The Court of Appeals for the Fourth Circuit has upheld a lower court’s denial to certify a class and not to allow testimony from an expert witness used by the plaintiff in a Telephone Consumer Protection Act case against a creditor that was attempting to collect on an unpaid debt.
The background: The case stems from a common challenge in the collection world: reassigned phone numbers. In early 2021, a customer opened a credit card account with the defendant and provided consent to receive calls on their cell phone. That customer later relinquished the number, which was reassigned to the plaintiff in March 2022. When the original customer fell delinquent, the defendant began placing prerecorded debt collection calls to the number, unaware of the reassignment. The plaintiff, who had no account with the defendant and never consented to calls, received multiple voicemails seeking payment.
- Frustrated, the plaintiff contacted the defendant twice, explaining they were not the customer and requesting the calls stop.
- Despite assurances, the calls continued briefly due to an error in noting the number.
- The plaintiff sued, alleging violations of the TCPA, which prohibits unsolicited robocalls to cell phones without consent, except for debt collection on federally backed loans.
- A District Court judge ruled that the methodology used by the plaintiff’s expert witness to identify the size of the potential class was unreliable and refused to certify the class.
The ruling: The Fourth Circuit affirmed the district court’s decisions on both the expert exclusion and class certification denial.
- The expert proposed a methodology to identify class members using the defendant’s records, telecom carrier data, the Reassigned Numbers Database (RND), and a “historical reverse append” via a data broker. However, the expert never fully tested this approach, admitting she hadn’t implemented “most of the methodology described in [her] reports in this case.”
- The defendant’s expert, meanwhile, tested a sample of 5,000 numbers, finding that over 75% of the 666 potential class members identified by the plaintiff’s expert were actually customers. Notably, even the plaintiff wouldn’t have been flagged under the methodology, as he registered under a pseudonym for privacy.
- The court highlighted doubts from third parties, like the RND administrator declaring disconnect dates “are confidential and not publicly accessible,” and the data broker stating results “are inherently ambiguous and indefinite.”
- In excluding the expert, the court stated the methodology failed to offer “a sufficient — or any — degree of reliability or feasibility,” weighing the high error rate “heavily against the admissibility.”
- On class certification, the court found the class unascertainable under Fourth Circuit precedent, as members couldn’t be “readily identified” without “extensive [and] individualized fact-finding or ‘mini-trials.'”
