Financial Expert’s Opinions on Value Added Promotions Admitted
Posted on May 22, 2025 by Expert Witness Profiler
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.
Troy Carrothers is Defendants’ rebuttal expert to Plaintiffs’ payment processing industry expert. Plaintiffs took issue with certain opinions given by Carrothers, including that “‘Value Added Promotions used by [Global e-Trading] before 2019 are commonly used marketing programs,” as well as statements that Plaintiffs maintain are impermissible legal conclusions.
Lisl Unterholzner, an accountant and certified fraud examiner, is Defendants’ rebuttal damages expert. Plaintiffs took issue with certain opinions given by and analysis performed by Unterholzner, including her discussion of a The Fulfillment Lab (“TFL”) spreadsheet with shipping addresses and her MID-by-MID and time-limited calculation of damages attributable to Global e-Trading.
Financial Expert Witness
Troy Carrothers is a financial services and retail leader with approximately thirty years of experience working in a variety of leadership roles in retail payments. These responsibilities have spanned operational leadership positions with responsibility for functions with small teams such as Risk Management or Financial Planning & Analysis in payment issuance and acceptance to leading multi-billion dollar retail credit and debit portfolios with thousands of employees.
Accounting Expert Witness
Lisl Unterholzner is the Managing Partner at Oscher Consulting, PLLC, a Certified Public Accounting firm. Unterholzner is a Certified Public Accountant (“CPA”) and has been accredited in Business Valuation by the American Institute of CPAs. She has also been accredited as a Certified Fraud Examiner. Her experience includes forensic accounting investigations, performing business valuations, and the analysis of economic damages.
Discussion by the Court
Troy Carrothers
Plaintiffs sought to preclude Carrothers from “offering testimony on his general understanding of the term Value Added Promotions, or VAP, including how other companies in the industry may use the term.”
The Court held that Carrothers’ testimony about his understanding of VAP used by other companies does not match the descriptions of Global e-Trading’s VAP program within Global e-Trading’s own internal documents. Moreover, Carrothers admitted during his deposition that he did not “know the details of [Defendants’] VAP program from when they ran it.”
While the issues Plaintiffs pointed out give them ample ammunition for cross-examination, the Court decided that they still did not warrant disqualifying Carrothers from testifying as an expert.
The Court also disagreed with Plaintiffs as to Carrothers’ statement that Global e-Trading “paused service several times” for Brightree. In other words, Carrothers is merely pointing out that Global e-Trading may have had pauses in its provision of services to Brightree, which is true and potentially relevant to Defendants’ defense regarding intent. The Court did not find this statement so irrelevant as to be kept from the jury.
However, to the extent Carrothers intended to offer the legal conclusion that he has seen no evidence in the record to support that Defendants’ VAP program was fraudulent, the Court agreed with Plaintiffs.
Lisl Unterholzner
Plaintiffs sought to preclude Unterholzner from testifying about two subjects. First, they argued that Unterholzner should not testify “about whether any of the customer, email, or shipping data in the TFL Spreadsheet is valid” or offer “any opinions or conclusions about the deliverability of any shipment made by The Fulfillment Lab or the Keto Entities.” Second, they sought to prevent Unterholzner from “parsing or calculating damages in a way that is based on a piecemeal analysis of Defendants’ activities with respect to the overall Keto enterprise.”
The Court disagreed with Plaintiffs. Because Unterholzner is a rebuttal expert, it is perfectly appropriate for her to question the documents upon which the Plaintiffs’ damages expert relied.
To the extent Unterholzner intended to opine that Defendants can only be liable for damages incurred for certain times during which Global e-Trading was providing services to Brightree, the Court excluded that opinion as irrelevant.
However, to the extent Unterholzner’s report and opinions addressed flaws in Plaintiffs’ expert’s damages calculation because of incomplete data, this opinion is permissible. Since this analysis is proper for a rebuttal expert, the Court will not exclude it.
Held
The Court granted in part and denied in part the motion to limit the testimony of Defendants’ experts Troy Carrothers and Lisl Unterholzner.
Key Takeaways:
- No witness may offer legal conclusions or testify to the legal implications of conduct.
- Despite Plaintiffs’ legitimate questions, the supposed problems with Unterholzner’s methodology can be explored on cross-examination.
Case Details:
| Case Caption: | Sihler Et Al V. Global E-Trading, LLC |
| Docket Number: | 8:23cv1450 |
| Court Name: | United States District Court, Florida Middle |
| Order Date: | May 16, 2025 |
