TCPA Class Action Review – 2025

many recipients who had purportedly provided such permission. Id. at *16-17. The issue of prior express also precluded a finding of adequacy of representation, the court explained, because the plaintiff did not sufficiently address the conflict of interest between himself and putative class members who gave express permission to receive the faxes. Id. at *24-25. The Magistrate Judge found that individualized issues, particularly around standing and permission to receive faxes, would predominate over common issues. Id. at *31. Since the need to individually address whether each recipient had provided prior consent or received the fax via an online service was substantial, the Magistrate Judge recommended denying the motion for class certification. In Career Counseling, Inc., et al. v. AmeriFactors Financial Group, LLC, 91 F.4th 202 (4th Cir. 2024), the Fourth Circuit affirmed the district court’s conclusion that the plaintiff could not demonstrate an ascertainable class in a case concerning an allegedly unsolicited fax advertisement sent in violation of the TCPA. The Fourth Circuit agreed with the district court that the TCPA was limited only to traditional fax machines and did not apply to unsolicited advertisements sent to online fax services. Thus, class membership must be limited to stand-alone fax machine users and the plaintiff then must be able to demonstrate their ascertainability. Id. at 211. On appeal, the plaintiff argued that the district court erred in rejecting as “deficient” its method of identifying the stand-alone fax machine users and in deeming the class to be “not ascertainable.” Id. To identify which of the nearly 59,000 recipients fax were using stand-alone fax machines and which were using online fax services, the plaintiff sent a subpoena to the telephone carrier associated with each recipient’s fax number. The plaintiff asserted that, based on the responses, at least 20,000 recipients were not provided online fax services by the subpoenaed carriers. Id. However, the defendant offered its own evidence showing that the recipients were not necessarily using stand-alone fax machines just because they were not using an online fax service. Id. Therefore, the district court had found that it would be required to make an individualized inquiry as to whether each recipient was using a stand-alone fax machine at the relevant time. Id. The Fourth Circuit agreed that there was no ascertainable way to determine whether each recipient was using a stand-alone fax machine, and therefore, it affirmed the district court’s ruling denying the plaintiff’s motion for class certification. The plaintiff in Rowan, et al. v. Pierce, 2024 U.S. Dist. LEXIS 74214 (D.P.R. Apr. 19, 2024), filed a class action against the defendant, a former independent presidential candidate, alleging that it violated the TCPA by sending prerecorded messages to consumers, without their consent, during the defendant’s presidential campaign. The plaintiff filed a motion for class certification, proposing a class definition consisting of all U.S. persons receiving calls from specified numbers during a specific period, using specific technology, and appearing on the call list provided by the plaintiff’s expert witness. Id. at *10. The defendant argued that the proposed class failed to meet the numerosity and adequacy requirements of Rule 23, and was not ascertainable. The court agreed. The court found that the plaintiff initially proposed a broad class definition encompassing all individuals in the United States who received prerecorded voicemails from specified phone numbers during a specific period and whose numbers appeared in records purchased from Aristotle. However, due to limitations in the evidence and class definition inconsistencies, the court adjusted the proposed class to include only AT&T subscribers. Id. On the issue of numerosity, the plaintiff claimed there were 153,159 unique cellular numbers that received prerecorded voicemails from the campaign. However, the court found the plaintiff failed to offer evidence to support his calculation of the number of class members and did not respond to the challenges raised by the defendant’s expert regarding the accuracy of call records. Id. at *11-13. The same issues precluded the court from finding that the plaintiff satisfied the ascertainability requirement, as the plaintiff did not provide evidence to support the number of potential class members or explain how the expert’s analysis accurately identified potential class members. Id. at *20. Finally, the court determined that the plaintiff was not an adequate class representative because the plaintiff himself was a Verizon subscriber, and sought to represent a class limited to AT&T subscribers. Id. at *21-22. For these reasons, the court denied the motion for class certification. The court in Hossfeld, et al. v. Allstate Insurance Co., 2024 U.S. Dist. LEXIS 15139 (N.D. Ill. Jan. 29, 2024), denied a renewed motion for class certification brought by plaintiffs accusing Allstate of violating the TCPA by allowing an outside party to solicit ‘do-not-call’ listees on its behalf. The plaintiff alleged that Allstate provided a telemarketer with a list of consumer leads identifying individuals who requested to be placed on Allstate’s internal ‘do-not-call’ list. Id. at *3-4. The court previously had denied the plaintiff’s first motion for class certification on the grounds that the plaintiff failed to show a large enough class to make joinder impractical, as he had identified only 32 potential class members (and a 40-member class is ordinarily required to meet the numerosity requirement for class certification). Id. at *4. In denying the renewed motion, the court found that the

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