Camenisch v. Umpqua Bank

Background

The court considered Umpqua Bank’s motions to exclude the opinions and testimony of plaintiffs’ experts Catherine Ghiglieri, Dan Salah, and Daniel Goldberg, along with motions in limine—requests for advance rulings about trial evidence—filed by both sides. The court applied Federal Rule of Evidence 702 to the expert testimony and addressed hearsay, disclosure, relevance, prejudice, personal knowledge, and the confidential suspicious-activity-report privilege.

Expert testimony

Umpqua’s motion concerning Catherine Ghiglieri was granted in part. Ghiglieri may testify about ordinary banking practices, industry standards, red flags, Umpqua’s conduct in relation to those standards, possible anti-money-laundering alerts, investigations or lack of investigations, commingling as a banking red flag, and banking norms concerning business with people convicted of financial crimes. She may not testify about Umpqua’s or its employees’ state of mind; whether Umpqua violated the Bank Secrecy Act or California law; whether PFI was a third-party payment processor; or whether June Weaver deceived Umpqua employees. She also may not offer her undisclosed opinion that Umpqua’s retention of about two years of alert data was unusual. Objections to factual summaries and other possible disclosure problems were denied without prejudice or left for specific objections at trial. Ghiglieri may not reveal whether a suspicious activity report was filed or not filed, although testimony about the details of an investigation may be presented.

Umpqua’s motion concerning Dan Salah was denied. Salah may testify about damages calculations based on the Access database, including his proration methodology, use of the mid-year convention, and compound-interest calculations. The court concluded that the database could qualify as a business record if the required witnesses provide the necessary foundation. The court denied without prejudice Umpqua’s request concerning allegedly undisclosed opinions and reserved specific objections for trial.

Umpqua’s motion concerning Daniel Goldberg was denied. Goldberg may testify as a lay witness about his firsthand experiences with PFI and as a nonretained, percipient expert about technical opinions formed during his work with PFI, subject to the limits described in the order. Opinions formed for this litigation would require retained-expert treatment and disclosure. After an appropriate foundation, Goldberg may testify about conclusions he reached from FTI’s investigation. He may also testify that PFI was a Ponzi scheme, but must explain the scheme’s precise scope and the factual basis for any claim that it included all PFI investments.

Umpqua’s motions in limine

The court denied Umpqua’s motion to exclude references to bankruptcy-court stipulations, orders, and filings concerning whether PFI was a Ponzi scheme. It granted Umpqua’s motion to exclude the Alfaro declaration, while stating that the order did not exclude testimony by Wallach adopting portions of that declaration. It granted Umpqua’s motion to prevent David Alfaro from offering expert opinions, but allowed Alfaro to testify as a lay witness about FTI’s investigation and findings.

The court denied without prejudice Umpqua’s motion concerning evidence or argument about documents withheld under the suspicious-activity-report privilege. Witnesses may discuss investigations but may not refer to the specific withheld documents or reveal whether a report was filed. The court denied Umpqua’s motions concerning transfers to personal accounts, suspicious account transactions offered to show knowledge, other disputes or litigation involving Umpqua and related entities, broad categories of lay-witness testimony, and lay testimony about the standard of care, generally leaving specific objections for trial.

Umpqua’s motion concerning Securities and Exchange Commission complaints and criminal allegations was granted in part. The specified Securities and Exchange Commission complaints were excluded, subject to the stated exception for the Wallach complaint, while the Wallach criminal information was not excluded; the remaining complaints or criminal informations were left subject to specific objections. Umpqua’s motion concerning consent decrees, judgments, and pleas was also granted in part: certain specified judgments and consent decrees were excluded, while the broader request was denied without prejudice to specific trial objections.

The court denied without prejudice Umpqua’s motion concerning unpleaded theories and held that plaintiffs’ fraudulent-concealment theory was pleaded and properly at issue. It denied without prejudice Umpqua’s motions concerning plaintiffs’ financial hardships, Umpqua’s financial condition, and other broad evidentiary categories. It denied Umpqua’s motions concerning the Access database, Michelle Herman’s testimony, and evidence or argument that PFI entities commingled funds.

Plaintiffs’ motions in limine

The court denied without prejudice plaintiffs’ motion concerning arguments that class members could have recovered more through the bankruptcy settlement. It denied plaintiffs’ motion concerning expert testimony that PFI properties would have produced a net gain if bankruptcy-sale proceeds had been distributed differently.

The court granted plaintiffs’ motion to exclude testimony and argument that their damages calculations should include a possible future round of bankruptcy payments. It granted plaintiffs’ motion to exclude expert testimony about Umpqua’s state of mind and to prevent use of the term “standard of care” in the challenged context, while not excluding testimony about how PFI allegedly should have acted as a fiduciary. The court granted in part plaintiffs’ motion concerning California Financial Code sections 1450 and 1451: Umpqua could present evidence about banking standards and practices informed by those provisions, but could not present argument about hypothetical liability under those provisions or another theory of liability.

The court granted plaintiffs’ motions to bar the term “lower-level” for certain Umpqua employees and to prevent references to documents withheld under the suspicious-activity-report privilege. The court denied plaintiffs’ motion to prevent Umpqua from calling the Bagatelos plaintiffs, but prohibited references to the Bagatelos litigation or its result. It granted plaintiffs’ motion concerning live testimony from witnesses controlled by Umpqua, subject to the limitations stated in the order.

Sealing and disposition

The parties were ordered to file, by January 24, 2025, a joint motion consolidating all pending sealing motions concerning materials filed with the motions resolved by the order. The order states that the parties’ motions in limine and Umpqua’s motion to exclude Salah’s and Goldberg’s opinions and testimony were denied, while the motion concerning Ghiglieri and specified motions in limine were granted in part or otherwise resolved as described above. This was an evidence-related pretrial order and did not decide the underlying claims’ merits.