4th Cir.: Davis v. Capital One-TCPA Expert Excluded, Class Not Ascertainable

Summary

Clarence Davis began receiving prerecorded debt-collection calls from Capital One, despite never having been its customer. The problem arose because his cell phone number had previously belonged to a delinquent Capital One account holder. Even after Davis twice told Capital One to stop calling, the robocalls continued briefly.

Davis filed a putative class action under the Telephone Consumer Protection Act (TCPA), seeking to represent all non-customers nationwide who had received Capital One robocalls in the past four years. His case hinged on expert testimony proposing a methodology to identify affected individuals through phone company records, the FCC’s Reassigned Numbers Database, and data broker lookups.

The district court excluded Davis’s expert under Rule 702 and Daubert, finding her methodology untested, error-prone, and incapable of reliably separating customers from non-customers. Without an admissible expert methodology, Davis’s class could not satisfy the Fourth Circuit’s “ascertainability” requirement for Rule 23(b)(3) classes. The court denied certification, though it awarded Davis $2,000 individually for Capital One’s TCPA violations.

On appeal, the Fourth Circuit affirmed. The panel held the district court acted within its discretion both in excluding the expert and in concluding that the proposed class was not readily identifiable without individualized inquiries.

Commentary

Although not a bankruptcy case, Davis v. Capital One illustrates two familiar themes for consumer debtor attorneys: (1) the difficulty of aggregating widespread but low-dollar statutory violations into effective class relief, and (2) the judicial gatekeeping role over expert testimony that often decides whether a consumer class case succeeds or fails.

The Fourth Circuit has previously recognized in Krakauer v. Dish Network that the TCPA is designed to function through class actions, since individual claims are too small to pursue. Yet, as in Davis, the hurdle of ascertainability—peculiar to this Circuit—often defeats such suits at the certification stage. For debtors’ counsel, this decision is another reminder that large-scale systemic creditor misconduct may escape classwide accountability, leaving only individual statutory damages.

There is a quiet but important bankruptcy angle here: many debtors we represent arrive in Chapter 13 or 7 after being hounded by misdirected or unlawful robocalls. The TCPA provides a strict-liability remedy, but unless paired with creative lawyering or individual adversary proceedings, class-based deterrence is elusive in the Fourth Circuit.

Finally, the opinion underscores the contrast between circuits. Other courts of appeals have softened or rejected strict ascertainability requirements. Here, the Fourth Circuit insists on a class that is “readily identifiable” without extensive individualized fact finding, even where doing so undercuts Congress’s intent to curb robocalls. For consumer advocates, this decision reaffirms the uphill struggle to vindicate small-dollar statutory rights in this jurisdiction—whether under the TCPA, the FDCPA, or even recurring bankruptcy stay and discharge violations.

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