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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
JOSEPH W. COTCHETT (SBN 36324)
jcotchett@cpmlegal.com
BRIAN DANITZ (SBN 247403)
bdanitz@cpmlegal.com
KARIN B. SWOPE (Pro Hac Vice)
kswope@cpmlegal.com
VASTI S. MONTIEL (SBN 346409)
vmontiel@cpmlegal.com
CAROLINE A. YUEN (SBN 354388)
cyuen@cpmlegal.com
COTCHETT, PITRE & McCARTHY, LLP
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone: (650) 697-6000
Fax: (650) 697-0577
MICHAEL RUBIN (SBN 80618)
mrubin@altber.com
STACEY M. LEYTON (SBN 203827)
sleyton@altber.com
CONNIE K. CHAN (SBN 284230)
cchan@altber.com
JAMES BALTZER (SBN 332232)
jbaltzer@altber.com
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Fax: (415) 362-8064
Lead Counsel for Plaintiffs and the Class
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IN RE BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION
TO EXCLUDE TESTIMONY OF
CARL PRY
This Document Relates to All Actions
Date:
April 17, 2026
Judge:
Hon. Gonzalo P. Curiel
Ctrm:
2D (2nd Floor)
REDACTED - PUBLIC VERSION
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34723
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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE PORTIONS OF OPINION OF CARL
PRY
MEMORANDUM OF POINTS AND AUTHORITIES
Plaintiffs move to exclude the purported expert opinions and testimony of Bank
expert Carl Pry on the dual grounds that: (1) they are not based on reliable principles
and methods, and (2) Mr. Pry has not otherwise explained why his experience supports
his opinions absent a reliable methodology. Mr. Pry’s report and testimony merely
restate factual assertions made by various defense witnesses, all of which the trier of
fact can weigh for itself. The credibility of those assertions, and any conclusions to be
drawn from those assertions, should be left to the trier of fact and not amplified
through the testimony of a purported expert witness who conducted no independent
investigation or evaluation of his own; but, by own admission, rested many of his
disputed assertions on what he described as “common sense” rather than any
specialized expertise or accepted methodology.
The Bank retained Mr. Pry to rebut the opinions of Plaintiffs’ experts, Bill
Abernathy and Greg Regan. Mr. Abernathy is a banking consultant and former senior
federal regulator at the Office of the Comptroller of the Currency. Based on more than
five decades of banking and regulatory experience, including as the Director of
Compliance and Bank Analysis and Director of Bank Supervision for the OCC, Mr.
Abernathy offered his opinion that federal regulators do not tolerate payments to
fraudsters pursuant to regulatory consent orders and remediation plans. Ex. 3
(Abernathy Rpt.) ¶ 4. Mr. Regan is Plaintiffs’ damages expert.
Mr. Pry, who was never a regulator, opines that Mr. Abernathy’s “
” Ex. 1 (Pry Rpt.)
¶16.1 Mr. Pry also opines that Mr. Regan’s opinion improperly assumes “
1 “Ex._” refers to exhibits to the Declaration of Brian Danitz in support of this
motion; “Pry Rpt” refers to the Expert Rebuttal Report of Carl Pry (Ex. 1); “Pry
Dep.” refers to excerpts of the deposition of Carl Pry (Ex.2), including exhibits
referenced in those deposition excerpts.
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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
. Id. at ¶14.
Mr. Pry’s only support for these opinions are the declarations of three Bank
employees submitted in support of the Bank’s opposition to Plaintiffs’ Motion for Class
Certification: i.e., the declarations of Michael Letson, William Martin, and Jennifer
Lennon. Mr. Pry’s deposition testimony confirmed that he did not apply any particular
expert methodology in reaching his opinions and his opinions were based only on what
the Bank representives previously stated in opposing class certification. Mr. Pry thus
simply parrots the testimony of the Bank’s witnesses without independent analysis,
essentially taking the Bank’s representatives at face value and then stating their
assertions as an expert’s ultimate conclusion.
At his deposition, Mr. Pry readily admitted that in preparing his opinions he did
not request any data from the Bank and that he did not perform any independent
analysis of any data in preparing his report. Ex. 2 (Pry Dep.) 115:2-116:10.
Accordingly, Mr. Pry’s testimony merely functions as a mouthpiece for the Bank’s
positions on ultimate questions and does not apply any reliable expert principles and
methods to the facts of this case. Mr. Pry’s testimony fails to satisfy the requirements
of Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995), and should be
excluded.
ARGUMENT
A. Mr. Pry’s Opinions Are Not Based on Any Independent Analysis
Experts “may not restate or summarize record evidence and then state a
conclusion without applying a methodology that is reliable and which evinces his/her
expertise.” Siqueiros v. General Motors, LLC, 2022 WL 74182 (N.D. Cal. Jan. 7,
2022); see also Holley v. Gilead Scis., Inc., 2023 WL 2469632 (N.D. Cal. Feb. 27,
2023) (noting that it is improper for experts to “merely read, selectively quote from,
or regurgitate evidence”). That is just what Mr. Pry did throughout his report and
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34725
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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
testimony—he impermissibly “parrots the evidence in the record and does not actually
offer any technical opinions.” Pelican Int'l, Inc. v. Hobie Cat Co., 655 F. Supp. 3d
1002, 1030 (S.D. Cal. 2023) (explaining that “[s]uch ‘unhelpful restatement[s] of the
facts as [the expert] sees them’ are inadmissible”) (citation omitted). Where, as here,
the trier of fact is in as good a position as the expert to draw conclusions from the
evidence, and the expert’s testimony is not helpful, there is no need for the expert
testimony and it should be excluded. Huawei Techs., Co. v Samsung Elecs. Co., 340
F. Supp. 3d 934, 992 (N.D. Cal. 2018).
At deposition, Mr. Pry repeatedly testified that he based his opinions about
regulator expectations and potential
on the statements of the Bank’s witnesses that he simply accepted without any
independent investigation or evaluation. Examples of Mr. Pry merely acting as a
mouthpiece for the Bank’s positions, without any independent basis for his opinions,
are pervasive in his report.
Testimony on
. Mr. Pry agrees with the Bank’s Rule
30(b)(6) representative William Martin that the decision to
. Ex. 1 (Pry
Rpt.) ¶¶ 60-61; Ex. 2 (Pry Dep.) 184:23-185:1. At his deposition, Mr. Pry conceded
that he actually had “
.” Ex. 2 (Pry Dep.) 186:16-21. Nor had he asked the Bank for any
information about any
. Id. 186:22-187:1. Mr. Pry also admitted
that he had no independent basis for his assertion that the Bank had acted based on
. Id. 208:5-9. At deposition, Mr. Pry conceded that
he never bothered to request or to analyze any data on these issues. Id. 212:2-22.
Significantly, Mr. Pry’s deposition testimony revealed that his opinion that the
Bank’s
was based on no methodology
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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
whatsoever aside from what he called “common sense.” Ex. 2 (Pry Dep.) 211:9-17.
There is no such thing as a “common sense” expert; that is the jury’s function. In
addition to being an improper restatement of Mr. Martin’s declaration, where, as here,
an expert offers an opinion based only on common sense—which is quintessentially
“within the ken of the jury’s knowledge”—that opinion is properly excluded under
Rule 702. United States v. Fuentes-Cariaga, 209 F.3d 1140, 1142 n.3 (9th Cir. 2000).
Testimony on
. Mr. Pry states that the Bank had “
” Ex. 1 (Pry Rpt.) ¶51.
According to Mr. Pry, this “
. Id.
However, at his deposition, Mr. Pry admitted that the only factual basis for his
statement that
was a single email from one Bank
employee regarding “
” Ex.
2 (Pry Dep.) 222:4-224:10 and exhibit 14 to Pry Dep. This email states in part that “
” Id. Mr. Pry did not look at, analyze, or ask for data that would support the
observations in the email, nor did he request or obtain information that would explain
what specifically the email was referring to. Instead, he simply repeated the e-mail’s
assertion as his own opinion. Ex. 2 (Pry Dep.) 224:5-25. Mr. Pry’s opinions related to
is thus just an
impermissible “parroting” of evidence in the record, without any independent analysis.
Testimony on
. Mr. Pry opines that the Bank’s
” Ex. 1
(Pry Rpt.) ¶ 60. This opinion is also unsupported by any methodology other than citing
a declaration prepared by Bank representative Martin. When Mr. Pry was asked at his
deposition about the basis for this “opinion,” Mr. Pry conceded that he did not know
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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
how many
, Ex. 2 (Pry Dep.) 237:21-
23 and exhibit 11 to Pry Dep.; that he did not request any documents explaining the
Bank’s
, id. at 238:7-9, and that he did not apply any
methodology to validate the Bank’s claims regarding
, id. at
238:10-13. Indeed, Mr. Pry was admittedly “
” the information
contained in Mr. Martin’s declaration.
Ex. 2 (Pry Dep.) 236:8-10.
Ex. 2 (Pry Dep.) 238:21-25.
A trier of fact is perfectly capable of evaluating Mr. Martin’s testimony without
hearing it repeated as an “expert opinion” from Mr. Pry.
Mr. Pry also opined that the relatively low
numbers of applicants for
. Ex. 1 (Pry Rpt.) ¶64. To
arrive at this conclusion, Mr. Pry testified that he simply took the Declaration of
Jennifer Lennon at face value and performed no independent analysis or investigation.
He also testified that he never asked the Bank for any information about
and that he does not even know what those
require. Ex. 2 (Pry
Dep.) 243:19-24 and exhibit 15 to Pry Dep. Mr. Pry never conducted any analysis; nor
did he investigate Lennon’s analysis. Mr. Pry further testified that he did not know why
Ms. Lennon’s report used the numbers it did, that he did not independently perform
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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
any calculations, and that he did not know why those numbers do not align with the
class number generated by Plaintiffs’ damages expert Greg Regan. Id. 246:13-25.
Mr. Pry so often repeated in his deposition that he had not performed any
independent inquiry into the data underlying his opinions that eventually he offered
to stipulate to the fact that he did no independent analysis:
Ex. 2 (Pry Dep.) 116:5-10.
As Mr. Pry’s opinions are merely restating the Bank’s own positions through an
“expert” mouthpiece, his testimony is being offered “more in the role of an advocate
and not as a scientifically valid opinion.” United States v. Rincon, 28 F.3d 921, 923
(9th Cir. 1994). As such, Mr. Pry’s report should be excluded under Rule 702 and
Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311 (9th Cir. 1995).
B. Mr. Pry’s Opinions Are Not Based on Relevant Experience
Expert testimony that does not rely on a particular methodology or framework
is sometimes admissible because it relies instead on the witness’s expert knowledge
and experience. See Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1018
(9th Cir. 2004). However, even in those cases, the expert must still demonstrate “the
basis for his specialized knowledge.” United States v. Sayre, 434 Fed. Appx 622, 624
(9th Cir. 2011); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 137 (1997)
(“[N]othing in either Daubert [v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993) ] or the Federal Rules of Evidence requires a district court to
admit opinion evidence that is connected to existing data only by the ipse dixit of the
expert.”). Here, Mr. Pry fails to demonstrate how his experience “leads to the
conclusions reached, why that experience is a sufficient basis for his opinion, and how
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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
that experience is reliably applied to the facts.” Adv. Comm. Note to 2020
Amendment to F.R.E. 702. It is not enough to present “only the expert’s qualifications,
their conclusions and their assurances of reliability.” Daubert v. Merrell Dow
Pharms., Inc., 43 F.3d 1311, 1319 (9th Cir. 1995). Indeed, Mr. Pry’s repeated
invocations of “common sense” confirm that his opinions are not based on specialized
knowledge or experience.
Banks
Mr. Pry has no basis other than his
purported experience for his opinion that in
.
Ex. 2 (Pry Dep.) 157:12-21. Mr. Pry, who has never been a regulator, states
, and that Mr. Abernathy’s opinion (based on
years of experience as a regulator and supervisor of regulators) that
. Ex. 1 (Pry Rpt.) ¶43. However,
when Mr. Pry was asked whether
” Pry Dep. 162:22-
163:2. Mr. Pry also agreed that
. Ex. 2 (Pry Dep.) 48:6-9. While he then tried to soften the impact of his
answer by asserting that
” (Ex. 2 (Pry Dep.) 48:10-20 and exhibit 7 to Pry Dep.), he was unable to
cite to any specific experience or to any documents or methodology to support this
opinion.
In sum, Mr. Pry’s report cannot even properly be labeled “junk science,”
because it lacks any scientific pretense at all. Instead, Mr. Pry’s report—which seeks
to amplify the impact of the Bank’s representative’s testimony by re-stating it through
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PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
an “expert” mouthpiece—stands “more in the role of an advocate and not as a
scientifically valid opinion.” United States v. Rincon, 28 F.3d 921, 923 (9th Cir. 1994).
For these reasons, Mr. Pry’s report should be excluded under Rule 702 and Daubert.
Respectfully submitted,
Dated: October 17, 2025
COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Brian Danitz
JOSEPH W. COTCHETT
BRIAN DANITZ
KARIN B. SWOPE
BLAIR V. KITTLE
VASTI S. MONTIEL
CAROLINE A. YUEN
Dated: October 17, 2025
ALTSHULER BERZON LLP
By: /s/ Michael Rubin
MICHAEL RUBIN
STACEY M. LEYTON
CONNIE K. CHAN
JAMES BALTZER
Co-Lead Counsel for Plaintiffs and the Class
Case 3:21-md-02992-GPC-MSB Document 574-1 Filed 10/17/25 PageID.34731
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Case No: 3:21-md-02992-GPC-MSB
PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE TESTIMONY OF CARL PRY
ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1(i)(3)
I, Brian Danitz, attest that concurrence in the filing of this document has been
obtained from the other signatory. I declare under penalty of perjury under the laws
of the United States of America that the foregoing is true and correct.
Executed this 17th day of October 2025, at Burlingame, California.
/s/ Brian Danitz
BRIAN DANITZ
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