Reply to Response to Motion re 567 Motion to Exclude the Purported Expert — In re BofA Unemployment Litigation (Dkt. 684)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 684 · 2026-04-17 · Docket on CourtListener

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REPLY ISO BANA¶S MOT. TO EXCLUDE REGAN 
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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 
GREG J. REGAN (ECF 567) 
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
INTRODUCTION ...................................................................................................... 1 
ARGUMENT .............................................................................................................. 2
I.
Calculations that Do Not Exclude the Uninjured Must Be Excluded. ................. 2
II. Regan¶s Consequential Damages Opinions Are Inadmissible. ........................... 4
A. The Court already rejected the methodology Regan proposes here. .............. 4
B.
The delayed benefits opinion must be excluded for more reasons. ............... 8
III. Regan¶s Customer Service Opinions Are Unreliable and Inadmissible. ............. 8
IV. Regan¶s 
 Opinions Are Irrelevant and Inadmissible. .................... 9
CONCLUSION ......................................................................................................... 10
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Alaska Rent-a-Car, Inc. v. Avis Budget Grp., Inc., 
738 F.3d 960 (9th Cir. 2013) ................................................................................ 3 
Briseno v. ConAgra Foods, Inc., 
844 F.3d 1121 (9th Cir. 2017) .......................................................................... 6, 7 
Elosu v. Middlefork Ranch Inc., 
26 F.4th 1017 (9th Cir. 2022) ............................................................................... 4 
Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., 
326 F.R.D. 592 (N.D. Cal. 2018) ......................................................................... 7 
Hartley v. Dillard¶s, Inc., 
310 F.3d 1054 (8th Cir. 2022) .......................................................................... 7, 8 
Healy v. Milliman, Inc., 
164 F.4th 701 (9th Cir. 2026) ............................................................................... 3 
Kewazinga Corp. v. Google LLC, 
2024 WL 4894840 (S.D.N.Y. Oct. 17, 2024) ................................................ 6, 10 
Korea Supply Co. v. Lockheed Martin Corp., 
29 Cal. 4th 1134 (2003) ...................................................................................... 10 
In re Live Concert Antitrust Litig., 
863 F. Supp. 2d 966 (C.D. Cal. 2012) .................................................................. 9 
McMorrow v. Mondelez Int¶l, Inc., 
2021 WL 859137 (S.D. Cal. Mar. 8, 2021) .......................................................... 7 
Meister v. Mensinger, 
230 Cal. App. 4th 381 (2014) ............................................................................. 10 
Oliver v. Am. Express Co., 
2024 WL 100848 (E.D.N.Y. Jan. 9, 2024) ........................................................... 9 
Primano v. Cook, 
598 F.3d 558 (9th Cir. 2010) ................................................................................ 3 
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Ruiz Torres v. Mercer Canyons Inc., 
835 F.3d 1125 (9th Cir. 2016) .............................................................................. 3 
Stearns v. Ticketmaster Corp., 
655 F.3d 1013 (9th Cir. 2011) .............................................................................. 2 
Utne v. Home Depot U.S.A., Inc., 
2022 WL 16857061 (N.D. Cal. Nov. 10, 2022) ................................................... 3 
Van v. LLR, Inc., 
962 F.3d 1160 (9th Cir. 2020) .......................................................................... 6, 8 
Statutes 
15 U.S.C. § 1693m(a)(1) ........................................................................................... 2 
 
 
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BANA moved to exclude Greg Regan¶s damages opinions and calculations for 
a very fundamental reason: Regan does not actually have an opinion and did nothing 
to verify whether any of the damages he purports to calculate were actually suffered 
by the class. See ECF 567-1 (Mot.). Regan does not even know whether any of the 
class members he purports to calculate damages for were injured at all, much less 
whether they paid 10% or 20% interest charges because they used credit cards to 
cover the full amount of their claims and/or frozen account balances.  
The Opposition cannot deny this. See ECF 620 (Opp.). Instead, it attempts to 
foist Plaintiffs¶ burden to prove damages on BANA. Plaintiffs then attempt to portray 
Regan¶s methodology as something it is not: a purported measure of interest income 
based on the time value of money. But the face of Regan¶s Report and his testimony 
show this is not true. As Regan states in his Report and testified, his consequential 
damages methodology estimates the ³cost of borrowing´ on a credit-card interest 
rate. HX 41 ¶ 43. That is precisely the same methodology that this Court rejected at 
class certification because it was ³not supported « with evidence showing that [its] 
assumptions are true as to most or even any of the EDD cardholder¶s experience,´ 
and thus ³Plaintiffs have not demonstrate[d] that this method measures damages 
across the entire class that stem from BANA¶s actions that created the legal liability.´ 
ECF 494 at 88 (emphasis added). As BANA demonstrated in its Motion, and the 
Opposition cannot refute, Plaintiffs still have not supported Regan¶s methodology 
with evidence showing his assumptions are true for the class²as necessary to 
reliably measure damages across the entire class. In fact, the evidence²which the 
Opposition asks the Court to ignore²confirms they are not. Thus, Regan¶s 
methodology should be rejected again and excluded. 
Regan¶s attempts to calculate BANA¶s purported profits should be excluded 
for similar reasons: he does not know what, if any, revenue BANA actually would 
have obtained. But they also must be excluded because Regan and Plaintiffs admit 
that his disgorgement estimates do not attempt to calculate the actual question they 
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pertain to: BANA¶s net profits, not simply 
.  
For each and all of these reasons, and the reasons stated in BANA¶s Motion, 
the Court should exclude Regan¶s opinions under Federal Rule of Evidence 702 and 
Daubert and its progeny as unreliable, irrelevant, unhelpful to the trier of fact. 
ARGUMENT 
I.
Calculations that Do Not Exclude the Uninjured Must Be Excluded. 
Plaintiffs do not dispute that Regan¶s methodology and damages calculations 
cannot exclude uninjured cardholders and fraudsters. See Opp. 7-8; Mot. 10-13. Nor 
could they; Regan admitted that his methodology cannot. See Mot. 10-12. Instead, 
Plaintiffs argue that Regan¶s damages calculations should be permitted because the 
Court has already decided that it is BANA¶s burden to disprove liability by showing 
whether or not the Claim Denial and Credit Rescission Classes¶ accounts were 
illegitimate and/or their transactions were authorized. See Opp. 7-8 (citing ECF 494 
at 51-52). This misconstrues BANA¶s argument and the Court¶s prior holding.  
Putting aside whether the Court is correct as to which party bears the burden 
to prove or disprove liability, it is undisputed that Plaintiffs have the burden to prove 
damages in this case. Mot. 1-3; Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1026 
(9th Cir. 2011) (³a plaintiff must show that the claimed actual damages were µas a 
result of¶ the violation´), abrogated on other grounds by Comcast Corp. v. Behrend, 
569 U.S. 27 (2013); see also Opp. 2 (admitting that Plaintiffs have to establish the 
fact of damages). Specifically, EFTA requires that plaintiffs prove ³actual damages´ 
that occurred ³as a result of´ a financial institution¶s alleged misconduct. 15 U.S.C. 
§ 1693m(a)(1); see also Mot. 10-11; ECF 589-1 (MSJ) at 16-17, 22-24. And to prove 
actual damages, the cardholder must have been subject to EFTA¶s protections (e.g., 
their accounts must have been established for non-fraudulent reasons), and their 
disputed transactions must have actually been unauthorized. See Mot. 10-11; Stearns, 
655 F.3d at 1026-27 (holding that it would be ³difficult or impossible´ for plaintiff 
who ³fully intended´ to make transaction to show actual damages under EFTA). 
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The statute¶s clear language, which the Opposition does not address, is 
consistent with the Court¶s holding at the class certification stage. As the Court 
explained, while it held that Plaintiffs did not have the burden to establish that their 
accounts and claims were legitimate to certify a class and potentially to establish 
liability, it qualified that any non-injured class members would be culled out at the 
damages phase²where Plaintiffs would have the burden to prove ³actual damages´ 
to recover anything more than EFTA¶s capped statutory penalty. ECF 494 at 45; Ruiz 
Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1137 (9th Cir. 2016) (court to winnow 
out uninjured class members at the damages phase); see also Healy v. Milliman, Inc., 
164 F.4th 701, 705 (9th Cir. 2026) (plaintiffs required to produce evidence of 
standing for named and unnamed class members at summary judgment).  
As BANA established in its Motion, and as Plaintiffs cannot dispute, Regan¶s 
methodology cannot do this. See Mot. 10-13; see also id. 14-19. He simply assumes 
that every cardholder included in Plaintiffs¶ class definition who was 
 
 was harmed in the manner alleged. 
Id. 11-12. Regan did nothing to verify this assumption, and the Opposition does not 
address any of its fallacies²which are contradicted by testimony, documents, 
 
. See id. Thus, Regan¶s damages calculations are 
unreliable and should be excluded because they ³almost certainly include damages 
for uninjured class members.´ Utne v. Home Depot U.S.A., Inc., 2022 WL 16857061, 
*5 (N.D. Cal. Nov. 10, 2022) (striking classwide damages estimates). None of 
Plaintiffs¶ cases, which are inapt and speak only to the general Daubert standard, 
hold otherwise.1
 
1 The Opposition repeatedly cites Primano v. Cook, 598 F.3d 558 (9th Cir. 2010) and 
Alaska Rent-a-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960 (9th Cir. 2013) to 
defend many of the fallacies in Regan¶s opinions and assumptions. See, e.g., Opp. 7-
9, 15. Both cases are completely inapt. Primiano concerned the admissibility of a 
medical expert¶s testimony concerning his opinion on plaintiff¶s elbow replacement 
based on his decades of experience in orthopedic medicine and his assessment of her 
medical records and images. 598 F.3d at 565-67. Alaska Rent-a-Car concerned 
expert testimony regarding how much business and profit a rental car company lost 
on account of another¶s breach of a settlement agreement and merger with another 
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II.
Regan¶s Consequential Damages Opinions Are Inadmissible. 
A. 
The Court already rejected the methodology Regan proposes here. 
The Opposition does not dispute that Regan¶s consequential damages opinions 
are based on hypothetical consumers and hypothetical harm they may have incurred, 
rather than the actual experience of any class member. See Mot. 13, 15-16; HX 41 
¶¶ 40-51; HX 39 48:7-49:15. Plaintiffs also do not dispute that they have not offered 
any evidence showing that every class member had to borrow money at all, much 
less that they had to increase their credit card utilization and paid interest as a result 
of BANA¶s purported misconduct. Nor could they. Regan admitted that not every 
class member borrowed or incurred interest charges. HX 39 223:21-224:16; see also 
id. 48:7-49:7. Further, the undisputed evidence shows that 
 
. Mot. 17-18. 
Plaintiffs also do not dispute, and in fact readily admit that Regan¶s 
methodology and calculations rely on generalizations that have not been validated 
based on evidence of even one actual class member¶s experience²much less a 
sampling or the whole. See Opp. 9; Mot. 14-17. Plaintiffs simply argue that ³[i]t is 
commonplace for experts to rely on data and draw conclusions that are not specific 
to any particular party,´ and claim that the Court¶s class certification approved the 
same or similar methodology that Regan offered in his Report. Opp. 9-10. But their 
case is clearly inapposite,2 and their argument ignores the law of this case²which 
 
company. 738 F.3d at 967. Neither permitted expert testimony where the expert¶s 
calculations would compensate uninjured class members, or where the expert failed 
to validate that any of his assumptions were based on evidence and consistent with 
the actual experiences of class members. See Mot. 13-22; supra § I; infra at 4-7. 
2 In support, Plaintiffs cite Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1025-28 
(9th Cir. 2022). But Elosu and the permitted opinion are completely inapt. There, the 
expert was proffered to opine on the cause of a fire. Id. at 1026-28. The court found 
the expert¶s testimony was admissible, in part, because it was clear the expert 
conducted an ³independent investigation´ and detailed his ³exhaustive personal 
examination of the fire scene,´ and because his theory ³was also fully consistent with 
the eyewitness testimony.´ Id. at 1026-27. Here, Plaintiffs concede Regan conducted 
no independent investigation, did not personally examine and does not know any of 
the class members¶ personal experiences, and his assumptions are 
 
. See supra at 2-3; Mot. 15-18. 
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excluded the same opinion that Regan seeks to offer here again. ECF 494 at 88.  
At class certification, the Court held that Regan¶s ³Methodology 2´ was 
inadmissible to prove damages because it was ³not supported « with evidence 
showing that [its] assumptions are true as to most or even any of the EDD 
cardholder¶s experience,´ and thus ³Plaintiffs have not demonstrate[d] that this 
method measures damages across the entire class that stem from BANA¶s actions 
that created the legal liability.´ ECF 494 at 88 (emphasis added); Mot. 13, 16-17. The 
Opposition seeks to get around this ruling, arguing that the Court accepted Regan¶s 
³Methodology 1,´ and only rejected Methodology 2. Opp. 10. That is true, but it does 
not save Regan¶s consequential damages opinions.  
Methodology 1 was a generalized proposal to award class members damages 
based on an ³interest rate that reflects the µtime value of money.¶´ ECF 494 at 86. 
Methodology 2 was a proposal to measure consequential damages based on the cost 
of credit card borrowing. Id. at 87-88. Regan¶s Report continues to propose the latter. 
Mot. 5-6, 13-20. As Regan testified and explicitly states in his Report, he continues 
to measure damages by estimating the ³costs of borrowing.´ E.g., HX 41 ¶¶ 43-44; 
HX 39 171:1-172:25. Further, his opinions continue to be based on assumptions only, 
as neither Regan nor Plaintiffs¶ other purported experts (East or Levine) made any 
attempt to validate whether their ³assumptions are true as to most or even any of the 
EDD cardholder¶s experience.´ Mot. 14-17; see also ECF 565-1, 566-1 (moving to 
strike East and Levine for similar reasons and others). Regan does so despite 
admitting that his assumptions are not true for every class member, and conceding 
that borrowing costs²and the need to borrow at all²varies from person-to-person. 
Mot. 14-15 (citing HX 39 192:6-193:7, 211:14-213:1). The undisputed record (which 
Regan did not review) confirms this, as it shows that: 
 
 
 
 (before any credit-card 
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interest charges could have become due). Mot. 15-20. As the Court previously held, 
this renders Regan¶s consequential damages opinions unreliable and inadmissible. 
ECF 494 at 88; see also Kewazinga Corp. v. Google LLC, 2024 WL 4894840, *4 
(S.D.N.Y. Oct. 17, 2024) (striking damages computation not based on ³sufficient 
facts or data´). 
The Opposition¶s cases (at 10-12) are distinguishable and cannot save Regan¶s 
cost of borrowing opinions. In Van v. LLR, Inc., 962 F.3d 1160, 1164-65 (9th Cir. 
2020), the class sought damages measured by the amount of money that the class 
could have earned if they were not charged a sales tax and put their money to an 
alternative use. The court ultimately held that could be measured on a classwide basis 
using the ³time value of money,´ there a market interest rate of 4.35%²which 
resulted in a total of $3.76 on a claim concerning $531.25 in refunded sales tax 
charges based on what plaintiff could have earned on an ³interest-bearing asset.´ Van, 
61 F.4th at 1164-65. But that is not what Plaintiffs propose, and they do not try to 
evidence what class members could have earned in ³interest income.´ Id. Instead, 
Plaintiffs seek damages based on the costs of credit-card borrowing, and attempt to 
support that claim with purported expert opinion regarding costs of credit-card 
borrowing. Supra at 3-4. The Court has already rejected that methodology and should 
do so again here. See ECF 494 at 88. 
Plaintiffs¶ product claim cases also do not endorse the proposition that they are 
entitled to rely on ³generalizations´ in lieu of evidence about class members¶ actual 
damages.3 ConAgra did not endorse any damages methodology at all; it merely held 
that plaintiffs¶ inability to discern ³the identity of all class members´ did not 
transgress the ³defendant¶s due process rights´ because the question at issue was a 
challenged sales practice. 844 F.3d at 1132. At most, these cases stand for the 
 
3 See Opp. 11 & n.3 (citing Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1123 
(9th Cir. 2017) (concerning price premium based on 100% natural claim); Fitzhenry-
Russell v. Dr. Pepper Snapple Grp., Inc., 326 F.R.D. 592, 598 (N.D. Cal. 2018) (same 
based on ³made from real ginger´ claim); McMorrow v. Mondelez Int¶l, Inc., 2021 
WL 859137, *1 (S.D. Cal. Mar. 8, 2021) (same based on ³nutritious´ claim)). 
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proposition that in a case challenging a purportedly false product claim, classwide 
damages could potentially be calculated by determining the difference between the 
price class members in particular markets paid and the price that may have been 
charged in their market but for the false claim. See, e.g., ConAgra, 844 F.3d at 1123; 
Fitzhenry-Russell, 326 F.R.D. at 605-06; McMorrow, 2021 WL 859137 at *5. 
Again, that is not anything like what Regan purports to do here. Supra at 3-5. 
Whereas purported prices are set by markets and would have been paid equally by 
consumers who purchased the same product within that market, the need and ³cost 
of borrowing´ indisputably varies from consumer to consumer. Supra at 3-5. Indeed, 
in order for Regan¶s assumptions to be met, each and every class member must have, 
at minimum: (A) had insufficient funds to cover expenses as a result of the alleged 
wrong; (B) had access to a credit card; (C) had no alternative or cheaper sources to 
cover those expenses; (D) charged at least the full amount of the temporarily withheld 
funds to a credit card; and (E) incurred and paid interest on those charges before they 
regained access to their prepaid card funds. See supra at 5; Mot. 13-20. Regan does 
not claim to know, and Plaintiffs do not attempt to show whether any of these 
assumptions were met²and we know they were not, 
 
 See Mot. 15-18.  
Finally, the Eighth Circuit¶s ruling in Hartley v. Dillard¶s, Inc., 310 F.3d 1054 
(8th Cir. 2022), is even further afield. It was not a class action at all but an individual 
employment-discrimination case where the parties disagreed over whether ³declining 
profits [] justif[ied] Hartley¶s termination.´ Id. at 1060. Plaintiffs argue that this 
opinion supports their claim that a damages expert can opine on classwide damages 
based on ³economic generalizations about national trends.´ Opp. 12. But the expert 
opinion had nothing whatsoever to do with damages, only with the factual issue of 
whether ³Dillard¶s stated reason for Hartley¶s firing was pretextual.´ Hartley, 310 
F.3d at 1058. To call this case inapposite is an understatement. 
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B.
The delayed benefits opinion must be excluded for more reasons. 
In addition to the reasons discussed above, Regan¶s delayed benefits opinion 
must be stricken because it relies on even more unreliable assumptions. Mot. 20-22. 
To estimate additional consequential damages for the Account Freeze Class, Regan 
assumed that each and every member of the Account Freeze Class incurred 
borrowing costs during the time their future EDD benefits payments may have been 
delayed. Regan admits that he made these assumptions without reviewing any data 
to confirm them, and without knowing: (1) the amount of bi-weekly payments the 
class or any individual received; (2) the length of delayed payment for the class or 
any individual; or (3) whether the class or individual class members remained eligible 
for benefits during the time their account frozen. HX 39 246:23-251:19; Mot. 20-21. 
The Opposition does not address this issue at all. Because Regan¶s delayed benefits 
opinions are ³based on assumptions rather than evidence establishing each 
cardholder¶s experience,´ they must be excluded. ECF 494 at 87-88; Mot. 20-22. 
III. 
Regan¶s Customer Service Opinions Are Unreliable and Inadmissible. 
Plaintiffs admit that Regan and Jay Minnucci do not contend that every²or 
any²class member had to spend time they would have spent working at a minimum 
wage job on hold. Opp. 16; see also Mot. 22-23. Plaintiffs further concede that Regan 
and Minnucci do not intend to measure actual harm the class members incurred while 
on hold. Opp. 16; see also Mot. 23. Rather, Plaintiffs again attempt to equate their 
experts¶ approach to the interest income rate permitted in Van and similar cases, 
arguing that they simply need to offer a reasonable way to remedy the injury. Opp. 
16. But Plaintiffs offer no case where a court permitted alleged damages for time 
spent on hold to be calculated using the minimum wage. Nor is there any basis to 
assume that would be a reasonable measure here, as Regan¶s other damages opinions 
rely on the assumption that each class member was unemployed²and therefore not 
earning wages when they were allegedly on hold. See Mot. 22-23; Oliver v. Am. 
Express Co., 2024 WL 100848, *12 (E.D.N.Y. Jan. 9, 2024) (affirming exclusion of 
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³conclusory and internally contradictory´ expert opinion that ³the Daubert 
gatekeeping function is meant to prevent´). Thus, Regan¶s customer service opinions 
and his damages calculations also must be excluded because they are ³based on 
assumptions rather than evidence establishing each cardholder¶s experience.´ ECF 
494 at 87-88; Mot. 22-23. 
Regan¶s customer service opinions are also inadmissible because Plaintiffs 
concede the record does not contain the key inputs for his calculations: data 
concerning 
 for each Customer Service Class 
member. See Mot. 23; Opp. 16. Plaintiffs argue that exclusion of Regan¶s customer 
service opinions would be improper because without them, Plaintiffs cannot prove 
damages. Opp. 16. But that is not a legal basis for denying exclusion. Indeed, 
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) 
(excluding expert testimony and granting summary judgment because without 
excluded expert, plaintiffs could not prove their case). 
IV. 
Regan¶s 
 Opinions Are Irrelevant and Inadmissible. 
Regan¶s disgorgement ³
´ opinions should be excluded because 
they also are based on assumptions and not evidence. The Opposition does not 
dispute that Regan¶s calculations are not based on records, data, or the experience of 
even a single class member. See Mot. 23-25. Rather, Plaintiffs concede that Regan 
relied solely on his interpretation of testimony from a BANA employee to assume 
that 
 
. Opp. 13. But that assumption 
is not supported by information for any class members, and is in fact directly refuted 
by BANA data cited in Regan¶s own report²which indisputably confirms that many 
class members did not withdraw their funds immediately. Mot. 24 (citing HX 41, 
Schedule 2). Thus, Regan¶s 
 opinions also must be excluded because 
they are ³based on assumptions rather than evidence establishing each cardholder¶s 
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experience.´ ECF 494 at 87-88; see also Kewazinga, 2024 WL 4894840, *4 (striking 
expert computation as not based on ³sufficient facts or data´). 
Plaintiffs claim the Court should nevertheless allow Regan¶s 
 
opinion to survive because BANA purportedly made and had this argument rejected 
at class certification. See Opp. 14 (citing ECF 494 at 93). That misstates the record. 
BANA did not present and the Court did not address the issue raised here. Rather, 
the Court acknowledged that ³BANA d[id] not dispute Plaintiffs¶ damages model for 
disgorgement´ at class certification, and therefore concluded that it could satisfy 
³predominance.´ ECF 494 at 93. To the extent the Opposition (at 14) seeks to rely 
on the UCL¶s ³particularly forgiving´ classwide calculations or the interpretation of 
the UCL in Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1147-49 
(2003), those cases are irrelevant now because Plaintiffs gave up their UCL claim in 
response to BANA¶s summary judgment motion. ECF 652 (MSJ Opp.) at 50 n.29.  
Finally, the Opposition argues (at 14-15) that the accuracy of Regan¶s 
assumptions does not matter because California law is intended to eliminate even the 
possibility of profit, and because the risk of any uncertainty should be borne by 
defendant. But there is no uncertainty here. Plaintiffs cannot reasonably dispute that 
BANA incurred 
 that vastly overwhelm 
the 
 Plaintiffs seek to disgorge. See Opp. 14-15; Mot. 25; 
see also MSJ 3; ECF 589-2 (SUF) ¶¶ 21-22. Regan did not consider any of those 
costs or losses when he estimated BANA¶s alleged 
. Mot. 25. 
Thus, his opinions are irrelevant and should be excluded because they do not estimate 
the relevant issue, 
. See Mot. 25; Meister v. Mensinger, 230 Cal. 
App. 4th 381, 399 (2014).  
CONCLUSION 
For the foregoing reasons and the reasons stated in BANA¶s Motion, the Court 
should strike each and all of Regan¶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 
Fax: +1 617 449 6999 
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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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