Ethical Issues in the Legal System

Federal Judge Rejects Challenges to Time Warner Experts in TCPA Litigation

Written on Thursday, January 23rd, 2020 by T.C. Kelly
Filed under: Expert Opinions

Two named plaintiffs filed a federal class action complaint against Time Warner Cable in the Southern District of New York. The plaintiffs alleged that Time Warner violated the Telephone Consumer Protection Act (TCPA), a law that Congress enacted to discourage annoying robocalls.

The TCPA makes it unlawful under most circumstances for a company to make a call to a cellphone number for a commercial purpose using a prerecorded or computer-generated message. Since most cellphone owners suffer no significant financial loss from answering a call, the TCPA allows a court to award up to $500 per call to cover the vexation and wasted time associated with robocalls.

The law does not prohibit making prerecorded calls to cellphone owners who consent in advance to receiving them. Time Warner made prerecorded debt collection calls to customers using numbers that the customers provided when they opened an account. The customers presumably “consented” to receive robocalls as part of the fine print in service contracts that almost nobody reads.

The plaintiffs allege that they were not the persons Time Warner intended to robocall. Essentially, they argued that Time Warner called the wrong number, presumably because the mobile numbers that were once used by Time Warner’s customers had been reassigned to the plaintiffs.

Since the plaintiffs did not consent to receive the robocalls, they alleged that Time Warner violated the TCPA. One of the named plaintiffs received 38 prerecorded debt collection calls despite having no relationship to Time Warner.

Time Warner could have avoided the problem by using live operators to make the debt collection calls, but the company presumably saves money by using a prerecorded calling system. The TCPA is designed to discourage companies from placing their profits ahead of the interests of cellphone owners who do not consent to being harassed by prerecorded messages.

The plaintiffs asked the court to certify a class of plaintiffs so that the lawsuit could proceed as a class action. The key question before the court was whether issues of fact that were common to all class members were predominate. When the same evidence does not prove a violation as to each class member, individual questions of fact are likely to predominate, making a class action lawsuit inappropriate.

Plaintiffs’ Expert Witnesses

To prove that common questions of fact were predominate, the plaintiffs relied on the expert opinion of Colin Weir, the vice president at a “research and consulting firm specializing in economics, statistics, regulation and public policy.” Weir examined a sample of 10,000 numbers that Time Warner robocalled to determine how many of those numbers were not assigned to Time Warner customers.

Weir analyzed the numbers using a LexisNexis “reverse lookup” database to determine the ownership history associated with each number. He compared the names of current owners to the list of names Time Warner intended to call and identified mismatches.

Weir determined that 2,000 of the 10,000 numbers were mismatched — that is, the owner of the number identified by LexisNexis did not have the same name as the name Time Warner associated with the number. Wei also determined that Time Warner made about 66,000 mismatched calls to those numbers. Extrapolating from the sample data, Weir calculated that Time Warner placed about 150 million calls to more than 4 million wrong numbers.

The plaintiffs also offered the expert opinion of Randall Snyder, an “independent telecommunications technology consultant.” Snyder corroborated Weir’s analysis by opining that Weir’s methodology was “reliable and accurate.”

Defense Challenges to Experts

Time Warner countered with its own expert witnesses. Those witnesses did not claim that Time Warner dialed no wrong numbers, but challenged Weir’s methodology and contended that no database could reliably identify the owners of the numbers at the moment Time Warner dialed them.

Time Warner argued that Weir’s methodology was unreliable because he assumed that any phone number owner identified in the database who did not have the same first or last name as the Time Warner customer had not consented to receiving the call. Spelling variations or business names might account for some of those mismatches. In addition, some telephone numbers are not included in the LexisNexis database, perhaps because they are associated with prepaid phones or family plans, so Weir based his analysis on incomplete information.

Motions to Strike

Federal litigation is often sidetracked by time-consuming battles over whether experts should be allowed to testify. Unsurprisingly, Time Warner filed four motions to strike the reports filed by the plaintiffs’ experts and the plaintiffs filed two motions to strike the reports filed by time Warner’s experts.

The district court recognized that, at least in the Second Circuit, it is “a well-accepted principle that Rule 702 embodies a liberal standard of admissibility for expert opinions.” The court’s duty is simply to assure that the expert is qualified, that the expert’s opinion is relevant, and that the expert’s testimony has a reliable foundation.

Applying that standard, the court denied the motion to strike the reports of Time Warner’s experts. Since the court decided that the plaintiffs’ expert reports did not affect its decision not to certify the class, the court did not decide whether those reports satisfied the Daubert standard.

John Taylor’s Expert Report

John Taylor analyzes call record data. He has provided expert testimony in TCPA cases for fourteen years. The court concluded that his experience qualified him as an expert in TCPA compliance.

Taylor challenged Weir’s opinion by analyzing 75 of the 2,000 calls that Weir concluded were made to wrong numbers. Rather than relying on a database, Taylor attempted to determine whether the number actually belonged to someone other than the person Time Warner intended to call.

The most reliable way to conduct his analysis might have been to call each of the 75 numbers and ask (1) whether the person who owned the number also owned it when the robocalls were made, and (2) whether the person was a Time Warner customer. Of course, since some of the numbers might have gone out of service and since some people don’t answer calls from strangers, it might also have been appropriate to use a larger sample size.

Instead of using that methodology, Taylor matched the 75 numbers to more records provided by Time Warner to determine whether calls from those numbers were made to Time Warner “to conduct account-related business” after the date of the robocall. Without ever talking to the owners of the numbers, he decided that 65 of the 75 reported mismatches belonged to Time Warner customers.

The plaintiffs did not argue that 40 of the 65 matches identified by Taylor established that robocalls were actually made to Time Warner customers. The plaintiffs argued that Taylor’s analysis was flawed regarding to the remaining 25 callers.

First, the plaintiffs claimed that the calls may have been made by noncustomers to complain about the robocalls. The court rejected that argument because Taylor reported that each call was related to a specific customer service issue, such as paying a bill. He apparently came to that conclusion by listening to recorded calls.

Second, the plaintiffs argued that Taylor ignored recorded calls when the caller used a name that matched the LexisNexis database rather than the name of Time Warner’s customer. The court was satisfied that Time Warner “cogently explained” that Taylor “had persuasive reasons to conclude that—at the time the alleged mismatched calls were made—each of these challenged numbers was nonetheless associated with the TWC customer Time Warner was attempting to reach.” Rather unhelpfully, the court did not identify any of those persuasive reasons.

Finally, the plaintiffs argued that Taylor cherry-picked data that would favor the result he wanted to reach. Without explaining its conclusion, the court decided that Taylor did not ignore “large amounts” of data that would have supported a different conclusion.

Ultimately, the court concluded that Taylor’s report was reliable. The court also noted that parts of the report would be admissible even if it accepted the plaintiffs’ challenges, since no challenge (other than the rejected cherry-picking argument) was made to Taylor’s data showing that at least half of the robocalls were made to Time Warner’s actual customers.

Ken Sponsler’s Expert Report

Ken Sponsler works as a consultant in the consumer marketing industry. He advises companies about compliance with laws regulating contacts with consumers. Time Warner relied on Sponsler’s expert report in opposing class certification.

Sponsler opined that no database allows a researcher to match a cellphone number to a cellphone owner on any specific date. He considered the reverse number lookup data in the LexisNexis database to be unreliable. He based that opinion in part on a declaration from LexisNexis representatives who acknowledged that the database cannot be used to identify with certainty the owner of a telephone on any specific date.

The plaintiffs moved to strike Sponsler’s report because he had never used the LexisNexis database and had never tested its reliability. Without addressing those notable deficiencies, the court concluded that Sponsler’s overall opinion — that no database can reliably identify the owner of a specific cellphone number on a specific date — was supported by adequate facts and data, including “Sponsler’s experience in the industry, declarations from industry participants, white papers, and documents from the FCC.”

The court found no basis for striking Sponsler’s entire report. The court did not decide whether Sponsler’s specific opinion about the LexisNexis database was adequately supported because it did not rely on that opinion when it decided the class certification motion.

Class Certification Rejected

While Time Warner challenged the reports of the plaintiffs’ experts, the district court did not reach those challenges. The court decided that identifying eligibility for class membership would require “highly individualized determinations” as to whether potential class members who received robocalls were actually Time Warner customers who had consented to receive them.

According to the court, proof of class membership is an essential aspect of the class certification analysis. When thousands of individualized inquiries will be required to determine class members, those individual inquiries predominate over common issues of fact. Time Warner’s experts satisfied the court that no source of generalized proof can establish whether a potential class member was or was not a consenting Time Warner customer at the time he or she received robocalls.

The court also entertained the possibility that even if telephone numbers were reassigned to new subscribers, that new subscribers might have been Time Warner customers who consented to receiving robocalls, even if they were not the customers Time Warner intended to call. Since the issue of consent could not be determined by the plaintiffs’ experts without making individual inquiries, common issues of fact were not predominant.

Nobody disputes that Time Warner violated the TCPA. Since the plaintiffs’ expert witnesses did not persuade the court that a methodology existed to identify all victims of that violation without making individualized inquiries, the court decided that the lawsuit did not qualify for class action status.


About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.