We’ve written previously about courts’ differing approaches to ascertainability — an implicit requirement under Rule 23 that class members must be identifiable. A pending petition for certiorari in Career Counseling, Inc. v. Amerifactors Financial Group, LLC, No. 24-86 (2024), asks the Supreme Court to resolve some of these differences.
The petition originates with a District of South Carolina order denying class certification in a Telephone Consumer Protection Act case. Career Counseling, a staffing services company, filed a putative class action for alleged TCPA violations against Amerifactors Financial Group, an accounts receivable financing firm.
The TCPA prohibits faxing unsolicited advertisements to telephone facsimile machines (yes, they still exist). A key purpose of the Act was to prevent consumers from incurring the costs of unsolicited or junk faxes in the form of used paper and toner. Consistent with this purpose, the Consumer and Government Affairs Bureau has declared that the TCPA applies only to traditional, stand-alone fax machines that print messages received over a phone line onto paper, but not to online fax services that receive faxes digitally and forward them as email attachments, without using paper and toner.
Career Counseling alleged that Amerifactors sent unsolicited faxes to nearly 59,000 numbers. The ascertainability problem arose in trying to determine whether these numbers were connected to stand-alone fax machines or online fax services. Career Counseling claimed that it could isolate the numbers associated with traditional fax machines — those covered by the TCPA — by using subpoena responses from phone service carriers. According to Career Counseling, at least 20,000 numbers were not receiving online fax services from their phone carrier and must therefore have received paper faxes on a stand-alone fax machine.
The district court denied class certification because Career Counseling did not satisfy the implicit ascertainability requirement. The court articulated the ascertainability standard as set forth in Fourth Circuit precedent,1 explaining that class members must be readily identifiable through an administratively feasible method. The problem was that Career Counseling’s proposed process for identifying class members with stand-alone fax machines could not confirm that each class member’s number was associated with a stand-alone fax machine.
Amerifactors had presented evidence that the phone carriers could not determine whether the numbers were used in connection with a stand-alone fax machine or were associated with online fax services provided by another carrier. Without an administratively feasible process to identify putative class members who received an unsolicited advertisement from Amerifactors on a stand-alone fax machine, the class could not be certified because it would require extensive, individualized fact-finding.
Career Counseling appealed to the Fourth Circuit, which affirmed the denial of class certification on ascertainability grounds. Unlike the district court, the Fourth Circuit did not expressly reference the “administrative feasibility” requirement, stating only that ascertainability requires class members to be “readily identifiable” with reference to “objective criteria.” The three-judge panel declined Career Counseling’s invitation to abandon Fourth Circuit precedent articulating the ascertainability test.
Career Counseling’s efforts to overturn the denial of class certification continue before the Supreme Court. Career Counseling filed a petition for certiorari with the Court in July 2024. Although Amerifactors waived its right to respond to the petition in August 2024, it opposed the petition in November 2024 after the Court requested a response.
In its petition, Career Counseling argues that the Fourth Circuit — like the First and Third Circuits — applies a heightened, extratextual ascertainability requirement demanding that class plaintiffs prove an administratively feasible method of identifying class members at the outset. Amerifactors’ opposition argues that any disparity between those circuits that apply an administrative feasibility requirement and those that have rejected that requirement has narrowed over time, highlighting the Third Circuit’s apparent move away from a “heightened” standard. The opposition also emphasizes that some administrative feasibility inquiry is necessary to ensure before certification that an identifiable class exists and, thus, that a class action is an appropriate and efficient vehicle for proceeding with the claims.
The Court distributed the petition and related briefing for its January 2025 conference. Interestingly, the docket does not indicate that the Court has taken any subsequent action on the petition. The petition does not appear to have been relisted. No order granting or denying the petition has yet been entered.
If the Court grants the petition, it could provide clarity on what, exactly, the implicit ascertainability requirement demands a class plaintiff to show. It could also illuminate where the ascertainability analysis falls within Rule 23. Should ascertainability be evaluated as part of Rule 23(a)’s threshold requirements for class certification? How should courts handle the conceptual overlap between ascertainability and the predominance, superiority and manageability analysis under Rule 23(b)(3)?2 Does the order of analysis make any substantive difference?
Although the gap between circuits imposing a “heightened” ascertainability requirement demanding administrative feasibility and circuits requiring only that the class be defined objectively does appear to be narrowing, a Supreme Court opinion articulating the appropriate ascertainability analysis would no doubt make the test easier to ascertain and apply in future cases. We’ll keep an eye out for developments.
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1 Krakauer v. Dish Network, LLC, 925 F.3d 643 (4th Cir. 2019); EQT Prod. Co. v. Adair, 764 F.3d 347 (4th Cir. 2014)
2 In this case, for example, the district court could potentially have analyzed the problem raised by the plaintiff’s inability to differentiate between physical fax machines and online fax services under one or more of predominance (individual liability and damages issues would overwhelm common issues), manageability (no workable process to differentiate), or superiority (class treatment not superior given the need for individual proof).
