Congress enacted the Telephone Consumer Protection Act (TCPA) to mitigate intrusive telemarketing practices. The TCPA “prohibits calls to numbers on the national Do-Not-Call registry [“NDNCR”].”
To help combat telemarketing calls to numbers on the NDNCR, a database that lists the telephone numbers of individuals who have requested that telemarketers not contact them, the TCPA created a “consumer-driven process that would allow objecting individuals to prevent unwanted calls to their homes.”
The TCPA prohibited telephone solicitations to a “residential telephone subscriber who has registered his or her number on the national donot-call registry.” Mantha, on behalf of the putative class, alleged a single claim: “by sending more than one call in a 12-month period to a residential telephone number listed on the [NDNCR] without express written consent, QuoteWizard violated the TCPA’s do-not-call registry provisions.”
On October 29, 2019, Mantha brought a class action lawsuit against QuoteWizard in this Court, alleging violations of the TCPA.
Plaintiff Joseph Mantha filed a motion for class certification while QuoteWizard filed a motion to exclude the testimony of Anya Verkhovskaya, Mantha’s expert witness.
Consumer Protection Expert Witness
Anya Verkhovskaya is a nationally recognized expert witness who has provided expert analysis, testimony, and litigation support services in federal and state class actions relating to the TCPA, consumer protection, human and civil rights, securities fraud, ERISA, antitrust, pharmaceuticals, and insurance, as well as in fairness actions before the U.S. Securities and Exchange Commission, among others. Verkhovskaya has been a pioneer in methods of analyzing mass consumer data, including telephone call and text message records and voice recordings numbering in the billions.
Discussion by the Court
Mantha proposed a Class defined as follows:
“All persons within the United States (a) whose residential telephone numbers were listed on the National Do Not Call Registry, and (b) who received more than one telemarketing text within any twelve-month period at any time from Drips, (c) to promote the sale of QuoteWizard’s goods or services, and (d) whose numbers are included on the Class List.”
Mantha’s expert, Verkhovskaya, prepared the “Class List” described in the proposed Class Definition. Using standard data analysis techniques, she prepared a list, substantially at the direction of counsel for Mantha, of a subset of persons who satisfy the proposed Class Definition, while eliminating potential legal or factual issues by narrowing the Class.
From this process, Verkhovskaya found that QuoteWizard had sent 314,828 text messages to 66,693 telephone numbers that “satisfied the [NDNCR] requirements of having received, on a residential number listed on the national do-not-call registry, more than one text message[] in a 12-month period.”
In challenging the proposed Class List and seeking to exclude Verkhovskaya’s analysis, QuoteWizard raised several criticisms.
Verkhovskaya’s Methodology Does Not Identify Mantha
QuoteWizard alleged that Verkhovskaya’s testimony should be rejected because her process failed to identify Mantha, whom she manually added to the Class List.
The Court already found that (i) Mantha listed his number on the NDNCR, (ii) his number is residential, (iii) QuoteWizard sent him eight text messages in ten days, and (iv) the texts from QuoteWizard amounted to “telephone solicitations” within the meaning of the TCPA.
Thus, Mantha met parts (a) through (c) of the proposed Class Definition. He met part (d) when Verkhovskaya added him to the proposed Class List. Nothing more is legally required.
Verkhovskaya has not represented that her methodology identifies everyone from the files obtained from QuoteWizard who could possibly fit within the proposed Class Definition. Rather, she offers her data analysis as a means of identifying a subset of all possible class members for certification as a class. The Court held that it is irrelevant for Daubert purposes that she manually added Mantha to the Class List.
Decisions of Other Courts Considering Verkhovskaya’s Reports
QuoteWizard urged this Court to exclude Verkhovskaya based on the rulings of other courts. The Court has reviewed the various cases cited by QuoteWizard where other courts have excluded Verkhovskaya’s methodology, as well as other cases cited by Mantha.
QuoteWizard relied principally upon two cases arising under different sections of the TCPA which, necessarily, entailed different analyses by Verkhovskaya. The Court held that these cases are not persuasive here. As to the other cases cited by QuoteWizard in its motion, they either involved the denial of Daubert motions to exclude Verkhovskaya’s testimony or did not involve Daubert motions at all.
Reliability of the PacificEast Data
QuoteWizard next alleged that Verkhovskaya’s testimony should be rejected because she used “unreliable” data from PacificEast in formulating her opinions.
PacificEast is a “data processing service provider.” It has been in business for over twenty years. One service it offers, labeled the “NDNCR Lookup Service,” provides information about whether a phone number appears on the NDNCR. Verkhovskaya retained PacificEast to perform this service. This is how she determined whether a phone number appears on the NDNCR. The Court held that using a widely available, long-standing, commercial service to run a database check is a perfectly normal and reasonable methodology.
Next, Verkhovskaya used the “Business Number Lookup”—another service offered commercially by PacificEast. As part of this service, PacificEast reports whether a number is a “business” or “residential” number. The Court is not now evaluating the correctness of Verkhovskaya’s opinions, only their admissibility. In this case, Verkhovskaya was not using this service to conclusively determine whether a number was “residential.” Rather, it aided her in narrowing the proposed Class List to numbers that are more likely to be residential.
Finally, to the extent QuoteWizard challenges more generally the “residential” determination Verkhovskaya did make, the Court held that her opinions withstand the exclusion motion. Numbers on the NDNCR are presumed residential. Of course, QuoteWizard itself is the source of the original list of numbers, and the fact that it was aiming its telemarketing campaign at consumers tends to suggest the original list is comprised of residential numbers. Moreover, Verkhovskaya eliminated numbers with current business associations.
Of course, even if her use of PacificEast has left some errors in her proposed Class List, such that some of the members of the proposed Class List do not meet the Class Definition, the Court held that this does not warrant exclusion of her testimony.
QuoteWizard’s “False Positives” Challenge
QuoteWizard next alleged that Verkhovskaya’s testimony should be excluded because her methodology has a high error rate, illustrated by a number of “false positives” or phone numbers presently on the proposed Class List that should not be.
Insofar as QuoteWizard contended, in connection with either pending motion, that 68% of the users on the proposed Class List lack standing to bring a TCPA claim because they did not register their numbers on the NDNCR, the Court disagrees. There is no statutory requirement that the phone number’s user—as opposed to the subscriber—register the number. Rather, the TCPA afforded a private right of action to a “person who has received” calls placed “in violation of” the statute’s regulations.
The Court added that the method Verkhovskaya selected—using a commercially available service for its intended purpose—is a reliable one. This date-focused challenge rests on speculative inferences arising from an unexplained email. Even assuming, for purposes of this Motion only, that the June 1, 2003, date reflects an error or problem in the data—the error is a weight, not admissibility, issue.
Held
The Court denied QuoteWizard’s motion to exclude the testimony of Anya Verkhovskaya and allowed Mantha’s motion for class certification.
Key Takeaway:
The focus in a Daubert challenge is not “primarily concerned with a proposed expert’s conclusions,” but with “making a ‘preliminary assessment of whether the methodology underlying the testimony is scientifically valid and of whether that methodology properly can be applied to the facts in issue.’”
Case Details:
| Case Caption: | Mantha V. Quotewizard.Com, Llc |
| Docket Number: | 1:19cv12235 |
| Court: | United States District Court, Massachusetts |
| Order Date: | August 16, 2024 |
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