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MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO
TESTIMONY
Case No.: 3:21-md-02992-GPC-MSB
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
Co-Lead Counsel for Plaintiffs and the Proposed 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
MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF PLAINTIFFS’
DAUBERT MOTION TO
EXCLUDE CERTAIN
TESTIMONY OF VICTOR
STANGO
This document relates to All Actions
Judge: Hon. Gonzalo P. Curiel
Ctrm: 12A
Date: April 17, 2026
REDACTED - PUBLIC VERSION
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MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO
TESTIMONY
Case No.: 3:21-md-02992-GPC-MSB
INTRODUCTION
Plaintiffs move this Court for an order excluding certain portions of the
testimony and opinions of the Bank’s damages expert, Victor Stango, specifically Dr.
Stango’s testimony and opinion that
See Decl. of James Baltzer
(“Baltzer Decl.”) Ex. 1 (Apr. 4, 2025 Expert Report of Victor Stango) (“Stango Rep.”)
¶¶31-35, 71-74, 82-83, 85-86, 89-90, 95-96. Dr. Stango’s testimony on this point
does not meet the requirements of Federal Rule of Evidence 702 under Daubert v.
Merrell Dow Pharm, Inc., 509 U.S. 579 (1993), for at least two reasons, either of
which is an independently sufficient ground for exclusion.
First, Dr. Stango’s opinion does not actually draw upon any economic or
financial expertise but instead impermissibly offers a legal conclusion—and an
erroneous one at that, as it is directly contrary to Ninth Circuit precedent and this
Court’s ruling on class certification, which held as a matter of law that any amounts
the Bank has already reimbursed cardholders (whether pursuant to the Yick
Preliminary Injunction, the Bank’s own reconsideration processes, the Consent
Decrees with the Consumer Financial Protection Bureau and Office of Comptroller
of the Currency, or otherwise) are to be applied as an offset “from the total amount of
damages after trebling” and after determining punitive damages, not before. ECF No.
494 at 83-85 (emphasis in original) (citing cases). Dr. Stango’s legal opinion to the
contrary is not a proper subject of expert testimony. See, e.g., In re ConAgra Foods,
Inc., 302 F.R.D. 537, 558 (C.D. Cal. 2014) (an expert who “offer[s] an improper legal
opinion … usurps the role of the court.”)
Second, Dr. Stango’s testimony on this point also should be excluded because
it is not supported by the sources he cites and is not based on reliable principles and
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MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO
TESTIMONY
Case No.: 3:21-md-02992-GPC-MSB
Id.
LEGAL STANDARD
For expert testimony to be admissible, it must “help the trier of fact to
understand the evidence or to determine a fact in issue”—that is, it must be “relevant
to the task at hand,” “based on sufficient facts or data,” and “the product of reliable
principles and methods” that the expert has “reliably applied to the facts of the case.”
Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
When considering evidence proffered under Rule 702, the Court must make a
preliminary determination as to whether the proffered testimony is both relevant and
reliable. Elsayed Mukhtar v. Cal. State Univ. Hayward, 299 F.3d 1053, 1063 (9th Cir.
2002), as amended, 319 F.3d 1073 (9th Cir. 2003).
Matters of law are “inappropriate subjects for expert testimony.” Aguilar v. Int'l
Longshoremen's Union Local No. 10, 966 F.2d 443, 447 (9th Cir.1992). “Courts will
exclude expert testimony when it relies on an incorrect legal standard.” Pelican Int’l,
Inc. v. Hobie Cat Co., 655 F.Supp.3d 1002, 1023 (S.D. Cal. 2023) (quoting YETI
Coolers, LLC v. RTIC Coolers, LLC, No. 15-cv-597, 2017 WL 429210, at *2 (W.D.
Tex. Jan. 28, 2017)). “Incorrect statements of law are no more admissible through
‘experts’ than are falsifiable scientific theories.” Hebert v. Lisle Corp., 99 F.3d 1109,
1117 (Fed. Cir. 1996).
ARGUMENT
I.
Dr. Stango’s Testimony Concerning EFTA Treble Damages Is
Irrelevant Because It Applies an Incorrect Legal Standard.
EFTA requires financial institutions, upon receipt of a consumer’s notice of an
unauthorized transaction, to investigate the alleged error, determine whether an error
has occurred, report or mail the results of such investigation and determination to the
consumer within 10 business days, and “correct the error” by crediting the consumer’s
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MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO
TESTIMONY
Case No.: 3:21-md-02992-GPC-MSB
contrary, they had been 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. See, e.g., ECF Nos. 324-55, 324-56. While Dr. Stango
contends that the Remediation Plan payments should have the effect of eliminating
the principal balances of the claims denied or credits rescinded from the damages to
be trebled, he ignores that those payments did not occur until over a year after this
case was filed.
In the Ninth Circuit, courts—not economists—determine the impact of such
untimely payments on the application of treble damages provisions enacted by
Congress. In Uthe Tech. Corp v. Aetrium, Inc., 808 F.3d 755, 756-58 (9th Cir. 2015),
for example, it was clear that a plaintiff with a claim under the treble damages
provision of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) could
not duplicate the recovery already obtained in an arbitration in Singapore. “The key
question posed” was “how the one satisfaction rule interacts with RICO’s treble
damages provision. Specifically, to what extent does the one satisfaction rule operate
to diminish the amount of damages claimed against the Defendants? Depending on
the order in which the two rules are applied, the one satisfaction rule could either
offset part of Uthe’s RICO damages, or it could fully extinguish Uthe’s claim to those
damages.” Id. at 760. The Ninth Circuit held that “the full measure of Uthe’s claims…
was not satisfied by the Singapore arbitration,” because “[n]o remedy equivalent to
RICO treble damages was available under Singapore law.” Id. at 760-61. In other
words, the full damages available to Uthe were three times those awarded in the
Singapore arbitration, so any offset from the Singapore arbitration award would be
deducted from the available damages in the federal action only after those damages
had been trebled. The offset did not—as Dr. Stango would have it—“fully extinguish”
Uthe’s claim to treble damages. Id.
The Ninth Circuit has applied nearly identical reasoning in interpreting the
treble damages provision of the Sherman Act. See Flintkote Co. v. Lysfjord, 246 F.2d
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MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO
TESTIMONY
Case No.: 3:21-md-02992-GPC-MSB
368, 398 (9th Cir. 1957). In Flintkote, a plaintiff seeking “threefold the damages by
him sustained” under 15 U.S.C. §15(a) received a $20,000 payment from the
defendant “after the action was filed but before trial.” Id. at 397. “The question
presented” was “whether the $20,000 should be subtracted from the actual damages
fixed by the jury verdict ($50,000) before said damages are trebled, or whether the
award should first be trebled and then the $20,000 deducted from the trebled amount
of $150,000.” Id. The Court held that the damages available as of the date the claim
was filed should be trebled first, and that the $20,000 offset should be applied only
after trebling, explaining that a contrary result would “do violence to the clear intent
of Congress.” Id. at 398.
Several cases have applied the Ninth Circuit’s settled rule concerning offsets
for treble damages in the specific context at issue here, where a settlement with
regulators has been reached and paid after the filing of the plaintiffs’ lawsuit. See,
e.g., B.P. v. Balwani, No. 20-15974, 2021 WL 4077008 (9th Cir. Sept. 8, 2021)
(requiring trebling of actual damages under RICO before offsetting the amount
already paid to class members pursuant to a Consent Order with regulators); In re
Volkswagen “Clean Diesel” Mktg. Litig., No. mdl-2672-CRB, 2017 WL 4890594, at
*4 (N.D. Cal. Oct. 30, 2017) (same).
This Court likewise correctly applied that very same precedent when it rejected
the Bank’s arguments (which were based on Dr. Stango’s prior declaration in
opposition to class certification) and held that any reimbursed amounts paid to Class
Members would be applied as an offset “from the total amount of damages after
trebling” and determining punitive damages, not before. ECF No. 494 at 83-85
(emphasis in original) (citing cases).
The Bank cannot avoid application of this controlling law—and this Court’s
class certification decision—by re-packaging its previously rejected legal argument
in the form of purported expert testimony. Because Dr. Stango’s opinions as set forth
in paragraphs 31-35, 71-74, 82-83, 85-86, 89-90, 95-96 of his April 4, 2025 Expert
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MPA ISO PLAINTIFFS’ DAUBERT MOTION TO EXCLUDE STANGO
TESTIMONY
Case No.: 3:21-md-02992-GPC-MSB
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/ Brian Danitz
BRIAN DANITZ
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