“EXP’s ARGUMENTS, HOWEVER, LACK MERIT”: Court Refuses to Strike Expert Anya Verkhovskaya in TCPA Suit Against eXp Realty

2 Comments

So ’round about this time last year I told you a sizable company was in big TCPA trouble when it took a shot at TCPA expert Anya Verkhovskaya and missed.

I told you then when a court denies your motion to strike an expert– that’s a really bad sign. And truthfully its a really bad play to bring such a motion in most instances anyway– you don’t defeat a class certification motion by having an expert stricken (except in really unusual cases), you generally want to leverage the expert’s report against certification (its jujitsu baby).

Well eXp’s #biglaw counsel McGuireWoods–yes the same McGuireWoods whose managing partner just had to apologize to a court for failing to supervise its lawyers (how they have clients still is beyond me)– thought they could pull off what another firm literally just tried and failed at in a nearly identical TCPA class action literally just last year after I literally told everyone it was a bad idea:

” I certainly would not wasted time with a Daubert motion here. (If you’re hoping to defeat certification by challenging the notice plan I’ve got news for you– you’re in trouble.)”

-Eric J. Troutman, March, 2025

Well McGuireWoods lawyers decided to spend their client’s money on a doomed strategy anyway. And it lost in impressive fashion.

The court seemed particularly unimpressed with several of the arguments. First eXp’s complaints about Verkhovskaya’s methodology fell on deaf ears. The Court said such issues go to weight and not admissibility–true–and countered ” courts across the country have concluded that Ms. Verkhovskaya’s methodology is reliable and sufficiently capable of identifying putative class members” concluding “[i]t is widely used in TCPA class actions,…”

Wow.

So McGuireWoods asked the court to strike an expert report in a TCPA class actin and the court found the expert’s methodology to be “widely used in TCPA class actions.” That is really rough.

The court salts the wound a bit at the end with this one liner:

Thus, in keeping with sister courts across dozens of districts, the court declines to exclude Ms. Verkhovskaya’s opinions on the grounds that her methodology is unreliable.

Eesh.

Now I’ve deposed Ms. Verkhovskaya plenty of times. She’s a nice lady. A little out-of-her-depth being depose by the Czar. But a nice lady. Pretty honest.

I have a tremendous list of items to leverage against her for my clients and we have been very successful defeating certification in cases she is involved with– just last year, in fact.

And you have NEVER seen me move to strike her report. That’s not to say she’s a reliable expert or right– its to say that I understand how procedural law works and the right way to oppose certification.

Anyhoo…

These are EXACTLY the sort of pointers and in-depth TCPA defense strategies the Baroness will be discussing at Law Conference of Champions in May. TICKET PRICES JUMP MONDAY. So this is literally your last chance to buy tickets and save!

Chat soon.

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Published by Eric "Czar" Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

2 Comments

  1. Eric, I am going to agree with you here. As an expert for defendants, I have often been opposite of Ms. Verkhovskaya. And I still occasionally come up against her when I am working on behalf of defendants in various matters.

    Brass tacks, I’m going to put this out there. Ms. Verkhovskaya has really become a formidable expert over the recent years – and an honest one. And while there are areas in which I disagree with her, they are not really related to the technical aspects, but more or less related to the manner in which she applied different rules (as directed by her clients).

    In fact, I really like coming against her now, because she delivers an honest report that doesn’t rely upon name calling and simply claiming that “well, there’s no way to figure this out.”

    If there’s a way to figure it out, she will figure it out. And even if I don’t necessarily always agree with some of her methodologies, she nonetheless does achieve technical accuracy. And in a recent matter in which I was not involved, but got stricken, I felt disappointed – because she actually did a good job.

    Reply

    1. Correction here: And in a recent matter in which I was not involved, but WHERE MS. VERKHOVSKAYA got stricken, I felt disappointed – because she actually did a good job, and I wish that I would have written a declaration in support of her methodology.

      Reply

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