Ramirez v. Trans Union, LLC

Filing 271

ORDER REGARDING MOTIONS IN LIMINE. Signed by Magistrate Judge Jacqueline Scott Corley on 5/25/2017.(ahm, COURT STAFF) (Filed on 5/25/2017)

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5
6

SERGIO L. RAMIREZ,
Plaintiff,

7

ORDER REGARDING MOTIONS IN
LIMINE

v.

8
9

Case No.12-cv-00632-JSC

TRANS UNION, LLC,
Defendant.

10

Dkt Nos. 243, 244, 245, 246, 247, 254, 255,
256, 257, 258

United States District Court
Northern District of California

11
12

The Court held a pretrial conference on May 18, 2017, during which the parties argued

13

their respective motions in limine. As stated on the record at the hearing, the Court rules as set

14

forth below.
PLAINTIFF’S MOTIONS IN LIMINE

15
16
17

1.

Plaintiff’s Motion in Limine No. 1, Dkt. No. 243
GRANTED IN PART and DENIED IN PART. The district court holds a “gatekeeping”

18

role with respect to the admission of expert testimony. Daubert v. Merrell Dow Pharmaceuticals,

19

Inc., 509 U.S. 579, 597 (1993). In determining admissibility, Federal Rule of Evidence 702

20

allows a witness that is “qualified as an expert by knowledge, skill, experience, training, or

21

education” to offer opinion or other testimony only if:
(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.

22
23
24
25
26
27
28

Expert testimony must be both relevant and reliable. See Daubert, 509 U.S. at 589. “Relevancy
simply requires that [t]he evidence ... logically advance a material aspect of the party’s case”

1

whereas reliability requires that the expert have “a reliable basis in the knowledge and experience

2

of the relevant discipline.” Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir.

3

2014) (internal citation and quotation marks omitted).

4

The inquiry into the admissibility of expert testimony is “a flexible one” where “[s]haky

5

but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to

6

the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010). “When

7

an expert meets the threshold established by Rule 702 as explained in Daubert, the expert may

8

testify and the jury decides how much weight to give that testimony.” Id. at 565; see also

9

i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed. Cir. 2010) (“When the methodology is
sound, and the evidence relied upon sufficiently related to the case at hand, disputes about the

11
United States District Court
Northern District of California

10

degree of relevance or accuracy (above this minimum threshold) may go to the testimony’s

12

weight, but not its admissibility.”).

13

Defendant’s expert Jaco Sadie is a Senior Managing Director at FTI Consulting, Inc., a

14

financial consulting firm, who was retained to opine regarding whether, during the class period, it

15

was reasonable and within industry practices for Trans Union to deliver OFAC alert information

16

based on a name-only matching protocol where the match results were listed as a “potential

17

match.” (Sadie Report pp.1-2, 4-6.) Plaintiff moves in limine to prevent Mr. Sadie from testifying

18

regarding (1) the reasonableness of Trans Union’s procedures and (2) Trans Union’s compliance

19

with OFAC requirements.

20

The motion is granted as to the first subject area: Mr. Sadie cannot testify as to the

21

reasonableness of Trans Union’s procedures—this is a question for the jury. Mr. Sadie may give

22

an opinion based on hypothetical facts, but he cannot be asked to specifically opine on Trans

23

Union’s conduct or whether it is reasonable for financial institutions to rely on end users to

24

perform “human comparison” of OFAC information. Likewise, Mr. Sadie cannot opine as to

25

whether Dublin Nissan’s conduct here was in error or unreasonable—counsel can make this

26

argument to the jury, but it is not within the appropriate scope of expert testimony. As for the

27

second subject area, Mr. Sadie can testify generally regarding financial industry practices and

28

OFAC requirements. Further, to the extent Defendant lays a proper foundation, he may also
2

1

testify regarding the technological capabilities of consumer reporting agencies with respect to

2

interdiction software.

3

2.

Plaintiff’s Motion in Limine No. 2, Dkt. No. 244
DENIED. The jury is entitled to weigh this evidence to determine whether Trans Union

4
5

willfully failed to use reasonable procedures to ensure the maximum possible accuracy of the

6

information conveyed.

7

3.

GRANTED IN PART and DENIED IN PART. The Court disagrees that the proffered

8
9

Plaintiff’s Motions in Limine Nos. 3 and 4, Dkt. Nos. 245 & 246

evidence is relevant to class standing; that issue has been decided. However, evidence as to Trans
Union’s knowledge or lack thereof of harm caused by its OFAC Alert product is relevant to the

11
United States District Court
Northern District of California

10

willfulness inquiry as well as the amount of punitive and statutory damages.

12

4.

Plaintiff’s Motion in Limine No. 5, Dkt. No. 247
GRANTED. Defendant is precluded from offering evidence or argument about Plaintiff’s

13
14

counsel’s solicitation efforts in this case. Plaintiff, likewise, is precluded from offering evidence

15

or arguing that they brought the Cortez case or any other cases.
DEFENDANT’S MOTIONS IN LIMINE

16
17
18

1.

Defendant’s Motion in Limine No. 1, Dkt. No. 254
GRANTED IN PART and DENIED IN PART. Plaintiff offers Erich Ferrari, an attorney

19

who works in the field of U.S. economic sanctions under OFAC, regarding (1) the OFAC list,

20

including the role of consumer reporting agencies in identifying Specially Designated Nationals

21

(“SDNs”); (2) the tools and methods generally available in the marketplace over the past ten years

22

for identifying SDNs actually on the OFAC list and his “research and experience in using name

23

only matching”; and (3) the impact of a “false hit” or “false positive” and the significance to

24

business and individuals of being associated with a SDN on the OFAC list. Defendant moves to

25

exclude Mr. Ferrari’s testimony in its entirely.

26

As with Defendant’s expert Jaco Sadie, Mr. Ferrari’s testimony is limited to matters within

27

his knowledge, skill, experience, training, or education. See Fed. R. Evid. 702. Mr. Ferrari can

28

testify regarding OFAC and SDNs generally. (Ferrari Decl. ¶¶ 11-23, 30-34) To the extent
3

1

counsel lays a foundation, Mr. Ferrari may provide his opinion regarding the impact of false

2

positives or false hits. (Id. at ¶ 26.) However, Mr. Ferrari may not provide anecdotal testimony,

3

opine regarding Mr. Ramirez’s experience, or the experiences of plaintiffs in other cases. (Id. at

4

¶¶ 35-37.) If counsel can lay a proper foundation—beyond that in Mr. Ferrari’s declaration—he

5

may testify regarding interdiction software and the types of screening software available. (Id. at

6

¶¶ 24-26.) Just as with Mr. Sadie, however, Mr. Ferrari cannot opine as to ultimate issues such as

7

the reasonableness of Trans Union’s name only matching protocol, nor speculate as to what third-

8

party end users of OFAC alerts might do with this information. (Id. at ¶¶ 27-29, 38-39.)

9

2.

Defendant’s Motion in Limine No. 2, Dkt. No. 255
DENIED. The Dublin-Nissan report is relevant and not unduly prejudicial. See Fed. R.

11
United States District Court
Northern District of California

10

Evid. 401, 403. Trans Union can argue that the Dublin Nissan report is an isolated incident, but

12

this argument is not a basis for excluding the report.

13

3.

Defendant’s Motion in Limine No. 3, Dkt. No. 256
DENIED. Plaintiff has made a prima facie showing that Mr. Bhatia can authenticate the

14
15

Dublin Nissan report. Further, both the report and the process for generating the report are

16

relevant, and the evidence is more probative than prejudicial. See Fed. R. Evid. 401, 403.

17

4.

Defendant’s Motion in Limine No. 4, Dkt. No. 257
DENIED. Under 15 U.S.C. § 1681n “[a] person who willfully fails to comply with any

18
19

requirement of the FCRA may be liable for punitive damages.” Trans Union’s insistence that

20

Plaintiff must prove that Trans Union acted with “ill will, or spite, or [] for the purpose of injuring

21

another” and that Trans Union’s conduct was “malicious” is unpersuasive. (Dkt. No. 257 at 4:24-

22

26). The language of the statute authorizes punitive damages where the conduct is willful. See

23

also Cortez v. Trans Union, LLC, 617 F.3d 688, 722-23 (3d Cir. 2010) (upholding punitive

24

damages award based on willful violation).

25

5.

26

Defendant’s Motion in Limine No. 5, Dkt. No. 258
GRANTED. Plaintiff may not introduce evidence regarding the 1992 consent decree from

27

Alabama v. Trans Union Corp., No. 92-7101 (N.D. Ill. 1992). There is no conflict between the

28

consent decree’s language and Federal Rule of Evidence 408. Rule 408 does not require
4

1

admission of a consent decree, but states that evidence of a prior compromise “may” be

2

admissible. Fed. R. Evid. 408(b).
MISCELLANEOUS MATTERS

3
4

1. Exhibits

5

The parties shall meet and confer to attempt to resolve any remaining disputes regarding

6

the trial exhibits. To the extent that disputes remain, the parties should be prepared to discuss

7

these disputes at the June 8, 2017 further pretrial conference.

8

2. Witnesses

9

The parties should meet and confer to attempt to streamline the evidence as much as
possible without impeding their ability to present their respective cases to the jury. For example,

11
United States District Court
Northern District of California

10

the Court would prefer that each witness be called only once to the extent possible. Each side is

12

limited to 20 hours each. 1 Each side shall provide a list of their witnesses for the following day to

13

opposing counsel by 3:00 p.m. the day before the witness is to testify.

14

3. Bifurcation

15

The Court bifurcates the liability and statutory damages phase from the punitive damages

16

phase. If the jury finds in Plaintiff’s favor on liability and statutory damages, the Court will

17

reopen evidence for the limited purpose of offering any new evidence relevant to punitive

18

damages following which the Court will instruct the jury as to punitive damages, counsel may

19

present argument, and the jury will deliberate regarding the same.
IT IS SO ORDERED.

20
21

Dated: May 25, 2017

22
23
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

24
25
26
1

27
28

Although the Court indicated at the pretrial conference that this did not include the parties’
opening and closing statements, the Court has reconsidered this position and imposes a 20 hour
limit on each party inclusive of witnesses, and opening and closing statements. This does not
include the punitive damages phase if applicable.
5