Telephone Consumer Protection Act
Career Counseling Inc. v. Amerifactors Financial Group LLC
Date: June 30, 2025
Issue: Whether Federal Rule 23(b)(3) imposes an implied prerequisite of “administrative feasibility” for class certification, and whether the Telephone Consumer Protection Act (TCPA)’s definition of “telephone facsimile machine” in 47 U.S.C. § 227(a)(3) is limited to “standalone” fax machines.
Case Summary: The U.S. Supreme Court declined to review a lawsuit challenging whether the TCPA covers online faxes and whether plaintiffs must show an administratively feasible method to identify class members.
In June 2016, Amerifactors Financial Group sent an unsolicited fax to Career Counseling advertising its services. The TCPA prohibits sending unsolicited advertisements to telephone facsimile machines. In response, Career Counseling filed a TCPA class action against Amerifactors, proposing a class of nearly 60,000 other entities that also received the fax.
A South Carolina federal court denied class certification and granted summary judgment to Career Counseling on its individual TCPA claim. The Fourth Circuit affirmed the district court’s summary judgment ruling that AmeriFactors was liable under the TCPA because it sent an unsolicited fax to Career Counseling. The Fourth Circuit also affirmed the court’s denial of class certification because the court would have to do individual inquiries on 59,000 class members to determine whether they used a standalone fax machine and not an online fax service to qualify under the TCPA.
On July 19, 2024, Career Counseling petitioned the U.S. Supreme Court for certiorari. Career Counseling argued that circuit courts are “deeply divided” over class ascertainability and administrative feasibility. According to Career Counseling, the First and Third Circuits have imposed feasibility requirements on class certification motions, but the Second, Sixth, Seventh, Eighth, Ninth and Eleventh Circuits have rejected the requirement that members of the class be “readily identifiable.”
Career Counseling also argued the Fourth Circuit’s ruling conflicts with the Sixth Circuit’s 2021 decision in Lyngaas v. Curaden AG, which ruled the TCPA’s statutory definition of a fax machine “encompasses more than a traditional fax machine” and “does not require the actual printing of the advertisement.” In effect, where a TCPA class is defined as “all persons” who received a fax, Career Counseling posited the class may be certified in the Sixth Circuit, but not in the Fourth Circuit. However, the Supreme Court declined to hear the case without offering any explanation.
Bottom Line: TCPA litigation has already been extraordinarily active this year. This should accelerate given both the Court’s refusal to take up Career Counseling, and its recent landmark decision in McLaughlin ruling the Hobbs Act does not bind district courts in civil proceedings to the FCC’s interpretation of the TCPA.
Document: Opinion
