IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

SECURITIES AND EXCHANGE COMMISSION

Plaintiff,

v.

JUSTIN W. KEENER D/B/A JMJ FINANCIAL, 

Defendant.

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No. 20-cv-21254 

Hon. Beth Bloom 

PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S MEMORANDUM OF 

LAW IN OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE REBUTTAL 

EXPERT REPORT OF DR. CARMEN TAVERAS

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TABLE OF CONTENTS

BACKGROUND..............................................................................................1

LEGAL STANDARD....................................................................................................................2

ARGUMENT.................................................................................................................................4

I. Dr. Taveras is an Eminently Qualified Economist ............................................................4

II. Defendant’s Experts Should Not be Permitted to Testify..................................................5

III. If Defendant’s Experts are Permitted to Testify, Then Dr. Taveras’ Expert 

Rebuttal Testimony is Appropriate in Scope, Reliable, and Will Assist the Jury .............7

A. Dr. Taveras’ Rebuttal Testimony is Appropriate Under Rule 26(a)............................8

1. Dr. Taveras’ Rebuttal to Mr. Flemmons’ Report....................................................8

2. Dr. Taveras’ Rebuttal to Dr. Mayhew’s Report.....................................................10

3. Dr. Taveras’ Opinions Contradict and Rebut the Same Subject 

Matter as Defendants’ Experts.......................................................................12

B. Dr. Taveras’ Rebuttal Testimony is Reliable and Helpful.........................................15

1. Dr. Taveras’ Expert Rebuttal to Dr. Oldfield is Reliable and Helpful .................15

2. Dr. Taveras’ Expert Rebuttal to Dr. Mayhew is Reliable and Helpful.................17

3. Dr. Taveras’ Expert Rebuttal to Mr. Flemmons is Reliable and Helpful .............18

CONCLUSION............................................................................................................................20

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TABLE OF AUTHORITIES

CASES

Adacel, Inc. v. Adsync Tech., Inc.,

2020 WL 4588415 (M.D. Fla. July 9, 2020) ...................................................................13

Allison v. McGhan Med. Corp.,

184 F.3d 1300 (11th Cir. 1999) ......................................................................................3, 5

Coquina Invs. v. Rothstein,

2011 WL 4949191 (S.D. Fla. Oct. 18, 2011)...................................................................19

Cosmo v. Carnival Corp.,

2017 WL 4785639 (S.D. Fla. Oct. 16, 2017)...................................................................18

Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993).......................................................................................................ibid.

Fuller v. SunTrust Banks, Inc.,

2019 WL 5448206 (N.D. Ga. Oct. 3, 2019) ................................................................13, 14

In re Trasylol Prods. Liab. Litig.,

2010 WL 4065436 (S.D. Fla. Aug. 6, 2010)....................................................................14

Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137 (1999)...........................................................................................................2

Liu v. SEC, 140 S.Ct. 1936 (2020)..........................................................................11

Long v. Murray County School District,

2012 WL 13071603 (N.D. Ga. Apr. 18, 2012)................................................................18

Maiz v. Virani,

253 F.3d 641 (11th Cir. 2001) ......................................................................................3, 19

Mobile Shelter Sys. USA, Inc. v. Grate Pallet Sols., LLC,

845 F. Supp. 2d 1241 (M.D. Fla. 2012)............................................................................14

Northrup v. Werner Enterprise, Inc.,

2015 WL 4756947 (M.D. Fla. Aug. 11, 2015) ................................................................13

OFS Fitel, LLC v. Epstein, Becker and Green, P.C.,

549 F.3d 1344 (11th Cir. 2008) .......................................................................................14

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iii

Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC,

2011 WL 2295269 (S.D. Fla. June 8, 2011).....................................................................19

Perez v. Wells Fargo N.A.,

774 F.3d 1329 (11th Cir. 2014) .......................................................................................14

Plantation Pipe Line Co. v. Associated Elec. & Gas Ins. Servs. Ltd.,

2011 WL 13143562 (N.D. Ga. Nov. 10, 2011) ...............................................................13

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd.,

326 F.3d 1333 (11th Cir. 2003)............................................................3, 4, 5, 16

Rent-A-Center, Inc. v. Canyon Television and Appliance Rental, Inc.,

944 F.2d 597 (9th Cir. 1991) ...........................................................................................13

Rink v. Cheminova, Inc.,

400 F.3d 1286 (11th Cir. 2005) .......................................................................................16

SEC v. Sabrdaran,

252 F. Supp. 3d 866 (N.D. Cal. 2016)...............................................................................5

United States v. Abreu,

406 F.3d 1304 (11th Cir. 2005) .........................................................................................4

United States v. Frazier,

387 F.3d 1244 (11th Cir. 2004) ....................................................................................3, 13

United States v. Hansen,

262 F.3d 1217 (11th Cir. 2001) .........................................................................................3

Wreal, LLC v. Amazon.Com, Inc.,

2016 WL 8793317 (S.D. Fla. Jan. 7, 2016).....................................................................19

STATUTES & RULES

15 U.S.C. § 78o(a)(1).................................................................................................................2, 15

Fed. R. Civ. P. 26(a).................................................................................8, 12, 13

Fed. R. Evid. 702 .....................................................................................................................2-4, 7

Fed. R. Evid. 1006 .........................................................................................................................7

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Plaintiff Securities and Exchange Commission (“SEC”) respectfully submits this 

memorandum of law in opposition to Defendant’s Motion to Exclude Rebuttal Expert Report of 

Dr. Carmen Taveras [ECF No. 66] (“Def. Mem.”). Defendant argues that portions of Dr. 

Taveras’ report should be excluded as outside the scope of appropriate rebuttal, and that Dr. 

Taveras’ report should be excluded in full because it is purportedly “unreliable and/or will not be 

helpful to the jury.” Def. Mem. at 2. Contrary to Defendant’s assertion, it is Defendant’s

experts—not Dr. Taveras—who fail to meet the Eleventh Circuit’s three-pronged test for 

admissibility under Daubert. See Plaintiff Securities and Exchange Commission’s Omnibus 

Daubert Motion to Exclude the Testimony of George Oldfield, Jason Flemmons, and Stewart 

Mayhew and Incorporated Memorandum of Law [ECF No. 65] (“SEC Daubert Mtn.”). But if 

this Court permits Defendant’s experts to testify, then (i) Dr. Taveras is an eminently qualified 

economist; (ii) Dr. Taveras’ rebuttal testimony is narrowly tailored to respond directly to the 

opinions articulated by each of Defendant’s experts; and (iii) Dr. Taveras’ testimony is reliable

and helpful. This Court should deny Defendant’s motion.

BACKGROUND

Defendant Justin W. Keener, d/b/a JMJ Financial (“Defendant”) engaged in the business 

of repeatedly purchasing convertible notes from small “microcap” issuers, converting the notes 

into stock at significant discounts from prevailing market prices, and selling the resulting newly 

issued shares into the public market for a significant profit. Complaint ¶¶ 1-4 [ECF No. 1]. 

Defendant sold more than 38 billion shares of stock purchased from more than 200 different 

issuers into the public market. See Plaintiff’s Statement of Material Facts ¶¶ 27, 29 [ECF No. 

67]. Defendant’s net proceeds from sales between March 24, 2014 and January 31, 2018 totaled 

approximately $34 million. Id. ¶ 31. The SEC alleges that, by engaging in this business, 

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Defendant acted as an unregistered dealer in violation of Section 15(a)(1) of the Securities 

Exchange Act of 1934 (“Exchange Act”) [15 U.S.C. § 78o(a)(1)]. 

There is one issue in the SEC’s case in chief, and that is whether Defendant acted as an 

unregistered dealer. To prevail on this claim, the SEC must prove by a preponderance of the 

evidence that: Defendant (i) made use of the mails or other means or instrumentalities of 

interstate commerce; (ii) to effect transactions in, or to induce or to attempt to induce the 

purchase or sale of, securities; (iii) as part of a regular business; (iv) while not registered with the 

SEC as a dealer; and (v) when Defendant was not associated with an entity registered with the 

SEC as a dealer. Complaint ¶ 24; 15 U.S.C. § 78o(a)(1). This issue can, and should, be resolved 

in the SEC’s favor on summary judgment. See Plaintiff Securities and Exchange Commission’s 

Motion for Summary Judgment and Incorporated Memorandum of Law [ECF No. 68] (seeking 

judgment in favor of the SEC and against Defendant on Count I of the Complaint, and on the 

Defendant’s Third, Fourth, Fifth, and Sixth Affirmative Defenses). 

If this case survives summary judgment, however, and this Court permits—in whole or 

part—the testimony of Defendant’s experts to reach the jury, then the question for this Court is 

whether Dr. Taveras’ rebuttal testimony will assist the jury in understanding the evidence and 

reaching a judgment. The answer to that question is, indisputably, “yes.” 

LEGAL STANDARD

The admission of expert testimony is governed by Federal Rule of Evidence 702, as 

explained and refined by the U.S. Supreme Court in Daubert v. Merrell Dow Pharms., Inc., 509 

U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Federal Rule of 

Evidence 702 permits qualified experts to proffer their expert opinions where: (i) the expert’s 

scientific, technical, or other specialized knowledge will assist the trier of fact to understand the 

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evidence or decide a fact in issue; (ii) the testimony is based on sufficient facts or data; (iii) the 

testimony is the product of reliable principles and methods; and (iv) the witness has applied the 

principles and methods reliably to the facts of the case. Fed. R. Evid. 702. The proponent of the 

expert opinion bears the burden of laying a proper foundation for its admission, which must be 

shown by a preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 

1306 (11th Cir. 1999).

The trial court thus functions as a gatekeeper and engages in a three-part inquiry to 

determine whether: (i) the expert is qualified to testify competently regarding the matters she 

intends to address; (ii) the methodology by which the expert reaches her conclusions is 

sufficiently reliable; and (iii) the testimony will assist the trier of fact, through the application of 

scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in 

issue. See, e.g., United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (citing Daubert, 

509 U.S. at 592). The Eleventh Circuit has referred to these requirements as the “qualifications,” 

“reliability,” and “helpfulness” prongs and, although there is inevitably some overlap, they 

remain distinct concepts that must be individually analyzed. United States v. Frazier, 387 F.3d 

1244, 1260 (11th Cir. 2004).

In considering the admissibility of expert testimony, “it is not the role of the district court 

to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Quiet Tech. 

DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003); Maiz v. Virani, 253 

F.3d 641, 666 (11th Cir. 2001) (“A district court’s gatekeeper role under Daubert ‘is not 

intended to supplant the adversary system or the role of the jury.’”) (quoting Allison, 184 F.3d at 

1311)). The Court should “consider any additional factors that may advance its Rule 

702 analysis.” Quiet Tech., 326 F.3d at 1341. Indeed, “[t]he inquiry envisioned by Rule 702 is 

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. . . a flexible one.” Daubert, 509 U.S. at 594. “Many factors will bear on the inquiry,” and no 

“definitive checklist or test” exists. Id. at 593.

ARGUMENT

I. Dr. Taveras is an Eminently Qualified Economist

Defendant does not challenge Dr. Taveras’ qualifications or experience, nor could he. 

Under the qualifications prong, “a witness qualifie[s] as an expert by knowledge, skill, 

experience, training, or education.” United States v. Abreu, 406 F.3d 1304, 1307 (11th Cir. 

2005) (citing Fed. R. Evid. 702). Dr. Taveras meets and exceeds the standard of a qualified 

economist.

Dr. Taveras has more than 15 years’ academic and professional experience in economics 

and financial markets, including seven years with the SEC as a Financial Economist in the 

SEC’s Division of Economic and Risk Analysis, where she is currently an Assistant Director. 

Ex. 1, Rebuttal Expert Report of Carmen A. Taveras, Ph.D. ¶¶ 1-3 (July 19, 2021); id. at 29-31

(Curriculum Vitae of Carmen A. Taveras, Ph.D.). In this role, Dr. Taveras provides financial, 

economic, and statistical analyses to assist the SEC in the investigation and litigation of 

potential securities law violations. Ex. 1 ¶ 1. Since joining the SEC in 2014, Dr. Taveras has 

worked on approximately 80 enforcement matters. Id. Before joining the SEC, Dr. Taveras 

worked at Securities Litigation and Consulting Group (“SLCG”), a consulting firm specializing 

in financial economics matters. Id. ¶ 2. At SLCG, Dr. Taveras conducted economic analysis of 

issues related to securities class actions, brokerage industry disputes, and regulatory 

investigations. In addition, while at SLCG, Dr. Taveras prepared reports in consulting 

engagements for securities regulators and industry groups. Id.

Dr. Taveras has a Ph.D. in economics from the Massachusetts Institute of Technology, 

where she taught graduate and undergraduate courses in economics. Id. ¶ 3. Dr. Taveras 

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obtained a Postgraduate Diploma in Macroeconomics from the Pontificia Universidad Católica 

in Chile, and a B.A. in Economics from the Pontificia Universidad Católica Madre y Maestra in 

the Dominican Republic. Id. 

Dr. Taveras has served as an expert witness on several occasions, including testifying at 

trial. Id. at 30-31. Dr. Taveras’ testimony and opinions have been accepted by all the courts 

and finders of fact to which they have been offered, and her opinions and testimony have never 

been rejected or criticized by a court. In one matter, SEC v. Sabrdaran, Case No. 252 F. Supp.

3d 866 (N.D. Cal. 2016), the federal trial court adopted Dr. Taveras’ opinions virtually 

verbatim. This Court should conclude that Dr. Taveras is qualified as an expert in the field of 

economics and well suited to testify as a rebuttal expert in this matter. See, e.g., Quiet Tech., 

326 F.3d at 1341-42 (“[A]n expert’s overwhelming qualifications may bear on the reliability of 

his proffered testimony.”). 

II. Defendant’s Experts Should Not be Permitted to Testify 

The SEC has filed a Daubert motion to exclude the testimony of Defendant’s experts. 

See SEC Daubert Mtn. [ECF No. 65]. As detailed in that motion (incorporated by reference 

herein), this Court should exercise its gatekeeper function to preclude each of Defendant’s three 

experts from testifying in this case. Id.; see also Allison, 184 F.3d at 1311-12 (“The judge’s role 

is to keep unreliable and irrelevant information from the jury because of its inability to assist in 

factual determinations, its potential to create confusion, and its lack of probative value.”) 

(emphasis added).

First, this Court should exclude the opinions and testimony of Dr. Oldfield, because his 

opinions are irrelevant to the question whether Defendant was an unregistered dealer. SEC 

Daubert Mtn. § II.B [ECF No. 65]. Most importantly, Dr. Oldfield admits that he did not 

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consider whether Defendant operated as a dealer under the federal securities laws, but instead 

applied his own inapposite standard in order to opine that Defendant would not be considered a 

“dealer” in the field of market microstructure. Id. § II.B.1. In essence, Dr. Oldfield would ask 

the jury to ignore the binding precedent in this Circuit, and instead suggest that the jury should

find Defendant not liable based on Dr. Oldfield’s different, inapplicable, standard. Id. 

Moreover, even if Dr. Oldfield’s opinions were relevant—which they are not—this Court 

nevertheless should exclude his report and testimony under Daubert, because Dr. Oldfield failed 

to use a reliable methodology, and did not rely on sufficient facts and data to reach his opinions. 

Id. § II.B. Accordingly, nothing that Dr. Oldfield opines will assist the jury in determining 

whether Defendant complied with the Exchange Act’s dealer registration statute—the sole 

question at issue in this case. 

Second, this Court should grant the SEC’s motion to exclude the testimony of 

Defendant’s experts, Mr. Flemmons and Dr. Mayhew, because these experts’ opinions relate

solely to the remedy of disgorgement,1 which is an issue for the Court—not the jury—to decide. 

Id. §§ II.C-D; see also Plaintiff Securities and Exchange Commission’s Memorandum of Law in 

Opposition to Defendant’s Motion in Limine to Exclude Any Evidence Regarding Alleged 

Victims, Counterparties, or Harm at § I [filed concurrently herewith] (“SEC MIL Opp’n”) (jury 

 1

 See Expert Report of Jason S. Flemmons ¶ 3 (July 1, 2021) [ECF No. 65-2] 

(“Flemmons Report”) (“I was retained to analyze the SEC’s Disgorgement Calculation Support 

Spreadsheet and to offer opinions as to whether it accurately reflects 1) the net proceeds of JMJ’s 

sales of stocks attributable to convertible notes and 2) the expenses incurred by JMJ in running 

its business.”) (emphasis added); Final Expert Report of Jason S. Flemmons ¶ 3 (July 30, 2021) 

[ECF No. 65-3] (“Flemmons Revised Report”) (same); Expert Report of Stewart Mayhew, Ph.D. 

¶ 6 (July 1, 2021) [ECF No. 65-4] (“Mayhew Report”) (“I have been asked to provide 

background . . . that might be useful to the court in assessing whether Mr. Keener’s failure to 

register as a dealer caused economic harm to the counterparties to Mr. Keener’s transactions. I 

understand from counsel that this question is relevant to the court’s consideration of whether 

disgorgement is an appropriate remedy.”) (emphasis added).

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decides issue of liability; Court determines remedies, including disgorgement). Because 

disgorgement is neither an element of the SEC’s claim, nor part of the SEC’s case in chief, Mr. 

Flemmons and Dr. Mayhew are incapable of rendering any opinion that will “help the trier of 

fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a) (emphasis 

added).

2

 

The SEC submits Dr. Taveras’ rebuttal expert testimony solely in response to the 

proposed testimony of Defendant’s experts, should this Court permit them to testify at trial. 

Accordingly, if this Court grants the SEC’s affirmative Daubert motion, then Defendant’s 

motion concerning Dr. Taveras will be moot.3 

III. If Defendant’s Experts are Permitted to Testify, Then Dr. Taveras’ Expert Rebuttal 

Testimony is Appropriate in Scope, Reliable, and Will Assist the Jury

If Defendant’s experts are permitted to testify over the SEC’s objection, then this Court 

should permit Dr. Taveras’ rebuttal testimony, because it is appropriate in scope, reliable, and 

helpful to the jury. Defendant does not challenge Dr. Taveras’ qualifications. Nor has

Defendant established any methodological errors—let alone such serious errors as to render Dr. 

Taveras’ opinions unreliable or likely to confuse or mislead the jury. Rather, Defendant is 

simply trying to exclude Dr. Taveras’ testimony, so that Defendant’s experts can present their

 2

 Mr. Flemmons’ opinions should also be excluded on the independent ground that he 

failed to apply sufficient facts or data or rely on a reliable methodology. See SEC Daubert Mtn. 

§ II.C.2 [ECF No. 65]. 

3

 The SEC may call Dr. Taveras as a summary witness under Federal Rule of Evidence 

1006. See SEC Rule 26(a) Supplemental Disclosures [ECF No. 69-15] (“[Dr. Taveras] [m]ay be 

called as a summary witness regarding voluminous records relating to some or all of the 

following: Defendant’s securities transactions, tax records, and expense records.”). On August 

13, 2021, Dr. Taveras filed a summary witness declaration in support of the SEC’s motion for 

summary judgment. See Declaration of Carmen A. Taveras, Ph.D., in Support of Plaintiff’s 

Motion for Summary Judgment [ECF No. 67-11] (summarizing certain information produced by 

Defendant relating to his convertible note transactions). Defendant has not challenged Dr. 

Taveras’ testimony as a summary witness.

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unsupported and unreliable opinions to the jury without opposition. This Court should not 

permit Defendant to run roughshod over the Rules of Evidence and Procedure. 

A. Dr. Taveras’ Rebuttal Testimony is Appropriate Under Rule 26(a)

Defendant argues—with respect to Dr. Taveras’ opinions concerning Mr. Flemmons and 

Dr. Mayhew (but not Dr. Oldfield)—that Dr. Taveras’ rebuttal report should be stricken, because 

it purportedly is “a disguised effort by the SEC” to introduce new evidence or respond to 

opinions Defendant’s experts do not offer. Def. Mem. at 2-4; id. at 8, 10, 12-14. Defendant is 

incorrect. Dr. Taveras directly challenges the opinions of Mr. Flemmons and Dr. Mayhew, and 

therefore does not exceed the proper scope of expert rebuttal under Federal Rule of Civil 

Procedure 26(a). This Court should deny Defendant’s motion.

1. Dr. Taveras’ Rebuttal to Mr. Flemmons’ Report

Mr. Flemmons offers two opinions concerning Defendant’s proceeds and expenses,

which he states are relevant to the SEC’s disgorgement claim. Mr. Flemmons first argues that,

“the SEC’s disgorgement claim includes net proceeds that are unrelated to stock sales arising 

from convertible notes.” Flemmons Report §§ II.A, IV.A [ECF No. 65-2]; Flemmons Revised 

Report §§ II.A, IV.A [ECF No. 65-3]. Mr. Flemmons next argues that, “the SEC’s disgorgement 

claim excludes relevant business expenses.” Flemmons Report §§ II.B, IV.B [ECF No. 65-2]; 

Flemmons Revised Report §§ II.B, IV.B [ECF No. 65-3]. 

In rebuttal, Dr. Taveras identifies fatal flaws with each of Mr. Flemmons’ two opinions. 

With respect to Mr. Flemmons’ first opinion, Dr. Taveras observes that Mr. Flemmons “relies on 

a classification of sale proceeds provided by Defendant,” and opines that Mr. Flemmons 

improperly excludes “trading activity related to stock sales derived from warrants and note 

settlements on the assumption that they are distinct from the activity relating to convertible 

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notes.” Ex. 1 ¶ 12 (emphasis added) (internal quotation marks and alterations omitted). Dr. 

Taveras disagrees with Mr. Flemmons’ classification of net income, observing that:

Whether Defendant received shares to pay down note balances or 

received shares or cash from settlements or penalties for 

prepayment or unpaid notes, all of those inflows are income

resulting from convertible note activity. Similarly, shares received

through warrants tied to convertible notes are just like shares 

received through conversions: both are newly issued shares 

intended to compensate the Defendant. . . . Mr. Flemmons 

excluded warrant activity from convertible note activity in his 

calculations, contrary to testimony of Defendant’s CFO that 

warrants were packaged with the convertible notes and that 

Defendant would not have obtained the warrants in the absence of 

the convertible notes.

Id. ¶ 18 (emphasis added). Dr. Taveras concludes that—using his unduly narrow and erroneous 

approach—Mr. Flemmons “finds that Defendant’s net income from convertible notes is 

approximately $10 million, or 48% of his total net income from stock sales from January 2015 to 

January 2018.” Id. ¶ 12.

With respect to Mr. Flemmons’ second opinion, Dr. Taveras opines that “[t]he main flaw 

in [Mr. Flemmons’] analysis is that while the Flemmons Report focuses on Defendant’s 

convertible note activity on the net income side, it includes all of Defendant’s business expenses 

on the expense side, netting 48% of the Defendant’s net income against 100% of his total 

business expenses.” Id. ¶ 13 (emphasis added). To correct Mr. Flemmons’ error, Dr. Taveras 

offers two alternative approaches:

The first approach . . . is to pro-rate the expenses based on the 

portion of the Defendant’s business related to convertible note 

activity, as defined by Mr. Flemmons, which was 48%. I first 

remove from the business expense category $2,250,000 in bad debt 

associated with the ACAR note, which Mr. Flemmons claims is 

not a convertible note. To estimate the portion from convertible 

notes I multiply the expenses by the portion of his net income from 

convertible notes, as identified by Mr. Flemmons. On that basis, I 

assign 48% of them, or $5.7 million, to his convertible note 

activity.

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Id. ¶ 16 (emphasis added) & Exhibit 1, Column C. 

The second approach . . . was to re-calculate the portion of 

proceeds attributable to convertible notes. . . . Because this 

approach suggests that nearly all of the net income was related to 

convertible notes, [Taveras] did not adjust or apportion the 

expenses. This approach results in a net profit of $6.4 million

(i.e., $20.4 million in net income from notes minus $13.9 million 

in business expenses). 

Id. ¶ 19 (emphasis added) & Exhibit 1, Column D. 

Each of Dr. Taveras’ alternative corrections to Mr. Flemmons’ errors results in positive

net profits from Defendant’s convertible note activity, in contrast to Mr. Flemmons’ flawed $4 

million net loss number. Id. ¶ 20.4 In offering her corrections to Mr. Flemmons’ errors, Dr. 

Taveras expressly states that she is not offering an opinion on the appropriate amount of an asyet-to-be-awarded disgorgement amount in this case. Id. ¶ 21.

2. Dr. Taveras’ Rebuttal to Dr. Mayhew’s Report 

Dr. Taveras’ report similarly responds to errors in Dr. Mayhew’s report, which offers an 

opinion on “whether Mr. Keener’s failure to register as a dealer caused economic harm to the 

counterparties” that Dr. Mayhew asserts “is relevant to the court’s consideration of whether 

disgorgement is an appropriate remedy.” Mayhew Report ¶ 6 [ECF No. 65-4].5 Dr. Taveras 

 4

 Mr. Flemmons’ initial report, filed on July 1, 2021, offset Defendant’s reported net 

income of $10 million from convertible notes by $14 million in purported business expenses, 

arriving at the incorrect $4 million net loss number. Flemmons Report ¶ 45 [ECF No. 65-2]. 

After Dr. Taveras pointed out Mr. Flemmons’ error in her July 19, 2021 report and during her 

July 27, 2021 deposition, Mr. Flemmons filed his revised report, which makes no mention of 

Defendant’s purported $4 million loss. See Flemmons Revised Report [ECF No. 65-3]. Mr. 

Flemmons’ abrupt about-face upon receiving Dr. Taveras’ rebuttal report and testimony makes 

clear that Dr. Taveras’ report concerns the “same subject matter” as Mr. Flemmons’ report. 

5

 The SEC disputes Defendant’s contention that—to obtain an award of disgorgement in 

this case—the SEC is required to identify the alleged “victims” of Defendant’s wrongdoing or to

quantify the economic harm to counterparties. See SEC MIL Opp’n § III.B [filed concurrently 

herewith]. The U.S. Supreme Court’s decision in Liu v. SEC, 140 S.Ct. 1936 (2020), does not 

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first responds to Dr. Mayhew’s opinion that Defendant’s transactions did not cause harm to 

counterparties, detailing myriad ways that the investors on the other side of Defendant’s 

transactions had limited information concerning Defendant’s unlawful unregistered dealer 

activities. Ex. 1 ¶¶ 22-24. Dr. Taveras notes, “the market could not have known with certainty 

how many shares Defendant received, when he received them (and thus when he was likely to 

sell them), whether the company issued new convertible notes, and whether it paid Defendant’s 

note back in cash or defaulted on the note by failing to deliver the newly issued shares to 

Defendant.” Id. ¶ 25 (emphasis added). Dr. Taveras further observes, “although some 

information on the convertible notes may have been available, the public information regarding 

the timing and size of conversions and sales was limited.” Id. ¶ 27.

Dr. Taveras next responds to Dr. Mayhew’s opinions concerning the purported price 

impact of Defendant’s unregistered dealer activity. Id. ¶ 28. After observing that, “[t]he 

Mayhew report did not provide any empirical evidence to support” its price impact claims, Dr. 

Taveras undertakes the missing empirical analysis, providing analytical evidence that contradicts

Dr. Mayhew’s speculative opinions. Id. 

First, Dr. Taveras presents a “price analysis around and after Defendant’s activities 

arising from convertible notes.” Id. ¶ 29 & Exhibit 3. 

Second, Dr. Taveras analyzes “stock price changes for all issuers” during distinct periods

of time. Id. ¶ 30 & Exhibit 4. Dr. Taveras notes that “[i]f Dr. Mayhew’s prediction were correct, 

 

require an analysis of the feasibility of distributing disgorged amounts to injured parties for a 

disgorgement award to issue, much less that any such analysis occur before any finding of 

liability or the Court’s determination whether to award disgorgement at all. Accordingly, Dr. 

Taveras’ opinions concerning the impact on counterparties and retail investors stemming from

Defendant’s violations of the securities laws are offered purely in rebuttal to Defendant’s flawed 

and premature expert reports. 

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one would observe that prices are about as likely to increase as they are to decrease” in the 

period in between Defendant’s first and last sales. Id. ¶ 32. But Dr. Taveras’ empirical analysis 

shows that, contrary to Dr. Mayhew’s prediction, “half the issuers . . . experienced a stock price 

decline of 92% or worse from the date prior to Defendant’s first sale to the date of his last sale. 

This finding indicates that prices did not reflect the full impact of Defendant’s convertible note 

activity prior to Defendant’s sales.” Id. ¶ 33 (emphasis added). Based on additional analyses for 

the period after Defendant’s sales, Dr. Taveras critiques and refutes Dr. Mayhew’s assertion that 

the price impact from Defendant’s unlawful activities “would be only temporary.” Id. ¶¶ 34-40

& Exhibits 3 and 4. 

Finally, Dr. Taveras responds to Dr. Mayhew’s opinions concerning “counterparties” and 

whether Defendant’s unlawful unregistered dealer activity caused “economic harm to the 

counterparties to whom [Defendant] sold stock after converting.” Id. ¶ 41 (quoting Mayhew 

Report ¶ 37). In rebuttal to Dr. Mayhew’s opinion, Dr. Taveras opines that “[t]he individuals 

who bought and held the shares sold by Defendant would have been harmed by subsequent price 

declines,” and notes that these individuals were “likely to have been retail investors” according 

to peer-reviewed literature. Id. ¶ 42. 

3. Dr. Taveras’ Opinions Contradict and Rebut the Same Subject 

Matter as Defendant’s Experts

Under Rule 26(a), rebuttal expert reports are permissible “solely to contradict or rebut 

evidence on the same subject matter” as the initial expert report. Fed. R. Civ. P. 26(a)(2)(D)(ii)

(emphasis added). Although neither the Federal Rules of Civil Procedure, nor the Eleventh 

Circuit, has defined or explained the term “same subject matter,” other courts have construed it 

broadly. See Fuller v. SunTrust Banks, Inc., Civ. A. No. 1:11-CV-784-ODE, 2019 WL 5448206, 

at *22 (N.D. Ga. Oct. 3, 2019); Northrup v. Werner Enterprise, Inc., No. 8:14-cv-1627-T-27JSS, 

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2015 WL 4756947, at *3 (M.D. Fla. Aug. 11, 2015) (collecting cases). The Eleventh Circuit has 

held that “the purpose of rebuttal evidence is to explain, repel, counteract, or disprove the 

evidence of the adverse party.” Frazier, 387 F.3d at 1269. This Court therefore has broad 

discretion in deciding what constitutes proper rebuttal evidence, including a proper rebuttal 

expert report. See, e.g., id. (decision to permit rebuttal testimony resides in sound discretion of 

the trial judge); Rent-A-Center, Inc. v. Canyon Television and Appliance Rental, Inc., 944 F.2d 

597, 601 (9th Cir. 1991) (“The district court . . . has broad discretion in admitting expert 

testimony and its decision will be sustained unless it is ‘manifestly erroneous.’”). 

Here, Dr. Taveras’ rebuttal opinions concern the same subject matter—the remedy of 

disgorgement—as Mr. Flemmons’ and Dr. Mayhew’s reports. See Adacel, Inc. v. Adsync Tech., 

Inc., Case No. 6:18-cv-1176-Orl-78EJK, 2020 WL 4588415, at *3 (M.D. Fla. July 9, 2020) 

(rebuttal is not limited to the exact terms discussed and addressed by the initial expert) (citing 

Fed. R. Civ. P. 26(a)(2)(D)(ii)); Plantation Pipe Line Co. v. Associated Elec. & Gas Ins. Servs. 

Ltd., No. 1:09-CV-1260-SCJ, 2011 WL 13143562, at *2 (N.D. Ga. Nov. 10, 2011) (“While a 

rebuttal expert report must address the same subject matter as the report it contradicts, limiting 

its analysis only to those methods proposed by the first expert would impose an additional 

restriction on parties that is not included in the Rules.”) (emphasis added) (cleaned up). Dr. 

Taveras’ opinions are narrowly tailored to “explain, repel, counteract, or disprove” the opinions 

advanced by Mr. Flemmons and Dr. Mayhew concerning disgorgement, and therefore constitute 

appropriate rebuttal opinions.

Contrary to Defendant’s assertion, neither the SEC nor Dr. Taveras has advanced a 

“brand-new theory of who was harmed and how.” Def. Mem. at 11. Mr. Flemmons and Dr. 

Mayhew offered opinions in their reports concerning disgorgement. In rebuttal, Dr. Taveras

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establishes that Mr. Flemmons’ and Dr. Mayhew’s methodologies and resultant disgorgement 

are deeply flawed. Defendant’s histrionics aside, the SEC is not trying to “confiscate an 

individual’s property” without disclosure. Id. at 12; see generally SEC MIL Opp’n [filed 

concurrently herewith]. The SEC is not advancing an affirmative disgorgement theory through 

Dr. Taveras’ rebuttal report. See Ex. 1 ¶ 21 (expressly disclaiming any assertion that Dr. Taveras 

is offering an opinion on the appropriate amount of an as-yet-to-be-awarded disgorgement 

amount). Dr. Taveras’ rebuttal testimony is permissible, because it directly addresses assertions 

raised by Defendant’s experts. See In re Trasylol Prods. Liab. Litig., No. 09-01928, 2010 WL 

4065436, at *2 (S.D. Fla. Aug. 6, 2010); Fuller, 2019 WL 5448206, at *22 (declining to exclude 

rebuttal report as outside the scope of initial report where rebuttal report attacked assumptions 

made within initial expert’s report).6

B. Dr. Taveras’ Rebuttal Testimony is Reliable and Helpful

Defendant also makes an ineffectual effort to exclude Dr. Taveras’ rebuttal opinions as 

“neither reliable nor helpful.” Def. Mem. at 8. Again, Dr. Taveras’ testimony is offered solely 

in rebuttal to Defendant’s flawed expert reports, which should be excluded. See Section II, 

supra; SEC Daubert Mtn. [ECF No. 65]. But, to the extent this Court permits any of 

 6

 Even if this Court were to determine that portions of Dr. Taveras’ rebuttal report 

present new analyses, any “late” disclosure is both substantially justified and harmless. Dr. 

Taveras submitted her rebuttal report on July 19, 2021, 18 days after the submission of 

Defendant’s expert reports, and 11 days before Defendant served Mr. Flemmons’ revised report. 

Defendant had Dr. Taveras’ report for more than a week before her deposition on July 27, 2021, 

and Defendant was not deprived of his ability to effectively cross-examine Dr. Taveras. See 

Mobile Shelter Sys. USA, Inc. v. Grate Pallet Sols., LLC, 845 F. Supp. 2d 1241, 1251-52 (M.D. 

Fla. 2012). Nor did Dr. Taveras’ rebuttal report change the scope of the SEC’s unregistered 

dealer claim, or otherwise “greatly affect the orderly handling of th[e] case.” Id. at 1252. Courts 

in the Eleventh Circuit “have a strong preference for deciding cases on the merits.” Perez v. 

Wells Fargo N.A., 774 F.3d 1329, 1332 (11th Cir. 2014); OFS Fitel, LLC v. Epstein, Becker and 

Green, P.C., 549 F.3d 1344, 1364 (11th Cir. 2008) (finding plaintiff violated Rule 26 but the 

violation was harmless).

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Defendant’s experts to testify, Dr. Taveras should be allowed to offer her response to that 

testimony, to assist the jury in understanding the infirmities of Defendant’s expert opinions. 

1. Dr. Taveras’ Expert Rebuttal to Dr. Oldfield is Reliable and Helpful

Defendant claims that, “Dr. Taveras’ ‘opinion’ concerning Dr. Oldfield’s report consists 

of two paragraphs that do not actually address any of its substance.” Def. Mem. at 9. But it is 

Dr. Oldfield, not Dr. Taveras, who fails to meet Daubert’s threshold for reliable and helpful 

testimony. This Court should deny Defendant’s motion.

In his report, Dr. Oldfield offers a series of opinions concerning Defendant’s dealer 

activity that are wholly divorced from the applicable legal standard under the Exchange Act. 

Dr. Oldfield’s opinions are highly likely to confuse the jury. SEC Daubert Mtn. § II.B [ECF No. 

65]. It is this Court—not Dr. Oldfield—who should instruct the jury as to the applicable legal 

standard. And, it is this Court—not Dr. Oldfield—who should instruct the jury of the elements

of an unregistered dealer charge under Section 15(a) of the Exchange Act. Dr. Oldfield offers 

nothing more than anecdotal and colloquial experience, outside the context of the securities laws, 

about the meaning of “dealer.” Id. But such anecdotes and colloquialisms are irrelevant to the 

question the fact-finder must decide—whether the SEC has shown by a preponderance of the 

evidence that Defendant bought convertible notes and sold stock as part of a regular course of 

business while not registered with the SEC as a dealer. 15 U.S.C. § 78o(a)(1); see also 

Complaint ¶ 24. Accordingly, Dr. Oldfield is more likely to confuse than assist the jury, and his 

opinions should be excluded.

Should this Court permit Dr. Oldfield to testify, however, there is no question that Dr. 

Taveras’ rebuttal testimony is reliable and helpful. In determining the reliability of an expert 

opinion, the Court considers: (i) whether the expert’s theory can be and has been tested; (ii) 

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whether the theory has been subjected to peer review and publication; (iii) the known or potential 

rate of error of the particular scientific technique; and (iv) whether the technique is generally 

accepted in the scientific community. See Quiet Tech., 326 F.3d at 1341. The Daubert inquiry 

does not require consideration of whether the expert’s testimony is correct, but only whether the 

testimony is reliable and should be considered by the jury. See, e.g., Rink v. Cheminova, Inc., 

400 F.3d 1286, 1292-93 (11th Cir. 2005). 

Here, based on her expertise as an economist—including seven years in the SEC’s 

Division of Economic Risk Analysis, stellar academic credentials in the field of economics, and 

numerous teaching, professional, and testifying engagements—Dr. Taveras opines, in her 

rebuttal report, that Dr. Oldfield does not provide any relevant economic analysis in support of 

his opinion that Defendant’s convertible note activity differs from dealer activity. The purpose 

of Dr. Taveras’ rebuttal expert testimony is to educate the lay members of the jury (should Dr. 

Oldfield be permitted to testify, which he should not) that none of the carefully worded opinions 

Dr. Oldfield offers is an economic opinion. Because a lay jury might be confused by the veneer 

of legitimacy in which Dr. Oldfield casts his opinions, Dr. Taveras merely points out, based on 

her own economic expertise, that Dr. Oldfield offers no relevant economic support for the 

opinions he articulates. 

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2. Dr. Taveras’ Expert Rebuttal to Dr. Mayhew is Reliable and Helpful

With respect to Dr. Mayhew, Defendant argues that there is a “second fatal flaw” in Dr. 

Taveras’ opinion, because the methodology that Dr. Taveras used to attempt to attribute stock 

price declines to Mr. Keener’s activities is unreliable. Def. Mem. at 12. This argument fails. 

As discussed above, Dr. Mayhew opines—without conducting any empirical analysis 

whatsoever—that it is unlikely that Defendant’s unregistered dealer activity caused stock price 

declines. See Section III.A.2, supra; SEC Daubert Mtn. § II.D [ECF No. 65]. In rebuttal, Dr. 

Taveras corrects Dr. Mayhew’s failure to conduct an empirical analysis, and presents her own 

economic analyses of the price impacts of Defendant’s unlawful activities, showing that Dr. 

Mayhew is wrong about the price impact of Defendant’s unregistered dealer activity, that this 

impact was not temporary, and that the price impact likely would have been borne by retail 

investors. Ex. 1 ¶¶ 28-42.7

 Dr. Taveras openly acknowledges that the correlation between 

Defendant’s unlawful dealer activity and stock price drops does not necessarily mean that 

Defendant’s unlawful dealer activity caused investor harm. See Ex. 2, Deposition Tr. of Carmen 

A. Taveras, Ph.D. at 160 (July 27, 2021) (“Causality is not something I show in my report. What 

 7

 Defendant states, without support, that the price drops associated with Defendant’s 

sales “could be explained by many factors . . . such as the fact that companies who are forced to 

offer convertible notes in the first place . . . are generally far from financially healthy . . . .” Def. 

Mem. at 12. On examination, Defendant’s guesswork falls flat. Dr. Mayhew admits that “I 

would generally expect this impact [on the stock price] to occur as the market learned the 

information, to the extent that the stock traded in an efficient market.” Mayhew Report ¶ 45 

[ECF No. 65-4]. If the public announcement of Defendant’s convertible note purchases resulted 

in price drops due to the issuers being “far from financially healthy” (as Defendant speculates), 

then those price drops would be observed in the period between the date on which Defendant 

purchased the notes and the date of Defendant’s first conversion. Dr. Taveras finds a median 

price drop of 64% in that time period. See Ex. 1 ¶ 30 & Exhibit 4. But Dr. Taveras observes an 

additional price drop between Defendant’s first and last sales, well after the public 

announcement of Defendant’s convertible note purchases. Id. ¶¶ 30-33 & Exhibit 4. Defendant 

fails to provide any alternative reason—other than Defendant’s sales—for that price drop.

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I show is that there is an association between his sales and prices declining.”). Notably, the 

correlation between Defendant’s sales and declining prices observed in the data contradicts Dr. 

Mayhew’s opinion that “any adverse impact on the stock price . . . should have already been 

reflected in the stock price before Mr. Keener sold the shares.” Mayhew Report ¶ 38.c [ECF No. 

65-4].

Thus—in contrast to Dr. Mayhew, who merely offers speculative commentary divorced 

from economic or scientific grounding—Dr. Taveras conducts robust economic analyses and is 

transparent with the Court and the jury that these analyses do not necessarily imply causation,

but instead establish that Defendant’s unlawful sales and stock price drops are correlated with 

one another. Courts can, and do, admit expert testimony with regard to correlations between 

wrongdoing and harm, permitting the jury to weigh such evidence, even in the absence of 

causation. See Long v. Murray County School District, Civ. A. No. 4:10-CV-00015-HLM, 2012 

WL 13071603, at *20 (N.D. Ga. Apr. 18, 2012) (finding expert arguments about correlation 

versus causation “go to the credibility of [expert’s] testimony, rather than its admissibility”); 

Cosmo v. Carnival Corp., No. 16-22933-Civ, 2017 WL 4785639, at *2 (S.D. Fla. Oct. 16, 2017)

(collecting cases).

3. Dr. Taveras’ Expert Rebuttal to Mr. Flemmons is Reliable and

Helpful

In a throwaway argument at the conclusion of his brief, Defendant argues that Dr. 

Taveras’ rebuttal to Mr. Flemmons’ report is “also inadmissible because it offers argument on a 

legal issue for the court to decide—which sales are relevant based on the allegations of the 

Complaint.” Def. Mem. at 14. Defendant is incorrect.

Dr. Taveras’ offers no legal opinions, and Defendant’s “saying it, does not make it so.” 

As discussed above, based on her economic expertise and seven years in the SEC’s Division of 

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Economic Risk Analysis, Dr. Taveras opines that Mr. Flemmons’ Report is methodologically 

flawed and therefore unreliable. Specifically, Dr. Taveras observes that Mr. Flemmons nets all 

expenses, even those he deemed unrelated to convertible notes, from his calculation of

Defendant’s net proceeds from convertible notes. Ex. 1 ¶¶ 13-16. More generally, Mr. 

Flemmons incorrectly assumes that 100 percent of Defendant’s expenses resulted from the sale 

of convertible notes after concluding that just 48 percent of Defendant’s net income was from 

convertible notes. Id. ¶ 13. Dr. Taveras’ opinion that it is inappropriate to match 100 percent of 

expenses against just 48 percent of trading activity is an economic opinion (and common sense), 

not a legal opinion. Dr. Taveras then offers two alternative methodologies that correct 

Defendant’s error, which show that Defendant generated net profits from convertible note 

activity ranging from $4.3 million to $6.4 million, rather than the $4 million net loss Mr. 

Flemmons calculated. Id. ¶¶ 16-21. 

If Mr. Flemmons is permitted to testify, then there can be no question that Dr. Taveras’ 

opinions—which identify Mr. Flemmons’ methodological errors and correct for those errors—

will assist the trier of fact to understand the evidence and determine the relevant facts at issue. 

Maiz, 253 F.3d at 666-67; see also Wreal, LLC v. Amazon.Com, Inc., Case No. 14-21385-CivLenard/Goodman, 2016 WL 8793317, at *4 (S.D. Fla. Jan. 7, 2016); Coquina Invs. v. 

Rothstein, No. 10-60786-Civ., 2011 WL 4949191, at *5 (S.D. Fla. Oct. 18, 2011) (“A rebuttal 

expert can testify as to the flaws that she believe[s] are inherent in another expert’s report that 

implicitly assumes or ignores certain facts.”); Pandora Jewelers 1995, Inc. v. Pandora Jewelry, 

LLC, No. 09-61490-Civ., 2011 WL 2295269, at *4 (S.D. Fla. June 8, 2011) (authorizing 

testimony from a rebuttal expert who “merely provides other factors that [the plaintiff’s expert] 

should have considered in his report, based on her economics expertise,” and explaining that 

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“[h]ighlighting such factors will be helpful for the jury to weigh the evidence presented at 

trial.”).

CONCLUSION

For the foregoing reasons, and those set forth in the SEC’s affirmative Daubert motion

and incorporated herein by reference, Defendant’s experts should be excluded and Defendant’s 

Daubert motion denied as moot. To the extent Defendant’s experts are permitted to testify, in 

whole or part, then this Court should deny Defendant’s motion to exclude the testimony of Dr. 

Taveras.

DATED: August 27, 2021 Respectfully submitted, 

By: 

 /s/ Joshua E. Braunstein 

 Joshua E. Braunstein

Antony Richard Petrilla

Attorneys for Plaintiff

SECURITIES AND EXCHANGE COMMISSION

100 F Street NE 

Washington, DC 20549

Telephone: (202) 551-8470

Braunsteinj@sec.gov

Lead Attorney 

Attorney to Be Noticed 

ATTORNEYS FOR PLAINTIFF 

SECURITIES AND EXCHANGE 

COMMISSION 

 

Case 1:20-cv-21254-BB Document 85 Entered on FLSD Docket 08/27/2021 Page 24 of 25
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CERTIFICATE OF SERVICE

I hereby certify that on August 27, 2021, I caused the Plaintiff Securities and Exchange 

Commission’s Memorandum of Law in Opposition to Defendant’s Motion to Exclude Rebuttal 

Expert Report of Dr. Carmen Taveras to be served on all counsel of record in this case through 

the Court’s CM/ECF system, which automatically sends notices to counsel of record in this case. 

 /s/ Joshua E. Braunstein 

 Joshua E. Braunstein

ATTORNEY FOR PLAINTIFF 

SECURITIES AND EXCHANGE 

COMMISSION

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