JOHNSON v. COMODO GROUP, INC.
2:16-cv-04469
| D.N.J. | Jun 10, 2024Background
- Between 2012 and 2016, Comodo Group, Inc. made telemarketing calls for its then-affiliate, Comodo CA Ltd., promoting SSL Certificates using an automated dialing system (VICIdial), sometimes leaving prerecorded messages.
- Plaintiff Michael Johnson sued under the Telephone Consumer Protection Act (TCPA), alleging illegal use of prerecorded messages to cell phones without consent.
- The court certified a plaintiff class of recipients of such calls in January 2020, later modifying it in May 2022 to reflect withdrawals of claims after a change in TCPA law.
- Plaintiff submitted expert testimony from Anya Verkhovskaya on identifying class members via a "reverse-append" process using data vendors (LexisNexis and Pacific East).
- Comodo moved to strike the expert's opinions, sought sanctions, and requested decertification of the modified class, arguing that her methodology was unreliable and class ascertainment was not feasible.
- The court addressed whether the expert testimony was admissible, if Rule 26(e) supplementation was proper, and whether class certification still met Rule 23 requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Expert Testimony Under Evid. 702 | Verkhovskaya used a reliable, court-approved reverse-append process | Methodology shifted, relied on unreliable sources, statements were inconsistent | Testimony was reliable, methodology accepted in similar cases, no basis to exclude under Evid. 702 |
| Exclusion Under FRCP 26/37 (Sanctions) | Declaration was consistent, mere elaboration, error was corrected per rules | Declaration was a wholesale change and attempt to cover up prior errors | Declaration was permissible elaboration/correction, no grounds for sanctions or exclusion |
| Decertification of Modified Class (Rule 23) | Class ascertainable via expert process, meets predominance and superiority | Cannot reliably identify class members, methodology unreliable | Class ascertainable, common issues predominate, and methods to filter class members are sufficient |
| Reopening Expert Discovery | Opposed—would delay case and notice | Needed to evaluate new opinions/methodology in Declaration | Discovery reopened for limited purpose of evaluating new expert opinions |
Key Cases Cited
- Comcast Corp. v. Behrend, 569 U.S. 27 (class certification requires rigorous analysis under Rule 23)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies to all expert testimony, not just scientific)
- Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (district courts may reassess or modify class rulings as litigation develops)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (standard for reliability and relevance of expert testimony)
- Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (requirements for class certification under Rule 23)