Reply to Response to Motion re 565 Motion to Exclude the Purported Expert — In re BofA Unemployment Litigation (Dkt. 678)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 678 · 2026-04-17 · Docket on CourtListener

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REPLY ISO BANA’S MOT. TO EXCLUDE EAST 
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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 
CHLOE N. EAST (ECF 565) 
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 AUTHORITIES 
 
Page(s) 
Cases 
In re Apple iPhone Antitrust Litig., 
2022 WL 1284104 (N.D. Cal. Mar. 29, 2022) ..................................................... 7 
Belyea v. GreenSky, Inc., 
2025 WL 589037 (N.D. Cal. Feb. 24, 2025) ........................................................ 9 
In re Blackbaud, Inc. Cust. Data Breach Litig., 
2024 WL 2155221 (D.S.C. May 14, 2024) ........................................................ 10 
Brighton Collectibles, Inc. v. RK Texas Leather Mfg., 
923 F. Supp. 2d 1245 (S.D. Cal. 2013) ............................................................ 3, 4 
Briseno v. ConAgra Foods, Inc., 
844 F.3d 1121 (9th Cir. 2017) .............................................................................. 9 
Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 
509 U.S. 209 (1993) ............................................................................................. 7 
Comcast Corp. v. Behrend, 
569 U.S. 27 (2013) ............................................................................................. 10 
Daubert v. Merrell Dow Pharms., Inc., 
509 U.S. 579 (1993) ..................................................................................... 1, 5, 7 
Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 
326 F.R.D. 592 (N.D. Cal. 2018) ......................................................................... 9 
In re Flash Memory Antitrust Litig., 
2010 WL 2332081 (N.D. Cal. June 9, 2010) ................................................... 4, 7 
Gen. Elec. Co. v. Joiner, 
522 U.S. 136 (1997) ............................................................................................. 8 
Hartley v. Dillard’s, Inc., 
310 F.3d 1054 (8th Cir. 2002) ............................................................................ 10 
Kewazinga Corp. v. Google LLC, 
2024 WL 4894840 (S.D.N.Y. Oct. 17, 2024) .................................................. 3, 4 
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Medlock v. Taco Bell Corp., 
2015 WL 10791410 (E.D. Cal. Dec. 11, 2015) .................................................... 8 
Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 
31 F.4th 651 (9th Cir. 2022) ................................................................................. 9 
Orthoflex, Inc. v. ThermoTek, Inc., 
986 F. Supp. 2d 776 (N.D. Tex. 2013) ................................................................. 5 
In re Processed Egg Prods. Antitrust Litig., 
312 F.R.D. 124 (E.D. Pa. 2015) ........................................................................... 8 
Reed v. Advocate Health Care, 
268 F.R.D. 573 (N.D. Ill. 2009) ........................................................................... 8 
Schulze v. United States, 
2019 WL 1440306 (N.D. Okla. Apr. 1, 2019) ..................................................... 5 
Sentius Int’l, LLC v. Microsoft Corp., 
2015 WL 451950 (N.D. Cal. Jan. 27, 2015) ........................................................ 8 
Utne v. Home Depot USA, Inc., 
2022 WL 16857061 (N.D. Cal. Nov. 10, 2022) ................................................... 7 
Van v. LLR, Inc., 
962 F.3d 1160 (9th Cir. 2020) .......................................................................... 5, 6 
Vaquero v. Ashley Furniture Indus., Inc., 
824 F.3d 1150 (9th Cir. 2016) ............................................................................ 10 
 
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Plaintiffs’ expert, Chloe N. East proposes to calculate class members’ damages 
based on the amount it would, hypothetically, have cost them to incur credit-card 
debt at a 20.8% interest rate. BANA moved to exclude East’s opinions because her 
opinions are not a relevant or reliable measure of actual damages (if any) suffered by 
the classes. See ECF 565-1 (Mot.). East claims that the 20.8% interest rate is 
“representative” of some unspecified other harm suffered by some unspecified “large 
number” of class members. East does not claim that her rate leads to an accurate or 
reliable damages figure. She merely claims it is a “conservative” “minimum bound” 
for damages for the classes. But her opinion does not even pretend to be a reliable 
way of measuring the harm actually suffered by even the unspecified “large number” 
of class members—much less any harm uniformly suffered across the class. Thus, it 
should be stricken under the Daubert standard.  
Plaintiffs admit that East considered no data or information on actual class 
member behavior or harm. Nor does she claim that her damages estimates apply to 
every class member, or to any individual class member. Instead, East simply looked 
to research concerning the effects of a permanent deprivation of UI benefits during 
pre-pandemic time periods and concluded that class members faced with a temporary 
loss of COVID-related benefits would have borrowed on their credit cards at a 20.8% 
interest rate to cover the shortfall, regardless of whether that shortfall 
 
 or 
. But Daubert requires that an expert’s 
opinions and assumptions be anchored in evidence, not guesswork. East’s analysis 
falls far short of the baseline requirements for admissibility and should be excluded.  
ARGUMENT 
East’s proposal to measure damages based on a 20.8% credit-card interest rate 
is unreliable and unrooted in any evidence about credit-card borrowing or interest 
payments by class members, if any. Mot. 8-14. That was the basis behind the Court’s 
exclusion of the identical damages methodology proposed by Plaintiffs’ purported 
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expert, Greg Regan.1 The Court ruled that Regan’s proposal to base a classwide 
damages calculation on credit-card interest rates was “not . . . a damages model that 
satisfies Comcast” because it “
 
,” and the assumption that “impacted 
cardholders would likely have needed” to “utiliz[e] credit cards” was not “supported 
. . . with evidence showing that th[is] assumption [is] true as to most or even any of 
the EDD cardholders’ experience.” ECF 494 at 87-88. 
Thus, it is curious that Plaintiffs’ initial response to the motion to strike East’s 
repeat of the same flawed analysis is to defend it as a method approved by the Court 
in its certification ruling. See ECF 611 (Opp.) at 5-6, 11-12. This is false. The method 
approved by the Court was “Methodology 1,” a generalized proposal to award 
damages based on an “interest rate that reflects the ‘time value of money.’” ECF 494 
at 86. But the Court rejected Regan’s “Methodology 2,” for having exactly the same 
shortcoming that dooms East’s analysis: it was “not supported . . . with evidence 
showing that [its] assumptions” about credit-card borrowing “are true as to most or 
even any of the EDD cardholder[s]” at issue. Id. at 88; see also Mot. 12.  
To avoid the clear implications of the Court’s ruling that Methodology 2 
requires (but lacks) an evidentiary showing that the underlying assumptions are true 
on a classwide basis, Plaintiffs argue that the Court’s ruling relates solely to 
 
 Opp. 12. The ruling itself does not 
support this constrained reading. The Court “[f]irst” ruled that “the Remediation Plan 
does not support a damages model that satisfies Comcast.” ECF 494 at 87 (emphasis 
 
1 BANA has also moved to exclude Regan’s opinions and the opinions of Plaintiffs’ 
third damages expert, David Levine. See ECF 566, 567. As explained in BANA’s 
motions and replies, East’s and Levine’s damages opinions—and Regan’s damages 
calculations to the extent he relies on East and Levine and offers his own interest rate 
opinions—all generally suffer from the same maladies: each purport to offer damages 
opinions that are not “supported with evidence showing that the[ir] assumptions are 
true as to most or even any” class members. ECF 494 at 88. As such, many of 
Plaintiffs’ arguments in opposition to Levine and Regan closely parallel those made 
in the East Opposition, and BANA incorporates the arguments made in its reply in 
support of its motion strike Levine and Regan herein. 
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added). Then the Court “[a]dditionally” ruled that Methodology 2 was an unreliable 
classwide damages methodology because Regan did not support his “assumptions 
about class members” with any “evidence” about actual class member experiences. 
Id. As BANA explained in its Motion (at 11-13), that is precisely the issue here. Like 
Regan, East failed to support her assumptions about class members with any evidence 
about actual class member experiences. Both the class certification order and the case 
law relied upon in BANA’s opening brief (Mot. 8-13) require that East make 
assumptions grounded in the facts and circumstances of this case. See ECF 494 at 88; 
see also Kewazinga Corp. v. Google LLC, 2024 WL 4894840, *4-5 (S.D.N.Y. Oct. 
17, 2024) (finding methodology unreliable where expert made assumption 
“contradicted by the record” and computation was not based on “sufficient facts or 
data”); Brighton Collectibles, Inc. v. RK Texas Leather Mfg., 923 F. Supp. 2d 1245, 
1254-55 (S.D. Cal. 2013) (excluding expert who did not “ground[] his assumption 
with the real world facts of [the] case” and noting that “the Court has a duty to ensure 
that [the expert’s] methodology is sound and that his testimony is supported by the 
underlying facts”).2 East did not do so, so her opinions must be excluded.  
Indeed, the Opposition highlights East’s key assumption that lacks empirical 
foundation: that what is true for the “typical California UI recipient,” the “majority 
of UI recipients,” or the “median UI recipient” before the pandemic is also true for 
most (but not all) of the class during the pandemic. See Opp. 3-4. But class members 
received benefits under pandemic-related programs that did not exist before the 
pandemic. See Mot. 10-11. Through those new programs, many class members were 
able to qualify for pandemic assistance with financial and employment histories that 
did not qualify them for pre-pandemic UI benefits. See id. Additionally, some further 
 
2 Plaintiffs’ attempt to distinguish Brighton (Opp. 11) is unavailing. This Court 
rejected a proposed damages methodology in Brighton after finding the “expert had 
not grounded his assumption with the real world facts of the case,” or presented “data 
to demonstrate” that his assumption regarding the relationship between sales of the 
plaintiff’s and defendants’ products was “supported by the underlying facts.” 923 F. 
Supp. 2d at 1255. Similar deficiencies are present here. 
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benefited from other financial relief (stimulus payments, repayment freezes and 
forbearance) unavailable pre-pandemic. See id.  
Plaintiffs try to downplay the significance of these differences by arguing “the 
financial circumstances of the median UI benefit recipient remained precarious” in 
spite of them. Opp. 8. Even if that were true, and East reviewed no actual evidence 
to confirm and has no idea if it was, evidence about a purported “median” class 
member cannot satisfy Plaintiffs’ Comcast burden to prove “actual damages” 
classwide. See ECF 494 at 87-88; see also In re Flash Memory Antitrust Litig., 2010 
WL 2332081, *11-13 (N.D. Cal. June 9, 2010) (finding regression model unreliable 
where expert relied on averages and “ma[de] no attempt to assess whether” key 
damages input varied across class). Beyond this, the testimony Plaintiffs cite in 
ostensible support of their argument does not address “the financial circumstances of 
the median UI benefit recipient.” See Opp. 8. Instead, it reflects East’s 
acknowledgment that COVID stimulus payments and programs increased UI 
recipients’ liquidity, and that unnamed sources she referred to in the abstract 
“suggest[ed]” that none of these payments or programs was independently sufficient 
to “get them out of their difficult financial situation.” See HX 33 76:2-80:22. But 
when asked about the cumulative effect of “expanded UI and stimulus payments,” 
East conceded that certain UI households received replacement rates of over 300 
percent. HX 52 86:7-12. Thus, East’s analysis necessarily relies on the assumption 
that UI households receiving significant income replacement during the pandemic 
would have adopted identical income-replacement strategies as households faced 
with a loss of UI benefits before the pandemic with no income replacement.  
The class certification order and the case law require East to rely on actual 
facts or data supporting the notion that this assumption is grounded in fact for the 
class members, but she offers none. See ECF 494 at 88; see also Kewazinga, 2024 
WL 4894840, *4; Brighton Collectibles, 923 F. Supp. 2d at 1254-55. Plaintiffs 
attempt to handwave this away by repeatedly characterizing BANA’s arguments as 
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going to the weight of East’s opinions, not their admissibility. See Opp. 1, 9, 13, 14. 
But the Court has already held they do not. See ECF 494 at 87-88. And Plaintiffs 
identify no authority for the proposition that the possibility of cross-examination can 
cure the methodological defects of a damages analysis that is wholly unmoored from 
the record. See, e.g., Schulze v. United States, 2019 WL 1440306, *3 n.3 (N.D. Okla. 
Apr. 1, 2019) (“Cross-examination cannot cure an expert’s failure to apply a reliable 
methodology and does not satisfy this court’s gatekeeping function.”); Orthoflex, Inc. 
v. ThermoTek, Inc., 986 F. Supp. 2d 776, 798-99 (N.D. Tex. 2013) (“the opportunity 
for cross-examination is not of itself sufficient to cure expert testimony that is 
unreliable under Daubert”). 
Plaintiffs’ reliance on Van v. LLR, Inc., 962 F.3d 1160, 1164-65 (9th Cir. 2020) 
(Opp. 10-11), furnishes no support for Plaintiffs’ argument that East is entitled to 
base a damages calculation on credit-card costs with no evidence about any class 
member’s use of credit cards. Plaintiffs cite Van to claim that interest rates are a 
permissible way to measure the time value of money and that “any interest rate . . . 
necessarily reflects a generalization about the time value of money that is not strictly 
tied to the specific economic circumstances of the individual” who pays it. Opp. 10. 
But what Van does not support, and what East fails to demonstrate by any reliable 
method, is that the lost access to funds at issue here can be appropriately measured 
using the 20.8% credit card interest rate without any evidence that the class members 
borrowed funds at all, or borrowed funds at or near that rate. See Mot. 14. Without 
such a showing, East’s generalizations and statistics regarding UI recipients broadly 
across time and geography do not reliably demonstrate that a credit card interest rate 
is an appropriate measure of the lost time value of money for the class members.  
Plaintiffs also rely on Van to suggest that they need not show any evidentiary 
connection between East’s proposed credit-card interest rate and any class member 
utilization of credit cards because the interest rate is “simply a way of measuring . . . 
injury, not the injury itself.” Opp. 10-11. But nothing in Van supports the notion that 
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damages for the “lost time value of money” can be measured by the cost of borrowing 
on credit cards. Indeed, the Van court explicitly stated that it did not consider and 
made no determination as to whether the plaintiff made a sufficient evidentiary 
showing to prove damages. 962 F.3d at 1165 & n.3. Further, the Court has already 
held that damages based on the cost of borrowing on credit cards are not available 
absent evidence that assumptions about credit card utilization can be shown to be 
true. See ECF 494 at 88.3 Merely proffering interest rates as “simply a way of 
measuring injury” does not establish that this “way of measuring injury” is accurate, 
reliable, or based on any evidence at all.  
Had East even tried to sanity check her opinions by consulting the factual 
record—which she freely admits she did not (HX 33 at 141:25-142:24)—she would 
have had to reconcile her indiscriminate application of a 20.8% interest rate with 
evidence establishing that 
 
 
. See Mot. 11-12. 
And, as the Opposition concedes, some of the class members were “able to borrow 
from friends and family at a zero percent rate.” Opp. 10 (original emphasis); see also 
Mot. 11-12. East also would have had to grapple with the reasonableness of her 
assumption that turning to credit-card borrowing reflected the actual experience of 
class members who lost access to benefits of 
 or 
 
 See Mot. 11. East’s failure to conduct any testing against the 
available record evidence to support her use of the 20.8% interest rate is fatal because 
where “an expert opinion is not supported by sufficient facts to validate it in the eyes 
of the law, or when indisputable record facts contradict or otherwise render the 
 
3 Plaintiffs’ claim that BANA’s position “fairly stated” is that “no classwide interest 
rate could ever be supported by a factual basis due to variations in class members” 
(Opp. at 11 (original emphases)) is hyperbolic and untrue. Again, BANA’s position, 
consistent with the Court’s class certification ruling and the case law (see generally 
Mot. 8-13), is that an arbitrarily chosen interest rate that lacks an evidentiary 
connection to the class members’ actual experience is improper. 
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opinion unreasonable, it cannot support a jury's verdict.” Brooke Grp. Ltd. v. Brown 
& Williamson Tobacco Corp., 509 U.S. 209, 242 (1993).   
Plaintiffs attempt to gloss over East’s failure to consider the factual record by 
claiming that it is customary for economists to consider the “average experience” and 
disregard outliers. Opp. 3, 9. But East has no basis to classify any class members’ 
experiences as outliers or “extreme values”—especially when the experiences she 
considers outliers or “extreme” are the experiences of the class representatives 
themselves, who are supposed to be typical of the class, not outliers. Opp. 9. And, 
while it may be “customary” to measure harms using average experiences in the field 
of economics, that says nothing about whether the measure is reliable or its “fit” to 
the case, since “scientific validity for one purpose is not necessarily scientific validity 
for other, unrelated purposes.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 
591 (1993).  
Moreover, even if a competent economist proffers a reliable measure of harm 
based on average experiences, that does not mean the measure suffices as a matter of 
law to carry Plaintiffs’ Comcast burden, which requires a methodology that is valid 
classwide, not just valid on average. See In re Flash Memory, 2010 WL 2332081, 
*11-13 (regression model unreliable where expert relied on “average price trend” and 
“ma[de] no attempt to assess whether” key input varied across class); accord ECF 
494 at 87-88. Where, as here, the harms suffered (if at all) by individual class 
members vary and there is no attempt even to try to account for those variations, 
aggregate damages calculations are unreliable. See, e.g., In re Flash Memory, 2010 
WL 2332081, *10; Utne v. Home Depot USA, Inc., 2022 WL 16857061, *5, *7 (N.D. 
Cal. Nov. 10, 2022) (striking “aggregate” damage calculations because “neither 
model here purports to derive a total award from a sum of individual class members’ 
awards” and “[w]ere the jury to return an aggregate award, it would ‘not be possible 
to know which [class members] are entitled to share in the award,’ or how much each 
should receive”); In re Apple iPhone Antitrust Litig., 2022 WL 1284104, *16 (N.D. 
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Cal. Mar. 29, 2022) (“plaintiffs may rely on aggregate damage estimates, but must 
also establish that there is a method, common across the class, for arriving at 
individual damages”) (internal quotations omitted); Medlock v. Taco Bell Corp., 
2015 WL 10791410, *6 (E.D. Cal. Dec. 11, 2015) (rejecting damages methodology 
based on “aggregate [] figures . . . instead of the actual rates” applicable to the class 
members).4 
To the extent the Opposition argues that “[c]ourts do not exclude expert 
testimony because it is conservative,” Opp. 12, Plaintiffs miss the point. Courts 
routinely exclude expert conclusions when their “conservative” nature is just a cover 
for their unreliability. See Mot. 8-9; Sentius Int’l, LLC v. Microsoft Corp., 2015 WL 
451950, *5 (N.D. Cal. Jan. 27, 2015) (“[a] damages theory that stems from an 
erroneous methodology is not admissible even if it results in a low ultimate damages 
figure”). This is not a situation where East devised a method for measuring damages, 
then settled on a figure at the low end of an estimated range for the sake of being 
conservative. Rather, East devised no method for measuring actual damages at all, 
and therefore measured something else. Mot. 11-13; supra at 4-7. She calls it 
“conservative” only because she claims that whatever the actual measure of damages 
is, it is likely higher than what she estimated. See Mot. 8-10; supra at 3-4. This wholly 
unsupported assumption is “connected to existing data only by the ipse dixit of the 
expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). A damages expert is 
supposed to analyze the class’s damages—not analyze something else that has no 
demonstrated connection to the class’s damages, and ask the Court to accept her ipse 
dixit that whatever the class’s damages are, they are probably higher.5 
 
4 Accord, e.g., Reed v. Advocate Health Care, 268 F.R.D. 573, 590-91 (N.D. Ill. 
2009) (collecting cases rejecting “reliance on averages” to estimate classwide 
damages without evidence that “all members of the proposed class suffered” the same 
harms); In re Processed Egg Prods. Antitrust Litig., 312 F.R.D. 124, 159 (E.D. Pa. 
2015) (“The case law understandably allows for averages and aggregations, but only 
if the court is convinced that the averages and aggregations are not masking 
individualized issues”). 
5 The Opposition either unintentionally misconstrues or deliberately misstates 
BANA’s challenge to East’s analysis by citing cases for the proposition that it is 
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Plaintiffs’ argument (Opp. 14) that aggregate damages may be calculated on a 
classwide basis based on an interest rate “if the evidence shows that number is a 
reasonable and defensible proxy for the class members’ aggregate loss” confirms that 
exclusion is warranted here, because there is no such evidence. Indeed, there is no 
asserted nexus whatsoever between any losses actually suffered by the members of 
the class and East’s “proxy,” and therefore they must be excluded. See Mot. 10-12.  
None of the cases Plaintiffs cite in contending that “aggregate classwide 
damages liability may be calculated based on a single number, such as an interest 
rate” support the proposition that any arbitrarily chosen number or rate will do. See 
Opp. 14-15.6 Plaintiffs point specifically to Briseno v. ConAgra Foods, Inc., 844 F.3d 
1121 (9th Cir. 2017), but the only issue presented there was “whether, to obtain class 
certification under Federal Rule of Civil Procedure 23, class representatives must 
demonstrate that there is an ‘administratively feasible’ means of identifying absent 
class members.” Id. at 1123. That has nothing to do with the use of “generalizations” 
 
permissible to base a damages methodology on approximations. Opp. 15-16 n.5. 
Nothing in BANA’s Motion claimed otherwise. The focus of BANA’s challenge was 
and remains that the assumption that East’s 20.8% interest rate is not a reliable and 
supported approximation of anything. See Mot. 11-12; ECF 494 at 87-88.  
6 In Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 
(9th Cir. 2022), while the court permitted a regression analysis offered to show 
potential classwide liability, it explicitly stated that “individualized differences . . . 
may require a court to determine damages on an individualized basis.” Id. at 679. 
Further, the court found that the price correlation test in Olean, which was offered to 
assess price-fixing impact but not damages, was subject to rigorous testing to assess 
its applicability to the facts and circumstances of the case. See id. at 670-72. East 
conducted no such testing here. See supra at 6; Mot. 11-13. In Belyea v. GreenSky, 
Inc., 2025 WL 589037 (N.D. Cal. Feb. 24, 2025), the expert purported to estimate 
what class members would have paid if they had not been charged a fee they had all 
been charged, rather than purported cost-of-borrowing costs that were incurred as a 
result of money purportedly withheld. Compare id. *5, with Mot. 9. Further, the 
analysis was permitted, in part, because it relied on defendant’s actual loan 
origination data for the class and because the expert reviewed and confirmed the 
analysis was consistent with the defendant’s communications and training manual. 
Belyea, 2025 WL 589037, *5. Similarly, in Fitzhenry-Russell v. Dr. Pepper Snapple 
Grp., Inc., 326 F.R.D. 592, 601 (N.D. Cal. 2018), the expert merely was asked to 
assess the difference between the price class members paid and the price that may 
have been charged in their market but for the false claim. The case says nothing about 
whether class members’ purported costs of borrowing can be aggregated classwide. 
See id. 
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in measuring damages on any basis, which is the issue here. Plaintiffs’ reliance on 
Hartley v. Dillard’s, Inc., 310 F.3d 1054 (8th Cir. 2002), to support their claim that 
East need not account for “damages suffered by . . . individual class member[s]” 
(Opp. 12) leaves one wondering whether Plaintiffs even read the case. Hartley was 
an individual employment case, not a class action, and says nothing about when 
damages might be measured in an aggregate or “general” fashion. Id. at 1058-60.7 
The Ninth Circuit has “interpreted Comcast to mean that plaintiffs must be 
able to show that their damages stemmed from the defendant’s actions that created 
the legal liability.” Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1154 
(9th Cir. 2016) (internal quotation marks and citation omitted); accord Comcast 
Corp. v. Behrend, 569 U.S. 27, 35 (2013) (“a model purporting to serve as evidence 
of damages in [a] class action must measure only those damages attributable to th[e] 
theory” of liability). Plaintiffs’ liability case seeks compensation for “the loss of use 
of money” (ECF 494 at 86), and East proposes to measure damages for that alleged 
lost use of money by credit-card interest rates. But East does not, and cannot, claim 
that payment of credit-card interest occurred at all for the class members, much less 
that it is something that “stemmed from the defendant’s actions.” Vaquero, 824 F.3d 
at 1154. There is thus a fatal mismatch between the theory of liability and the 
damages model East offers. Her opinions should be stricken as unreliable and 
irrelevant. 
CONCLUSION 
For these reasons and the reasons set forth in BANA’s Motion and evident 
from the record, East’s report and opinions should be stricken and excluded. 
 
7 Plaintiffs’ attempt to distinguish In re Blackbaud, Inc. Cust. Data Breach Litig., 
2024 WL 2155221 (D.S.C. May 14, 2024), where the court excluded an expert who 
tested his methodology on the “three named plaintiffs” and failed to indicate whether 
or how he verified the accuracy . . . for those three individuals” (Opp. 16) falls flat. 
In Blackbaud, the court excluded an expert because it found the expert’s proposed 
method was “unreliable and unhelpful” because several aspects of the method “were 
not properly tested” and the expert “extrapolated from numerous accepted premises 
to unfounded conclusions,” which is precisely what East does here. 2024 WL 
2155221, *14.  
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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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