Reply to Response to Motion re 564 Motion to Exclude the Purported Expert — In re BofA Unemployment Litigation (Dkt. 675)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 675 · 2026-04-17 · Docket on CourtListener

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REPLY ISO BANA¶S MOT. TO EXCLUDE MINNUCCI 
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW 
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA 02210 
Tel.: +1 617 570 1000  
Fax: +1 617 523 1231 
 
SABRINA M. ROSE-SMITH (pro hac vice) 
SRoseSmith@goodwinlaw.com 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N Street, NW 
Washington, DC 20036 
Tel.: +1 202 346 4000  
Fax: +1 202 346 4444 
 
Attorneys for Defendant  
BANK OF AMERICA, N.A. 
 
 
 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF CALIFORNIA  
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 21-MD-02992-GPC-MSB 
REPLY BRIEF IN SUPPORT OF 
DEFENDANT BANK OF AMERICA, 
N.A.¶S MOTION TO EXCLUDE 
PURPORTED EXPERT OPINIONS OF 
JAY MINNUCCI (ECF 564) 
Date: 
April 17, 2026 
Time: 
1:30 p.m. 
Ctrm: 
12A ± 12th Floor 
Judge: 
Hon. Gonzalo P. Curiel 
FILED PROVISIONALLY UNDER SEAL 
PURSUANT TO STIPULATED PROTECTIVE 
ORDER 
 
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TABLE OF CONTENTS 
Page
ARGUMENT .............................................................................................................. 1
I.
Minnucci¶s Damages Inputs and Calculations Should Be Excluded. .............. 1
A.
Minnucci¶s industry standard opinions should be excluded. ................. 1
B.
Minnucci¶s use of aggregate call center data is unreliable. ................... 5
II.
The Opposition Confirms the Avoided Cost Opinions Are Not Reliable. ...... 6
A.
Minnucci¶s distinct caller demand calculations are not reliable. ........... 6
B.
Minnucci¶s avoided workload calculations are not reliable. ................. 8
C.
Minnucci¶s calculation of idle hour charges are not reliable. ................ 9
III. 
The Opposition Concedes the WFM Opinions Are Improper. ........................ 9
IV. 
The Opposition Confirms the State of Mind Opinions Are Improper. .......... 10
CONCLUSION ......................................................................................................... 10
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 
509 U.S. 209 (1993) ............................................................................................. 9 
Daubert v. Merrell Dow Pharms., Inc., 
43 F.3d 1311 (9th Cir. 1995) ................................................................................ 9 
Faust v. Comcast Cable Commc¶ns Mgmt., LLC, 
2014 WL 3534008 (D. Md. July 15, 2014) .......................................................... 4 
Goodness Films, LLC v. TV One, 
LLC, 2014 WL 12780291 (C.D. Cal. May 19, 2014) .......................................... 4 
Heisler v. Maxtor Corp., 
2011 WL 1496114 (N.D. Cal. Apr. 20, 2011) ..................................................... 7 
In re Incretin-Based Therapies Prods. Liab. Litig., 
524 F. Supp. 3d 1001 (S.D. Cal. 2021) ................................................................ 8 
JH Kelly, LLC v. AECOM Tech. Servs., Inc., 
605 F. Supp. 3d 1295 (N.D. Cal. 2022) ................................................................ 9 
Khadera v. ABM Indus. Inc., 
2011 WL 6813454 (W.D. Wash. Dec. 28, 2011) ................................................. 6 
Krommenhock v. Post Foods, LLC, 
334 F.R.D. 552 (N.D. Cal. 2020) ......................................................................... 5 
In re Live Concert Antitrust Litig., 
863 F. Supp. 2d 966 (C.D. Cal. 2012) .............................................................. 5, 8 
Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 
387 F. Supp. 2d 794 (N.D. Ill. 2005) ................................................................ 1, 7 
McMorrow v. Mondelez Int¶l, Inc., 
2020 WL 1157191 (S.D. Cal. Mar. 9, 2020) ........................................................ 9 
Multimedia Pat. Tr. v. Apple Inc., 
2012 WL 5873711 (S.D. Cal. Nov. 20, 2012) ..................................................... 4 
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Ngethpharat v. State Farm Mut. Auto. Ins. Co., 
2025 WL 2161754 (W.D. Wash. July 29, 2025) .................................................. 6 
North Wind Constr. Servs., LLC v. Campos EPC, LLC, 
2023 WL 196618 (D. Idaho Jan. 13, 2023) ........................................................ 10 
OCG Energy, LLC v. Shen, 
2024 WL 694912 (C.D. Cal. Feb. 12, 2024) ........................................................ 2 
Remien v. EMC Corp., 
2008 WL 597439 (N.D. Ill. Mar. 3, 2008) ........................................................... 4 
Ruiz v. XPO Last Mile, Inc., 
2017 WL 2263046 (S.D. Cal. May 23, 2017) ...................................................... 6 
Other Authorities 
Fed. R. Evid. 703 ....................................................................................................... 2 
 
 
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The Opposition (ECF 614, Opp.) does not dispute many of the issues that were 
demonstrated in BANA¶s Motion to Exclude Jay Minnucci (ECF 564-1, Mot.). It 
merely argues that these demonstrated flaws in Minnucci¶s analysis can all be 
addressed through cross examination. But Daubert admonishes district judges to be 
³gatekeepers,´ and the ³opportunity for vigorous cross examination . . . is not a basis 
for allowing otherwise inadmissible testimony to be admitted.´ Loeffel Steel Prods., 
Inc. v. Delta Brands, Inc., 387 F. Supp. 2d 794, 800 (N.D. Ill. 2005). Fundamentally, 
Minnucci¶s opinions cannot satisfy Rule 702, 703, or Daubert because they do not 
consider or account for the unique circumstances facing the Claims Call Center, rely 
on data that Minnucci did not review and that treats disparate call centers as fungible 
and assumes non-class members acted the same as class members, and are contrary 
to Minnucci¶s own professional experience and the evidence in the case. These are 
not minor flaws that a jury can discount; they are core issues that merit exclusion.  
ARGUMENT 
I. 
Minnucci¶s Damages Inputs and Calculations Should Be Excluded. 
A. 
Minnucci¶s industry standard opinions should be excluded. 
In its moving brief, BANA demonstrated that Minnucci¶s industry standard 
opinions²and any damages calculations based on them²are unreliable because they 
are based on third-party data that Minnucci admittedly knows almost nothing about, 
are inconsistent with industry practice and his own professional experience, and rely 
on indefensible apples-to-oranges comparisons. Mot. 10-15. Plaintiffs do not dispute 
many of these criticisms. Instead, they argue that experts are permitted to testify to 
industry standards, and claim that they may do so by relying ³heavily´ on their 
knowledge and experience. See Opp. 8. Accordingly, they claim Minnucci can rely 
on ContactBabel to set the industry standard applicable to the Claims Call Center 
during the Customer Service class period because it is ³fully consistent with his 
knowledge of the industry and his client experiences.´ Id. Tellingly, though, 
Plaintiffs do not identify any ³client experiences´ that Minnucci had at call centers 
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remotely like the Claims Call Center during the COVID-19 pandemic²which 
indisputably experienced a 
 
 See Mot. 2-3. And Plaintiffs significantly understate the extent to 
which Minnucci relies on ContactBabel¶s work to opine on what the industry 
standard purportedly was at the height of the COVID-19 pandemic. See Opp. 8-9.  
Indeed, the ContactBabel survey is the linchpin of Minnucci¶s industry 
standard opinions and Plaintiffs¶ call center damages model. See Mot. 10. Minnucci 
simply took 2020-2021 post hoc data from the cross-industry survey and declared 
that it was the ³industry standard´ and performance benchmark for the Claims Call 
Center during the narrower Customer Service Class period. See HX 11 ¶¶ 19-20; 
Mot. 10-11, 13. He did so despite not reviewing any of the underlying data on which 
the report was based and not knowing: (1) how many or what divisions or 
departments each respondent call center had; (2) whether any of the respondents 
experienced significant increases or decreases in call volumes; (3) whether any of the 
respondents were targeted by criminals or fraudsters; or (4) even what time period(s) 
each respondents¶ data covered. See Mot. 11. Plaintiffs do not dispute this. See Opp. 
8-9, 12. They simply claim that Minnucci had no obligation to familiarize himself 
with the data because the survey is ³accepted as reliable within the industry,´ and 
because experts are granted ³wide latitude to offer their opinions.´ Opp. 8-9. This 
misstates the requirements of Federal Rule of Evidence 703 and Daubert.  
Rule 703 does not permit experts to use third-party data without a reasonable 
understanding of what the data contains.1 See, e.g., OCG Energy, LLC v. Shen, 2024 
WL 694912, *11 (C.D. Cal. Feb. 12, 2024) (expert cannot ³testify as to documents 
and facts as to which he lacks knowledge´); see also Mot. 10-11. Further, Rule 703 
 
1 For this reason, Plaintiffs¶ reliance on Fortune Dynamic, Inc. v. Victoria¶s Secret 
Stores Brand Mgmt., Inc. (Opp. 15) is off point. 618 F.3d 1025 (9th Cir. 2010). There, 
the court upheld a survey conducted by the expert who was able to explain the 
survey¶s methodology and contents. Id. 1037. Here, Minnucci adopted a survey he 
did not conduct and relying on data he has never seen and cannot explain. See Mot. 
11-13. 
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states that an expert can rely on facts or data only "[i]f experts in the particular field 
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would reasonably rely on those kinds of facts or data in forming an opinion on the 
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subject." Here, there has been no showing that other experts in the call center industry 
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use cross-industry ContactBabel surveys in the manner that Minnucci uses them 
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here-which is to set the performance benchmark for a call center irrespective of the 
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facts, circumstances, or service agreements specific to that call center. See Mot. 12. 
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To the contrary, Minnucci testified that cross-industry averages like the 
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ContactBabel figures are 
9 
.
,, HX 16 202:3-5 (e 
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also conceded that per£ 
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" not 
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industry averages. HX 51 194:8-13. And as he testified, industry practice is generally 
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(HX 16 180:1-15)-just as 
. See Mot. 14 
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Minnucci's "industry average" opinions also are unreliable and should be 
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excluded because Plaintiffs cannot demonstrate that any of the respondent call 
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centers-much less the majority or all of them-are aptly comparable to the Claims 
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Call Center, which Plaintiffs admit "experienced an 
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during part of the class period" (Opp. 13). See Mot. 12-15. Plaintiffs also do 
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not dispute this. See Opp. 10-12. Nor do they dispute that Minnucci did not attempt 
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to account for the many differences that existed between the Claims Call Center and 
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the ContactBabel survey respondents in propounding his "industry standard." See id. 
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A110 RN'£YSAT L;\l\' 
BANA's call center efforts were not commercially reasonable. 
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Indeed, there is no evidence that indicates that even one of the ContactBabel 
respondents had to deal with a 
, or offered a service 
, or had their 
 
. See Mot. 11, 13-14. 
Moreover, the report itself confirms that many respondents did not, as evidenced by 
the fact that they reported flat or decreasing levels of demand. See HX 15 Fig. 2. 
These critical differences are not mere ³disputes about the appropriateness of a 
benchmark´ that can be addressed on cross-examination, as Plaintiffs contend (Opp. 
12). Daubert and Rule 702 require more: experts must show the comparators they 
relied on are ³tethered to the relevant facts and circumstances of the present case.´ 
Multimedia Pat. Tr. v. Apple Inc., 2012 WL 5873711, *9 (S.D. Cal. Nov. 20, 2012); 
see also Goodness Films, LLC v. TV One, LLC, 2014 WL 12780291, *2-3 (C.D. Cal. 
May 19, 2014) (excluding expert opinion because they did not show comparators 
were sufficiently similar). Minnucci did not, thus his opinions should be excluded.3    
Plaintiffs¶ blanket assertion that ³disputes about the appropriateness of a 
benchmark go to weight´ (Opp. 12) is not supported by the cases that they cite. 
Roblox v. WowWee Grp., Ltd. found the expert¶s opinion ³sufficiently reliable´ 
 
3 Plaintiffs¶ attempt to distinguish BANA¶s cases excluding analyses based on 
inappropriate comparisons falls flat. See Opp. 14. In Goodness Films, LLC, the court 
did not rely on plaintiffs¶ argument that their expert¶s examples were ³not meant to 
be comparisons´; rather, it found that ³to the extent that [the expert] provides 
comparisons . . . he has not identified relevant, similar comparisons.´ 2014 WL 
12780291, *2 (emphasis added). That is precisely the problem here. See Mot. 11-15. 
Faust v. Comcast Cable Commc¶ns Mgmt., LLC, 2014 WL 3534008, (D. Md. July 
15, 2014) did not turn on the fact that the plaintiff said it would forgo expert 
testimony. The court struck the expert¶s report because it sought to establish a fact 
about call center workers in Maryland based on an analysis of practices at the 
defendant¶s Pennsylvania call centers because there was ³nothing . . . that would 
support the extrapolation of conclusions concerning [workers] in Pennsylvania call 
centers with those working in´ Maryland. Id. *5. In Remien v. EMC Corp., 2008 WL 
597439 (N.D. Ill. Mar. 3, 2008) the court excluded the expert because his 
³methods´²not his ³concessions´ (Opp. 14)²failed to provide ³a minimum level 
of reliability [to] his opinions.´ Id. *3. Finally, Plaintiffs cite no authority for their 
claim that the rationale in Multimedia Pat. Tr., which rejected an analysis like 
Minnucci¶s based on ³generic industry data´ because it was not tethered to the 
relevant facts and circumstances of the case, 2012 WL 587311, *9, is solely 
applicable to patent cases. Opp. 14.  
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because he showed ³baseline comparability´ and ³appears to have made both 
downward and upward adjustments . . . to account for differences´ between 
benchmark and comparator. 2024 WL 4057418, *14 (S.D. Cal. Sept. 3, 2024). 
Minnucci did not do that here. See supra at 1-4; Mot. 10-15. Plaintiffs¶ curious cite 
to Sonos v. Google, LLC is misleading, as there the court rejected the benchmark due 
to lack of comparability, stating ³[d]istrict judges are admonished to be µgatekeepers¶ 
and ³[t]his gate should remain firmly closed.´ 2023 WL 3933071, *6 (N.D. Cal. June 
9, 2023) (quoting Daubert v Merrell Dow Pharms., Inc., 509 U.S. 579, 596-97 
(1993)). Krommenhock v. Post Foods, LLC, 334 F.R.D. 552 (N.D. Cal. 2020) is also 
of no help. There the court allowed price studies designed and conducted by the 
expert, id. at 574-76, not a third-party survey that Minnucci simply adopts as the 
³industry standard´ despite not knowing its specifics or respondents, or how they 
compared to the call center at issue. See supra at 1-4. 
To the extent Plaintiffs argue Minnucci¶s industry standard opinions should 
not be excluded because it would leave them unable to prove their case (Opp. 12 n.6), 
that is a problem of their own making and is not a legal basis for denying exclusion. 
Summary judgment is frequently granted for defendants in these circumstances. See, 
e.g., In re Live Concert Antitrust Litig., 863 F. Supp. 2d 966, 1000 (C.D. Cal. 2012). 
If anything, Plaintiffs¶ argument highlights the importance of ensuring that 
unsupported, unreliable and improper opinions are not presented to a jury.  
B. 
Minnucci¶s use of aggregate call center data is unreliable. 
Plaintiffs do not dispute that Minnucci¶s calculation of Customer Service Class 
damages 
, and assumes that all 
callers experienced the same wait times. See Opp. 15; Mot. 15-16. Plaintiffs also 
readily admit that the underlying assumption is not true, as ³of course . . . some class 
members waited shorter or longer times than the average.´ Opp. 15. Plaintiffs claim 
Minnucci can calculate damages this way because the ³issue is the Bank¶s aggregate 
damages liability, which is permissibly based on averages.´ Id. In support, Plaintiffs 
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cite two cases. But in each, the experts calculated damages based on actual data 
pertaining to class members only, and provided further analysis to assess whether 
their calculations were reliable. See Ngethpharat v. State Farm Mut. Auto. Ins. Co., 
2025 WL 2161754, *11 (W.D. Wash. July 29, 2025); Khadera v. ABM Indus. Inc., 
2011 WL 6813454, *1 (W.D. Wash. Dec. 28, 2011).  
Plaintiffs also argue Minnucci can rely on aggregated data because 
 
 but their case in support is distinguishable. 
See Opp 16. Again, there, the data the expert analyzed was limited to class members 
only, and the expert merely estimated the number of weeks they worked using data 
reflecting each class members¶ actual employment dates. Ruiz v. XPO Last Mile, Inc., 
2017 WL 2263046, *3 (S.D. Cal. May 23, 2017). Here, Minnucci purports to estimate 
individual call wait times for a heterogenous class using data that 
 
 See Mot. 15-16. Minnucci¶s belief that it was ³reasonable for him to 
conclude that µEDD cardholders experienced the same average wait times as all 
prepaid cardholders routed to the same call centers¶´ does not make it so. See Opp. 
16. There is no dispute that Minnucci did not attempt to determine how class 
members¶ actual wait times compared to the average (see Mot. 16; Opp. 15-16), or 
how 
 
. Thus, his opinion is unreliable and should be excluded.4  
II. 
The Opposition Confirms the Avoided Cost Opinions Are Not Reliable. 
A. 
Minnucci¶s distinct caller demand calculations are not reliable. 
Plaintiffs also do not dispute that Minnucci¶s distinct caller demand analysis 
does not account for the significant differences between Minnucci¶s non-financial 
institution clients (from which he obtained the 2005-2013 data that he used to build 
his regression model) and the Claims Call Center during the class period (for which 
 
4 Plaintiffs¶ claim that Minnucci¶s conclusion is based on ³his experience and 
expertise´ (Opp. 15) is refuted by his own testimony. Minnucci admitted that he has 
no experience working with call centers like BANA¶s who experienced 
 
 during the COVID-19 pandemic. 
See, e.g., HX 51 60:24-61:5, 65:24-66:14, 114:24-115:7; HX 16 219:22-223:1. 
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he purports to predict re-call rates using the model). See Mot. 17-19. They first blame 
BANA for not maintaining the data Minnucci claims he would need to conduct an 
³exact´ analysis, and argue Minnucci was left to turn to the ³next best thing´²which 
he deemed to be undisclosed data dating back more than two decades from a handful 
of non-financial services industry clients. See Opp. 17-18; Mot. 17.  
Plaintiffs claim that Minnucci¶s reliance on this data is ³permissible´ because 
he determined that the ³relationship between [the] abandonment rate and [the] re-call 
rate´ for his clients remained ³fairly constant across industries and time.´ Opp. 18. 
But Minnucci did not offer any analysis or citation to support this opinion in his 
Report, and the Opposition¶s citations either do not discuss this issue at all, or are 
completely silent as to its consistency over time. See Opp. 18. Daubert required 
Minnucci to show that the non-financial services call centers whose decades-old data 
he used are sufficiently comparable to BANA to make using their data to predict 
BANA¶s re-call rates reasonable. See, e.g., Loeffel, 387 F. Supp. 2d at 812 (³to have 
the requisite predictive capacity and the reliability Daubert demands, [expert] had to 
select samples that are truly comparable´) (internal quotations omitted). He did not, 
so his opinions are unreliable. See Mot. 17-19. 
Plaintiffs next try to excuse Minnucci¶s failure to confirm that his clients 
calculated their own re-call rates correctly by claiming that experts are allowed to 
rely on others to collect data. See Opp. 19. But the problem is not that Minnucci relied 
on his clients to collect data; it is that he relied on his clients to derive re-call rates 
using their data and did not even spot check their work before dropping it into his 
model. See HX 16 407:17-23, 408:2-5. This also makes his analysis unreliable and 
merits exclusion. See Mot. 18 (citing cases). And, although ³it is true that an expert 
opinion may be based on data collected by others, such facts must be of the type that 
are µreasonably relied upon by experts in the particular field.¶´ Heisler v. Maxtor 
Corp., 2011 WL 1496114, *8 (N.D. Cal. Apr. 20, 2011) (quoting Fed. R. Evid. 703 
and citing Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1142 (9th Cir. 
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1997)). Here, there has been no showing that other call center experts calculate 
distinct caller ex post demand using decades-old, cross-industry data compiled by 
their clients at random time intervals. The best Plaintiffs can do is to claim that 
Minnucci has previously billed his clients for unspecified ³similar analyses.´ Opp. 
18. That unsupported assertion is not enough. See In re Incretin-Based Therapies 
Prods. Liab. Litig., 524 F. Supp. 3d 1001, 1044 (S.D. Cal. 2021); Mot. 12. 
Finally, Plaintiffs argue that the Court can ignore the many incongruities 
between his clients and BANA because BANA has not demonstrated that controlling 
for things like the absence of a global pandemic, 
 
 would have changed Minnucci¶s results. See Opp. 20. Plaintiffs 
attempt to distinguish In re Live Concert to support this argument. But there, the 
court found that although there ³must be some indication that the excluded variables 
would have impacted the results,´ the ³burden of proof . . . remains on the proponent 
of the expert testimony.´ 863 F. Supp. 3d at 974. Given Minnucci¶s testimony that 
COVID-19 led to higher abandonment rates for his clients (HX 16 215:18-21), and 
the general consensus that COVID-19 wreaked havoc in the call center industry (see 
Mot. 13), there is far more than an indication that factoring the impact of COVID-19 
alone would have changed Minnucci¶s results. Minnucci did not attempt to account 
for that, or any of the other unique challenges or circumstances facing BANA¶s call 
center in calculating distinct caller demand. Mot. 15, 17-18. His calculations should 
be excluded for this reason too. Id. 
B. 
Minnucci¶s avoided workload calculations are not reliable. 
Plaintiffs concede Minnucci¶s avoided workload calculations are not limited 
to hours attributable to the class members, and thus overestimate alleged avoided 
costs. See Opp. 20; Mot. 19-20. Plaintiffs only answer is that 
 
 Opp. 20. But they cite 
no authority excusing them from putting forth a calculation that matches their theory 
of liability. Minnucci made no attempt to do so, thus his opinion must be excluded. 
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See McMorrow v. Mondelez Int¶l, Inc., 2020 WL 1157191 *1 n.2 (S.D. Cal. Mar. 9, 
2020) (excluding damages opinion that did not match liability theory). 
C. 
Minnucci¶s calculation of idle hour charges are not reliable. 
Plaintiffs do not deny that Minnucci¶s use of Erlang-C to calculate idle hour 
costs is unorthodox; they simply claim ³there is no reason [Erlang-C] cannot be 
applied´ in this manner. Opp. 22. But Daubert does not permit random applications 
of industry tools simply because they are possible; rather, it requires ³objective, 
independent validation of [an] expert¶s methodology.´ Daubert v. Merrell Dow 
Pharms., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995). Neither Minnucci nor Plaintiffs 
can point to a single example of any other professional in the call center industry who 
has used Erlang-C post hoc to compute purported cost savings. See Opp. 21-22. Thus, 
exclusion is appropriate. See Mot. 20-21.5   
Minnucci¶s idle cost savings opinions are also unreliable and should be 
excluded because the model¶s assumptions run counter to the facts of this case. See 
Mot. 21-22. Plaintiffs do not dispute this, nor do they attempt to address the 
incongruities between Erlang-C¶s assumptions and reality. Instead, they seek to 
misdirect, arguing that the authority cited in BANA¶s Motion showing that Erlang-C 
produces unreliable results when caller abandonment is high should not be 
considered. See Opp. 22. But Minnucci himself testified that Erlang-C¶s assumptions 
were not met here. See Mot. 21-22. Thus, his use of the model and related opinions 
must be excluded. Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 
209, 242 (1993) (³when indisputable record facts contradict or otherwise render the 
opinion unreasonable, it cannot support a jury¶s verdict´). 
III. 
The Opposition Concedes the WFM Opinions Are Improper. 
BANA¶s Motion demonstrated that Minnucci¶s WFM opinions are unreliable 
 
5 JH Kelly, LLC v. AECOM Tech. Servs., Inc., 605 F. Supp. 3d 1295 (N.D. Cal. 2022), 
cited at Opp. 22, does not hold otherwise. There, an expert declared under penalty of 
perjury that his method had been ³µpublished in numerous peer-reviewed scientific 
journals,¶´ ³ha[d] been µtested,¶´ and ³ha[d] a µknown¶ rate of error.´ Id. at 1311. The 
same cannot be said of Minnucci¶s post hoc application of Erlang-C here. 
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and irrelevant, and therefore must be excluded, because they are contradicted by the 
record and Minnucci¶s own professional experience. Mot. 22-24. In response, 
Plaintiffs repeat their mantra that these issues go to weight, not admissibility. Opp. 
23-24. But Plaintiffs do not contest that Minnucci has no experience to rely on 
forecasting in this manner because he has never forecasted using a single variable, 
and has he ever attempted to forecast UI payment volumes during a global pandemic. 
See Mot. 24. Thus, he has no basis or relevant experience to support his opinion that 
 
. See id. These issues, and others, go squarely to 
reliability and merit exclusion of Minnucci¶s WFM opinions. See id. 
IV. 
The Opposition Confirms the State of Mind Opinions Are Improper. 
Plaintiffs attempt to disavow Minnucci¶s opinions regarding BANA¶s 
purported intent and state of mind. See Opp. 25. But they cannot dispute that 
Minnucci explicitly offered such opinions. Mot. 24 (citing 15 paragraphs in Report 
where Minnucci claimed BANA ³deliberately´ took actions). Each of those opinions 
must be struck because case law holds that, absent some particular qualification or 
expertise, an expert may not opine on another¶s state of mind in a civil case. Mot. 24-
25. Plaintiffs¶ first rejoinder, which notes that Rule 704(b)¶s preclusion of state of 
mind testimony in criminal cases does not apply here, is nonresponsive. See Opp. 24. 
Their second, relying on North Wind Constr. Servs., LLC v. Campos EPC, LLC, 2023 
WL 196618 (D. Idaho Jan. 13, 2023), is of no help either. In North Wind, the court 
denied a motion to exclude state-of-mind testimony based on the expert¶s ³close 
relationship´ with the defendant which the court found made ³him more-than-usually 
qualified to draw . . . inferences´ about the defendant¶s intent. Id. *5. Minnucci does 
not claim to have any such relationship with or knowledge of BANA.   
CONCLUSION 
For the foregoing reasons and the reasons stated in BANA¶s Motion, the Court 
should strike each and all of Minnucci¶s unreliable and irrelevant opinions. 
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Dated:   February 20, 2026 
Respectfully submitted, 
 
 
 
 
By: s/ Matthew L. Riffee 
 
 
 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
SABRINA M. ROSE-SMITH (pro hac vice) 
SRoseSmith@goodwinlaw.com 
KEITH LEVENBERG (pro hac vice) 
KLevenberg@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N Street NW  
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444 
 
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA 02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
 
LAURA G. BRYS (SBN 242100) 
LBrys@goodwinlaw.com 
GOODWIN PROCTER LLP 
601 S. Figueroa St., Suite 4100 
Los Angeles, CA 90017 
Tel.: +1 213 426 2500 
Fax: +1 617 346 4444 
 
VALERIE A. HAGGANS (pro hac vice) 
VHaggans@goodwinlaw.com 
LINDSAY E. HOYLE (pro hac vice) 
LHoyle@goodwinlaw.com 
GOODWIN PROCTER LLP 
620 Eighth Avenue 
New York, NY 10018 
Tel: +1 212 813-8800 
Fax: +1 212 355-3333 
 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA 02110 
Tel.: +1 617 960 3939 
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Fax: +1 617 449 6999 
 
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
MATTHEW B. NAZARETH (SBN 278405) 
mnazareth@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650 
San Diego, CA 92101 
 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
 
 
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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. 
 
 
Dated:   February 20, 2026 
 
s/ Matthew L. Riffee 
 
 
MATTHEW L. RIFFEE 
 
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