Memorandum in Support — Marshall v. Prestamos CDFI, LLC (Dkt. 143-1, E.D. Pa. No. 5:21-cv-04337)

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U.S. District Court for the Eastern District of Pennsylvania · No. 5:21-cv-04337-JMG · Doc. 143-1 · 2024-10-04 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT  
FOR THE EASTERN DISTRICT OF PENNSYLVANIA 
ALICIA MARSHALL, et al., individually and 
on behalf of all others similarly situated, 
Plaintiffs, 
v. 
PRESTAMOS CDFI, LLC, 
Defendant. 
 
 
Civil Action No. 5:21-cv-04337-JMG 
 
 
 
 
 
BRIEF IN SUPPORT OF DEFENDANT’S OMNIBUS MOTION 
TO STRIKE PLAINTIFFS’ CLASS CERTIFICATION EXPERT 
REPORTS AND TO EXCLUDE EXPERT TESTIMONY 
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TABLE OF CONTENTS 
Page 
INTRODUCTION .......................................................................................................................... 1 
BACKGROUND ON THE EXPERTS AND THEIR REPORTS ................................................. 2 
I. 
William Briggs and William Manger ..................................................................... 2 
II. 
Steven Feinstein ...................................................................................................... 3 
THE GOVERNING LEGAL STANDARDS ................................................................................. 3 
ARGUMENT .................................................................................................................................. 5 
I. 
Plaintiffs’ Experts Offer Improper Legal Opinion Testimony They Are 
Not Qualified To Offer ........................................................................................... 5 
II. 
The Briggs and Manger Reports are Unreliable ..................................................... 8 
III. 
None of The Expert Opinions Meets the “Fit” Requirement of Daubert ............. 11 
A. 
Manger and Briggs Shed No Light on the Rule 23 Issues ........................ 12 
B. 
Feinstein’s Opinion is Not “Helpful” to the Court ................................... 12 
CONCLUSION ............................................................................................................................. 13 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195 (3d Cir. 2006) ...............................................4, 5 
In re Blood Reagents Antitrust Litig., 783 F.3d 183 (3d Cir. 2015) ................................................4 
Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316 (3d Cir. 2003) .........................................4 
Comcast Corp. v. Behrend, 569 U.S. 27 (2013) ............................................................................12 
Ctr. City Periodontists, P.C. v. Dentsply Int’l, Inc.,  
321 F.R.D. 193 (E.D. Pa. 2017) ...............................................................................................12 
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) ............................................... passim 
Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000) ......................................................................4 
Greathouse v. Cap. Plus Fin., LLC,  
2023 U.S. Dist. Lexis 157204 (N.D. Tex. Sept. 6, 2023) ................................................ passim 
Kuhar v. Petzl Co., No. 19-3900, 
2022 U.S. App. LEXIS 9914 (3d Cir. Apr. 13, 2022) ...............................................................4 
In re Lincoln Nat’l 2017 COI Rate Litig., 620 F. Supp. 3d 268 (E.D. Pa. 2022) ....................10, 12 
Mahmood v. Narciso, 549 F. App’x 99 (3d Cir. 2013) ....................................................................4 
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994) ........................................................4 
In re Paulsboro Derailment Cases, No. 13-784,  
2014 U.S. Dist. LEXIS 115542 (D.N.J. Aug. 20, 2014)..........................................................12 
Piepes v. Nai Entm’t Holdings LLC, 349 F. Supp. 3d 315 (E.D.N.Y. 2019) ..................................8 
Rivera-Cruz v. Latimer, Biaggi, Rachid & Godreau, LLP, No. 04-2377 (ADC), 
2008 U.S. Dist. LEXIS 46562 (D.P.R. June 16, 2008) ..............................................................8 
Schneider v. Fried, 320 F.3d 396 (3d Cir. 2003) .............................................................................4 
Taylor v. SEPTA, No. 23-2140-KSM,  
2024 U.S. Dist. LEXIS 113218 (E.D. Pa. June 27, 2024) .........................................................5 
Torain v. City of Phila., No. 14-1643,  
2023 U.S. Dist. LEXIS 5657 (E.D. Pa. Jan. 12, 2023) ............................................................11 
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Wood v. Showers, 822 F. App’x 122 (3d Cir. 2020) ........................................................................4 
Other Authorities 
Fed. R. Civ. P. 23 ...........................................................................................................6, 10, 11, 12 
Federal Rule of Evidence 702 ......................................................................................................3, 4 
 
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INTRODUCTION 
To support their Motion for Class Certification (the “Motion”), Plaintiffs submitted 
reports from three expert witnesses, William Briggs, William Manger, and Steven Feinstein.  
Messrs. Briggs and Manger, whose reports are essentially identical, worked on the Paycheck 
Protection Program (the “PPP”) at the United States Small Business Administration (“SBA”).  
Professor Feinstein is an economist who purports to offer a classwide methodology for 
measuring damages.  All three experts submitted similar reports in Greathouse v. Capital Plus 
Financial, LLC, No. 4:22-cv-00686-P (N.D. Tex. filed Aug. 9, 2022), in which the court denied 
class certification without relying on any of the opinions expressed by these experts, 2023 U.S. 
Dist. Lexis 157204 (N.D. Tex. Sept. 6, 2023). 
None of the expert reports comes close to passing muster under the controlling standards 
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which require 
the Court to consider (1) the qualifications of the experts; (2) the reliability of their opinions; and 
(3) the “fit” between their opinions and the relevant issues.  The Briggs and Manger reports fall 
short in all respects.  They consist largely of legal opinions—interpretations of the PPP 
regulations and arguments attempting to distinguish the Greathouse case—that are not a proper 
subject for expert testimony because they invade the province of this Court.  But even if legal 
opinions were a proper subject of expert testimony, Briggs and Manger are not qualified to offer 
such an opinion because neither is a lawyer, let alone an expert in class action litigation.  And 
insofar as they offer any background information on the PPP, that information is largely 
inaccurate as a factual matter and in any event has no relevance to class certification.   
The Feinstein report is equally problematic.  He, too, offers an opinion on the Greathouse 
case without the benefit of legal training.  And although Feinstein is an economics professor who 
has testified “[a]t least a hundred” times, Def.’s App. Ex. 23, ECF No. 142-28, Feinstein Dep. 
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6:23-7:4, he offers no damages methodology at all.  Rather than even attempting to develop or 
draw upon an accepted methodology, he simply asserts that the appropriate measure of damages 
is to award class members the principal amount of their loans plus prejudgment interest.  No 
expertise is required to offer that mechanical approach, which in any case does not account for 
the different effects that failing to receive a loan had on individual class members.  The Court 
should strike each report and prohibit the experts from testifying.  
BACKGROUND ON THE EXPERTS AND THEIR REPORTS1 
I. 
William Briggs and William Manger  
Messrs. Briggs and Manger were political appointees at the SBA from 2017 to January 
2021, which included the early portion of the PPP, although they left the agency before any of 
the class representatives applied for a PPP loan.  Briggs was the Acting Associate Administrator 
of the Office of Capital Access.  He states that he oversaw “all SBA loan programs including the 
Paycheck Protection Program,” and was responsible for “operations, communications, public 
engagement and daily management” of the PPP.  Pls.’ App., Ex. 13, ECF No. 139-14, Briggs 
Report ¶¶ 6, 9.  Manger served in several positions, including as Chief of Staff from March 2020 
to January 2021.  Like Briggs, who reported to him, Manger states that he “oversaw and led the 
SBA’s implementation of the Paycheck Protection Program” and “was responsible for 
promulgating PPP-specific rules and guidance, implementing PPP-specific processes at the SBA, 
and communicating with lenders, trade associations, government agencies, and members of 
Congress.”  Id. Ex. 11, ECF No. 139-12, Manger Report ¶ 1.  
                                                 
1  
The three expert reports are available in Plaintiffs’ Appendix at App. in Supp. of Pls.’ Mot. 
for Class Certification, Exs. 11-16, Sept. 6, 2024, ECF No. 139.   
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Both witnesses provide background information on the PPP program, and essentially 
offer the same opinions, as follows:   
1. 
If a borrower received an SBA loan number and submitted the loan documents, 
Prestamos was required to make a full disbursement of the loan amount.  Id. Ex. 
11, ECF No. 139-12, Manger Report ¶ 20; id. Ex. 13, ECF No. 139-14, Briggs 
Report ¶ 20.   
2. 
Although Prestamos was required to submit Form 1502 to the SBA on a monthly 
basis to report any updates on the loan status, Prestamos should not have noted on 
the form that the loans were “funded” because the loans were not “fully 
disbursed.”  Id. Ex. 11, ECF No. 139-12, Manger Report ¶ 20; id. Ex. 13, ECF 
No. 139-14, Briggs Report ¶ 20. 
3. 
Prestamos should not have received PPP loan processing fees from the SBA if the 
loans were not fully disbursed.  Id. Ex. 11, ECF No. 139-12, Manger Report ¶ 20; 
id. Ex. 13, ECF No. 139-14, Briggs Report ¶ 20. 
4. 
The classes defined in the Third Amended Complaint are narrower than the class 
defined in Greathouse, and the two cases are also distinguishable on other 
grounds.  Id. Ex. 11, ECF No. 139-12, Manger Report ¶ 24; id. Ex. 13, ECF No. 
139-14, Briggs Report ¶¶ 28, 30-38.   
II. 
Steven Feinstein 
Professor Feinstein teaches economics at Babson College, and he has his own economic 
consulting firm that regularly takes litigation expert engagements.  He opines as follows: 
1. 
A “feasible common class-wide methodology that provides a conservative 
measure of the economic damages sustained by each Class member” is “the 
difference between the SBA-approved PPP loan amount and the amount the Class 
member received, which Plaintiffs alleged is zero, plus prejudgment interest.”  Id. 
Ex. 12, ECF No. 139-13, Feinstein Report ¶ 23.   
2. 
The unfunded loan amount does not account for consequential business losses or 
foregone business profits.  Id. ¶ 40.   
3. 
Prejudgment interest compensates class members for consequential damages. Id. 
¶ 42.    
4. 
The proposed class is “materially different” than the proposed class in 
Greathouse.  Id. ¶ 48.  
THE GOVERNING LEGAL STANDARDS 
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained that 
Federal Rule of Evidence 702 gives district courts a “gatekeeping role” in deciding the 
admissibility of expert testimony.  509 U.S. 579, 597 (1993).  The gatekeeping function requires 
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district courts to “address ‘a trilogy of restrictions’ before permitting the admission of expert 
testimony: qualification, reliability, and fit.”  Mahmood v. Narciso, 549 F. App’x 99, 102 (3d 
Cir. 2013) (quoting Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003)); see also Elcock v. 
Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000).  
To be “qualified,” the witness must “‘possess specialized expertise.’”  Calhoun v. 
Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting Schneider, 320 F.3d at 
405).  To be “reliable,” the expert’s opinion must “be based on the ‘methods and procedures of 
science’ rather than on a ‘subjective belief or unsupported speculation.’”  Kuhar v. Petzl Co., No. 
19-3900, 2022 U.S. App. LEXIS 9914, at *16 (3d Cir. Apr. 13, 2022) (quoting In re Paoli R.R. 
Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994)).  “The standard prohibits too great a gap 
between the data and the opinion proffered.”  Id. (citation and internal quotation marks omitted).  
And to “fit” the case, the expert’s opinions must “‘help the trier of fact to understand the 
evidence or to determine a fact in issue,’” i.e., must be relevant to the issue at hand.  Id. at *21 
(some citations omitted) (quoting Fed. R. Evid. 702(a), and Daubert, 509 U.S. at 591).   
The party seeking to rely upon expert testimony must “meet[] the burden of establishing 
its admissibility.”  Wood v. Showers, 822 F. App’x 122, 124 (3d Cir. 2020) (citation omitted).  
And the dictates of Daubert apply equally to expert testimony submitted in support of a motion 
for class certification.  See In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 
2015).  In addition, “an expert witness is prohibited from rendering a legal opinion” in order not 
to “usurp the District Court’s pivotal role in explaining the law to the jury.”   Berckeley Inv. 
Grp., Ltd. v. Colkitt, 455 F.3d 195, 217 (3d Cir. 2006) (citation omitted).  
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ARGUMENT 
I. 
Plaintiffs’ Experts Offer Improper Legal Opinion Testimony They Are Not 
Qualified To Offer 
Each of Plaintiffs’ three experts spends a significant portion of their report purporting to 
offer legal opinion.  As noted, legal opinion is not a proper subject of expert testimony, and in 
any event these non-lawyer experts are not qualified to provide this type of opinion.  See Colkitt, 
455 F.3d at 217; Taylor v. SEPTA, No. 23-2140-KSM, 2024 U.S. Dist. LEXIS 113218, at *15-16 
(E.D. Pa. June 27, 2024) (striking expert testimony where it “purports to interpret the regulations 
. . . and offers a legal conclusion about the scope of discretion that those regulations afford 
employers like SEPTA”).  
Just as they have here, Plaintiffs’ experts Manger and Briggs attempted to put their legal 
gloss on the PPP regulations in Greathouse to argue for commonality, and that effort failed.  
Although the court declined to strike the expert testimony, it took pains to emphasize that it “is 
not considering this testimony in an ‘expert’ capacity.”  Greathouse, 2023 U.S. Dist. Lexis 
157204, at *15 n.2.  Moreover, the court expressly rejected the experts’ legal interpretation of the 
regulations, underscoring that this was the province of the court.  As the court explained: 
[Plaintiffs] claim that if their loans had problems, Capital Plus 
should not have issued an SBA number to begin with or should 
have reported cancelation within twenty calendar days in line with 
the federal regulations.  To back this up, Plaintiffs bring 
affidavits from multiple “experts” [Briggs and Manger] on PPP 
loan funding.  These experts claim that any failure to cancel a loan 
“for whatever reason” within twenty days of issuance of an SBA 
number would be inconsistent with the program . . . [and] in 
violation of the rules.”  But while this reading of the provision 
would solve the commonality issue here, the Court disagrees 
with this interpretation. 
Id. at *15 (emphasis added). 
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In their reports in the instant case, Plaintiffs’ experts have doubled down in their effort to 
masquerade as lawyers.  For example, Briggs opines on multiple legal issues, including: 
 
The meaning of the PPP regulations, Pls.’ App. Ex. 13, ECF No. 139-14, Briggs 
Report ¶ 20 (“Program language was clear:  lenders must fully disburse loan 
funds within the time period set by the PPP”);  
 
Differences in the class definitions in this case as compared to those in 
Greathouse, id. ¶ 32 (“[I]n this lawsuit as stated in plaintiffs’ complaint, the class 
that the plaintiffs allege follows that Court’s ruling and is narrower than the class 
alleged in [Greathouse]”); see also id. ¶¶ 23, 30-31, 33-38;  
 
The lender’s obligations under the PPP, see id. ¶ 41 (“Even in instances where a 
PPP lender use [sic] a third-party agent to assist with loan origination and the 
lender’s PPP program mechanics, I believe the lender was and is ultimately 
responsible for what happens or doesn’t happen with their PPP loan portfolio”); 
see also id. ¶¶ 43, 44, 48, 51; and 
 
The scope of loan forgiveness, see e.g., id. ¶ 53 (“I also believe the plaintiffs and 
other unfunded class members were also deprived of the opportunity to obtain 
loan forgiveness as the PPP was designed to do and widely did.”).2 
Similarly, Manger offers his legal opinions on: 
 
The loan process, see Pls.’ App. Ex. 11, ECF No. 139-12, Manger Report ¶ 20 
(“[I]f the borrower submitted the loan documents and Prestamos received an SBA 
loan number signifying that a PPP loan was approved, Prestamos was required to 
make a full disbursement of the loan amount and record it with the SBA by filing 
a form 1502 within 20 days.”); 
 
Prestamos’s obligations relating to Form 1502, see id. (“Prestamos should not 
have filed an SBA Form 1502”);  
 
Prestamos’s right to receive loan processing fees under the PPP, see id. 
(“Prestamos should not have received the SBA lender’s fee”);  
 
Plaintiffs’ supposed legal obligation to repay the loans, see id. ¶ 23 (“This attempt 
to collect repayment plus interest clearly is in my view unfair and does not make 
sense.”); and  
 
Differences between the classes here and those in Greathouse from the 
perspective of Rule 23, see id. ¶ 24 (“I have . . . reviewed the Court’s ruling on 
                                                 
2  
The Briggs report includes two paragraphs numbered 53.  This cite is to the first one.   
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class certification [and] [t]he proposed classes in this case are narrower than 
alleged in the [Greathouse] case”).3   
Even Feinstein provides improper legal opinion, explaining why he believes class 
certification should be granted here even though it was denied in Greathouse.  Pls.’ App. Ex. 12, 
ECF No. 139-13, Feinstein Report ¶ 48 (“[T]his case and proposed Class is materially different 
than that case” because “Plaintiffs obtained [certain] evidence in discovery”).   
None of these experts is qualified to opine on the propriety of class certification or any 
other legal requirement.  Not one of them is a lawyer, let alone a seasoned class action 
practitioner.  And notwithstanding opinions expressed in their reports, the experts freely 
conceded in their depositions that they lack training and expertise to express an opinion on why 
class certification is appropriate here even though it was denied in Greathouse.  Def.’s App. Ex. 
15, ECF No. 142-20, Briggs Dep. 27:3-4 (acknowledging he is not a lawyer); id. 48:21-49:9 
(conceding he is not an expert in civil procedure); Def.’s App. Ex. 14, ECF No. 142-19, Manger 
Dep. 17:8-24 (confirming he is not an attorney and is “not well-versed on the specifics of class 
certification”); id. 31:21-22 (“You have to help me because, again, I’m not an attorney”); Def.’s 
App. Ex. 23, ECF No. 142-28, Feinstein Dep. 130:8-9 (conceding he is not a lawyer).  
In view of the experts’ lack of legal training or class action experience, it is not surprising 
that their opinions bear the unmistakable fingerprints of Plaintiffs’ counsel by essentially 
repeating arguments in the Plaintiffs’ class certification brief.  Compare ECF 139 at 15 (“the 
Classes have been narrowed from those alleged in Greathouse”), and ECF 139 at 20 (“whether 
class members are still bound to repay and were precluded from forgiveness”), with Pls.’ App. 
                                                 
3  
Manger states Georgina Drevnak (“Drevnak”) “never received loan proceeds [but was] 
requested by Prestamos to repay PPP loan amounts plus interest.”  Pls.’ App. Ex. 11, ECF 
No. 139-12, Manger Report ¶ 23.  But Drevnak received the full amount of her PPP loan.  
See ECF 136 (dismissing Drevnak as a putative class representative, with prejudice).  
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Ex. 11, ECF No. 139-12, Manger Report ¶ 24 (“The proposed classes in this care are narrower 
than alleged in the Capital Plus case.”), and id. Ex. 16, ECF No. 139-17, Briggs Rebuttal Report 
¶ 22 (“Plaintiffs and class members were effectively precluded from even applying for loan 
forgiveness”).   
But “[i]t is not the job of an expert to parrot the opinions of counsel” and an expert’s 
“reliance on information provided to him by counsel . . . and [a] failure to investigate or seek 
independent corroboration of conflicting theories[] calls into question[] his ability to assist the 
trier of the fact to understand the evidence or to determine a fact at issue.”  Rivera-Cruz v. 
Latimer, Biaggi, Rachid & Godreau, LLP, No. 04-2377 (ADC), 2008 U.S. Dist. LEXIS 46562, 
at *15-16 (D.P.R. June 16, 2008); see also Piepes v. Nai Entm’t Holdings LLC, 394 F. Supp. 3d 
315, 319 (E.D.N.Y. 2019) (where an expert opinion “parrots the end result a lawyer or someone 
else has asked him to reach . . . the Court cannot conduct the necessary gatekeeping function 
under Daubert” (citation omitted)).  
In sum, the Court should disregard the legal opinions expressed in all three experts’ 
reports.  
II. 
The Briggs and Manger Reports are Unreliable 
Significant aspects of the Briggs and Manger reports are demonstrably incorrect, further 
undermining their credibility and the reliability of their opinions.  For example, both Manger and 
Briggs state that, once a PPP loan application was submitted and an SBA number was assigned, a 
borrower’s loan was required to be funded.  See Pls.’ App. Ex. 13, ECF No. 139-14, Briggs 
Report ¶ 20 (lenders must fully disburse loan funds . . . ten days after the loan was approved by 
the SBA and the borrower returned to the lender the loan documentation”); id. Ex. 11, ECF No. 
139-12, Manger Report ¶ 20 (“if the borrower submitted the loan documents and Prestamos 
received an SBA loan number signifying that a PP loan was approved, Prestamos was required to 
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make a full disbursement of the loan amount”).  When pressed on this issue at their depositions, 
Manger and Briggs admitted that the PPP required more, specifically documentation establishing 
that the borrower operated a legitimate ongoing business.  See Def.’s App. Ex. 15, ECF No. 142-
20, Briggs Dep. 78:24-79:9 (specific tax information was required, without which a borrower 
was ineligible); id. Ex. 14, ECF No. 142-19, Manger Dep. 60:18-21 (in addition to the loan 
application, “[y]ou had to show . . . other things such as like the business had been in operation 
prior to a certain date and, you know, lots of different components”).   
Briggs and Manger also based their opinion that Prestamos filed “false” Form 1502s on 
an incorrect factual premise because neither of them appeared to comprehend that Prestamos is a 
non-depository institution.  See, e.g., Pls.’ App. Ex. 16, ECF No. 139-17, Briggs Rebuttal Report 
¶ 18 (“The allegedly inaccurate 1502 reports are a specific attribute in this case that is shared 
classwide by class members”); id. Ex. 11, ECF No. 139-12, Manger Report ¶ 20 (“the SBA Form 
1502 was to be filed only after, and subject to, the PPP loan actually being funded”).  As 
explained in the unrebutted declaration of Prestamos Chief Credit Officer David Castillo, 
“Prestamos is a non-depository bank, and did not (and does not) have the liquidity that other 
SBA-approved PPP lenders had.  As a result, in order to obtain to fund PPP loans, Prestamos 
needed a credit advance from the Federal Reserve.”  Def.’s App. Ex. 2, ECF No. 142-4, Castillo 
Decl. ¶ 28; id. ¶ 29 (“In order for the Federal Reserve to release the funds for a credit advance, 
Prestamos had to submit both the SBA Form 1502 to the SBA and the ‘Paycheck Protection 
Program Liquidity Facility PPP Pledge and Advance Request’ to the Federal Reserve”).   
Moreover, neither Briggs nor Manger connect their allegations relating to Form 1502 to 
any entitlement or duty to Plaintiffs, nor do they explain how the filing of Form 1502s while 
their loan applications remained pending caused Plaintiffs’ injury.  As a result, Briggs’s and 
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Manger’s opinion on the Form 1502s is not relevant to Plaintiffs’ claims and therefore not 
helpful to this Court in determining whether Plaintiffs’ proposed class meets the requirements of 
Rule 23.  See In re Lincoln Nat’l 2017 COI Rate Litig., 620 F. Supp. 3d 268, 279 (E.D. Pa. 2022) 
(Daubert requires experts to offer “opinions that are relevant and helpful to the trier of fact”).   
Briggs and Manger also erroneously suggest it was improper for Prestamos to receive or 
retain the PPP loan processing fees for loans that it ultimately cancelled.  See, e.g., Pls.’ App. 
Ex. 13, ECF No. 139-14, Briggs Report ¶ 37 (“The PPP was clear in that the lender should 
obtain a loan processing fee if it fully disbursed the loan(s).”); see also id. ¶¶ 43, 51; Pls.’ App. 
Ex. 11, ECF 139-12, Manger Report ¶ 20 (“A mere attempt to fund a loan, or an attempt to do so 
that, for instance, the borrower’s bank rejected, should have resulted in the loan being cancelled 
in SBA’s e-tran system and no payment of the loan processing fee being made by the SBA to the 
lender.”).   
But the applicable SBA regulation provides that “[i]f the Lender has received a 
processing fee on a loan that was cancelled . . . after disbursement . . . , SBA will not require 
the Lender to repay the processing fee unless the Lender is found guilty of an act of fraud in 
connection with the PPP loan.”  Def.’s App. Ex. 22, ECF No. 142-27, SBA Procedural Notice 
5000-20091 at 7 n.5 (emphasis added).  The SBA confirmed this rule in response to Prestamos’s 
inquiry.  See id. Ex. 12, ECF No. 142-17, Sept. 7, 2021 Email from Craig Jordan (stating that 
“[t]he Lender is able to retain the processing fees” on loans that were disbursed and then 
cancelled).  Confronted with this unambiguous SBA directive at their depositions, Manger and 
Briggs backtracked on their unwarranted and improper criticism of Prestamos.  See id. Ex. 15, 
ECF No. 142-20, Briggs Dep. 118:8-18 (conceding that, per SBA guidance, Prestamos was 
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permitted to keep the processing fees for cancelled loans); id. Ex. 14, ECF No. 142-19, Manger 
Dep. 113:13-115:7 (same).   
Briggs and Manger also incorrectly assert or imply that Prestamos improperly retained 
the loans that it ultimately could not deposit in borrowers’ accounts.  See Pls.’ App. Ex. 11, ECF 
No. 139-12, Manger Report ¶ 20 (“I have not seen any evidence indicating that Prestamos 
returned to the PPPLF or otherwise to the U.S. Federal Reserve any of those PPPLF advances it 
obtained but failed to disburse to SBA-approved borrowers.”); id. Ex. 16. ECF No. 139-17, 
Briggs Rebuttal Report ¶ 16 (“Nor does Mr. Swain analyze or mention in his opening report 
Plaintiffs’ allegations that Prestamos obtained advances from the PPPLF to fund the loans, or 
what Prestamos did with those funds or the present status of those advances.”). 
Notwithstanding Manger’s and Briggs’s speculation, the unrebutted declaration of David 
Castillo states that “[i]n September 2021, Prestamos returned the credit advances from the 
Federal Reserve for loans that were ultimately not funded.”  Def.’s App. Ex. 2, ECF No. 142-4, 
Castillo Decl. ¶ 51.  Despite the unambiguous language of Castillo’s Declaration, Manger 
claimed to find it “unclear,” id. Ex. 14, ECF No. 142-19, Manger Dep. 102:20, and added, 
without elaboration, that “[i]t needs more definition and more backup or background as to 
exactly what happened in September of 2021,” id. 103:15-17.   
The numerous factual errors in the Manger and Briggs reports render them unreliable, 
providing yet another basis to exclude them. 
III. 
None of The Expert Opinions Meets the “Fit” Requirement of Daubert  
In order to meet the “fit” requirement of Daubert, expert testimony must “assist the trier 
or fact to understand the evidence or to determine a fact in issue.”  Daubert, 509 U.S. at 591 
(citations omitted); Torain v. City of Phila., No. 14-1643, 2023 U.S. Dist. LEXIS 5657, at *8-9 
(E.D. Pa. Jan. 12, 2023).  “This condition goes primarily to relevance,” and “[e]xpert testimony 
Case 5:21-cv-04337-JMG     Document 143-1     Filed 10/04/24     Page 15 of 18

 
12 
which does not relate to any issue in the case is not relevant and, ergo, non-helpful.”  Id. at 591 
(citations and internal quotation marks omitted).   
A. 
Manger and Briggs Shed No Light on the Rule 23 Issues 
Here, Plaintiffs offer the expert testimony of Manger and Briggs to support their 
contention that the proposed class complies with Rule 23 of the Federal Rules of Civil 
Procedure, ECF 138 at 7-19, but none of their reports even attempts to parse or apply Rule 23—
instead focusing on premature and irrelevant merits issues.  See supra at Arg., § I.  Expert reports 
that are not relevant to the matter before the Court should be stricken.  See Ctr. City 
Periodontists, P.C. v. Dentsply Int’l, Inc., 321 F.R.D. 193, 203 (E.D. Pa. 2017) (striking expert 
testimony that was irrelevant to class certification).  
B. 
Feinstein’s Opinion is Not “Helpful” to the Court  
Daubert also requires that an expert “offer opinions that are relevant and helpful to the 
trier of fact.”  In re Lincoln Nat’l 2017 COI Rate Litig., 620 F. Supp. 3d at  279.  Feinstein’s 
expert report is anything but helpful because all he does is advocate for simple arithmetic by 
proposing that the Court award each plaintiff the amount of the loan at issue plus prejudgment 
interest.  Pls.’ App. Ex. 12, ECF No. 139-13, Feinstein Report ¶ 23.  No expertise is required to 
develop this approach or calculate these amounts, nor is it relevant or “helpful” in determining if 
Plaintiffs satisfy Rule 23.   
Separate but equally disqualifying, Feinstein’s methodology does not comport with the 
requirement in Comcast Corp. v. Behrend, that a party seeking class certification must set forth a 
classwide damages model.  569 U.S. 27, 34 (2013); see also In re Paulsboro Derailment Cases, 
No. 13-784 (RBK/KMW), 2014 U.S. Dist. LEXIS 115542, at *43 (D.N.J. Aug. 20, 2014) (“At 
the certification stage, the Court must be assured that the determination of whether the 
defendant’s conduct caused injury to each class member can be made at the class level and 
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13 
without identifying damages that are not the result of the wrong.  Damages must be capable of 
measurement on a classwide basis.” (citations and internal quotation marks omitted)).   
Feinstein’s methodology fails to consider differences among class members, in particular 
“how businesses in different industries, service types, and locations were impacted by the 
COVID-19 pandemic,” Def.’s App. Ex. 17, ECF No. 142-22, Baez Rebuttal Report ¶ 23, or the 
fact that “[p]roposed class members that did not meet the stipulated loan conditions would have 
been in default on their loan and thus not in the same position as proposed class members that 
met these conditions,” id. ¶ 34.  Even Feinstein himself notes that the methodology does not 
include “consequential losses,” anything related to “harm sustained by Class members beyond 
the quantity of funds not received and above the risk-free, low-yield Treasury note interest,” or 
potential “punitive damages.”  Pls.’ App. Ex. 12, ECF No. 139-13, Feinstein Report ¶¶ 53-54.  
Instead, Feinstein contends that “prejudgment interest”—awarded at the same rate for all class 
members—adequately compensates class members for their consequential damages, regardless 
of whether they suffered any consequential damages (such as lost profits) or not.  Id.¶ 42.  And 
despite providing an improper legal opinion about the differences between the class in this matter 
and the class in Greathouse, see supra at Arg., § I, Feinstein admitted in his deposition that he 
used the exact same methodology in both cases, Def.’s App. Ex. 23, ECF No. 142-28, Feinstein 
Dep. 170:20-171:12.  
Prestamos does not concede that Plaintiffs are entitled to consequential damages (or any 
damages at all), but Feinstein’s belief that they are relevant notwithstanding his choice to gloss 
over that category of damages in his opinion underscores the obvious flaws of his report.  
CONCLUSION 
For the foregoing reasons, the Court should grant the motion and strike the expert reports 
of Briggs, Manger, and Feinstein.   
Case 5:21-cv-04337-JMG     Document 143-1     Filed 10/04/24     Page 17 of 18

 
14 
Dated:  October 4, 2024 
BALLARD SPAHR LLP 
 
By: /s/ Marcel S. Pratt 
Marcel S. Pratt (Pa. ID 307483) 
Edward D. Rogers (Pa. ID 69337) 
Thomas J. Gallagher IV (Pa. ID 316269) 
J. Chesley Burruss (Pa. ID 331521) 
Henry W. Longley (Pa. ID 328847) 
Travis W. Watson (Pa. ID 330753) 
1735 Market Street, 51st Floor 
Philadelphia, PA 19103 
T: 215-665-8500 
F: 215-864-8999 
prattm@ballardspahr.com 
rogerse@ballardspahr.com 
gallaghert@ballardspahr.com  
burrussc@ballardspahr.com 
longleyh@ballardspahr.com 
watsontw@ballardspahr.com 
 
HERRERA ARELLANO LLP 
Roy Herrera (admitted pro hac vice) 
Daniel A. Arellano (admitted pro hac vice) 
Beatriz Aguirre (admitted pro hac vice) 
Jane Ahern admitted pro hac vice) 
1001 North Central Avenue, Suite 404 
Phoenix, AZ 85004 
T: 602-567-4820 
Roy@ha-firm.com 
Daniel@ha-firm.com 
Jillian@ha-firm.com 
Austin@ha-firm.com 
Beatriz@ha-firm.com 
Jane@ha-firm.com 
 
Counsel for Defendant 
 
Case 5:21-cv-04337-JMG     Document 143-1     Filed 10/04/24     Page 18 of 18

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