Career Counseling, Inc., dba Snelling Staffing Services v. Amerifactors Financial Group, LLC

The Fourth Circuit affirmed the district court’s denial of class certification in this action under the Telephone Consumer Protection Act (TCPA) based on two pure legal propositions that have divided the circuit courts: (1) that there is an implied “administrative feasibility” prerequisite for class certification under Rule 23(b)(3), a requirement rejected by six other circuits, see Cherry v. Dometic Corp., 986 F.3d 1296, 1302 (11th Cir. 2021); and (2) that the TCPA’s definition of “telephone facsimile machine” in 47 U.S.C. § 227(a)(3) is limited to “stand-alone” fax machines, a limitation rejected by the Sixth Circuit in Lyngaas v. Curaden AG, 992 F.3d 412, 426 (6th Cir. 2021). There are two questions presented:

1. Whether there is an implied “administrative feasibility” prerequisite for class certification, as held by the First, Third, and Fourth Circuits, or whether administrative feasibility is merely a factor to be weighed in determining whether class certification is “superior” to the alternatives under Rule 23(b)(3), as held by the Second, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits. See Cherry, 986 F.3d at 1302; Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1133 (9th Cir. 2017); In re Petrobras Sec., 862 F.3d 250, 267 (2d Cir. 2017); Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digital, LLC, 795 F.3d 654, 662 (7th Cir. 2015).

2. Whether the TCPA’s definintion of “telephone facsimile machine” is limited to traditional “standalone” fax machines, as the Fourth Circuit held in this case, or whether the “plain language” of the definition