The Fourth Circuit, on appeal from the Eastern District of Virginia, recently upheld the denial of class certification due to the unreliability of the plaintiff’s expert opinion regarding the ascertainability of putative class members. See Davis v. Capital One N.A., No. 22-0903, 2025 WL 2445880 (4th Cir. 2025).
The plaintiff allegedly received multiple prerecorded messages to his cell phone regarding an unpaid debt owed by a different consumer from whom the phone number had been reassigned. The calls allegedly continued even after the plaintiff called to inform Capital One that it had been calling the wrong person. The plaintiff eventually filed suit, asserting claims on behalf of himself and a nationwide class of unnamed consumers who had also received calls to reassigned numbers.
The plaintiff’s motion for class certification cited a report from an expert regarding how the trial court could identify members of the putative class. Specifically, the expert proposed a four-step process. The first step was to analyze Capital One and telecommunications carriers’ records to see which calls from Capital One had gone to numbers that were assigned to cell phones at the time of the call. The second step was to use the Reassigned Numbers Database to narrow that list to numbers that had been reassigned. The third step was to employ a data broker to determine if Capital One had called those numbers before or after the reassignment. And the last step was to perform a “reverse historical append” to identify names and addresses associated with the relevant numbers, which would then be included in subpoenas to telecommunications companies to identify the holders of each number at the time of the call.
Finding the expert’s methodology unreliable and her opinion inadmissible, the trial court denied the plaintiff’s motion. The plaintiff then sought leave to file an interlocutory appeal, which was denied. He then settled in his individual capacity and took an appeal as of right after final judgment has been entered.
The Fourth Circuit affirmed. In reviewing the expert’s report, the Court considered multiple factors. First, the expert’s theory had not been fully tested because the “reverse historical append” had not actually been performed. Also, the independent data brokers involved expressed concerns about the fitness of the data for the proposed purposes. Finally, a random sampling of 5,000 numbers that had been identified as having received pre-recorded calls had a 75% error rate — due at least in part to the fact that the “reverse historical append” had not been conducted. The Fourth Circuit determined that the trail court had multiple appropriate bases to question the reliability of the expert’s opinion, including the fact that the proposed methodology had not been fully tested and the fact that the independent brokers were not convinced they could supply reliable data. Accordingly, the Court found that the trial court had properly excluded the opinion. And because the plaintiff had offered “little explanation” of how class members would be ascertained — other than the excluded opinion — the Court affirmed the denied of certification due to lack of ascertainability. Having done so, it did not go on to address the issue of predominance.
This decision is notable because it affirms the stringent nature of the Fourth Circuit’s ascertainability test for class certification motions.
