Motion - B.P. v. Balwani, (2026-02-05)

Source document: Motion - B.P. v. Balwani, (2026-02-05); document type: Opposition brief (Daubert motion response).

Full text

BANA’S OPP. TO MOT. TO EXCLUDE STANGO
CASE NO. 3:21-MD-02992-GPC-MSB
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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
DEFENDANT BANK OF AMERICA,
N.A.’S OPPOSITION TO
PLAINTIFFS’ DAUBERT MOTION TO
EXCLUDE CERTAIN TESTIMONY
OF VICTOR STANGO (ECF 571)
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
BACKGROUND ........................................................................................................ 2
A.
The Regan Report ......................................................................................... 2
B.
The Stango Report ........................................................................................ 4
C.
Plaintiffs’ Motion to Exclude ....................................................................... 5
ARGUMENT .............................................................................................................. 7
I.
Economists Are Entitled to Offer Opinions on Economic Damages. ................. 7
II. Stango’s Economic Analysis Is Reliable. .......................................................... 14
CONCLUSION ......................................................................................................... 15

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TABLE OF AUTHORITIES

Page(s)
Cases
B.P. v. Balwani,
2021 WL 4077008 (9th Cir. Sept. 8, 2021) ........................................................ 13
Bergen v. F/V St. Patrick,
816 F.2d 1345 (9th Cir. 1987), opinion modified on reh'g, 866 F.2d
318 (9th Cir. 1989) ............................................................................................. 15
Cabrera v. Cordis Corp.,
134 F.3d 1418 (9th Cir. 1998) ............................................................................ 15
In re Cathode Ray Tube (CRT) Antitrust Litig.,
308 F.R.D. 606 (N.D. Cal. 2015) ................................................................... 8, 15
Flintkote Co. v. Lysfjord,
246 F.2d 368 (9th Cir. 1957) ........................................................................ 13, 14
Gen. Elec. Co. v. Joiner,
522 U.S. 136 (1997) ........................................................................................... 15
Hangarter v. Provident Life & Acc. Ins. Co.,
373 F.3d 998 (9th Cir. 2004) .............................................................................. 15
Laflamme v. Safeway, Inc.,
2010 WL 3522378 (D. Nev. Sept. 2, 2010) ......................................................... 8
Lindner v. Meadow Gold Dairies, Inc.,
249 F.R.D. 625 (D. Haw. 2008) ........................................................................... 8
Uthe Tech. Corp. v. Aetrium, Inc.,
808 F.3d 755 (9th Cir. 2015) .............................................................................. 12
In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab.
Litig.,
2017 WL 4890594 (N.D. Cal. Oct. 30, 2017) .................................................... 13
Statutes
12 C.F.R. § 1005.11(c)(2) ........................................................................................ 10
15 U.S.C. § 1693 et seq. .............................................................................. 2, 6, 9, 10
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Other Authorities
Ninth Circuit Rule 36-3 ........................................................................................... 13
Federal Rule of Civil Procedure 26(a)(2)(C) ............................................................. 8

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Consumer behavioral economist Victor Stango provided relevant, supported,
reliable expert analysis on Plaintiffs’ damages claims grounded in nearly 30 years of
experience studying behavioral economics in financial services markets.1 Plaintiffs’
Daubert motion (Mot., ECF 571-1) takes no issue with the majority of his analysis
but seeks to exclude “certain portions”—specifically, the portions of Stango’s Report
where he opines that a consumer who temporarily loses access to funds and then
regains it does not suffer the same economic harms as a consumer who loses those
funds permanently. If this opinion were vulnerable to a Daubert attack on any
grounds, one might think it could only be on account of sheer obviousness, but
Plaintiffs are so threatened by it that they endeavor to make it a point of some
controversy and seek to strike it.
They do so by characterizing Stango’s analysis as a “legal conclusion.” Mot.
at 1. They do so not because Stango himself ever states a legal conclusion, but
because Plaintiffs make legal arguments that Stango’s analysis of economic harm
should not be considered in calculating what actual damages (if any) class members
have experienced. That legal argument on Plaintiffs’ part, regardless of its merits (or
lack thereof), does not retroactively turn Stango’s purely economic analysis into a
legal one. Thus, it is unsurprising that Plaintiffs resort to basing their Motion on their
own paraphrase of Stango’s opinions rather than his actual statements—paraphrases
that conveniently insert legal arguments and even a statutory citation where Stango
offered neither. See id. Misattributing statements to an expert that the expert never
made is not a valid basis for excluding the expert’s opinion.
And Plaintiffs’ legal argument that actual economic harm is not relevant to a
factual assessment of economic damages does not provide a valid basis for excluding
the economic analysis, either. Plaintiffs’ argument is that a consumer who
temporarily loses access to (say) $100 in funds can, as “a matter of law,” claim the

1 See BX 1 ¶¶ 1-4 & App’x A; HX 48 at 59:20-60:10. Exhibits to the Declaration of
James Baltzer shall be referred to as “BX,” and exhibits to the Declaration of Lindsay
E. Hoyle shall be referred to as “HX.”
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full $100 as actual damages, even after regaining access to the money, just as if they
had lost the funds permanently—and that a defendant’s only recourse against this is
to seek a $100 offset after those “damages” are trebled. That argument is contrary to
the plain language in the Electronic Funds Transfer Act (EFTA), which provides that
only “actual damages” sustained “as a result” of the alleged violation are trebled—
which cannot include a temporarily withheld provisional credit or a fully reimbursed
claim itself. See 15 U.S.C. §§ 1693m(a)(1), (a)(2)(B); see also ECF 589-1 at 16-17.
And it is also contrary to the law of the case, as established in Judge Burns’ 2023
ruling interpreting EFTA, that “fully reimbursed” Plaintiffs can claim damages
suffered “as a result of the delay” but not the whole (reimbursed) amount. ECF 126
at 22-23.
Moreover, even if the Court were to end up agreeing with Plaintiffs’ legal
argument in every respect, it would not render Stango’s analysis irrelevant. That is
because Plaintiffs and their own purported expert agree that BANA is entitled to
offset any damages Plaintiffs claim against the amounts Plaintiffs were already paid
back. The only legal dispute is whether Stango’s analysis is relevant to calculating
actual damages, or relevant to calculating the offset. Plaintiffs’ argument that this
analysis must be performed later rather than sooner does not undercut its relevance—
it merely confirms it. Their motion to exclude Stango’s expert economic analysis
should therefore be denied.
BACKGROUND
A.
The Regan Report
Stango’s Report responds to the opinions of Plaintiffs’ purported expert on
damages, accountant Greg J. Regan. Regan is not an economist but claims his
accounting experience qualifies him to offer a damages opinion because he has
experience “identify[ing] and implement[ing]” a damages model, even though he
does not claim any qualifications for opining on the “suitability” of a model. HX
39.A at 283:16-19, 284:4-5. Based on this, he purports to calculate damages for the
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five classes at issue as follows.
The Claim Denial and Credit Recission classes consist of people who made
claims of unauthorized transactions where BANA, respectively, either denied the
claim or issued a credit which it then reversed. All such class members have since
been credited the full amount of those claims. Regan opines that they nevertheless
suffered actual damages in the full “amount of each class member’s claim(s).” HX
41 ¶¶ 38, 66, 99. He says the same about the EMV Chip class, which just combines
the other Claim Denial and Credit Rescission classes and (groundlessly) blames the
unauthorized transactions on the cards’ lacking EMV chips.
The Account Freeze class consists of consumers whose accounts BANA
temporarily froze based on claims concerning transactions that BANA believed were
authorized by the cardholder. Regan opines that they suffered actual damages equal
to the full amount of funds in their account when they were denied access, even
though their access was subsequently restored. Id. ¶ 78.
The Customer Service class consists of people who phoned BANA about their
accounts and spent time on hold, which Plaintiffs allege was excessive. Regan opines
that they suffered damages based on the “applicable minimum wage—or other
reasonable metric” during whatever portion of their time on hold is deemed
“excessive.” Id. ¶¶ 92-93; see HX 39.A at 282:25-284:16.
Across the Claim Denial, Credit Rescission, Account Freeze, and EMV Chip
classes, Regan proposes the use of a single formula purporting to measure “the time
value of money for impacted cardholders, or comparable measure of the economic
loss to class members resulting from their inability to access their UI benefits,” which
entails awarding them their full claim amount plus interest of either (i) 10%, which
he states “is consistent with the interest rate applied to judgments in California,” and
(ii) 20%, which is “based on [his] review of the types of credit accessed by typical
consumers” (albeit not by any of the consumers in this litigation). HX 41 ¶¶ 43, 46,
47, 49. Regan says he picked the 10% rate due to his “familiarity with the California
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Civil Code,” HX 39.A at 154:2-9, and the 20% rate as the “best estimate of the costs
that consumers incurred . . . of borrowing on a credit card”—even if they never
borrowed on a credit card. Id. at 161:7-24. Regan also claims these classes are entitled
to “disgorgement” damages based on the profits he imagines BANA might have
made from money kept in customer accounts he assumes consumers would
(uniformly) otherwise have withdrawn. HX 41 ¶¶ 61-62.
B.
The Stango Report
Stango’s Report addresses “Mr. Regan’s damages methodologies and the
calculations he performs to measure alleged damages for all five proposed classes.”
BX 1 ¶ 6; HX 48 at 34:21-35:13. Stango’s Report is directly responsive to Regan’s
and addresses precisely the same subject matter, so if Regan’s opinions are relevant,
then Stango’s rebuttals are at least as relevant.
Stango challenges as “economically illogical” Regan’s presumption that
consumers who “only lost access to their funds for a period of time” are damaged in
an amount equal to the full amount of their funds, just as if they had lost those funds
permanently. BX 1 ¶¶ 32, 90. Indeed, Regan himself had acknowledged that his
damages calculations “require an offset for amounts that the Bank has paid or
presently expects to
,” HX 41 ¶ 50 n. 60, yet
made no acknowledgement “
” of those amounts.
BX 1 ¶ 33 (emphasis in original). Regan “provides no economic argument for why a
dollar amount that was temporarily lost and then returned later represents economic
harm in the amount of the dollars to which the individual regained complete access,”
Stango concluded. Id. ¶ 83. The result is that Regan “substantially overstates” actual
damages in multiple ways. Id. §§ IV.A, VII.A, VIII.A, ¶¶ 38, 105.
Stango also cited a variety of ways in which Regan ignored heterogeneity in
the classes—such as his proposed use of “the then-current California minimum
wage” as the “identical” value for all Customer Service class members’ alleged “lost
time,” and his proposal to attribute every single class members’ alleged damages to
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the lack of an EMV chip regardless of whether they “would [] have been protected
from fraud by the presence of an EMV chip.” Id. ¶¶ 102, 105.
Stango further criticized Regan for failing to account for the unknown and
unknowable portion of class members who are entirely unharmed. Id. ¶ 105. Regan
fails to identify “

” in the Claim Denial and Credit
Recission classes. Id. ¶ 75, 87. These “

” Id.
In response to Regan’s unsupported assumptions that class members were
(uniformly) damaged to the tune of interest rates of 10 to 20 percent, Stango criticizes
Regan for “fail[ing] to analyze the types of credit accessed specifically by the
proposed class or any individual proposed class member during the proposed class
period” and relying on “assumptions about proposed class members’ economic
circumstances and behaviors that are not derived from class data and may be non-
representative of proposed class members’ economic circumstances and behaviors,
both individually and on average.” Id. ¶ 41. He also identifies invalid assumptions
behind Regan’s disgorgement proposal, such as “erroneously assum[ing] that

” when Regan’s own Schedule 1 shows that “

” Id. ¶ 81.
C.
Plaintiffs’ Motion to Exclude
Plaintiffs move to exclude “certain portions” of Stango’s Report, which they
describe as those “portions” expressing the opinion that “

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” Mot. at 1. That quote is from
Plaintiffs, not Stango, who expressed no opinion whatsoever about the order of
operations in an EFTA damages calculation or about EFTA at all. Plaintiffs
apparently decided that by inserting the EFTA citation into their own
(mis)characterization of Stango’s opinions, they could make it look like a “legal
conclusion”—as if Stango was performing statutory interpretation rather than
economics. Id.
But then, after criticizing Stango for offering a “legal conclusion,” Plaintiffs
Motion proceeds to criticize Stango for declining to offer a legal conclusion—
asserting that his opinions are somehow inadmissible because he does not “dispute”
how “
” Id. at 1, 5. That
is because Stango only opined on what “makes [] economic sense” and what, in his
opinion as an expert economist, “represents economic harm”—not on what the law
requires or how the Court should “proceed.” BX 1 ¶ 83. Plaintiffs do not take issue
with Stango’s opinions as a matter of economics. They devote the majority of their
memorandum to arguing that he is wrong “as a matter of law.” Mot. at 1.
Separately, Plaintiffs challenge “the distinction [Stango] . . . draw[s] between
‘lost funds’ and ‘lost access to funds’” as “unreliable and not grounded in sound
principles or methods.” Id. at 8. But they do not actually offer any arguments against
this grounded in any principles of economics—they just rehash their arguments that
Stango’s economic opinions are inconsistent with their legal arguments “

” Id.
Plaintiffs do not challenge any of the remainder of Stango’s well-grounded
opinions. Notably, Plaintiffs do not challenge Stango’s opinions:
1) That Regan’s consequential damages interest rate calculations for the
Claim Denial, Credit Recission, and Account Freeze classes are
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methodologically flawed, cannot be applied class-wide, and overstate
economic damages;
2) That Regan’s Claim Denial, Credit Recission and EMV Chip
methodologies fail to distinguish between harmed and unharmed
consumers;
3) That Regan’s damages methodology for the Customer Service and EMV
Chip classes ignores heterogeneity and fails to reliably measure class-wide
economic harm; and
4) That Regan’s disgorgement methodologies for the Claim Denial, Credit
Recission, Account Freeze, and EMV Chip classes fall short of reliably
estimating BANA’s profits.
They concede each of these critiques are admissible expert testimony.
Plaintiffs also do not challenge Stango’s qualifications as a damages expert.
ARGUMENT
I.
Economists Are Entitled to Offer Opinions on Economic Damages.
Plaintiffs’ characterization of Stango’s economic opinions as legal arguments
is without merit. As shown above, the only legal arguments made were by Plaintiffs.
Stango, for his part, offered opinions about “economic harm” from his perspective as
an economist. BX 1 ¶ 83. And he did so on the very same subject matters on which
Regan offered his own opinions (albeit in Regan’s case, not informed by any
economic expertise). See, e.g., id. ¶ 6 (“I have been asked to respond to Mr. Regan’s
damages methodologies and the calculations he performs to measure alleged
damages for all five proposed classes.”).2 Economists are entitled to offer opinions
on economic damages, experts are entitled to disagree with each other, and there is

2 See also, e.g., HX 48 at 35:9-13 (“Q. Your assignment was to respond only to those
opinions of Greg Regan that are set forth in this rebuttal report? A. Yes. That was my
assignment for this report.”), 116:9-14 (“Q. The Bank, the Bank’s counsel, framed
the scope of your assignment. Is that right? A. I was given my assignment which was
to respond to the opinions in the Regan report by counsel, yes.”), 119:6-11 (“I was
asked to address the Regan report and its methodologies. And so my focus was on
his analysis. And my opinions are about his analysis and his methodology.”).
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no sense in which Regan’s opinions on damages calculations come within the proper
bounds of expert testimony while Stango’s opinions in response somehow do not.
See, e.g., Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 636 (D. Haw. 2008)
(rebuttal expert reports are “proper rebuttal reports if they contradict or rebut the
subject matter” of the expert report); Laflamme v. Safeway, Inc., 2010 WL 3522378,
*3 (D. Nev. Sept. 2, 2010) (“As long as defendant’s rebuttal expert witnesses speak
to the same subject matter the initial experts addressed and do not introduce novel
arguments, their testimony is proper under Federal Rule of Civil Procedure
26(a)(2)(C) and related case law from District Courts in this circuit.”).
Stango offered no legal opinions. Rather, he offered opinions, as an expert
economist, on whether Regan’s proposed measure of “actual damages” served “to
reliably measure economic harm on a class-wide basis” as a matter of economic
principle and logic—and concluded that it did not. BX 1 ¶ 13. He grounded this
conclusion on the premise that economic damages are properly measured “as the
difference between actual consumer outcomes and consumer outcomes in a ‘but-for’
hypothetical world absent the at-issue conduct.” Id. ¶ 31; see also id. ¶ 72; In re
Cathode Ray Tube (CRT) Antitrust Litig., 308 F.R.D. 606, 624 n.33 (N.D. Cal. 2015)
(“The difference between prices actually charged for CRTs during the Class Period
and prices in a ‘but for’ world is sometimes called the ‘usual measure’ of damages.
This is a common damages calculation method.”). Seen from that perspective, a
consumer temporarily denied access to (say) $100 is not in the same position as a
consumer permanently denied access to $100: “the consumer who has lost funds does
not have $100 in the actual world but does have $100 in the but-for world, and the
consumer who has lost access to funds has $100 in both the actual and but-for
worlds.” BX 1 ¶ 32. “To treat customers in the two situations as similarly situated,”
as Regan proposes to do, “is economically illogical.” Id.
On the above basis, Stango analyzed how the measure of actual damages
would be different if the funds already recompensed to class members were excluded
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from the calculation. See id. ¶¶ 73-74. And therein lies the crux of Plaintiffs’
objection: they insist that

, and claim they are correct
about this “as a matter of law.” Mot. at 1. And based on Plaintiffs’ legal argument,
they accuse Stango of making legal arguments instead of economic analysis—
specifically, a legal argument that

” Id. This accusation is false on multiple levels
and furnishes no valid ground on which to exclude Stango’s economic analysis.
First and most fundamentally, it is not true—Stango offered no opinion
whatsoever on legal questions around damages trebling. Stango has been lucidly
clear about this. See, e.g., BX 1 ¶ 11 (“I do not opine on the legal question of whether
any damages in this matter should be trebled.”); HX 48 at 139:15-21 (“Q. You are
aware that [EFTA] provides for treble damages under certain circumstances? . . . A.
I have no opinion about that. I’m not a lawyer.”), 142:8-17

), 143:3-14 (“

 Q. Okay. So you have no
opinion about whether trebling should occur based on the amount of lost funds before
those funds are reimbursed or whether trebling should occur after the lost funds have
been reimbursed? . . . A. No. I wasn’t asked to think about that, particularly as it
would represent a legal conclusion or opinion.”).
Stango’s opinion was an economic one, not a legal one—namely, that funds
temporarily lost and then recovered do not impose the same economic harm as funds
permanently lost. See supra at 1-2, 4, 8-9. At no point in their Motion do Plaintiffs
argue that this opinion is in any way unsound or unreliable as a principle of
economics. Rather, their argument is that Stango’s economic opinion is “irrelevant”
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because the law supposedly permits Plaintiffs to claim the full, recovered principal
amounts as damages even if they do not qualify as economic harms. Mot. at 4. But
EFTA only allows for the recovery and trebling of “actual damages” incurred “as a
result” of the alleged harm. 15 U.S.C. §§ 1693m(a)(1), (a)(2)(B). And Judge Burns
already confirmed this was the case when he ruled that under EFTA, the damages
cognizable for “fully reimbursed” Plaintiffs are “the actual damages Plaintiffs
suffered as a result of the delayed reimbursements”—not the full principal amount
reimbursed. ECF 126 at 22-23. Moreover, even if the Court lets Plaintiffs go to the
jury arguing otherwise, the jury would still be tasked with deciding what actual
damages (if any) Plaintiffs have evidenced, and would be fully entitled to consider
Stango’s assessments of actual economic harm in doing so.
Plaintiffs try to support their legal argument by contending that this is not a
case about “a merely temporary ‘
’ to funds,” that class members still
had not been credited “when plaintiffs filed this lawsuit,” and that they were only
credited in “
” that “did not occur until over a year after
this case was filed.” Mot. at 5-6. This is false. Judge Burns’ motion-to-dismiss ruling
encompassed “20 of the 25 Class Plaintiffs” “who have been fully reimbursed” based
on their own Complaint allegations—one who was credited back “less than ten
business days” after her dispute. ECF 126 at 23. The classes include many more. For
example, nearly 30% of the Claim Denial Class members who took advantage of
BANA’s
 were
 of
initiating their error claim, which is less time than Regulation E requires for an
investigation. See BX 1 ¶ 64; ECF 589-2 ¶ 174 (which Plaintiffs do not dispute, ECF
652-1); 12 C.F.R. § 1005.11(c)(2) (financial institution has 45 days to complete
investigation of ATM disputes and 90 days to investigate point of sale transactions).
This confirms that many class members understood the decision was appealable and
were able to quickly regain access to their funds. And at minimum, it further
precludes the tens of thousands of cardholders who received prompt repayments from
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claiming any actual harm resulting from CFF-1, the ATM indicator, in the principal
amount of their claim.
Plaintiffs would also have this Court believe that filing a lawsuit and/or the
CFPB’s enforcement action were the only reason that they were credited at all, and
point to the Preliminary Injunction, CFPB and OCC Consent Orders, and the
Remediation Plan as evidence of needing the legal process or regulatory intervention
to recoup their claim amounts. See Mot. at 3. This is also untrue. The vast majority
of the Claim Denial and Credit Rescission Classes’ claims were paid well before the
Preliminary Injunction was issued or the Consent Order and Remediation Plan were
entered and agreed to.
 class members had their claims
 the
Preliminary Injunction was issued on June 9, 2021. See HX 41.A. An additional
 class members (
 in total) had their claims
 the Consent
Order was entered and agreed to in July 2022. See id. That is,
% of the
approximately 109,000 class members had their claims
 the Preliminary
Injunction was issued, and approximately
% had their claims paid before the
Consent Orders were entered. See id.

. HX 49 ¶ 37; HX 42
at 8-10.
Plaintiffs assert that class members were all “told by the Bank in no uncertain
terms that their unauthorized-transaction claims had (permanently) been denied or
that their credits had (permanently) been rescinded.” Mot. at 6. That is simply false.
Well before this lawsuit was filed, Plaintiffs were on notice that

. BX 1 ¶ 15. Although BANA
believed that

. See ECF 589-2 ¶¶ 80-81, 95, 97, 99.
Plaintiffs’ “expert” opinions must be excluded as lacking a sufficient factual basis if
they are founded on the false premise that BANA denied all claims permanently (and
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Plaintiffs’ damages arguments based on this same false premise must likewise fail).
In any event, even if the Court were to agree with Plaintiffs’ legal arguments
about offsetting, and even if the Court were further to agree with Plaintiffs that
Stango’s analysis of economic harm is not relevant to determining class members’
actual damages, that still would not support Plaintiffs’ argument that Stango’s
analysis is “irrelevant.” It would just make the analysis relevant to offsetting issues
instead of actual damages issues—but the analysis is relevant just the same.
Plaintiffs’ own expert Regan concedes that actual damages “require an offset for
amounts that the Bank has paid or presently expects to pay pursuant to the
Remediation Plan.” HX 41 ¶ 50 n.60. Even if somehow relevant to nothing else,
Stango’s calculations are plainly relevant when it comes to calculating what that
offset should be.
Not a single one of Plaintiffs’ cited authorities precludes the admissibility of
Stango’s analysis. To start, Plaintiffs cite Uthe Tech. Corp. v. Aetrium, Inc., 808 F.3d
755 (9th Cir. 2015) for its holding that while a “$9 million arbitral award roughly
corresponded to [the plaintiff’s] losses,” the court could not “extinguish” the
plaintiffs’ claim to RICO treble damages under U.S. law because “[t]he Singapore
arbitration was limited [to] claims . . . arising under Singapore law,” which did not
recognize treble damages. Id. at 760. “[F]ull satisfaction” of the RICO claim, the
Ninth Circuit ruled, is “three times the proven actual damages,” and the $9 million
was cognizable only as a “partial credit[]” toward the trebled amount. Id. at 762. The
material difference between Uthe and Plaintiffs here is that the Uthe plaintiff had
actually evidenced $9 million as actual “losses,” id. at 760, while Plaintiffs here have
not. Uthe also emphasizes “the equitable principle that a plaintiff who has received
full satisfaction of its claims from one tortfeasor generally cannot sue to recover
additional damages corresponding to the same injury from the remaining
tortfeasors.” Id. at 760 (emphasis added). As there is only one Defendant at issue
here, Uthe is entirely irrelevant.
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B.P. v. Balwani, 2021 WL 4077008 (9th Cir. Sept. 8, 2021) fares no better.
Balwani is “not appropriate for publication and is not precedent except as provided
by Ninth Circuit Rule 36-3,” and no Rule 36-3 exception applies here. Id. at *1 n.1.
Nonetheless, Balwani’s holding (that Plaintiffs are entitled to treble damages so long
as, among other things, “additional damages are ‘offset’ by the amount already paid,”
id. at *3) is not helpful to Plaintiffs because Stango offers an opinion on whether
Regan’s proposed measure of “actual damages” served “to reliably measure
economic harm on a class-wide basis”—not whether trebling should occur at all. BX
1 ¶ 13.
In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prods. Liab. Litig.,
2017 WL 4890594 (N.D. Cal. Oct. 30, 2017) is equally unhelpful. Plaintiffs not only
cite Clean Diesel’s analysis of mootness in the motion to dismiss context (which is
entirely irrelevant)—they also cite only to Clean Diesel’s analysis of Flintkote Co. v.
Lysfjord, 246 F.2d 368 (9th Cir. 1957). This harms Plaintiffs more than it helps them
because Flintkote was an antitrust conspiracy case where the plaintiff settled and
released its claims against all defendants except one for $20,000, then won $50,000
in compensatory damages from the remaining defendant, “trebled by the court to
$150,000.” Id. at 373. In applying Flintkote, other Ninth Circuit courts held that the
“critical factor” allowing it to deduct the $20,000 from the total award after trebling
rather than the compensatory award before trebling was that “the ‘full-satisfaction’
to which treble damage claimants are entitled is ‘three times the proven actual
damages.’” Clean Diesel, 2017 WL 4890594, *4 (emphasis added) (internal citations
omitted). Flintkote, like Balwani and Uthe, therefore touches only on the order of
operations in a treble-damages calculation after the plaintiff has already evidenced
and proven its actual damages. See Flintkote at 397. Stango “do[es] not opine on the
legal question of whether any damages in this matter should be trebled,” BX 1 ¶ 11,
and therefore his opinion on what constitutes actual damages in the first place is not
impacted by these (or any) of Plaintiffs’ authorities. Citing Clean Diesel and
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Flintkote to support the notion that Plaintiffs have already proven actual damages in
the full amount of their disputed transactions is circular reasoning: that is exactly
what remains to be evidenced and proven, and exactly what experts are meant to
opine on and rebut. Id.
II.
Stango’s Economic Analysis Is Reliable.
Perhaps recognizing that they raise no serious challenge to the relevance of
Stango’s analysis and no serious argument that it is a “legal opinion,” Plaintiffs
conclude their Motion with a short, half-hearted argument that it should also be
excluded as “unreliable.” Mot. at 8. Plaintiffs’ only ground for doing so is to criticize
his reliance on the text, Litigation Services Handbook, The Role of the Financial
Expert. Id. Plaintiffs, however, are in no position to argue that reliance on this text
makes an opinion unreliable, since their own expert relies on the same text. See HX
41 ¶ 62 n.87.
Plaintiffs nonetheless contend it improper for Stango to rely on the text on the
asserted ground that

 Mot. at 8. This argument does nothing to
impugn the reliability of Stango’ analysis, since Stango did not express any opinions
at all on “
” Id., see supra at 9.
Thus, after (groundlessly) accusing Stango of offering legal opinions, Plaintiffs’
fallback argument is to complain about Stango’s refraining from offering legal
opinions.
Plaintiffs also insinuate—falsely—that the Handbook is the “
”
Stango relied on in drawing “

” Mot. at 8. It is not. Stango referenced and relied on multiple studies
analyzing the time value of money as a well-established concept in economics and
finance. BX 1 ¶ 39; HX 48 at 178:14-179:10, 188:11-189:2. He cited the Handbook
solely for the basic proposition that “[o]ne can calculate economic damages as the
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difference between actual consumer outcomes and consumer outcomes in a ‘but-for’
hypothetical world absent the at-issue conduct.” BX 1 ¶ 31 & n.45. Plaintiffs do not
contest that proposition, nor could they. See supra at 8. It is a broadly established
principle generally accepted as a matter of economics and generally accepted by the
courts. See CRT Antitrust Litig., supra. Plaintiffs’ argument that economic damages
should be calculated without regard to the difference between the actual world and
the but-for world is an argument they are free to make, but it does not go to the
reliability or admissibility of Stango’s economic analysis. See, e.g., Hangarter v.
Provident Life & Acc. Ins. Co., 373 F.3d 998, 1017 n. 14 (9th Cir. 2004) (“Although
Defendants during voir dire argued that [expert’s] selection of documents to review
went to the reliability of his ‘methodology’ as an expert, the district court correctly
surmised that questions regarding the nature of [an expert’s] evidence went more to
the ‘weight’ of his testimony—an issue properly explored during direct and cross-
examination”).3
CONCLUSION
For the foregoing reasons and on the basis of the Reports in the record,
Plaintiffs’ Motion should be denied.

Dated:   February 5, 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)

3 Plaintiffs’ citations to Gen. Elec. Co. v. Joiner, 522 U.S. 136, 145-47 (1997) and
Cabrera v. Cordis Corp., 134 F.3d 1418 (9th Cir. 1998) to support exclusion because
of the alleged gap between Stango’s sources and his contested opinion holds no
weight. Nowhere does Stango fail to point to objective sources that are practiced and
recognized by other economists, including Plaintiffs’ own expert, Regan. These are
not grounds for exclusion. See Bergen v. F/V St. Patrick, 816 F.2d 1345, 1352 n.5
(9th Cir. 1987), opinion modified on reh'g, 866 F.2d 318 (9th Cir. 1989) (“The
relative weakness or strength of the factual underpinnings of the expert’s opinion
goes to weight and credibility, rather than admissibility.”).
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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

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

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

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

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
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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 5, 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 5, 2026

/s/ Matthew L. Riffee

MATTHEW L RIFFEE

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