4th Circuit Affirms Summary Judgment Award in TCPA Class Action
A three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed the district court’s award of summary judgment for Career Counseling over AmeriFactors Financial Group in a Telephone Consumer Protection Act class action and also affirmed the lower court’s…
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denial of Career Counseling’s motion for class certification, said its published opinion Monday (docket 22-1136). Plaintiff Career Counseling alleged that defendant AmeriFactors sent it and thousands of other recipients an unsolicited fax ad, in violation of the TCPA. In denying class certification, the district court determined that Career Counseling failed to satisfy Rule 23’s implicit requirement of “ascertainability,” and the 4th Circuit agreed, said the opinion. That determination derived from the “uncontroverted factual premise” that each of the nearly 59,000 recipients of the AmeriFactors fax was using either a stand-alone fax machine or an online fax service, it said. The court concluded that stand-alone fax machines, but not online fax services, qualify as fax machines under the TCPA, it said. That conclusion “rendered it necessary to be able to identify which of the fax recipients were using stand-alone fax machines and which were using online fax services,” it said. Because the court wasn’t convinced that the stand-alone fax machine users are readily identifiable, “it decided that the ascertainability requirement has not been satisfied,” it said. On AmeriFactors’ cross-appeal challenge of the summary judgment award for Career Counseling, AmeriFactors argues there is “a genuine dispute of material fact” as to whether it is liable as the sender of the fax, it said. “We agree with the district court that there is insufficient evidence of any fraud and deception” to place AmeriFactors’ sender liability in dispute, it said. AmeriFactors thus being liable for sending the fax, “we affirm the court’s award of summary judgment to Career Counseling,” it said.