Career Counseling, Inc. v. Amerifactors Financial Group, LLC, 91 F.4th 202

Career Counseling, Inc. brought a putative class action alleging AmeriFactors Financial Group, LLC sent unsolicited fax advertisements in violation of the TCPA.
The faxes were sent in June 2016; nearly 59,000 other recipients allegedly received the same advertisement.
The district court denied class certification, finding the proposed class was not ascertainable because it could not be readily determined which recipients used a stand-alone fax machine (covered by the TCPA) versus an online fax service (not covered by the TCPA).
The court subsequently granted summary judgment to Career Counseling on its individual claim, awarding $500 in statutory damages.
Both parties appealed: Career Counseling challenged the denial of class certification; AmeriFactors cross-appealed the individual summary judgment against it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Existence of ascertainability requirement in Rule 23 class actions	No such requirement; should not bar class certification	Ascertainability is required by 4th Cir. precedent	Ascertainability is required under circuit precedent
Whether online fax services qualify as "telephone facsimile machines" under the TCPA	Online fax services should be included as covered devices	Only stand-alone/traditional fax machines are covered	Only stand-alone fax machines are covered
Whether plaintiff's method for identifying class members suffices	Subpoena responses rule out many online fax services users; remainder must be stand-alone	Could be other, unidentified online services; individualized inquiry required	Plaintiff's method insufficient; class not ascertainable
AmeriFactors' liability as "sender" of the fax	AmeriFactors was the advertiser; no proof of fraud/deception by broadcaster (AdMax)	Not liable as sender; AdMax (broadcaster) deceived AmeriFactors	Insufficient evidence of deception; AmeriFactors liable as sender

Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009) (standard for reviewing class certification decisions)
EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014) (ascertainability as a requirement for class certification)
In re Grand Jury 2021 Subpoenas, 87 F.4th 229 (4th Cir. 2023) (general standard for abuse of discretion)
Hunter v. Earthgrains Co. Bakery, 281 F.3d 144 (4th Cir. 2002) (error of law or fact as abuse of discretion)
Peters v. Aetna Inc., 2 F.4th 199 (4th Cir. 2021) (continues to recognize ascertainability in class actions)
Krakauer v. Dish Network, L.L.C., 925 F.3d 643 (4th Cir. 2019) (ascertainability in class actions)
Chapman v. Oakland Living Ctr., Inc., 48 F.4th 222 (4th Cir. 2022) (summary judgment standard)