The Fourth Circuit Court recently issued a decision in Davis v. Capital One, N.A., affirming the district court’s exclusion of the plaintiff’s expert testimony and denial of class certification. See Davis v. Capital One N.A., No. 22-0903, 2025 WL 2445880 (4th Cir. 2025). The decision centered on the unreliability of the plaintiff’s expert opinion regarding the ascertainability of putative class members. At the heart of Davis were prerecorded debt collection calls and messages to the plaintiff’s cell phone number, calls intended for a different customer who had previously consented to be contacted but whose number had since been reassigned to the plaintiff. The calls allegedly continued even after the plaintiff called to inform Capital One that it had been calling the wrong person. The proposed class action was framed as a class of other non-customers who may have received calls under similar circumstances.
The expert’s methodology, intended to identify affected non-customers, was found to be fundamentally unreliable. The ultimate goal was to attempt to subpoena carriers to confirm ownership at the time of each call. But the expert never actually conducted that final step, and serious questions arose about whether the rest of the process could meaningfully produce reliable data.
The district court found the expert’s opinion inadmissible due to methodological shortcomings and concerns raised by the very data brokers the plaintiff relied upon. The Fourth Circuit agreed that the methodology had not been sufficiently tested or validated, and that the plaintiff failed to demonstrate that the expert’s approach could identify class members in a consistent or administratively feasible way.
As a result, in addition to affirming the striking of the expert, the Fourth Circuit affirmed the denial of class certification, emphasizing that TCPA class actions demand that proposed class members be ascertainable using objective criteria and manageable methods. Here, the plaintiff offered no other viable path forward once the expert opinion was stricken and otherwise failed to meet even the minimum threshold for showing that such identification was possible. The court’s decision reinforces the requirement that plaintiffs demonstrate a reliable and administratively feasible method for identifying class members. Without that, certification is impossible.
Contact Our Team for Assistance with TCPA Issues
If you are dealing with issues related to TCPA compliance or class certification, our experienced team is here to help. Contact us for guidance and assistance in navigating the complexities of TCPA litigation. Click here to sign up to receive Greenspoon Marder’s TCPA blog.
