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FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM INDEX NO. E2021005065
NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3322657
Book Page CIVIL
Return To: No. Pages: 15
CAROLYN G. NUSSBAUM
1100 Clinton Square Instrument: AFFIRMATION IN OPPOSITION
Rochester, NY 14604
Control #: 202301271611
Index #: E2021005065
Date: 01/27/2023
Lee, Michael Time: 4:25:31 PM
Broyld, Marnetta
Canandaigua National Bank and Trust
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
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STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE
MICHAEL LEE and MARNETTA BROYLD, on behalf of
themselves and all others similarly situated,
AFFIDAVIT OF HEATHER
Plaintiffs, KOO IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR
- vs - CLASS CERTIFICATION
CANANDAIGUA NATIONAL BANK & TRUST, Index No. E2021005065
Defendant.
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
HEATHER KOO, being duly sworn, deposes and says as follows:
1. I am a Managing Director at Ankura Consulting, LLP (“Ankura”), a provider of
financial and consulting services with over 1,400 professionals worldwide. I am part of the
national Disputes and Economics Class Action Services practice and specialize in the application
of financial and complex data-intensive analyses to legal and regulatory issues. My education
includes a B.A. in Commerce with concentrations in International Business and Finance from the
University of Virginia, and a Master’s of Information and Data Science from the University of
California, Berkeley. Prior to Ankura, I worked at Navigant Consulting in the Disputes and
Investigations Practice, which was acquired by Ankura in 2018.
2. My qualifications are summarized in greater detail in my curriculum vitae, which
is attached as Exhibit A. Over the past thirteen years, I have been involved in a number of
complex litigation matters involving a range of issues, including data collection, conversion, and
economic or data-intensive analysis. I have worked on numerous financial services-related
litigation matters, including overdraft fee-related matters, and am experienced in the collection
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and analysis of large volumes of banking data (including transaction, account balance, holds,
authorizations, and exception processing types of data).
3. Ankura was retained by Nixon Peabody LLP (“Nixon Peabody”) on behalf of
Canandaigua National Bank & Trust (“CNB”) to provide data analysis services and to review
and comment on the expert Affidavit of Mr. Arthur Olsen.1 Additionally, I was asked to
evaluate and comment on Mr. Olsen’s opinion that he “will be able to ascertain the class
members and calculate damages for each of the class members under Plaintiff’s theories of
liability.”2
4. Plaintiffs propose four classes of CNB consumer account holders.3 The “National
OD Fee Class” is defined as “[a]ll CNB checking account holders in the United States who,
during the [proposed Class Period of the] applicable statute of limitations, were charged OD Fees
on transactions that did not overdraw their checking accounts.”4 The “New York OD Fee
Subclass” is defined as “[a]ll CNB checking account holders in the state of New York who,
during the [proposed Class Period], were charged OD Fees on transactions that did not overdraw
their checking accounts.” The “National Multiple Fee Class” is defined as “[a]ll CNB checking
account holders in the United State [sic] who, within the [proposed Class Period], were charged
Multiple Fees for the same item.” The “New York Multiple Fee Subclass” is defined as “[a]ll
1
Affidavit of Arthur Olsen in Support of Plaintiffs’ Motion for Class Certification, dated
December 6, 2022 (the “Olsen Aff.”) (NYSCEF No. 212).
2
Olsen Aff. ¶14.
3
Amended Class Action Complaint, filed July 26, 2022 (the “Am. Compl.”) (NYSCEF No. 140).
4
It is my understanding that the Plaintiffs are seeking certification of classes based on a
proposed Class Period between June 8, 2015 and September 5, 2022 (when CNB updated its
disclosures were updated).
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CNB checking account holders in the state of New York who, within the [proposed Class
Period], were charged Multiple Fees for the same item.”5
5. The work performed on this engagement was prepared by me with assistance
from others working at my direction. The hourly bill rate currently charged by Ankura for my
services in connection with this matter is $615/hour and the hourly bill rates for other Ankura
professionals assisting me range from $320/hour to $615/hour. Ankura’s compensation does not
depend on either the findings of my review or the outcome of this case. I have prepared this
affidavit based on the work my team and I have performed to date and the information available
to me as of the date of this affidavit. Due to the ongoing nature of this litigation, I reserve the
right to supplement my opinions based on any additional information that I may be asked to
consider or any additional analyses that I may be asked to perform.
6. The complete list of data and documents I considered is included as Exhibit B.
The data and documents include a series of CSV files from the CNB Fiserv “DNA” core
processing system which includes consumer account transactional data and end-of-day balance
data between June 8, 2015 and February 11, 2022. I also received data related to Plaintiff
Broyld’s account through January 20, 2023.
A. Summary of Opinions
7. Mr. Olsen concludes, without an adequate basis, that he “will be able to organize
the data in a useable way, and computer code [he has] written will extract information from the
data that will enable [him] to ascertain class members and calculate the total amount of fees
5
Am. Compl. ¶12
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assessed to each customer from the claimed improper practices as requested by counsel or the
Court.”6 Mr. Olsen’s conclusion is speculative, unreliable, and inaccurate.
8. It is my opinion based on my review of the data and documents produced in the
course of this litigation and based on how Mr. Olsen has performed his work in other cases, that
Mr. Olsen has not adequately described a methodology to ascertain which members incurred fees
as a result of the improper conduct alleged in the Amended Complaint.
9. Mr. Olsen’s Affidavit lacks the detail that he has provided in other cases
explaining how he will ascertain whether certain class members actually were assessed and paid
allegedly improper fees. In other matters, he has reviewed and analyzed the data provided to him
and actually calculated the number of purported class members, and detailed the methodology
used in his analysis. This includes explaining how he identified fees and refunds in the data
provided to him, as well as providing his methodology for assigning refunds to purported harm
fees. For this matter, he claims that he can ascertain the class and calculate harm to each
purported class member in the most conclusory terms, but he omits any explanation of how he
will make these determinations.
10. This is particularly critical as the data that CNB maintains, which I understand has
been provided to Mr. Olsen, does not include the ledger or available balance of an account at the
particular point in time when a debit was processed for a transaction, or whether an item was
presented and then represented, but not paid, resulting in assessment and payment of an
Insufficient Funds Fee on each occasion.
6
Olsen Aff. ¶14.
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11. The following are some key data issues that Mr. Olsen fails to address:
a) Mr. Olsen does not describe any methodology for how he intends to identify
potential OD Fees Class members or how he will calculate purported harm for
potential class members.
b) Mr. Olsen does not describe how he intends to identify potential Multiple Fees
Class members on a systematic, class-wide basis, nor does he describe how he
intends to calculate how much purported harm was incurred by potential class
members.
c) Mr. Olsen does not describe how he intends to identify and apply refunds to
damages, which causes damages to be overstated and speculative for
individual class members.
d) Mr. Olsen does not describe how he intends to identify and apply charge-offs
to purported damages, which will overstate damages and include accounts in
the class that would otherwise be removed due to charged-off amounts.
e) Further, Mr. Olsen does not consider whether certain members benefitted
from the ability to overdraw funds.
B. Mr. Olsen Does Not Describe How He Intends to Identify OD Fees Class Members.
12. Based on my review of CNB’s data, fees charged to customers on transactions
that are paid into overdraft (“OD Fees”), and fees charged to customers that are returned due to
insufficient funds (“NSF Fees”) can be identified in the data as transactions with Transaction
Code “NSF,” “UCF,” or “8POF.” Each fee record has a “Parent Transaction Number” field
which links the fee to the transaction that triggered the fee. OD Fees can be identified as fees
that are triggered by parent transactions where the transaction was completed (transaction status
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code = “C”). NSF Fees can be identified as fees that are triggered by parent transactions where
the transaction was returned (transaction status code = “R”).
13. Fiserv DNA is a real-time posting system, which means that transactions are
posted to the account as they are received and processed by CNB, and OD Fees are charged at
the time a transaction overdraws the customer’s account. The data does not contain either the
available balance or ledger balance on an account after a given transaction posts to the account.
CNB’s data only includes end-of-day ledger balance data for each account. Therefore, the data
does not contain the customer’s intra-day account balance at the time a transaction triggers an
OD Fee.
14. It is my understanding that Mr. Olsen has been provided access to review CNB’s
customer transaction data. Mr. Olsen does not describe a methodology to identify instances in
which a customer was charged an OD Fee on a transaction that did not overdraw their account.
He simply states he “will be able to create computer code that will identify the CNB customers
who [w]ere charged at least one Overdraft Fee on a transaction that did not overdraw their
account.”7 However, he does not describe how he intends to identify these fees using CNB’s
historical data, despite having access to this data. Nor does he describe any methodology for
how he will determine intra-day account balances to identify OD fees charged when the
customer’s account was not overdrawn.
C. Mr. Olsen Does Not Describe How He Intends to Identify Multiple NSF Fees.
15. Mr. Olsen does not describe a methodology for identifying NSF Fees charged to
members on check and ACH transactions that were re-presented for payment by merchants. He
7
Id. ¶15.
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simply states that he “will identify the CNB customers who were charged multiple fees on the
same transaction.”8 He does not describe how he intends to identify these check and ACH items.
16. My understanding is that after 2015, merchants are required by NACHA to flag
resubmitted transactions to financial institutions with the string “RETRY PYMT.” My review of
CNB’s historical transactional data shows that this indicator is included in the transactional data.
However, based on my experience, not all merchants comply with the NACHA requirement to
enter resubmitted transactions with the “RETRY PYMT” indicator. Mr. Olsen has been
provided access to review CNB transaction data, yet he does not describe a methodology for how
he will identify ACH resubmissions that are not coded by the merchant with this indicator.
Additionally, he has not described a methodology for how he will identify check resubmissions.
D. Individual Fees May Have Been Refunded.
17. To calculate the amount of damages, or existence thereof, for class members as a
result of an OD Fee on a transaction that did not overdraw their account or Multiple Fees,
refunds need to be factored into the analysis. This includes the identification of all refund
transactions and the matching of refunds to corresponding fees.
18. OD and NSF fee refunds can be identified in the data as records with a transaction
code of “RPNS,” “RRNS,” “ODA,” “8POF,” or “UCF” and a positive transaction amount.
19. Even though Fiserv DNA systems do allow for specific refunds to be tied to fees
using the “Parent Transaction Number” field, my review of CNB’s transactional data shows that
this field is rarely populated for refund transactions. There is no other indicator in the data to
identify the date of the fee that is being refunded, or any additional data that could connect the
8
Id.
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refund to the relevant fee. Additionally, multiple refunds are sometimes posted to an account in
one transaction, and partial refunds also appear in the data.
20. Example 1 below shows an “RPNS” fee reversal of $51.00 which appears to
refund 1.5 fees of $34 each. The “Parent Transaction Number” field is blank. Therefore, one
cannot tie a particular refund to a particular fee. In other words, it is not possible to determine
whether a particular refund was attributed to a harm fee or another fee which was not a purported
damage fee.
Example 1:
Transaction Transaction Transaction Transaction Post Post StatusParent Transaction
Transaction Transaction Code
Number Code Category Amount Date Time Code Number Description Description
24908 RPNS Service Charge Transactions
$ 51.00 2/11/2016 11:02:02.0000000C Rev. OD/NSF/UCF Fee Item Paid
21. Similarly, Example 2 below shows an instance where between July 25, 2017, and
August 30, 2017, nine $37 OD/NSF fees were incurred and only one $37 refund was granted.
There are no identifiers within the data to link the refund to a specific fee.
Example 2:
Transaction Transaction
Transaction Transaction
Post Post Status
Parent Transaction Transaction Transaction Code
Number Code Category Amount Date Time Code Number Description Description
7676 NSF Service Charge Transactions
$ (37.00)
7/25/2017
09:17:29.0000000C 7675 Insufficient Funds Charge
7678 NSF Service Charge Transactions
$ (37.00)
7/25/2017
09:21:44.0000000C 7677 Insufficient Funds Charge
NSF Service Charge Transactions
$ (37.00)
7/28/2017
09:36:03.0000000C 7685 Insufficient Funds Charge
7688 NSF Service Charge Transactions
$ (37.00)
7/28/2017
09:38:00.0000000C 7687 Insufficient Funds Charge
7690 NSF Service Charge Transactions
$ (37.00)
7/31/2017
06:23:02.0000000C 7689 WEGMANS FOOD MAR REDEPCHECK SERIAL #: 1552
Insufficient Funds Charge
7692 8POF Service Charge Transactions
$ (37.00)
8/8/2017
18:08:41.0000000C 7691 Overdraft Fee - POS
7697 NSF Service Charge Transactions
$ (37.00)
8/22/2017
06:35:55.0000000C 7696 CHASE CREDIT CRD (CHECK PYMT) Accounts
Insufficient Funds Charge
Receivable Entry SERIAL #: 00001555
7699 NSF Service Charge Transactions
$ (37.00)
8/22/2017 06:47:21.0000000C 7698 CAPITAL ONE ARC (CHECK PYMT) Accounts Receivable
Insufficient Funds Charge
Entry SERIAL #: 1556
7701 NSF Service Charge Transactions
$ (37.00)
8/22/2017 11:01:11.0000000C 7700 Insufficient Funds Charge
7704 RPNS Service Charge Transactions
$ 37.008/23/2017 15:20:09.0000000C Rev. OD/NSF/UCF Fee Item Paid
22. Plaintiff Broyld alleges that she was charged OD fees on transactions that
did not overdraw her account, and of multiple NSF Fees on the same ACH
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transaction.9 In my review of the Plaintiff Broyld’s transactional data, I found that she was
refunded fees during the proposed Class Period. If these refunds were tied to the
purported damage fees, then Plaintiff Broyld would not be in either of the Classes.
23. Without the consideration of refunds, it is not possible to determine whether a
potential class member was ultimately assessed any purported damage fees.
E. Purported Class Members May Have Been Charged Off Amounts in Excess of Any
of Challenged Fees.
24. CNB does not maintain charge-off and recoveries information related to OD Fees
on accounts closed with a negative balance. Manual review of each account would be necessary
to determine what portion of uncollectible balances net of recoveries can be applied to purported
harm fees.
25. When an account is charged off with a negative balance, the CNB transaction data
shows a $0 closing transaction record posted to the account with Transaction Code = “CLS,” and
a deposit is also posted to the account to zero out the account. This deposit amount reflects the
amount that is charged off by CNB. Additionally, I also reviewed a data set of transactions
posting to CNB’s general ledger which included account-level data of the charge-off amount and
date of all charge-off accounts.
26. CNB’s charge off recovery data is a separate data set. This data set includes
recovery dates and recovery amounts that are posted to CNB’s general ledger, and CNB’s
general ledger account number. However, the charged-off account tied to the recovery payment
9
Plaintiff Marnetta Broyld’s Supplemental Responses and Objections to Defendant’s First Set of
Interrogatories, dated October 3, 2022, at Responses 1 and 2. Plaintiff Broyld’s purported OD
Fee Class fees were charged on .
Plaintiff Broyld’s purported Multiple Fee Class
.
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is often entered into a “Transaction Description” memo field and is often embedded with other
notes that were entered at the time the account entry was created. Sometimes, this memo field
only includes the account holder name, and does not include the charge-off account number.
There are other instances where it appears that a recovery payment was made, but the
“Transaction Description” field is blank, or instances where two account numbers are included in
the memo field—therefore, there is no way to tie these recovery payments to a specific account.
27. Accurately tying the recovery data to a specific charged-off account would
require manual review, and even then, there would be no way to determine whether the
recoveries could be applied to purported harm fees or to the account’s principal balance.
28. The following example explains why I believe this is important and why the
identity of class members may be significantly misstated as a result. Assume a customer has
$100 in his available and ledger account balances and uses his debit card to buy $450 of goods
and services. When these transactions post, it will result in a $350 negative available and ledger
balance, and if there were four transactions that caused the available balance to be negative, it
would result in four OD Fees. Because of the timing and amount of the transactions, only the
first of the four fees was assessed when the customer had a positive ledger balance. Thus, it is
the only “damages fee.” The customer does not pay and two months later, the entire negative
balance is charged off.
29. When CNB recovers fees through collection efforts, they are applied to a general
ledger account at CNB; they are not tied to the specific fees assessed against the customer in the
CNB core processing system data. Again, if this customer was only charged one improper fee
during the Class Period on a transaction that created a negative account balance that was
charged-off, then he possibly should not be a class member because he never paid an improper
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fee. To make an educated guess as to whether this person belongs in the class would require
manual review of account notes and other documents to try to determine what fees were
collected from and paid by this customer.
30. Class members cannot be reliably ascertained without complete charge-offs and
recoveries data. For example, if the only OD Fees that were assessed were ultimately charged-
off, then the member would not be a class member since the member did not pay any OD Fees.
Further, if there were any payments made by the member towards the charged-off amounts, it
would be relevant to assess the portion of those recoveries that were applied towards the fees and
the principal to assess whether fees were in fact paid. In addition, members whose accounts
were charged-off with a negative balance in excess of the amount of the challenged OD Fees
would not be owed any damages by CNB.
F. Additional Considerations
31. There are other factors that should be considered but are not captured in CNB’s
data. It is possible that for many members, the benefit of the overdraft service outweighed the
costs. For example, members may have benefitted from the merchant-controlled delay in posting
associated with signature-based debit card transactions. A member benefits from the “float”
when he/she enters into a signature-based debit card transaction to spend money (and obtains
goods or services) when there are insufficient available funds to cover the transaction in
question, but then deposits sufficient funds into the account between the swipe time and the
settlement time. Under this scenario, the member was able to obtain goods or services at a time
when he/she did not have sufficient funds but avoids an OD Fee.
32. To appropriately ascertain the OD Fee Class members to offset purportedly
improper OD Fees from situations where members benefited from the float, I would need to be
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able to quantify the benefit that members received from the float. Based upon my review of the
transactional data, there is no automated way to accurately determine situations where members
benefited from the float.
33. Some members may have been aware of the difference between the available
balance and ledger balance on their account. It is my understanding that both balances are
shown to the customer when they check their account using the Fiserv CardValet mobile
application. The data shows that Plaintiff Lee made balance inquiries through the Fiserv
CardValet application between February 2, 2018 and October 29, 2021. On each of these
inquiries, he was provided real-time available balance information on his account.
34. Additionally, some customers may rely on overdrafting their account to pay
certain bills, even though there are fees associated. This could be an alternative to a “pay day”
loan or some other kind of unsecured loan. There are also likely varying levels of sophistication
that would impact how and why members utilize the program that should be considered.
35. Assessing solely whether accounts with sufficient funds were charged fees
through the overdraft program may also be oversimplifying the issue. It is my understanding that
CNB would explain the operation of its overdraft service to customers when they opened an
account and also when OD Fees are reversed as a courtesy. Certain members may be making
multiple purchases when their accounts are overdrawn and have repeatedly incurred OD and
NSF Fees.
36. For example, Plaintiff Lee was charged OD and NSF Fees between January
31, 2018 and October 5, 2021. Plaintiff Broyld was charged OD and NSF Fees between
May 25, 2017 and September 5, 2022 and has continued to incur additional fees since the end of
the proposed Class Period. Members who continued to incur OD and NSF Fees, despite having
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CERTIFICATE OF COMPLIANCE WITH RULE 17 OF THE RULES OF
THE COMMERCIAL DIVISION OF THE NEW YORK STATE SUPREME COURT
22 N.Y. CODE R. & REG. RULE 17
I hereby certify that the foregoing document was prepared on a computer using Microsoft
Word. The total number of words in this document, exclusive of the caption and signature block
is 3,441.
Dated: January 27, 2023 /s/ Carolyn G. Nussbaum
Carolyn G. Nussbaum, Esq.
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FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM INDEX NO. E2021005065 NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3322657 Book Page CIVIL Return To: No. Pages: 15 CAROLYN G. NUSSBAUM 1100 Clinton Square Instrument: AFFIRMATION IN OPPOSITION Rochester, NY 14604 Control #: 202301271611 Index #: E2021005065 Date: 01/27/2023 Lee, Michael Time: 4:25:31 PM Broyld, Marnetta Canandaigua National Bank and Trust Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 15 202301271611 Index # INDEX : E2021005065 NO. E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE MICHAEL LEE and MARNETTA BROYLD, on behalf of themselves and all others similarly situated, AFFIDAVIT OF HEATHER Plaintiffs, KOO IN OPPOSITION TO PLAINTIFFS’ MOTION FOR - vs - CLASS CERTIFICATION CANANDAIGUA NATIONAL BANK & TRUST, Index No. E2021005065 Defendant. STATE OF TEXAS ) ) ss: COUNTY OF DALLAS ) HEATHER KOO, being duly sworn, deposes and says as follows: 1. I am a Managing Director at Ankura Consulting, LLP (“Ankura”), a provider of financial and consulting services with over 1,400 professionals worldwide. I am part of the national Disputes and Economics Class Action Services practice and specialize in the application of financial and complex data-intensive analyses to legal and regulatory issues. My education includes a B.A. in Commerce with concentrations in International Business and Finance from the University of Virginia, and a Master’s of Information and Data Science from the University of California, Berkeley. Prior to Ankura, I worked at Navigant Consulting in the Disputes and Investigations Practice, which was acquired by Ankura in 2018. 2. My qualifications are summarized in greater detail in my curriculum vitae, which is attached as Exhibit A. Over the past thirteen years, I have been involved in a number of complex litigation matters involving a range of issues, including data collection, conversion, and economic or data-intensive analysis. I have worked on numerous financial services-related litigation matters, including overdraft fee-related matters, and am experienced in the collection 2 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 and analysis of large volumes of banking data (including transaction, account balance, holds, authorizations, and exception processing types of data). 3. Ankura was retained by Nixon Peabody LLP (“Nixon Peabody”) on behalf of Canandaigua National Bank & Trust (“CNB”) to provide data analysis services and to review and comment on the expert Affidavit of Mr. Arthur Olsen.1 Additionally, I was asked to evaluate and comment on Mr. Olsen’s opinion that he “will be able to ascertain the class members and calculate damages for each of the class members under Plaintiff’s theories of liability.”2 4. Plaintiffs propose four classes of CNB consumer account holders.3 The “National OD Fee Class” is defined as “[a]ll CNB checking account holders in the United States who, during the [proposed Class Period of the] applicable statute of limitations, were charged OD Fees on transactions that did not overdraw their checking accounts.”4 The “New York OD Fee Subclass” is defined as “[a]ll CNB checking account holders in the state of New York who, during the [proposed Class Period], were charged OD Fees on transactions that did not overdraw their checking accounts.” The “National Multiple Fee Class” is defined as “[a]ll CNB checking account holders in the United State [sic] who, within the [proposed Class Period], were charged Multiple Fees for the same item.” The “New York Multiple Fee Subclass” is defined as “[a]ll 1 Affidavit of Arthur Olsen in Support of Plaintiffs’ Motion for Class Certification, dated December 6, 2022 (the “Olsen Aff.”) (NYSCEF No. 212). 2 Olsen Aff. ¶14. 3 Amended Class Action Complaint, filed July 26, 2022 (the “Am. Compl.”) (NYSCEF No. 140). 4 It is my understanding that the Plaintiffs are seeking certification of classes based on a proposed Class Period between June 8, 2015 and September 5, 2022 (when CNB updated its disclosures were updated). -2- 3 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 CNB checking account holders in the state of New York who, within the [proposed Class Period], were charged Multiple Fees for the same item.”5 5. The work performed on this engagement was prepared by me with assistance from others working at my direction. The hourly bill rate currently charged by Ankura for my services in connection with this matter is $615/hour and the hourly bill rates for other Ankura professionals assisting me range from $320/hour to $615/hour. Ankura’s compensation does not depend on either the findings of my review or the outcome of this case. I have prepared this affidavit based on the work my team and I have performed to date and the information available to me as of the date of this affidavit. Due to the ongoing nature of this litigation, I reserve the right to supplement my opinions based on any additional information that I may be asked to consider or any additional analyses that I may be asked to perform. 6. The complete list of data and documents I considered is included as Exhibit B. The data and documents include a series of CSV files from the CNB Fiserv “DNA” core processing system which includes consumer account transactional data and end-of-day balance data between June 8, 2015 and February 11, 2022. I also received data related to Plaintiff Broyld’s account through January 20, 2023. A. Summary of Opinions 7. Mr. Olsen concludes, without an adequate basis, that he “will be able to organize the data in a useable way, and computer code [he has] written will extract information from the data that will enable [him] to ascertain class members and calculate the total amount of fees 5 Am. Compl. ¶12 -3- 4 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 assessed to each customer from the claimed improper practices as requested by counsel or the Court.”6 Mr. Olsen’s conclusion is speculative, unreliable, and inaccurate. 8. It is my opinion based on my review of the data and documents produced in the course of this litigation and based on how Mr. Olsen has performed his work in other cases, that Mr. Olsen has not adequately described a methodology to ascertain which members incurred fees as a result of the improper conduct alleged in the Amended Complaint. 9. Mr. Olsen’s Affidavit lacks the detail that he has provided in other cases explaining how he will ascertain whether certain class members actually were assessed and paid allegedly improper fees. In other matters, he has reviewed and analyzed the data provided to him and actually calculated the number of purported class members, and detailed the methodology used in his analysis. This includes explaining how he identified fees and refunds in the data provided to him, as well as providing his methodology for assigning refunds to purported harm fees. For this matter, he claims that he can ascertain the class and calculate harm to each purported class member in the most conclusory terms, but he omits any explanation of how he will make these determinations. 10. This is particularly critical as the data that CNB maintains, which I understand has been provided to Mr. Olsen, does not include the ledger or available balance of an account at the particular point in time when a debit was processed for a transaction, or whether an item was presented and then represented, but not paid, resulting in assessment and payment of an Insufficient Funds Fee on each occasion. 6 Olsen Aff. ¶14. -4- 5 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 11. The following are some key data issues that Mr. Olsen fails to address: a) Mr. Olsen does not describe any methodology for how he intends to identify potential OD Fees Class members or how he will calculate purported harm for potential class members. b) Mr. Olsen does not describe how he intends to identify potential Multiple Fees Class members on a systematic, class-wide basis, nor does he describe how he intends to calculate how much purported harm was incurred by potential class members. c) Mr. Olsen does not describe how he intends to identify and apply refunds to damages, which causes damages to be overstated and speculative for individual class members. d) Mr. Olsen does not describe how he intends to identify and apply charge-offs to purported damages, which will overstate damages and include accounts in the class that would otherwise be removed due to charged-off amounts. e) Further, Mr. Olsen does not consider whether certain members benefitted from the ability to overdraw funds. B. Mr. Olsen Does Not Describe How He Intends to Identify OD Fees Class Members. 12. Based on my review of CNB’s data, fees charged to customers on transactions that are paid into overdraft (“OD Fees”), and fees charged to customers that are returned due to insufficient funds (“NSF Fees”) can be identified in the data as transactions with Transaction Code “NSF,” “UCF,” or “8POF.” Each fee record has a “Parent Transaction Number” field which links the fee to the transaction that triggered the fee. OD Fees can be identified as fees that are triggered by parent transactions where the transaction was completed (transaction status -5- 6 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 code = “C”). NSF Fees can be identified as fees that are triggered by parent transactions where the transaction was returned (transaction status code = “R”). 13. Fiserv DNA is a real-time posting system, which means that transactions are posted to the account as they are received and processed by CNB, and OD Fees are charged at the time a transaction overdraws the customer’s account. The data does not contain either the available balance or ledger balance on an account after a given transaction posts to the account. CNB’s data only includes end-of-day ledger balance data for each account. Therefore, the data does not contain the customer’s intra-day account balance at the time a transaction triggers an OD Fee. 14. It is my understanding that Mr. Olsen has been provided access to review CNB’s customer transaction data. Mr. Olsen does not describe a methodology to identify instances in which a customer was charged an OD Fee on a transaction that did not overdraw their account. He simply states he “will be able to create computer code that will identify the CNB customers who [w]ere charged at least one Overdraft Fee on a transaction that did not overdraw their account.”7 However, he does not describe how he intends to identify these fees using CNB’s historical data, despite having access to this data. Nor does he describe any methodology for how he will determine intra-day account balances to identify OD fees charged when the customer’s account was not overdrawn. C. Mr. Olsen Does Not Describe How He Intends to Identify Multiple NSF Fees. 15. Mr. Olsen does not describe a methodology for identifying NSF Fees charged to members on check and ACH transactions that were re-presented for payment by merchants. He 7 Id. ¶15. -6- 7 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 simply states that he “will identify the CNB customers who were charged multiple fees on the same transaction.”8 He does not describe how he intends to identify these check and ACH items. 16. My understanding is that after 2015, merchants are required by NACHA to flag resubmitted transactions to financial institutions with the string “RETRY PYMT.” My review of CNB’s historical transactional data shows that this indicator is included in the transactional data. However, based on my experience, not all merchants comply with the NACHA requirement to enter resubmitted transactions with the “RETRY PYMT” indicator. Mr. Olsen has been provided access to review CNB transaction data, yet he does not describe a methodology for how he will identify ACH resubmissions that are not coded by the merchant with this indicator. Additionally, he has not described a methodology for how he will identify check resubmissions. D. Individual Fees May Have Been Refunded. 17. To calculate the amount of damages, or existence thereof, for class members as a result of an OD Fee on a transaction that did not overdraw their account or Multiple Fees, refunds need to be factored into the analysis. This includes the identification of all refund transactions and the matching of refunds to corresponding fees. 18. OD and NSF fee refunds can be identified in the data as records with a transaction code of “RPNS,” “RRNS,” “ODA,” “8POF,” or “UCF” and a positive transaction amount. 19. Even though Fiserv DNA systems do allow for specific refunds to be tied to fees using the “Parent Transaction Number” field, my review of CNB’s transactional data shows that this field is rarely populated for refund transactions. There is no other indicator in the data to identify the date of the fee that is being refunded, or any additional data that could connect the 8 Id. -7- 8 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 refund to the relevant fee. Additionally, multiple refunds are sometimes posted to an account in one transaction, and partial refunds also appear in the data. 20. Example 1 below shows an “RPNS” fee reversal of $51.00 which appears to refund 1.5 fees of $34 each. The “Parent Transaction Number” field is blank. Therefore, one cannot tie a particular refund to a particular fee. In other words, it is not possible to determine whether a particular refund was attributed to a harm fee or another fee which was not a purported damage fee. Example 1: Transaction Transaction Transaction Transaction Post Post StatusParent Transaction Transaction Transaction Code Number Code Category Amount Date Time Code Number Description Description 24908 RPNS Service Charge Transactions $ 51.00 2/11/2016 11:02:02.0000000C Rev. OD/NSF/UCF Fee Item Paid 21. Similarly, Example 2 below shows an instance where between July 25, 2017, and August 30, 2017, nine $37 OD/NSF fees were incurred and only one $37 refund was granted. There are no identifiers within the data to link the refund to a specific fee. Example 2: Transaction Transaction Transaction Transaction Post Post Status Parent Transaction Transaction Transaction Code Number Code Category Amount Date Time Code Number Description Description 7676 NSF Service Charge Transactions $ (37.00) 7/25/2017 09:17:29.0000000C 7675 Insufficient Funds Charge 7678 NSF Service Charge Transactions $ (37.00) 7/25/2017 09:21:44.0000000C 7677 Insufficient Funds Charge NSF Service Charge Transactions $ (37.00) 7/28/2017 09:36:03.0000000C 7685 Insufficient Funds Charge 7688 NSF Service Charge Transactions $ (37.00) 7/28/2017 09:38:00.0000000C 7687 Insufficient Funds Charge 7690 NSF Service Charge Transactions $ (37.00) 7/31/2017 06:23:02.0000000C 7689 WEGMANS FOOD MAR REDEPCHECK SERIAL #: 1552 Insufficient Funds Charge 7692 8POF Service Charge Transactions $ (37.00) 8/8/2017 18:08:41.0000000C 7691 Overdraft Fee - POS 7697 NSF Service Charge Transactions $ (37.00) 8/22/2017 06:35:55.0000000C 7696 CHASE CREDIT CRD (CHECK PYMT) Accounts Insufficient Funds Charge Receivable Entry SERIAL #: 00001555 7699 NSF Service Charge Transactions $ (37.00) 8/22/2017 06:47:21.0000000C 7698 CAPITAL ONE ARC (CHECK PYMT) Accounts Receivable Insufficient Funds Charge Entry SERIAL #: 1556 7701 NSF Service Charge Transactions $ (37.00) 8/22/2017 11:01:11.0000000C 7700 Insufficient Funds Charge 7704 RPNS Service Charge Transactions $ 37.008/23/2017 15:20:09.0000000C Rev. OD/NSF/UCF Fee Item Paid 22. Plaintiff Broyld alleges that she was charged OD fees on transactions that did not overdraw her account, and of multiple NSF Fees on the same ACH -8- 9 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 transaction.9 In my review of the Plaintiff Broyld’s transactional data, I found that she was refunded fees during the proposed Class Period. If these refunds were tied to the purported damage fees, then Plaintiff Broyld would not be in either of the Classes. 23. Without the consideration of refunds, it is not possible to determine whether a potential class member was ultimately assessed any purported damage fees. E. Purported Class Members May Have Been Charged Off Amounts in Excess of Any of Challenged Fees. 24. CNB does not maintain charge-off and recoveries information related to OD Fees on accounts closed with a negative balance. Manual review of each account would be necessary to determine what portion of uncollectible balances net of recoveries can be applied to purported harm fees. 25. When an account is charged off with a negative balance, the CNB transaction data shows a $0 closing transaction record posted to the account with Transaction Code = “CLS,” and a deposit is also posted to the account to zero out the account. This deposit amount reflects the amount that is charged off by CNB. Additionally, I also reviewed a data set of transactions posting to CNB’s general ledger which included account-level data of the charge-off amount and date of all charge-off accounts. 26. CNB’s charge off recovery data is a separate data set. This data set includes recovery dates and recovery amounts that are posted to CNB’s general ledger, and CNB’s general ledger account number. However, the charged-off account tied to the recovery payment 9 Plaintiff Marnetta Broyld’s Supplemental Responses and Objections to Defendant’s First Set of Interrogatories, dated October 3, 2022, at Responses 1 and 2. Plaintiff Broyld’s purported OD Fee Class fees were charged on . Plaintiff Broyld’s purported Multiple Fee Class . -9- 10 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 is often entered into a “Transaction Description” memo field and is often embedded with other notes that were entered at the time the account entry was created. Sometimes, this memo field only includes the account holder name, and does not include the charge-off account number. There are other instances where it appears that a recovery payment was made, but the “Transaction Description” field is blank, or instances where two account numbers are included in the memo field—therefore, there is no way to tie these recovery payments to a specific account. 27. Accurately tying the recovery data to a specific charged-off account would require manual review, and even then, there would be no way to determine whether the recoveries could be applied to purported harm fees or to the account’s principal balance. 28. The following example explains why I believe this is important and why the identity of class members may be significantly misstated as a result. Assume a customer has $100 in his available and ledger account balances and uses his debit card to buy $450 of goods and services. When these transactions post, it will result in a $350 negative available and ledger balance, and if there were four transactions that caused the available balance to be negative, it would result in four OD Fees. Because of the timing and amount of the transactions, only the first of the four fees was assessed when the customer had a positive ledger balance. Thus, it is the only “damages fee.” The customer does not pay and two months later, the entire negative balance is charged off. 29. When CNB recovers fees through collection efforts, they are applied to a general ledger account at CNB; they are not tied to the specific fees assessed against the customer in the CNB core processing system data. Again, if this customer was only charged one improper fee during the Class Period on a transaction that created a negative account balance that was charged-off, then he possibly should not be a class member because he never paid an improper - 10 - 11 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 fee. To make an educated guess as to whether this person belongs in the class would require manual review of account notes and other documents to try to determine what fees were collected from and paid by this customer. 30. Class members cannot be reliably ascertained without complete charge-offs and recoveries data. For example, if the only OD Fees that were assessed were ultimately charged- off, then the member would not be a class member since the member did not pay any OD Fees. Further, if there were any payments made by the member towards the charged-off amounts, it would be relevant to assess the portion of those recoveries that were applied towards the fees and the principal to assess whether fees were in fact paid. In addition, members whose accounts were charged-off with a negative balance in excess of the amount of the challenged OD Fees would not be owed any damages by CNB. F. Additional Considerations 31. There are other factors that should be considered but are not captured in CNB’s data. It is possible that for many members, the benefit of the overdraft service outweighed the costs. For example, members may have benefitted from the merchant-controlled delay in posting associated with signature-based debit card transactions. A member benefits from the “float” when he/she enters into a signature-based debit card transaction to spend money (and obtains goods or services) when there are insufficient available funds to cover the transaction in question, but then deposits sufficient funds into the account between the swipe time and the settlement time. Under this scenario, the member was able to obtain goods or services at a time when he/she did not have sufficient funds but avoids an OD Fee. 32. To appropriately ascertain the OD Fee Class members to offset purportedly improper OD Fees from situations where members benefited from the float, I would need to be - 11 - 12 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 able to quantify the benefit that members received from the float. Based upon my review of the transactional data, there is no automated way to accurately determine situations where members benefited from the float. 33. Some members may have been aware of the difference between the available balance and ledger balance on their account. It is my understanding that both balances are shown to the customer when they check their account using the Fiserv CardValet mobile application. The data shows that Plaintiff Lee made balance inquiries through the Fiserv CardValet application between February 2, 2018 and October 29, 2021. On each of these inquiries, he was provided real-time available balance information on his account. 34. Additionally, some customers may rely on overdrafting their account to pay certain bills, even though there are fees associated. This could be an alternative to a “pay day” loan or some other kind of unsecured loan. There are also likely varying levels of sophistication that would impact how and why members utilize the program that should be considered. 35. Assessing solely whether accounts with sufficient funds were charged fees through the overdraft program may also be oversimplifying the issue. It is my understanding that CNB would explain the operation of its overdraft service to customers when they opened an account and also when OD Fees are reversed as a courtesy. Certain members may be making multiple purchases when their accounts are overdrawn and have repeatedly incurred OD and NSF Fees. 36. For example, Plaintiff Lee was charged OD and NSF Fees between January 31, 2018 and October 5, 2021. Plaintiff Broyld was charged OD and NSF Fees between May 25, 2017 and September 5, 2022 and has continued to incur additional fees since the end of the proposed Class Period. Members who continued to incur OD and NSF Fees, despite having - 12 - 13 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 14 of 15 202301271611 IndexNO. INDEX #: E2021005065 E2021005065 FILED: MONROE COUNTY CLERK 01/27/2023 04:12 PM NYSCEF DOC. NO. 246 RECEIVED NYSCEF: 01/27/2023 CERTIFICATE OF COMPLIANCE WITH RULE 17 OF THE RULES OF THE COMMERCIAL DIVISION OF THE NEW YORK STATE SUPREME COURT 22 N.Y. CODE R. & REG. RULE 17 I hereby certify that the foregoing document was prepared on a computer using Microsoft Word. The total number of words in this document, exclusive of the caption and signature block is 3,441. Dated: January 27, 2023 /s/ Carolyn G. Nussbaum Carolyn G. Nussbaum, Esq. - 14 - 4894-8958-3944 15 of 15