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.