Motion - Ayers v. Robinson, (2026-04-17)

Source document: Motion - Ayers v. Robinson, (2026-04-17); document type: Memorandum of points and authorities (Daubert motion, ISO Doc. 565).

Full text

BANA’S MEM. ISO MOT. TO EXCLUDE EAST
CASE NO. 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
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO EXCLUDE
PURPORTED EXPERT OPINIONS
OF CHLOE N. EAST
Date:
April 17, 2026
Time:
1:30 p.m.
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
ORAL ARGUMENT REQUESTED
FILED PROVISIONALLY UNDER SEAL
PURSUANT TO STIPULATED PROTECTIVE
ORDER
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TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
BACKGROUND ....................................................................................................... 2
I.
Plaintiffs’ Claims and Damages Theories ....................................................... 2
II.
The East Report ............................................................................................... 4
III.
The McCrary Rebuttal ..................................................................................... 5
STANDARD OF LAW ............................................................................................. 6
ARGUMENT ............................................................................................................. 7
I.
East’s Use of a Credit Card Interest Rate Is Unreliable and
Unsupported. ................................................................................................... 8
CONCLUSION ........................................................................................................ 14
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TABLE OF AUTHORITIES

Page(s)
Cases
Ayers v. Robinson,
887 F. Supp. 1049 (N.D. Ill. 1995) ....................................................................... 9
Bakst v. Cmty. Mem’l Health Sys., Inc.,
2011 WL 13214315 (C.D. Cal. Mar. 7, 2011) ................................................... 11
In re Blackbaud, Inc. Cust. Data Breach Litig.,
2024 WL 2155221 (D.S.C. May 14, 2024) ........................................................ 12
Brighton Collectibles, Inc. v. RK Tex. Leather Mfg.,
923 F. Supp. 2d 1245 (S.D. Cal. 2013) (Curiel, J.) ........................................ 7, 12
Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp.,
509 U.S. 209 (1993) ........................................................................................... 11
Comcast Corp. v. Behrend,
569 U.S. 27 (2013) ............................................................................................... 8
Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993) ....................................................................................... 6, 13
Daubert v. Merrell Dow Pharms, Inc. (Daubert II),
43 F.3d 1311 (9th Cir. 1995) ................................................................................ 7
Domingo v. T.K.,
289 F.3d 600 (9th Cir. 2022) ................................................................................ 7
United States ex rel. Fitzer v. Allergan, Inc.,
2024 WL 1156310 (D. Md. Mar. 18, 2024) ......................................................... 8
Gen. Elec. Co. v. Joiner,
522 U.S. 136 (1997) ..................................................................................... 10, 13
Guardant Health, Inc. v. Found. Med., Inc.,
2020 WL 2461551 (D. Del. May 7, 2020) ........................................................... 9
Gutierrez v. Girardi,
194 Cal. App. 4th 925 (2011) ............................................................................... 7
Kewazinga Corp. v. Google LLC,
2024 WL 4894840 (S.D.N.Y. Oct. 17, 2024) .................................................... 13
Kolcraft Enters. v. Chicco USA, Inc.,
2018 WL 10772693 (N.D. Ill. July 16, 2018) ...................................................... 9
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Munoz v. JLO Automotive, Inc.,
2020 WL 6607789 (D. Conn. Nov. 12, 2020) .................................................... 14
Obesity Rsch. Inst., LLC v. Fiber Rsch. Int'l, LLC,
165 F. Supp. 3d 937 (S.D. Cal. 2016) .................................................................. 7
Orshan v. Apple Inc.,
2024 WL 4353034 (N.D. Cal. Sept. 30, 2024) ..................................................... 8
Sabicer v. Ford Motor Co.,
362 F. Supp. 3d 837 (C.D. Cal. 2019) .................................................................. 7
Stephens v. Union Pac. R. Co.,
935 F.3d 852 (9th Cir. 2019) .............................................................................. 11
Stokes v. John Deere Seeding Grp.,
2014 WL 675820 (C.D. Ill. Feb. 21, 2014) .......................................................... 9
Unwired Planet, LLC v. Apple Inc.,
2017 WL 589195 (N.D. Cal. Feb. 14, 2017) .................................................... 8, 9
Van v. LLR, Inc.,
962 F.3d 1160 (9th Cir. 2020) ............................................................................ 14
Statutes
15 U.S.C. § 1693m .................................................................................................... 7
Rules
FED. R. EVID. 702 ....................................................................................................... 7

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Plaintiffs cannot survive summary judgment without carrying the burden of
producing evidence of actual damages for themselves and their classes. Economist
Chloe N. East is one of the purported “experts” on whom they rely for this purpose.
Plaintiffs and their classes consist of prepaid debit cardholders who temporarily lost
access to a portion of their unemployment (UI) benefits payments when Bank of
America (BANA) denied their disputes of allegedly unauthorized charges. Those
charges have all since been credited back to them (
), so their claims for
actual damages rest on claims of being injured by the delay.
East opines that these alleged damages can be calculated based on a 20.8%
credit card interest rate applied to the period of time class members lacked access to
portions of their UI benefits. She does not contend that any individual Plaintiffs or
any class members actually borrowed money on credit cards and paid 20.8% interest.
Instead, she contends that the credit card interest rate is an “appropriate minimum
bound” for calculating consequential damages in the aggregate. As her analysis
makes clear, East has no idea what actual damages were suffered by the
representative Plaintiffs or by any other class member, nor does she care. She instead
proposes the credit card interest rate as a “conservative estimate of the aggregate
costs faced by the class while waiting for their UI benefits.” But an expert’s duty is
to produce a reliable and accurate analysis, not a “conservative” one.
East’s purported damages analysis fails the Daubert criteria for relevance and
reliability for several reasons. The analysis does not even attempt to calculate
Plaintiffs’ actual damages, or account for the actual real world behavior of the class
members. Indeed,

 East disregards this, and instead relies on
assumptions—not evidence—about how class members would have behaved based
on academic literature addressing an altogether different context: patterns of behavior
in circumstances where UI recipients had their benefits expire or get fully cut off.
But here, the class members’ UI benefits did not expire or get fully cut off. They
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merely lacked access to portions of their funds, temporarily—in some cases in
amounts less than
 and/or for time periods of
. Research
findings that address a total and permanent deprivation of UI benefits are therefore
insufficiently tethered to the facts of this case to inform the issues at hand. But this
irrelevant material is the sole asserted basis for East’s opinions.
Plaintiffs carry the burden of producing evidence of their damages
individually, and producing evidence that the same evidence applies classwide. As
East’s analysis does neither, it should be excluded from the record.
BACKGROUND
I.
Plaintiffs’ Claims and Damages Theories
On June 16, 2025, this Court certified five classes of California UI benefits
recipients alleging that they contacted BANA claiming unauthorized use of their
benefits prepaid debit card, but had those claims denied because BANA’s records
showed that the disputed transactions were made in-person at ATMs requiring the
cardholder’s physical card and a claim that their private PIN passcode was somehow
compromised. ECF 494 at 96–97. The relevant time period runs about seven-and-a-
half months, from September 28, 2020, when BANA implemented the challenged
fraud-detection process (“CFF-1”), to June 8, 2021, when BANA ceased using CFF-
1 to deny claims. See id.
Separately, in July 2022, BANA entered into a settlement agreement with the
Office of the Comptroller of the Currency (OCC) and the Consumer Financial
Protection Bureau (CFPB) that included a framework providing full compensation
for cardholders whose claims might have been inaccurately decisioned by the filter.
See generally HX1 28; HX 29 .

 See HX 30
at 77:7–17 (testifying that BANA “

1 Exhibits to the Delcaration of Lindsay E. Hoyle shall be referred to as “HX.”
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). Following that
settlement agreement,

 HX 31 at 4 n.16; ECF 350-8 ¶¶ 9–14. In addition to paying
cardholders the full value of their disputed claims,

 HX 31 at 5–13. BANA used

 even though it

and determined such a rate to be

 Id. at 7, 9, 13. The Remediation Plan did not attempt to

., at 12, but cardholders were

 Id.

 See ECF 350-9 ¶¶ 14–15.
Plaintiffs assert that everyone who

 But the Court determined that “the
Remediation Plan does not support a damages model” that carries Plaintiffs’ burden
because

 ECF 494 at 87. In particular, the Court rejected a proposed
method of basing damage calculations on assumptions that class members “would
likely have needed alternative funds”
 and
would “most likely” have used credit card borrowing to obtain them, on the ground
that Plaintiffs lacked “evidence showing that these assumptions are true as to most
or even any of the EDD cardholders.” Id. at 87–88.
East makes those same assumptions, and also lacks evidence for them.
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II.
The East Report
East claims expertise in the field of “U.S. safety net and social insurance
programs including Unemployment Insurance” and teaches at the University of
Colorado. HX 32 ¶¶ 1, 4. Plaintiffs proffer her as a damages expert, to opine on “the
vulnerability of UI recipients and the importance of UI benefits,” “the impacts of
denying UI beneficiaries access to their UI funds,” and an “appropriate compound
interest rate that can be used under a common methodology to calculate the
consequential damages” to class members resulting from their temporary inability to
access those benefits. Id. ¶ 5. East explained her approach as follows:
I review research and conduct my own analysis to come up with the 20.8 credit
card interest rate as appropriate, if anything, [an] underestimate of the cost faced
by class members. And because my report is focused on providing this interest
rate that will lead to an aggregate damages calculation, the important thing is
that the 20.8 percent is representative of a larger—large number of class
members, and so there might be some class members that have slightly lower
interest rates that they face or slightly higher interest rates that they face. But
when applying this average measure to the entire class and aggregating up, it
will be just as good as taking those slightly lower or slightly higher and
aggregating all of those up. It will lead to the same estimate.
HX 33 at 176:25–177:15. Thus the “appropriate minimum bound” that East proposes
is not intended to measure the actual damages sustained by the class or anyone in it,
but instead to guess at an average that might apply to some unspecified portion of the
class.
East’s chosen interest rate is based on unsupported assumptions that the
behavior of class members would mirror that of other UI beneficiaries in very
different circumstances. For example, East relies on research discussing a complete
absence or expiration of traditional (non-pandemic-related) UI benefits (as opposed
to the temporary loss of access to a portion of funds at issue here) in pre-pandemic
time periods to conclude that UI recipients during the pandemic relied on them to pay
“essential expenses.” HX 32 ¶¶ 11–23. On that basis, she concludes that they would
have resorted to credit card borrowing during the pandemic if faced with a temporary
loss of benefit access of any duration or amount. See id. ¶¶ 21, 23.
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Because she is solely concerned with finding a way to generate a number that
constitutes a broadly applicable “minimum bound”—that is, a dollar figure that she
believes is lower than actual damages for some, but not all, class members—class
members’ individual circumstances are of no concern to East. She recommends using
the 20.8% interest rate universally, regardless of whether class members actually
borrowed money on their credit cards at that rate, or the length of time they were
unable to access their UI benefits, or the amount of UI benefits at issue. HX 33 at
134:24–11; 136:4–10; see id. at 38:20–39:4; 142:6–17. But East’s refusal to consider
the real-world facts and circumstances of the Plaintiffs or their actual responses to
the temporary loss of access to UI benefits at issue here leaves her with no basis to
conclude that a 20.8% interest rate is appropriate or representative of a “large number
of class members.”
III.
The McCrary Rebuttal
Economist Justin McCrary addressed East’s conclusions and methods in a
rebuttal report. He considered East’s claim of a 20.8% opportunity cost of
temporarily lost funds based on the credit card interest rate “unsupported and
inflated” for multiple reasons. HX 34 ¶ 17. Among other things, there was “evidence
to suggest proposed class members would have

” Id. ¶ 73
(emphasis in original). East did not consider these alternative sources of capital,
which “would have no or lower cost of borrowing than the average credit card rate,”
or whether the class representatives availed themselves of them in her analysis. Id..
The discovery record shows that, of “the nine class representatives . . .

 Id. ¶ 75 (emphasis in original).

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 Id. Of the remaining class representatives,

Id. ¶¶ 75–76. Among the larger group of named Plaintiffs not proffered as class
representatives, 48 provided interrogatory responses on their claimed damages, and
 Id. ¶ 77.
Furthermore, East primarily based her conclusion concerning beneficiary
behavior when UI benefits promptly expire on studies of benefit use before
COVID—not the COVID-era benefits at issue here. See HX 32 ¶¶ 13–18, 23; HX 34
¶¶ 50–58. This distinction is significant because the “pandemic-related stimulus
resulted in many households increasing their savings”—unlike the typical UI
benefits recipient in years prior—and because many of the essential expenses that
recipients might otherwise have needed UI benefits to pay were no longer due and
owing. Id. ¶ 80 (emphasis added); see id. ¶¶ 50–58. For example, borrowers could
benefit from a year-long forbearance on making mortgage-loan payments, three-and-
a-half years of forbearance on making student-loan payments, and similar
forbearance on auto loans. Id. ¶¶ 36, 38, 41. Contrary to East’s opinion that UI
recipients “will turn to borrowing” generally and “credit cards” in particular (HX 32
¶ 10b (emphasis added)), many did not. Instead, the COVID era saw credit card
borrowing decrease as consumers used the various forms of available assistance to
pay down their credit card debt. HX 34 ¶¶ 57, 67. Thus, “far from being conservative,
the credit card borrowing rate . . . represents an inflated cost of the temporary inability
to access a portion of UI benefits for the proposed class members.” Id. ¶ 103
(emphasis added).
STANDARD OF LAW
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993), “impose[] a special ‘gatekeeping obligation’ on trial judges”
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presented with expert testimony. Brighton Collectibles, Inc. v. RK Tex. Leather Mfg.,
923 F. Supp. 2d 1245, 1253 (S.D. Cal. 2013) (Curiel, J.). Under Rule 702, a witness
proffered as an expert must satisfy the following requirements:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue; (b)
the testimony is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.
Under Daubert, district courts must “carefully apply[] Federal Rule of Evidence 702
to ensure that specialized and technical evidence is ‘not only relevant, but reliable.’”
Brighton Collectibles, 923 F. Supp. 2d at 1253. The reliability standard tests:
(1) whether the scientific theory or technique can be (and has been) tested; (2)
whether the theory or technique has been subjected to peer review and
publication; (3) whether there is a known or potential error rate; and (4)
whether the theory or technique is generally accepted in the relevant scientific
community.
Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2022). In addition, “[o]ne very
significant fact to be considered is whether the experts are proposing to testify about
matters growing naturally and directly out of research they have conducted
independent of the litigation, or whether they have developed their opinions
expressly for purposes of testifying.” Daubert v. Merrell Dow Pharms, Inc. (Daubert
II), 43 F.3d 1311, 1317 (9th Cir. 1995).
“[T]he burden of proving the expert’s testimony satisfies Rule 702” and the
Daubert standard rests on the Plaintiffs, as “[t]he proponent of the evidence.”
Brighton Collectibles, 923 F. Supp. 2d at 1253.
ARGUMENT
The law requires Plaintiffs to furnish evidence of their “actual damage”
resulting from the challenged conduct. See 15 U.S.C. § 1693m(a)(1).2 Because

2 See also Sabicer v. Ford Motor Co., 362 F. Supp. 3d 837, 840 (C.D. Cal. 2019)
(negligence claim requires damages); Obesity Rsch. Inst., LLC v. Fiber Rsch. Int'l,
LLC, 165 F. Supp. 3d 937, 947 (S.D. Cal. 2016) (plaintiff must “establish a loss or
deprivation of money or property sufficient to qualify as injury in fact” under Unfair
Competition Law); Gutierrez v. Girardi, 194 Cal. App. 4th 925, 932 (2011)
(fiduciary duty requires showing of “damage proximately caused by the breach”)
(internal quotation omitted).
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Plaintiffs assert their claims on behalf of a class, the method they use to evidence
actual damages must measure damages “across the entire class.” Comcast Corp. v.
Behrend, 569 U.S. 27, 35 (2013). East’s proposal to estimate an appropriate
“minimum bound” for class damages using a 20.8% credit card interest rate is not
admissible for this purpose. It does not even pretend to measure the “actual damage
sustained” by any Plaintiff, or the “entire class” of Plaintiffs, and simply posits that,
whatever the correct measure of damages is for the class as a whole, it will be higher
than the measure calculated using the 20.8% rate she suggests. But the arbitrary
selection of a “minimum bound” is not a recognized or reliable means of measuring
actual damages (and does not purport to do so), and East’s opinion is therefore not
relevant to the Court or a factfinder in assessing whether Plaintiffs have the evidence
of actual damages they need.
I.
East’s Use of a Credit Card Interest Rate Is Unreliable and Unsupported.
East’s characterization of the 20.8% credit card interest rate she recommends
as “conservative” (HX 32 ¶ 37) does not make it reliable. “Daubert asks whether
expert opinions are reliable and relevant, not whether they are conservative.” Orshan
v. Apple Inc., 2024 WL 4353034, *3 (N.D. Cal. Sept. 30, 2024). “If a damage model
could survive Daubert by simply underestimating true damages, an expert could
avoid having a court exclude her opinions by picking an arbitrary damage figure that
is comfortably below any reasonable amount of true damages even though such an
opinion would be plainly unreliable.” Id. But that is all East’s analysis is designed to
achieve, and Plaintiffs cannot “sneak” the analysis “past Daubert” in this manner. Id.
The case law is unequivocal: “Just because an approach is conservative does
not mean it is reliable.” United States ex rel. Fitzer v. Allergan, Inc., 2024 WL
1156310, *5 (D. Md. Mar. 18, 2024); accord, e.g., Unwired Planet, LLC v. Apple
Inc., 2017 WL 589195, *2 (N.D. Cal. Feb. 14, 2017) (“Nor does the fact that the . . .
model yields relatively conservative results offer assurance that those figures are
useful or reliable.”) If anything, “by shrouding the results in an air of legitimacy,”
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East’s labelling of her methodology as conservative “raise[s] the risk of juror
confusion, making it all the more essential that the Court exercise its gatekeeping
function until admission is adequately supported.” Unwired Planet, 2017 WL 58915,
*2.3
East does not claim that every class member (or any class member) was
damaged in the amount of the credit card interest rate because they paid credit card
interest. Rather, she claims that the figure that can be derived using the 20.8% rate
constitutes a “conservative estimate” of “aggregate costs” without any understanding
of how the class members actually responded to the temporary loss of benefit access
and without any consideration of what their actual aggregate costs were. HX 32 ¶ 37.
But nothing about the class members’ alleged or actual damages has anything to do
with the 20.8% interest rate—the rate has no connection at all to any class member’s
alleged or actual damages apart from East’s supposition that the rate is an
“appropriate minimum bound” on them. Id. ¶ 35. This is fatal.
If, for example, the class were limited to people who actually paid interest on
loans, it would be fair to assume that the lower bound on what they paid is the lowest
interest rate available. But here, the class is

 See HX 34 ¶¶ 75–77. Thus, East’s selection of the 20.8% rate
as the minimum bound for “a conservative estimate of . . . aggregate costs” is
completely arbitrary. See, e.g., Kolcraft Enters. v. Chicco USA, Inc., 2018 WL

3 See also Guardant Health, Inc. v. Found. Med., Inc., 2020 WL 2461551, *18 (D.
Del. May 7, 2020) (“merely labelling a value ‘conservative’ is no substitute for a
showing that there is an evidentiary foundation for the particular percentage
selected”); Stokes v. John Deere Seeding Grp., 2014 WL 675820, *4 (C.D. Ill. Feb.
21, 2014) (“the fact that an opinion is conservative does not make it scientific”);
Ayers v. Robinson, 887 F. Supp. 1049, 1060–61 (N.D. Ill. 1995) (“a conservative
opinion . . . does not equate to a scientific one. Someone who states on the basis of a
dull pain in his right knee that he thinks it is going to rain less than .1 inch expresses
a conservative, but surely an unscientific, opinion.”).
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10772693, *4 (N.D. Ill. July 16, 2018) (“the arbitrary baseline taints the entire
damages calculation”). In other words, the selected interest rate “is connected to
existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997). It is proffered as a “minimum bound” of Plaintiffs’ costs only
because East says so.
East’s opinion that the behavior of UI recipients during COVID would
essentially be identical to the pre-COVID behavior of UI recipients (see HX 32
¶¶ 10a-d) is purely speculative. First, East relies on research pertaining to other
benefits programs that predate COVID pandemic assistance and that does not account
for the unique circumstances in which UI beneficiaries found themselves during that
period. In particular, this research does not and cannot account for the numerous
stimulus payments and other programs that were designed to provide financial relief
during the pandemic. East conceded at her deposition that she was familiar with the
following:
• the Federal Pandemic Unemployment Compensation Program which
initially provided UI benefit supplements for up to four months;
• the Pandemic Emergency Unemployment Compensation Program, which
provided an additional 13 weeks of UI benefits between March 29 and
December 26, 2020;
• the COVID-Related Tax Relief Act of 2020 that provided for an additional
$600 for eligible individuals and up to $600 for qualifying children under
the age of 17 in January 2021;
• the American Rescue Plan Act of 2021 that provided payments up to $1,400
for eligible individuals, $2800 for married couples filing jointly, and $1,400
for qualifying dependents;
• the Golden State Stimulus Program which provided additional stimulus
payments to certain low-income Californians during the pandemic; and
• the moratorium in California on the disconnection of essential services for
non-payment and waiver of late payment fees.
See HX 33 at 76:2–80:22. But she never explains how the research on which she
relies to justify her opinions, which discusses how UI recipients would have
responded to a loss of UI benefits before any of these programs came into existence,
has any bearing on how UI recipients would have responded after receiving some or
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all of the stimulus payments listed above, or, more importantly, how the class
members would have responded. East simply assumes that the pre-COVID and
COVID-era behavior of UI recipients would be exactly the same, despite the terms
of the benefits programs being different and the profiles of the eligible recipients
being different. This is not sufficient under Daubert. See Bakst v. Cmty. Mem’l
Health Sys., Inc., 2011 WL 13214315, *20 (C.D. Cal. Mar. 7, 2011) (excluding
damages calculation based on expert’s “factual assumptions that are entirely
unsupported in the record”).
Second, East ignores record data establishing that certain class members lost
access to their UI benefits for
 and/or could not access

. It is not reasonable to assume that these individuals
faced a “financial hardship that cannot easily be undone” that would have caused
them to adopt the same borrowing strategies as UI beneficiaries who experienced a
permanent loss of benefits, assuming interest-bearing debt on
. HX 32 ¶
28. But, because she was unburdened by any facts relating to the class plaintiffs’
actual experiences at the time she wrote her report, East’s opinion simply assumes
that they would. Where, as here, “indisputable record facts contradict or otherwise
render [an] opinion unreasonable, it cannot support a jury’s verdict.” Brooke Grp.
Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242, (1993); see Stephens
v. Union Pac. R. Co., 935 F.3d 852, 856 (9th Cir. 2019) (finding expert opinions
failed to create a material issue of fact on summary judgment where experts made
assumptions on key points that were not supported by evidence).
Third, East’s opinion ignores portions of the record that undermine her
supposition that a “large number of class members” borrowed on their credit cards
and paid 20.8% interest in response to a temporary account freeze or claim denial.
Discovery of the class representatives revealed

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 HX 34  ¶¶ 75–77. East’s failure even
to consider this data makes her recommendation of the 20.8% interest rate
uninformed and unhelpful to the Court or a factfinder. See, e.g.,  Brighton
Collectibles, 923 F. Supp. 2d at 1255 (excluding damages calculation where expert
had “not grounded his assumption with the real world facts of [the] case,” and finding
expert’s “speculation would not help the jury but could mislead them”). Indeed, this
Court, as noted, already rejected a proposed damages methodology for making
“assumptions about class members” that “may not be true classwide,” and for lacking
“evidence in support” of the same assumptions about borrowing behavior made by
East. ECF 494 at 87–88.
The inapplicability of East’s proposed method to the actual class
representatives is highly significant to assessing the relevance and reliability of her
analysis under the Daubert standard. A “key question” under Daubert is whether the
expert’s method “can be (and has been) tested.” 509 U.S. at 593. A method that does
not produce reliable and accurate conclusions as applied to the class representatives
or some other sample of the class ipso facto cannot serve as a reliable and accurate
method as applied to the class as a whole. See, e.g., In re Blackbaud, Inc. Cust. Data
Breach Litig., 2024 WL 2155221, *10, 13–14 (D.S.C. May 14, 2024) (excluding
expert who “tested his method on three named plaintiffs,” failed to “indicate whether
or how he verified the accuracy of the [method] for those three individuals,” and
“chose not to conduct any testing beyond [the] three named plaintiffs”).
Applying East’s method to the entire class, as she urges, merely exacerbates
its unreliability. As already shown, East admits her method was designed to capture
the experience only of a “large number of class members,” although East has no facts
or data to support that claim, and never quantifies or even gestures at just how many
class members she has in mind. By relying on these sweeping generalizations and not
validating them by reference to the specific facts and circumstances of even a single
class representative, individual Plaintiff, or proposed class member, East fails to base
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her method on “sufficient facts or data” as required by Federal Rule of Evidence
702(b). See Kewazinga Corp. v. Google LLC, 2024 WL 4894840, *4 (S.D.N.Y. Oct.
17, 2024) (striking damages computation as not based on “sufficient facts or data,”
because “a very high-level view” “does not mean that those numbers are sufficiently
reliable to develop a ratio to compute damages”). Because East’s opinions are
“connected to existing data only by the ipse dixit of the expert,” her opinions are also
irrelevant and inadmissible. Joiner, 522 U.S. at 146.
Lastly, Daubert asks whether a proffered expert’s methods enjoy “general
acceptance” in the field. 509 U.S. at 594. “Widespread acceptance can be an
important factor in ruling particular evidence admissible, and ‘a known technique
which has been able to attract only minimal support within the community’ may
properly be viewed with skepticism.” Id. (citation omitted). East does not make any
claim that using a credit card interest rate to calculate damages for a class of people
 enjoys any such general acceptance. The most
she offers are citations to academic studies for the proposition that “when UI benefits
are abruptly cut off,” UI households will either borrow or cut back, or both, and that
borrowing on credit cards “is the most common source of borrowing among people
who receive UI.” HX 32 ¶¶ 29, 30. That falls far short of indicating any general
acceptance for her proposed method here,

And, as McCrary pointed out in rebuttal, this case does not present a situation where
“UI payments disappear[ed]”—the only claim is that “

.” HX 34 ¶¶ 48, 73.
East does not present any studies that measure the opportunity costs of that scenario,
much less any studies that do so using the method she proposes. East thus fails to
demonstrate any general acceptance of her method in the field of economic damage
analysis.
Nor does East’s method enjoy any acceptance as a matter of law. The cases do
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not permit plaintiffs to claim interest expenses as damages with no evidence of
actually paying them. See, e.g., Munoz v. JLO Automotive, Inc., 2020 WL 6607789,
*3 (D. Conn. Nov. 12, 2020) (interest charges not cognizable as “actual damages”
with “no evidence in the record” that plaintiff “actually incurred those interest
charges”). To the contrary, in Van v. LLR, Inc., 962 F.3d 1160, 1161–65 (9th Cir.
2020), the Ninth Circuit assessed “time value of money” damages for a delayed
reimbursement based on the 4.35% interest the plaintiff would have earned on the
money, not the interest the plaintiff would have paid to borrow the money. See ECF
494 at 86–87. This Court found Van’s logic applicable here, but rejected the notion
that the interest rate could be based on assumptions about “increased utilization of
credit cards” where Plaintiffs had no “evidence showing these assumptions are true
as to most or even any of the EDD cardholders’ experience.” Id. at 88. The same
applies to East, who relies on assumptions about UI beneficiary behavior that are
unsupported by any evidence to show that they are true for “most or even any” of the
class members here. In sum, East’s method is neither a reliable measure of Plaintiffs’
actual damages nor relevant to the Court, since it sets forth no material factual
evidence about the actual damages suffered by any Plaintiff or the Plaintiff class as
a whole on which the Court or a factfinder can rely.
Defendant thus respectfully submits that East’s unreliable and irrelevant
analysis should be stricken from the record.
CONCLUSION
For the foregoing reasons, the Court should strike each and all of East’s
unreliable and irrelevant opinions from the record.

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Dated: October 17, 2025
By:
Respectfully submitted,

/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 St. 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
JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN 278405)
mnazareth@myersnave.com
MEYERS NAVE
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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 October 17, 2025. 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.

Executed:
October 17, 2025

s/ Matthew L. Riffee

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