This action is about holding Chargebacks911 (“CB911”), its CEO (Monica Eaton) and its former CEO (Gary Cardone) accountable for their roles in keeping a massive online Keto diet pill scam (the “Keto Racket”) profitable, viable, and undetected while it victimized Plaintiffs and tens of thousands of other consumers across the country.
Defendants filed a motion to exclude the testimony of two of Plaintiffs’ experts, Kenneth Musante and Kerrie Merrifield.
Musante opined that Global e-Trading, which does business as Chargebacks911, “provided critical and necessary support which allowed the fraudulent merchants to continue processing consumer payments. But for [Global e-Trading’s] assistance, the fraud would have either been muted or ended much sooner than it otherwise did.”
Merrifield was “retained to review the documents and the ‘shipping,’ ‘refunds,’ and ‘charge backs’ Excel spreadsheets produced in the [case] in order to determine the differences between amounts that were charged United States customers that purchased either the, ‘buy 2, get 1 free’ (referred to as 3 bottles) or ‘buy 3, get 2 free’ (referred to as 5 bottles) promotion of either Instant Keto, Ultra Fast Keto Boost, or Keto Boost products, and the amounts these customers expected to be charged and is offset by any refunds and charge backs.” She opined that the total damages for the Keto Entities’ diet pill scheme is $18,779,274.
According to Plaintiffs, they offered “Merrifield as an expert for only one thing: to filter and calculate numbers from hundreds of thousands of rows in a spreadsheet. Her assignment was to find select rows in a spreadsheet with values that fit into criteria that Plaintiffs’ counsel provided and to perform math on those values.”
Banking Expert Witness
Kenneth Musante has a Bachelor of Science in Managerial Economics, an MBA, and “graduated from the Pacific Coast Bankers School in Seattle, WA.” He has has more than thirty years’ experience with the banking industry and with the major credit card companies, such as Visa, Mastercard, Discover, American Express.
Accounting Expert Witness
Kerrie Merrifield is a Certified Public Accountant (CPA) and has over 35 years of experience accounting with an emphasis on forensic accounting and damages calculations. She has been the Director of Litigation Support for Axiom Forensics since 2008.
Discussion by the Court
Kenneth Musante
Global e-Trading maintained that Musante’s report included numerous impermissible legal conclusions, lacked a reliable methodology, and would not be helpful to the jury and is irrelevant.
However, Musante pointed to the documents he reviewed in reaching his opinions based on his experience in the banking and card processing industries. And, in his deposition, Musante explained that he reviewed the complaint and other materials in the case, created an outline based on that review and his experience.
While Defendants may have legitimate questions about Musante’s conclusions based on his document review or take issue with the documents he relied upon, the Court held that these issues can be explored on cross-examination.
While the Court understands Plaintiffs’ position that Musante used the words “fraud” and “fraudulent” in the vernacular sense, the Court is concerned with the potential to confuse the jury by use of these words with legal significance. It is likely a jury would believe Musante was offering a legal conclusion that certain transactions legally constituted fraud. Thus, the Court prohibited Musante from using the words “fraud” and “fraudulent” in offering his expert opinions. However, the Court declined to exclude Musante’s use of the phrase “sham transactions” in relation to the microtransactions scheme or the term “bad actors.” Neither “sham” nor “bad actor” is a legal term of art, and the Court is not concerned about jury confusion over the use of these words.
Moreover, it is permissible for Musante to testify — among other things — that, in his opinion, Global e-Trading “was instrumental” in helping the Keto Entities continue accessing card processing and selling its keto diet pills to consumers. While Musante’s opinions touch on an ultimate issue, Musante does not merely instruct the jury on what result to reach.
Kerrie Merrifield
Defendants also sought to limit the testimony of Kerrie Merrifield. Global e-Trading insisted that Merrifield is unqualified to offer certain opinions, her methodology is unreliable, and her opinions unhelpful to the jury such that her opinions should be excluded under Rules 702 and 403.
Qualification
Global e-Trading insisted that Merrifield was not qualified “to testify competently regarding the matters she intends to address,” specifically regarding “the price U.S. consumers expected to pay for their purchase.” But, indeed, Plaintiffs insisted that they were not offering Merrifield as an expert on consumer expectations.
Although Merrifield’s calculations required an assumption about what consumers expected to pay, the Court did not interpret Merrifield as offering an expert opinion regarding consumer expectations.
Reliability
Merrifield “reviewed various documents that were produced” in discovery and performed “various technical steps” “along with applying forensic accounting procedures in order to properly extract the data needed and to perform an accurate analysis.”
She filtered through data and used data within large spreadsheets of payment and shipping information to calculate the class-wide damages in this case.
The fact that the documents and spreadsheets Merrifield consulted were provided by Plaintiffs and that Merrifield consulted Plaintiffs’ counsel regarding certain assumptions did not render Merrifield an unreliable “mouthpiece” for Plaintiffs’ counsel.
While Defendants may have legitimate questions about Merrifield’s reliance on the data within the spreadsheet or any assumptions underlying her analysis, the Court held that these supposed problems can be explored on cross-examination.
Helpfulness to the Jury
The Court also determines that Merrifield’s opinions and calculations will be helpful to the jury. Defendants are incorrect that Merrifield’s analysis involved “a simple math calculation that most kids in junior high could perform.” Rather, as Plaintiffs point out, the data Merrifield sifted through to make her calculations “is on a spreadsheet containing over 414,000 rows” such that she “had to use advanced Excel techniques to arrive at her numbers.” It is certainly helpful to the jury to have an analysis of the voluminous data from the spreadsheets provided to them rather than reviewing all the data in the spreadsheets themselves to reach a damages calculation.
The Court held that Merrifield’s damages calculation, made after sorting through the voluminous data, will help the jury decide what damages to award, if it finds Defendants liable.
Held
- The Court granted in part and denied in part Defendant Global E-Trading, LLC’s Daubert motion to exclude the testimony of Kenneth J. Musante.
- The Court denied Defendant Global E-Trading, LLC’s Daubert motion to exclude the testimony of Kerrie Merrifield.
Key Takeaway:
The Court considered all of Musante’s opinions, with the exception of his use of the legal terms “fraud” and “fraudulent,” helpful to the jury. The card processing industry and its procedures are unfamiliar to the average juror. For that reason, the Court held that Musante’s opinions regarding that industry and whether Defendants’ practices violated the rules of that industry or assisted the Keto Entities will be helpful to the jury.
Moreover, the Court held that Merrifield’s consideration of Plaintiffs’ counsel’s hearsay statements, which a reasonable damages expert would consider in conducting her analysis, was permissible under Rule 703.
Case Details:
| Case Caption: | Sihler Et Al V. Global E-Trading, Llc Et Al |
| Docket Number: | 8:23cv1450 |
| Court Name: | United States District Court, Florida Middle |
| Order Date: | May 16, 2025 |
