Telephone Consumer Protection Act

Davis v. Capital One, N.A., No. 24-1507, 2025 WL 2445880 (4th Cir. Aug. 25, 2025).

• Background.

Defendant made prerecorded calls to Plaintiff, a non-customer, attempting to reach a customer that had provided consent to be called before the customer’s cell phone number was reassigned to Plaintiff. In response, Plaintiff filed a class action lawsuit, alleging that Defendant violated 47 U.S.C. § 227(b)(1) of the Telephone Consumer Protection Act (TCPA) by leaving prerecorded messages on his cell phone without consent. Plaintiff sought to certify a class of individuals who, like him, were not current customers of Defendant but nonetheless received prerecorded calls from Defendant to their cell phones. Plaintiff’s motion for class certification relied heavily on expert testimony.

Defendant moved to exclude Plaintiff’s expert and opposed class certification. The district court granted the motion to exclude, and denied class certification. Plaintiff appealed both rulings.

• The Exclusion of Plaintiff’s Expert.
• Plaintiff’s Methodology.

Plaintiff’s expert outlined a four-part methodology for identifying whether Defendant called non-customers: (1) Analyzing Defendant’s records and records belonging to telecommunication carriers to determine which calls were made to cell phones; (2) Using the Reassigned Number Database (RND) to identify whether Defendant initiated calls after a cell phone number was reassigned; (3) Using the data broker PacificEast to query the RND in order to determine whether and when a given number was disconnected and reassigned; and (4) Implementing a “historical reverse append” to identify names and addresses of potential class members, then subpoenaing telecommunication carriers to identify the owners of each number.

• Defendant’s Challenge to Plaintiff’s Methodology.

Defendant challenged Plaintiff’s methodology for identifying possible class members, characterizing it as “infeasible and inaccurate.” For example, Defendant’s expert conducted an analysis of a sample of 5,000 phone numbers from which Plaintiff’s expert identified 666 possible class members, finding that of the 666 individuals identified, more than 75 percent were, in fact, customers of Defendant. Additionally, 89 percent of the 666 individuals who allegedly received calls from Defendant received those calls before RND records became available in January, 2021.

Defendant’s expert also pointed out that under Plaintiff’s methodology, even Plaintiff would not have been identified as a potential class member.

• The District Court’s Holding.

The district court noted that although Plaintiff’s expert described her proposed methodology for identifying possible class members, she never fully implemented it, agreeing with Defendant’s expert that the methodology was unreliable. The district  court also expressed concern that Plaintiff’s expert could not explain how she would eliminate non-class members “leaving only unproven methodology that could potentially be employed at some point in the future, but with no objective measure of its accuracy in identifying class members.” The district court was also concerned by the fact that a database on which Plaintiff’s expert proposed to rely was unreliable for this purpose, excluded Plaintiff’s expert.

• The Fourth Circuit’s Holding.

Guided by Fed.R.Evid 702 and Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993), the Court of Appeal noted that “the main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony.” The Court also noted that the district court had “ample bases to question the reliability” of Plaintiff’s expert because (1) She never fully tested her methodology, and (2) two of the third-party entities upon which Plaintiff’s expert proposed to rely doubted whether they could reliably produce the requisite data.  

With respect to Plaintiff’s methodology, Plaintiff’s expert “forewent entirely the fourth and final step,” the reverse historical append, which involves putting phone numbers into a database to find out who they belong to.

With respect to the third-party entities upon which Plaintiff’s expert intended to rely, the Court of Appeal noted that the RND administrator stated in a declaration that “[a]lthough the RND contains all reported disconnect dates, the disconnect dates are confidential and not publicly accessible through the RND public query interface.” Additionally, according to PacificEast, results of its queries “are inherently ambiguous and indefinite with regard to identifying a date of disconnection,” and “determining definitively whether, and the dates, a particular person subscribed and/or stopped subscribing to or using an input telephone number, cannot reliably be achieved using the . . . service PacificEast provides.”

The Court also found that the “high error rate” Defendant identified in Plaintiff’s methodology “weigh[ed] heavily against the admissibility of” Plaintiff’s expert testimony, affirming the district court’s exclusion of her testimony.

• Denial of Class Certification.

Affirming the district court’s denial of class certification, the Court of Appeal noted that supporting class certification requires that proposed class members be “readily identifiable,” meaning that the district court must be able to “readily identify the class members in reference to objective criteria” and it must be “administratively feasible” for the court to do so. Because Plaintiff “put forward little explanation” of how proposed class members could be ascertained beyond his expert’s testimony, exclusion of Plaintiff’s expert also supported the denial of class certification. The Court also rejected Plaintiff’s contention that the district court improperly required the identification of all potential class members at the time of certification, stating that the “district court expressly rejected this approach.”

A copy of the Court’s opinion can be accessed by clicking here.