Telephone and Texting Compliance News: Litigation Update — September 2025

Fourth Circuit Affirms Exclusion of Expert and Denial of Class Certification in Reassigned Number Case

In a notable ruling for Telephone Consumer Protection Act (TCPA) litigation, the U.S. Court of Appeals for the Fourth Circuit recently affirmed a district court’s decision to exclude a plaintiff’s expert witness and deny class certification in Davis v. Capital One N.A., No. 24-1507 (4th Cir. Aug. 25, 2025). The case highlights the stringent hurdles plaintiffs face in certifying classes for reassigned number claims.

Background

In April 2021, a customer opened a credit card account with Capital One and gave consent to call his cell phone. That person later relinquished his cell phone number, and the number was reassigned to the plaintiff. The customer fell into delinquency on his Capital One credit card, and Capital One began calling the now reassigned cell phone number.

The plaintiff responded with a class action in the Eastern District of Virginia, suing under Section 227(b) of the TCPA, and defining the class as:

All persons or entities throughout the United States (1) to whom Capital One initiated a call (2) directed to a number assigned to a cellular telephone service, but not assigned to a current account holder of Capital One (3) in connection with which Capital One used an artificial or prerecorded voice (4) from four years before the filing of certification. 

The plaintiff moved to certify the proposed class, which the defendant challenged. The district court denied certification, excluding the plaintiff’s expert’s testimony, and concluding the proposed class failed to satisfy predominance and ascertainability. An appeal followed.

Exclusion of Expert Testimony

The district court excluded the plaintiff’s expert’s testimony, finding it unreliable under Federal Rule of Evidence 702. The plaintiff’s four-part methodology to identify class members involved:

1. Analyzing records to confirm calls to cell phones.
2. Using the Reassigned Numbers Database (RND) to identify calls made after a number’s reassignment.
3. Using a data broker to query the RND to determine whether, and when, a given number was disconnected and reassigned.
4. Implementing a “historical reverse append” to identify names and addresses of potential class members, and then to subpoena telecommunications carriers to identify the owner of each number.

The plaintiff claimed this methodology identified 666 potential class members from a 5,000-number sample provided by the defendant. The defendant countered, arguing that over 75% of the 666 potential class members were actual customers. And the district court noted that although the plaintiff’s expert described her proposed methodology, she had not actually implemented it. The court concluded the methodology failed to identify class members with “a sufficient — or any — degree of reliability or feasibility.”[1]

The Fourth Circuit affirmed and highlighted two key issues: (1) the plaintiff’s expert failed to fully test her methodology on the 5,000-number sample provided by the defendant, undermining its reliability; and (2) the defendant’s expert identified a 75% error rate in the 666 potential class members identified by the plaintiff.

Problematic for this, and future plaintiffs, was a declaration from an RND administrator stating, “[a]lthough the RND contains all reported disconnect dates, these dates are confidential and not publicly accessible through the RND’s public query interface.” Nor could a separate data broker reliably remedy the foregoing knowledge gap.[2]

Denial of Class Certification

As to the district court’s denial of class certification on the basis of a lack of ascertainability, on appeal the plaintiff argued that the district court held the plaintiff to too high a standard, requiring identification of all class members at the time of certification. The Fourth Circuit disagreed, noting that the district court expressly rejected this contention and upheld the denial of class certification because the plaintiff failed to provide objective criteria allowing members of the proposed class to be readily identified without extensive, individualized fact-finding or mini-trials.

Implications for TCPA Litigation

Davis underscores the substantial obstacles plaintiffs face in reassigned-number TCPA cases and highlights the RND database’s limitations, including the absence of pre-2021 data and confidential disconnect details. The decision is a reminder to leverage Daubert motions and to aggressively challenge ascertainability in jurisdictions maintaining the requirement.

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