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Valelly v. Merrill Lynch, Pierce, Fenner & Smith Inc.

Expert's Testimony in Suit on Account's 'Sweep' Feature Excluded Under FRE 702, 'Daubert'

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OPINION & ORDER1 This case involves the “sweep” feature of Merrill Edge Self-Directed Investing Accounts. The sweep feature allowed Defendant to move automatically (or “sweep”) Plaintiff’s uninvested cash into a Bank of America money market account.2 Plaintiff sought class certification and, in support of her motion, proffered the opinion of Dr. Micah Officer (“Dr. Officer”). See Dkt. 94-26.3 Defendant moves to exclude Dr. Officer’s opinion and testimony. See Def. Mot., Dkt. 112. For the following reasons, Defendant’s motion is GRANTED. BACKGROUND The Court assumes familiarity with its prior opinions issued over the course of this litigation and will summarize only the most pertinent facts. In August 2017, Plaintiff Sarah Valelly opened three accounts at Merrill Lynch: (i) a Cash Management Account (“CMA”); (ii) a Roth Individual Retirement Account (“Roth IRA”); and (iii) a Traditional Individual Retirement Account (“Traditional IRA”). First Amended Complaint (“FAC”)

26, 43-45, 112, Dkt. 55. The Client Relationship Agreement (“CRA”), which governs all three accounts, contained a so-called “reasonable rate” provision. Pursuant to the reasonable rate provision, Defendant was obligated to pay no less than a “reasonable rate” of interest on cash held in Plaintiff’s retirement accounts. Plaintiff alleges that Defendant breached that contract by failing to pay a “reasonable” interest rate (the “Reasonable Rate Claim”). Id.

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