field and the case to be useful to the jury). Here, Dr. 
Levine’s opinions are reliable and relevant. That they are also “conservative” is no basis 
for excluding them.  
The Bank’s cases do not hold otherwise. See, e.g., Orshan v. Apple Inc., 2024 WL 
4353034 *3 (N.D. Cal. Sept. 30, 2024). (“Daubert asks whether expert opinions are 
reliable and relevant, not whether they are conservative”) (emphasis added); United States 
ex rel. Fitzer v. Allergan, Inc., 2024 WL 1156310, *5 (D. Md. Mar. 18, 2024) (excluding 
expert testimony because it rested upon a “faulty premise” and failed to account for a 
“critical element of causation,” not because it was conservative); Unwired Planet, LLC v. 
Apple Inc., 2017 WL 589195, *2 (N.D. Cal. Feb. 14, 2017) (excluding expert testimony 
because expert “in large part ha[d] not even attempted to explain the basis for and 
importance of the assumptions supporting [his approach]) (cleaned up).”2 
 
 
2 See also Ayers v. Robinson, 887 F.Supp. 1049, 1060 (N.D. Ill. May 23, 1995) (excluding 
expert testimony in a wrongful death case based on hedonic damages, which employed “a 
simple eyeballing technique”); Guardant Health, Inc. v. Foundation Medicine, Inc., 2020 
WL 2461551 (D. Del., May 7, 2020) (granting motion to exclude expert report as damages 
expert provided no evidentiary foundation for the 50% apportionment value selected);  
Stokes v. John Deere Seeding Group, 2014 WL 675820, at *4 (C.D .Ill., February 21, 2014) 
(hedonic damages expert’s methodology unreliable because expert provided no 
“explanation or method for calculating the conservative factor based on data or theories 
originating from economic research”); Stragent, LLC v. Intel Corporation, 2014 WL 
1389304 *4 (E.D. Tex., March 6, 2014) (expert’s methodology relied in arbitrary 
assumptions that had no basis in the facts of the case or hedonic analysis in general 
excluding thereby excluding expert’s hedonic regression analysis).  
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1. Dr. Levine’s Interest-Rate Opinions are the Product of Reliable 
Principles and Methods  
In challenging Dr. Levine’s expert opinions, the Bank does not dispute the soundness 
of Methodology 1, only the factual basis for Dr. Levine’s opinion on the appropriate 
interest rate to use for calculating the Bank’s classwide damages liability. Levine Mot. at 
1-2 and 11-12. According to the Bank, Dr. Levine’s use of the credit card interest rates as 
one basis for estimating classwide damages is flawed because Dr. Levine did not 
specifically investigate each class members’ personal circumstances and calculate the sum 
of the resulting damages on an individual-by-individual basis. Levine Mot. at 11-12. But 
Dr. Levine’s report clearly explains, from the perspective of an experienced labor 
economist, the connection between the proposed interest rate and the damages suffered by 
the class. Based on academic literature, studies and data, Dr. Levine’s report demonstrates 
that: (1) the use of a compound interest rate to measure the aggregate harm inflicted on 
class members is consistent with “common practice in the field of economics”; (2) in the 
absence of access to their UI benefits, unemployed individuals suffer various harms 
flowing from the sudden loss of resources; and (3) these harms can reliably be quantified 
as more damaging than incurring debt at credit card interest rates. Montiel Decl. Ex A. 
(Levine Report ¶¶9-11, 17-30, 31-44); see also supra at 6-7. Dr. Levine’s report further 
explains that, in light of the California UI recipients’ difficulties in accessing credit and the 
higher costs associated with the other forms of borrowing to which they would likely have 
been forced to turn, 15.9% is a “conservative lower bound on the average opportunity cost” 
that class members would have faced. Montiel Decl. Ex A. (Levine Report ¶¶36-45). Dr. 
Levine’s expert opinion is thus “consistent with the basic function of expert testimony: to 
help the trier of fact understand highly specialized issues that are not within common 
experience.” Elosu v. Middlefork Ranch, Inc., 26 F.4th 1017, 1026 (9th Cir. February 23, 
2022) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 131, 148–49 (1999)).  
 
 
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2. Dr. Levine’s Testimony Need Not Be Based on Each Class 
Member’s Individual Financial Circumstances to Be Admissible 
The Bank also argues that Dr. Levine’s testimony is inadmissible because it is not 
sufficiently tied to the particular financial circumstances of individual class members. This 
argument misstates the law. It is commonplace for experts—especially economics 
experts—to rely on data and draw conclusions that are not specific to any particular party. 
Courts routinely reject attempts to exclude expert testimony on the ground that the 
testimony is “speculative” or “not sufficiently corroborated”; again, such “concerns go to 
the weight of the testimony and its credibility, not its admissibility.” Elosu, 26 F.4th at 
1025-28 (citations omitted). 
The Bank’s argument also ignores the Court’s previous ruling as to Methodology 1. 
An interest rate—any interest rate—necessarily reflects a generalization about the time 
value of money that is not strictly tied to the specific economic circumstances of each 
individual to whom it is paid. In Van, for example, there was surely variation in the 
economic circumstances of the class members who were deprived for different lengths of 
time of the sales taxes they were unlawfully required to pay. A lucky few may have been 
able to borrow “from friends and family at a zero percent interest rate,” East Mot. at 11, 
while others were forced to forgo spending on basic necessities. Like the Bank here, the 
defendant in Van argued that plaintiffs’ failure to make “specific allegations about how 
[each class member] would have earned interest on the money but for the defendant’s 
wrongful conduct” defeated their claims. Van I, 962 F.3d at 1164. The Ninth Circuit 
rejected that argument, holding that it “misstate[d] Van’s claimed injury,” explaining: 
Van does not assert that she is injured because she lost interest income. She 
asserts that she is injured because she lost the use of her money… Interest 
is simply a way of measuring and remedying Van’s injury, not the injury 
itself. 
Id. at 1164-1165. In Van, then, the inevitable individual variations in the class members’ 
economic situations did not preclude the use of a uniformly applied interest rate to 
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approximate the lost time value of money on a classwide basis. Van v. LLR, Inc., 61 F.4th 
1053, 1061 (9th Cir. 2023) (Van II).3 
Although the Bank acknowledges this Court’s previous reliance on Van I and Van 
II, it contends that those holdings were limited to approving the use of a classwide interest 
rate only for “interest the plaintiff would have earned on the money, not interest the 
plaintiff would have paid to borrow the money.” Levine Mot. at 19-20 (emphases in 
original). But nothing in Van I or Van II supports such a limitation. As the above-quoted 
passage from Van I makes clear, Van was “injured because she lost the use of her money,” 
not “because she lost interest income.” Van I, 962 F.3d at 1164-65. The particular interest 
rate to be used as “a way of measuring and remedying [plaintiffs’] injury” was not there 
disputed. Id. at 1165; see also Van II, 61 F.4th at 1061. But where, as here, the appropriate 
interest rate to be applied is disputed, the question of “which interest rates should be applied 
is an issue for the fact finder.” ECF 494 at 86. 
The Bank’s argument is also contrary to longstanding caselaw holding that expert 
opinions—particularly the opinions of economics experts—are admissible even when 
based on “generalizations” rather than on adding together the precise amount of damages 
suffered by each individual class member (a requirement that would eliminate classwide 
relief in a broad swath of circumstances). For example, in Briseno v. ConAgra Foods, Inc., 
844 F.3d 1121, 1132 (9th Cir. January 3, 2017), the Ninth Circuit held that it permissible 
and consistent with due process for plaintiffs to measure the aggregate classwide liability 
attributable to an allegedly false representation (that certain cooking oils were “100% 
natural”) by “(1) calculating the price premium attributable to the allegedly false 
statement…and (2) multiplying that premium by the total number of units sold during the 
 
3 For the same reasons, the Bank’s reliance on class representatives’ interrogatory 
responses indicating that they did not actually borrow at the particular interest rates 
proposed by Levine misses the point. No class representative in Van claimed to have 
actually experienced a loss of interest income at precisely the classwide interest rate 
ultimately embraced by the court either. As the Ninth Circuit explained, “[i]nterest is 
simply a way of measuring [the] injury, not the injury itself.” Van I, 962 F.3d at 1165. 
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class period.” Id. at 1132. There, too, the individual circumstances of class members surely 
varied, yet the Ninth Circuit found it permissible to determine the defendant’s liability on 
an aggregate basis. Id.4  
Not only are class damages based on generalizations acceptable, but it is well settled 
that experts may rely on studies and data from individuals outside the class as the basis 
for opining on the damages suffered by individuals within the class. In ConAgra, ConAgra 
had argued in the district court that a damages expert’s conjoint analysis was insufficiently 
reliable because it relied on future survey data to calculate the importance of the 
company’s “ ‘100% Natural’ label in the past, i.e., during the class period”—that is, the 
expert relied on data concerning the market behavior of persons outside the class to make 
generalizations untethered from the specific circumstances of any particular class member. 
In re ConAgra Foods, Inc., 90 F.Supp.3d 919, 1028 (C.D. Cal. 2015).  The district court 
rejected ConAgra’s challenge, holding that the fact that plaintiffs’ experts’ proposed 
generalizations were based on market data that was not specific to class members “d[id] 
not make her methodology unreliable.” Id.  
Similarly, in Hartley v. Dillard’s, Inc., the defendant attempted to exclude an expert 
economist’s proffered testimony—consisting of economic generalizations about national 
trends affecting “mall and retail store sales”—because that testimony did not address the 
“specific financial conditions” of the defendant’s retail store. 310 F.3d 1054, 1061 (8th Cir. 
2002). The Eighth Circuit rejected that argument, holding that “the jury could consider” 
such economic generalizations and that “it [was] up to the opposing party to examine the 
 
4 See also, e.g., Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 326 F.R.D 592 (N.D. 
Cal 2018) (certifying 23(b)(3) class and approving use of market data to calculate “price 
premium” that approximated the value to consumers of Dr. Pepper’s false representation 
that beverage was “made from real ginger”); McMorrow v. Mondelez International, Inc., 
2021 WL 859137 (S.D. Cal. March 8, 2021) (approving classwide damages model that 
approximated value to consumers of representation that product was “nutritious.”); Belyea 
v. GreenSky, Inc., 2025 WL 589037, at *6 (N.D. Cal., 2025) (denying motion to exclude 
damages expert and finding that although individualized questions as to damages may be 
relevant to the appropriateness of class certification, “they are not a basis for challenging 
the reliability of [the expert’s] assessment of classwide damages.”). 
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factual basis for the opinion in cross-examination”—not through a Daubert motion. Id. 
(citing Bonner, 259 F.3d at 929-30). 
Consistent with Methodology 1 and with these precedents, Dr. Levine’s approach 
provides a proposed interest rate for consideration by the finder of fact:  
Q. If you have information about the aggregate measure of harm for a 
group, can you use that to draw conclusions about the harms suffered by 
individual members of the group? 
A. So the method I'm proposing is to say that this credit card interest rate is 
a conservative lower bound on the opportunity cost of funds. 
My expectation is one would then take the individual claims amounts and 
durations to create a damage per person. Is that what you're asking?  I'm 
not sure what you're asking. 
Q. Well, that is helpful. So I guess let’s back up a little. Tell me how you 
would propose to arrive at the aggregate measure of harm. 
A. If I can find opportunity cost to funds --a lower bound on the opportunity 
cost to funds for the vast majority of the class, and we apply that to the total 
amount of UI payments that were delayed times their delay, we would get 
an aggregate measure of harm. 
Q. Okay. And that aggregate measure of harm is basically just the sum total 
of all individual harms? 
A. It is a conservative lower bound on the sum of the individual harms… 
[that is] what it’s intended to create.  
Montiel Decl. Ex B. (Levine Tr. 72:14-73:20). (objections omitted).  
The Bank’s insistence that the only permissible means of calculating damages 
requires Plaintiffs to identify with complete certainty the exact quantum of each 
individual’s damages disregards the aggregate nature of classwide damages in general, 
especially where damages may be calculated by applying an interest rate to a population of 
over 100,000 class members. Mot at. 14-15. After all, “[l]ack of certainty is not, for a 
qualified expert, the same thing as guesswork.” Primiano, 598 F.3d at 565. As Dr. Levine 
testified:  
Q. Could that method also be used to create an aggregate measure of harm 
for a class of 50,000 people? 
A. Yes. 
Q. Could it be used to create an aggregate measure of harm for a class of 
100 people? 
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A. As members get smaller, reliance on averages gets more challenging and 
sampling variation, random errors, and things like that, become more 
important. 
So as -- for 50,000, it's easy, and for numbers at 100 and below, one has to 
be more careful, so I would need to know a lot more. 
Q. Okay. And could it be used to create an aggregate measure of harm for 
a class of one person? 
A. This wouldn't be how I would approach that problem.  
Montiel Decl. Ex B. (Levine Tr. 80:24-81:22). (objections omitted).  
Against this backdrop, the Bank’s reliance on Treviso v. National Football Museum, 
Inc., 2018 WL 4608197 (N.D. Ohio, 2018) for the proposition that “each individual class 
member will need to submit proof of their damages” falls flat. Levine Mot. at 15. That 
out-of-circuit, unpublished opinion denied class certification on the basis that 
individualized issues would predominate where the expert’s proffered testimony 
concerning damages arising from a cancelled football game made no attempt to account 
for variations in disappointed customers’ missed “merchandise purchases,” disrupted 
vacation arrangements, or transportation costs. Id. at *7.  But—even leaving aside that this 
case is at the summary judgment stage, not the class certification stage—the damages 
sought here are not at all like those that could be associated with the cancellation of a 
particular Hall of Fame Game between the Green Bay Packers and the Indianapolis Colts. 
As the foregoing discussion makes clear, the law of this circuit and the discipline of 
economics accept as appropriate classwide (or “aggregate”) approximations of more 
mundane values, like the price premium consumers may attach to a marketing 
misrepresentation or, here, the time value of money. See, e.g., Van II, 61 F.4th at 1061; 
ConAgra, 844 F.3d at 1132. And unlike the expert in Treviso, Dr. Levine has explicitly 
reckoned with potential variations in the time value of money to the particular population 
at issue, using principles and methods that are widely accepted in his field. Montiel Decl. 
Ex. A (Levine Report ¶¶9-11); ConAgra, 844 F.3d at 1132; Hartley, 310 F.3d at 1061. 
The Bank’s reliance on In re Blackbaud, Inc. Cust. Data Breach Litig., 2024 WL 
2155221 (D.S.C. May 14, 2024), is also misguided. In that case, the expert’s testimony 
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concerned a multi-step method for identifying class members, which changed during the 
course of the litigation, could not be replicated, and was not shown to be valid on a large 
scale across a wide number of data sources. Id. at *8-14. In contrast, the question here is 
not administrative feasibility; it is what interest rate the trier of fact could find appropriate 
for calculating classwide damages attributable to the class members’ lost access to their 
UI funds. 
That the parties and their experts would draw different inferences from the available 
evidence, scholarship, and data is not a basis for the exclusion of expert testimony. Elosu, 
26 F.4th at 1026 (“Rule 702 does not license a court to engage in freeform factfinding, to 
select between competing versions of the evidence, or to determine the veracity of the 
expert’s conclusions at the admissibility stage.”); Rocky Mountain PSI, LLC v. Thayer, 
No. CV 13-23, 2015 WL 1579492, at *3 (D. Mont. Apr. 9, 2015) (“It is not uncommon 
for opposing experts to reach different conclusions, using different methodologies. It is 
for the jury to assess which is the more reliable and helpful.”) (citing Dorn v. Burlington 
N. Santa Fe R.R. Co., 397 F.3d 1183, 1196 (9th Cir. February 7, 2005)). The Bank’s 
argument that Dr. Levine does not precisely measure each class members’ individual 
damages is not a basis for excluding his opinions. Ultimately, the Bank’s arguments 
regarding Dr. Levine’s methodology and proposed interest rate go to weight, not 
admissibility. See, e.g., Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998 1017 
n. 14  (9th Cir. 2004) (“The factual basis of an expert opinion goes to the credibility of the 
testimony, not the admissibility, and it is up to the opposing party to examine the factual 
basis for the opinion in cross-examination.”); MedImpact Healthcare Sys., Inc. v. IQVIA 
Holdings Inc., 2022 WL 5460971at *5 (S.D. Cal. Oct. 7, 2022) (even improper 
assumptions are not bases to exclude expert testimony as they concern the weight of the 
testimony and may be challenged on cross-examination); Shimozono v. May Dept. Stores 
Co., WL 3437390, at *8 (C.D. Cal. Nov. 20, 2002) (similar); In re Toyota Motor Corp. 
Hybrid Brake Marketing, Sales Practices and Products Liability Litigation, 2012 WL 
4904412 *4 (C.D. Cal., September 20, 2012) (finding that the efficacy or applicability of 
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plaintiff’s expert’s methods of calculating classwide damages to the facts of the case were 
better suited for cross-examination and closing argument.).  
 
Finally, the Bank argues that Dr. Levine’s opinions lack “sufficient facts or data.” 
But “Rule 702’s ‘sufficient facts or data’ element requires foundation, not corroboration. 
. . The court's role is … not to determine whether their hypothesis is correct, or to evaluate 
whether it is corroborated by other evidence on the record.” Elosu, 26 F.4th 1025-26, 
citing Daubert, 509 U.S. at 594–95. Here, Dr. Levine has used his specialized knowledge 
and experience as a labor economist to consider relevant facts and data following a method 
this Court has already approved. To the extent the Bank believes Dr. Levine should have 
incorporated different facts and assumptions into his methodology, that is for the parties 
to argue at trial, and for the factfinder to weigh.  Elosu, 26 F.4th 1025-26.  
More-over, “experts are allowed to rely on records created by others if they disclose their 
assumptions and use those records to apply their own specialized expertise.” Chandler 
Gas and Store Incorporated v. Treasure Franchise Company LLC, 2025 WL 3018829, at 
*7 (D. Ariz., October 29, 2025); Fed. R. Evid. 703; see also Hyer v. City & Cnty. of 
Honolulu, 118 F.4th 1044, 1056 (9th Cir. September 23, 2024) (experts may rely on 
“knowledge and experiences that are not necessarily in the record.”). This is exactly what 
Dr. Levine has done. “Ultimately, if an assumption has a reasonable basis in the record, 
an economics expert may stretch the assumption to extremes so long as he does not veer 
into ‘unreliable nonsense.’” Chandler Gas, 2025 WL 3018829, at *7 (citing Unknown 
Party v. Arizona Bd. of Regents, 641 F.Supp.3d 702, 727 (D. Ariz. November 18, 2022)); 
see also Alaska Rent-A-Car, 738 F.3d at 969–70 (expert’s reliance on assumptions affects 
weight, not admissibility, where methodology is otherwise sound). Each of Dr. Levine’s 
opinions and assumptions regarding California UI recipients is supported by data, Dr. 
Levine’s experience as a labor economist, and the facts of this case. Ultimately, the 
reasonableness of Dr. Levine’s assumptions in arriving at a 15.9% compound interest rate 
is a matter for the factfinder to determine.  Chandler Gas, 2025 WL 3018829, at *8; see 
also ECF 494 at 86. 
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3. Dr. Levine’s Minimum Wage Measure is Similarly Reliable  
The Bank also completely ignores the methodology Dr. Levine uses to conclude 
that, in his expert opinion, the California minimum wage rate is a reliable metric for lost 
time in the customer-service class, and the Bank again rests its challenge in large part on 
Dr. Levine’s characterization of his opinion as “conservative.” In reaching this conclusion, 
Dr. Levine carefully examined numerous scientific studies evaluating how various 
populations value lost time, and he concluded that “in all of these instances, the median 
wage (or higher) is used to represent the value of time.” Montiel Decl. Dec. Ex. A (Levine 
Report ¶53). Using these sources and his specialized expertise, Dr. Levine opined that the 
measure of damages is at least the minimum wage, which creates a reliable measure of a 
minimum amount of damages that is capable of measurement on a classwide basis. Id.¶55.   
Contrary to the Bank’s assertion, Dr. Levine did not arrive at this number merely 
by “eyeballing.” Mot at 10, 13. Instead, he applied his expert experience to empirical 
scientific studies. For example, Dr. Levine relied upon studies examining monetary time-
value in situations relating to leisure travel, Montiel Decl. Ex. A (Levine Report ¶49 & 
n.33); government infrastructure projects, id. ¶49 & n. 34; the value of time where 
individuals are directly able to purchase faster transport, id. ¶49 & n.35; studies examining 
time spent unproductively and how people value their time, id. ¶50 & ns. 36 & 37; and 
studies that directly assess people’s dislike of waiting on hold for customer service, id. 
¶51 & ns.38 & 39. Dr. Levine’s use of these studies provides the finder of fact with 
relevant and reliable information and is manifestly admissible. Monroe v. Zimmer U.S. 
Inc., 766 F.Supp.2d 1012, 1027-1028 (E.D. Cal. February 14, 2011) (denying motion to 
exclude expert opinion because expert “analyzed the work of others” as the expert used 
“accepted [] methods to support all of his reported conclusions”) 
Courts in this district and throughout the Ninth Circuit have “expressly held that an 
expert’s opinion is not unreliable as a matter of law simply because the expert’s opinions 
‘are based on data collected by others.’” Lewert v. Boiron, Inc., 212 F.Supp.3d 917, 930 
(C.D.Cal., May 12, 2016), citing Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 
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1141–42 (9th Cir. May 11, 1997); see also Fed. R. Evid. 703; Hyer, supra, 118 F.4th at 
1056. Here, Dr. Levine stated that economists frequently measure the value of time using 
the median wage. Montiel Decl. Ex. A (Levine Report ¶48). After reviewing the empirical 
scientific studies outlined above, Dr. Levine concluded that the minimum wage is a 
conservative metric for approximating the value of the excessive time UI beneficiaries in 
the Customer Service Class spent on hold due to the Bank’s challenged practices. Id.¶54. 
Dr. Levine’s opinion is thus reliable and relevant to the trier of fact and admissible under 
Daubert. See, e.g., Khadera v. ABM Industries Inc., 2011 WL 6813454 *6 (W.D. Wash., 
December 28, 2011).  
Here, too, the Bank’s challenge to the factual basis of Dr. Levine’s opinion 
regarding individual preferences with waiting on hold for customer service is an issue of 
weight not admissibility, as the Daubert standard makes clear. Levine Mot. at 13; see SPS 
Technologies, LLC v. Briles Aerospace, Inc. WL 4913509, at *2 (C.D. Cal. Sept. 8, 2021) 
(“Challenges to ‘the factual basis of the [expert’s] opinion rather than the methodology 
upon which it is based,’ particularly when the facts ‘are subject to reasonable dispute’ go 
to the weight of the expert’s opinion, not the admissibility’”) (citing Higley v. Cessna 
Aircraft Company, 2013 WL 12112167, at *4 (C.D. Cal., July 8, 2013)). (emphasis 
added). The Bank has no basis for excluding Dr. Levine’s expert opinion regarding the 
minimum wage damages measure for the lost time of the customer service class.  
V. 
CONCLUSION 
Dr. Levine’s opinions will assist the trier of fact because they are relevant and 
reliable. The Bank’s motion to exclude his testimony should be denied.  
/ / / 
 
/ / / 
 
/ / / 
 
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Respectfully submitted, 
Dated:  January 8, 2026  
COTCHETT, PITRE & McCARTHY, LLP 
 
By:  /s/ Brian Danitz 
 
 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
BLAIR V. KITTLE 
VASTI S. MONTIEL 
CAROLINE A. YUEN 
REGINA WANG 
 
 
Dated:  January 8, 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   
 
 
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SIGNATURE ATTESTATION 
Pursuant to section 2(f)(4) of the Electronic Case Filing Administrative Policies and 
Procedures Manual, I, Brian Danitz, attest that the other signatories listed, and on whose 
behalf this filing is submitted, concur in the filing content and have authorized this filing. 
 
Dated: January 8, 2026  
 
 
/s/ Brian Danitz 
 
 
BRIAN DANITZ 
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