TCPA Class Testimony Excluded and Certification Denied

TCPA Class Expert’s Testimony Excluded and Class Certification Denied

Capital One just scored a major victory by getting TCPA class expert Anya Verkhovskaya’s testimony excluded. The court also denied class certification due to plaintiff’s reliance on Ms. Verkovskaya’s excluded testimony. This was a great win for Capital One. TCPA defendants should pay attention to this one as it lays out a successful argument for defeating class certification in certain federal circuits.

Davis v. Capital One

The case is Davis v. Capital One.¹ The plaintiff alleged that he received an unsolicited call from Capital One with a prerecorded message. He claimed the call violated the prerecorded-voice section of the TCPA.²

Eventually Plaintiff moved for certification of a class of similar individuals. A class must be certified by the court before a defendant can be held liable on a class-wide basis.

Call Not Intended For Plaintiff

Davis was not the intended call recipient. A Capital One customer was the initial subscriber of the plaintiff’s cell phone number. And that customer consented to receive calls from Capital One on that number. But the customer stopped using that cell phone number. And in March 2022, Davis became the subscriber of that number. Then, predictably, Plaintiff started receiving calls from Capital One on that cell phone number. Plaintiff argued that if Capital One had used the Reassigned Number Database (“RND”), it wouldn’t have called him.

RND

In 2021, the FCC created the RND. The RND keeps track of telephone number reassignments. A company can, in theory, use the RND to confirm if consent it received from an individual to call a certain number is still valid. (There are of course gaps in the RND’s coverage, so even that method is not fool-proof.)

Class Certification And Ascertainability

This case was in the Fourth Circuit. The Fourth Circuit, as part of certifying a class, requires the plaintiff to prove the class is ascertainable.³ Specifically, a plaintiff must show that the court can readily identify the class member through class-wide, objective criteria. Most plaintiffs rely on a class expert to develop a methodology for class-member identification. Davis, like many other TCPA Plaintiffs, retained Ms. Verkhovskaya for that purpose.

Ms. Verkhovskaya’s Class-Member-Identification Methodology

Ms. Verkhovskaya’s proposed class-member-identification methodology began with a review of a Capital One data set of telephone numbers. Those telephone numbers would have received a call, or calls, from Capital One that potentially contained a prerecorded message. Then, using the RND, Ms. Verkhovskaya would determine which telephone numbers had been reassigned to a different subscriber. The last step was for Ms. Verkhovskaya to identify the new subscribers by using a third-party database.

Concerns Regarding Ms. Verkhovskaya’s Methodology

Ms. Verkhovskaya had not actually tested whether this methodology would accurately identify any class members other than the plaintiff. Ms. Verkhovskaya did not provide any objective measure of her methodology’s accuracy. That concerned the court.

The court was also concerned because the RND did not supply a specific date for when a Capital One customer relinquished their cell phone number. Without the date of reassignment, it could not be known if Capital One made a call to that cell phone number before or after the reassignment. Any person who received a call prior to a cell phone number reassignment would be a Capital One customer and not a class member. Thus, without the reassignment date, member identification through class-wide evidence would become increasingly difficult, if not impossible.

Ms. Verkhovskaya’s Rebuttal

Ms. Verkhovskaya, to address that concern, argued that information from a third-party database could determine the reassignment dates. But that third-party database provided a declaration stating that its database could not reliably provide definitive reassignment dates.

The Court Excludes The Methodology And Denies Class Certification

The court, due to these concerns, excluded Ms. Verkhovskaya’s proposed methodology and testimony. It also denied class certification. That denial was based, in part, on plaintiff’s failure to rely on anything to prove ascertainability other than Ms. Verkhovskaya’s excluded methodology.

Cases To Be Aware Of

This was not the first time Ms. Verkhovskaya’s expert testimony has been excluded or a defendant has been able to avoid class certification by challenging her methodologies.⁴ If you are a defendant in a TCPA class action case and the plaintiff has retained Ms. Verkhovskaya, keep this case, and the others, in mind. Ms. Verkhovskaya’s class member identification methodologies can be fairly similar from case to case. Therefore, these successful challenges to her methodologies may be applicable to your case.

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