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  • Psychology Expert’s Testimony on Consumer Perceptions of Online Posts Excluded

    Psychology Expert’s Testimony on Consumer Perceptions of Online Posts Excluded

    This case arises out of an ongoing dispute between Plaintiffs LoanStreet, Inc. (“LoanStreet”) and LoanStreet CEO Ian Lampl (“Lampl,” and together with LoanStreet, “Plaintiffs”) and a former employee, Defendant Wyatt Troia (“Troia”).

    LoanStreet, a online platform which provides services to help clients share, manage, and originate loans, hired Troia to work as a software engineer in February 2019.  In June 2020, LoanStreet terminated his employment. Troia subsequently posted disparaging statements about LoanStreet, Lampl, and other LoanStreet employees on various websites, including Glassdoor.com and Reddit.com.

    Troia also purchased advertisements on Google that would appear when users searched the following terms or phrases: “LoanStreet”; “Loan Street”; “LoanStreet Glassdoor”; “LoanStreet careers”; “LoanStreet engineering”; “LoanStreet software engineering”; “What it’s like to work at LoanStreet”; and “LoanStreet Jobs.” Each of Troia’s Google advertisements began with the heading: “LoanStreet horror story” and linked to a Reddit post he had made, titled: “Name and Shame: LoanStreet (NY) cheated me out of equity.”

    Plaintiffs brought suit against Troia, asserting claims for breach of contract, defamation and unfair competition.

    Troia filed a motion to exclude Plaintiffs’ proposed expert, Allen Adamson while Plaintiffs filed a motion to exclude Troia’s proposed experts, Deepak Sabiki and Lamarcus Bolton.

    Branding Expert Witness

    Allen P. Adamson is a co-founder and managing partner of Metaforce, a marketing and brand consultancy, and he is an Adjunct Professor and guest lecturer at New York University’s Stern School of Business. He received his B.S. from the S.I. Newhouse School of Public Communications at Syracuse University and his MBA from New York University’s Stern School of Business.

    Want to know more about the challenges Allen Adamson has faced? Get the full details with our Challenge Study report.  

    Forensic Accounting Expert Witness

    Deepak Sabiki is a principal at Sabiki Consulting LLC, and he serves as a consulting and testifying expert in “forensic accounting, compliance, and litigation matters.” Sabiki received his B.S. in Finance and Economic Theory Analysis from New York University’s Stern School of Business.

    Get the full story on challenges to Deepak Sabiki’s expert opinions and testimony with an in-depth Challenge Study

    Psychology Expert Witness

     Dr. Lamarcus R. Bolton is a Principal at Insightful Holdings, a research firm based in Los Angeles, California. He attended St. Louis University, where he received his B.A. in Psychology and his M.S. and PhD in Industrial/Organizational Psychology.

    Discover more cases with Lamarcus Bolton as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    a. Troia’s Daubert Motion

    Troia filed a motion to exclude the testimony of Plaintiffs’ proposed expert, Allen Adamson.

    In his thirty-six-page report, Adamson evaluated the damage sustained to LoanStreet’s brand as a result of Defendant’s defamatory statements, focusing on the impact of his advertisements and posts on the company’s brand, and specifically on its ability to recruit software engineers and other prospective employees, attract and retain investors, and appeal to customers. Adamson further assessed the reputational damage sustained by Lampl’s “personal brand” due to Defendant’s statements.

    He ultimately determined that LoanStreet would need to spend a total of $3,700,000 over at least two years to repair its reputation with software engineers, prospective customers, and investors, and that Lampl would be required to spend between $750,000 and $2,500,000 over the next three to five years in order to adequately restore his reputation and safeguard his future career prospects.

    Troia claimed that Adamson’s testimony should be excluded as “irrelevant, unreliable, and prejudicial” and raised a variety of concerns centering primarily upon the assertion that Adamson’s report did not adequately establish causation by isolating the harm caused by Defendant’s defamatory statements.

    He also asserted that Adamson’s damages calculation impermissibly accounts for the republication of Defendant’s defamatory statements by third parties, which Troia contended is speculative and resulted in an “artificially inflated” damages amount.

    As Plaintiffs noted, broad general damages are permitted in cases involving defamation per se, and Adamson’s testimony is thus squarely relevant to those claims.

    The Court held that Troia’s remaining concerns regarding Adamson’s report and proposed testimony primarily concerned the weight of his testimony, rather than its admissibility, and are best addressed on cross examination.

    b. Plaintiffs’ Daubert Motion

    i. Deepak Sabiki

    Sabiki reviewed Adamson’s expert report and, after reviewing additional documents in this case, issued a ten-page rebuttal report in which he concluded that Adamson’s report is “speculative and not reliable, because it fails to tie the wrongful acts of Troia to the economic harm that LoanStreet and Lampl allegedly suffered.” 

    Plaintiffs contended that Sabiki’s report should be precluded because: (i) he has no expertise in branding and reputational harm or repair; (ii) he did not perform his own analysis or proffer a contrary damages calculation; and (iii) his proposed testimony presents arguments that counsel could make equally well without a witness.

    As an experienced consulting and testifying expert in litigation and forensic accounting with a degree in finance and economic theory analysis, the Court held that Sabiki is qualified to testify as a rebuttal expert regarding Adamson’s analysis of the economic damages sustained by Plaintiffs as a result of Defendant’s defamatory posts. Moreover, Defendant clarified that Sabiki is testifying solely as a rebuttal expert.

    Although Plaintiffs contended that Sabiki’s analysis consisted of observations that “can be observed readily by jurors and/or brought out in cross examination without benefitting from any aid by an expert,” they have not raised sufficient concerns regarding Sabiki’s qualifications or the reliability and relevance of his testimony. On the contrary, Sabiki’s opinion raised questions regarding Adamson’s analysis and methodologies, centering primarily on his failure to perform an economic causation analysis and a comparative damages analysis, as well as the data and assumptions underlying Adamson’s report. Although Plaintiffs may disagree with Sabiki’s conclusions, the Court held that those disagreements are best addressed on cross-examination.

    ii. Dr. Lamarcus Bolton

    Bolton conducted two surveys intended to “analyze public perceptions of the Defendant’s online statements regarding” LoanStreet and “gauge how these perceptions influenced potential employees’ and potential customers’ decisions to work for or engage in business with LoanStreet.”

    In his 137-page report, Bolton concluded, inter alia, that the survey results suggested that “the vast majority of the readers” of Troia’s posts “did not think the posts accused LoanStreet of breaking the law when it withheld equity compensation from Troia.”

    The primary issue with Bolton’s survey and report, as Plaintiffs noted, is its focus on whether respondents believed that Defendant had accused Plaintiffs of “breaking the law.” The use of this phrase appeared to be designed to determine whether the survey respondents believed defendant’s posts conveyed defamatory meaning. However, “breaking the law” carries an indisputably criminal connotation, and its use is entirely inappropriate in a survey carried out to assist in the determination of damages owed in a civil litigation. 

    Further, the Court agreed with Plaintiffs that both surveys impermissibly attempted to relitigate the question of liability and Defendant’s intent in crafting his posts by asking whether it “is possible” that the author of the posts “did not intend to claim LoanStreet broke the law” or was “motivated . . . by a desire to protect fellow workers” and asking whether the author’s post was “useful to public debate about workers’ rights.” Moreover, the fact that Bolton’s survey examining Defendant’s Reddit post did not include all the defamatory statements contained in the original post rendered that survey unusable.

    Additionally, both surveys are less reliable because they failed to exclude survey respondents with prior knowledge of Defendant’s posts regarding Plaintiffs or who had pre-existing perceptions regarding LoanStreet.

    Held

    • The Court denied Troia’s motion to exclude the testimony of Plaintiffs’ expert Allen Adamson.
    • The Court denied Plaintiffs’ motion to exclude the testimony of Troia’s experts with respect to Deepak Sabiki but granted it with respect to Dr. Lamarcus Bolton.

    Key Takeaway:

    While each methodological flaw, standing alone, may not mandate exclusion, the cumulative effect of the methodological flaws so diminishes the reliability and probative value of the survey that its exclusion is warranted under Rules 403 and 702.

    Case Details:

    Case Caption: Loanstreet Inc. Et Al V. Troia
    Docket Number: 1:21cv6166
    Court Name: United States District Court, New York Southern
    Order Date; September 03, 2025
  • Chemistry Expert Witness’ Testimony Admitted Because He Conducted An Independent Analysis of FDA Regulations

    Chemistry Expert Witness’ Testimony Admitted Because He Conducted An Independent Analysis of FDA Regulations

    Plaintiff Multiple Energy Technologies, LLC (“MET”) accused Under Armour of false advertising in relation to certain products that contain bioceramic powder. MET contended that Under Armour inaccurately claimed that the Federal Food and Drug Administration had determined that those products enhanced recovery.

    Under Armour sells activewear and sleepwear products directly to consumers. This includes the sale of products containing a competing bioceramic product known as celliant, which is manufactured by Hologenix, LLC (“Hologenix”). Under Armour advertises these products separately from their other product offers and as helping to promote recovery, especially for athletes.

    Plaintiff MET brought four claims against Defendant Under Armour, Inc.: violation of the Lanham Act, violation of the Sherman Act, misappropriation of trade secrets; breach of non-disclosure agreement; tortious interference with contract; tortious interference with prospective business expectancies; unjust enrichment; unfair competition; conversion; a claim for an accounting; and a claim for injunctive relief.

    Alberto Gutierrez

    MET’s Lanham Act claim is based principally on certain advertisements for Under Armour products that reference the FDA’s alleged treatment of celliant. The FDA language used in those advertisements originated with Hologenix, the manufacturer of celliant. Hologenix based those statements on its interpretation of the FDA’s June 8, 2017 response to Hologenix’s request for information regarding the FDA’s classification of celliant (the “FDA Letter”).

    MET retained Dr. Alberto Gutierrez to “opine about the classification process by the FDA, the intent of the June 8, 2017 letter from the FDA to Hologenix and the statements made by Under Armour about celliant and the FDA.” Under Armour filed a motion to exclude Gutierrez’s opinions.

    Chemistry Expert Witness

    Alberto Gutierrez worked at the FDA for 25 years in various departments.  At the FDA, Gutierrez was personally involved with the process by which the FDA responds to requests for information pursuant to section 513(g) and in making determinations of what is a medical device that would be regulated by the FDA. Gutierrez is now a consultant who helps device companies navigate the FDA regulatory requirements and provides strategic advice on regulatory issues and helps companies with submissions to the FDA.

    Get the full story on challenges to Alberto Gutierrez’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    I. Qualification

    First, Under Armour argued that ” Gutierrez is not qualified as an expert to opine on advertising or marketing issues, including the intent of the advertisements in question or the impact of those advertisements on consumers” because his background is in chemistry, he has no experience in advertising or consumer perception, and has never studied nor done any consulting work on the impact of advertisements on consumers. According to Under Armour, Gutierrez’s opinion is “purely speculative” with regard to whether Under Armour adopted a “campaign of deception.” Under Armour also argued that even if Gutierrez is not being offered as a consumer impact expert, his “campaign of deception” opinion is speculative and unreliable and shouldn’t be admitted.

    The Court concluded that Gutierrez is qualified to offer an opinion on Under Armour’s statements about celliant and the FDA. Gutierrez is not being offered as an expert on the intent or consumer impact of advertisements—instead, Gutierrez is being offered “to opine about the classification process by the FDA, the intent of the June 8, 2017 letter from the FDA to Hologenix and the statements made by Under Armour about celliant and the FDA.”

    The Court noted that Gutierrez worked at the FDA for 25 years in various positions, ultimately holding a director position. After his career in the FDA, Gutierrez joined a consulting group that helps companies navigate FDA regulatory requirements.

    Independent Analysis

    Second, Under Armour argued that even if Gutierrez is not qualified as an expert in the field of consumer perception, his report should be excluded because he did not perform any independent analysis. Under Armour argued that Gutierrez “took counsel’s word for it” that Under Armour engaged in a campaign of deception and did not review data related to consumers visiting websites containing the advertisements at issue, how long each website was active, or how many products with celliant Under Armour sold in a given year. Under Armour further argued that the “campaign of deception” opinion is not based on independent analysis.

    However, the Court found that Guttierez did perform sufficient independent analysis. Under Armour objects to Gutuerrez’s statement that Under Armour engaged in a “campaign of deception.” Gutierrez concluded in his report that Under Armour’s statements about celliant were false in light of FDA regulations and practices.

    He further opined that the statements in the documents that he reviewed were “false, deceptive and misleading” because the FDA had not determined that celliant products led to faster recovery, only that the health-related claims made by Hologenix would qualify celliant products as medical devices.

    Moreover, Under Armour, by claiming that Gutierrez is not qualified as an expert on the intent of advertisements, attacked Gutierrez’s conclusions by stating that he “took counsel’s word for it” about Under Armour’s intent to deceive. But the Court held that Gutierrez did not purport to opine on Under Armour’s intent in the advertisements—instead, he concluded based on his knowledge and expertise that the statements were false, not that Under Armour intended to deceive consumers.

    Documents and Conclusions

    Third, Under Armour argued that the documents Gutierrez relied on do not support his conclusions. Additionally, Under Armour objects to the use of the phrase “FDA approval” in Gutierrez’s report and argues that his report should be excluded because he reviewed no documents with that specific claim. 

    However, the Court found that the documents Gutierrez reviewed support his opinions, and any argument that they do not goes to the weight, and not the admissibility, of his opinion.

    Gutierrez’s report states that he reviewed Under Armour product pages from its website and from Amazon, and he also reviewed a letter from the FDA to Holegenix. Additionally, Gutierrez reviewed an article stating that celliant fabric had received “FDA approval” as a medical device.

    Opinions about FDA Regulations

    Fourth, Under Armour argued that Gutierrez’s report contains impermissible legal opinions on the applicability of FDA regulations to the case.

    The Court found that Gutierrez’s opinions about the FDA’s regulations and procedures are relevant and are not legal opinions. Courts frequently admit the type of expert testimony that Gutierrez offers, and the Court sees no issues with admitting his opinions here. 

    The Court held that Gutierrez may testify so long as he does not give an opinion as to what is required under the law.

    Held

    The Court denied Under Armour’s motion to exclude Dr. Alberto Gutierrez’s expert report.

    Key Takeaway:

    Concerns about the documents an expert reviewed go to the weight of the evidence, not the admissibility, and are appropriately addressed in cross-examination. An expert has “good grounds” for relying on documents containing statements regarding the FDA because they are the type of documents an expert reviewing whether statements are consistent with FDA regulations would rely upon. 

    Please refer to the blog previously published about this case:

    Marketing Expert Witness’ Testimony on Consumer Perceptions Excluded Because His Survey is Flawed

    Case Details:

    Case Caption: Multiple Energy Technologies, LLC V. Under Armour, Inc
    Docket Number: 2:20cv664
    Court: United States District Court, Pennsylvania Western
    Order Date: January 13, 2025