American Bar Association | Litigation Section
Class Actions & Derivative Suits
Winter 2025, Vol. 35 No. 1
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Class Certification in the Fourth Circuit in 2024: A Year of
Mostly Defense-Friendly Decisions
By Michelle Liguori and Tyler C. Jam eson
Last year was an eventful one for class action practice in the Fourth Circuit. The Fourth Circuit
issued several decisions on class certification, many of them in defendants’ favor, offering
guidance on ascertainability, commonality, standing, and the relationship between Rule 12(b)(6)
and class certification. This article summarizes the decisions and the lessons they provide for
those litigating class actions in the Fourth Circuit and beyond.
Ascertainability: Plaintiff’s Burden When Required, but Not
Required for Rule 23(b)(2) Classes
The Fourth Circuit has held that Rule 23 contains an implicit requirement that a class cannot be
certified unless a court can “readily identify the class members in reference to objective criteri a.”
EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014). Accordingly, class certification is
inappropriate where identifying the class members would involve “extensive and individualized
fact-finding.” Id. Last year, the court issued two key decisions on ascertainability.
Let’s start with Career Counseling v. AmeriFactors Financial Group, LLC, 91 F.4th 202 (2024),
which affirmed the district court’s denial of class certification due to the plaintiffs’ failure to
satisfy the ascertainability requirement. The plaintiff and proposed class representatives alleged
that the defendant sent it and thousands of other recipients an unsolicited advertisement via fax
in violation of the Telephone Consumer Protection Act of 1991 (TCPA). Posing an issue for the
putative class, the TCPA prohibits unsolicited advertisements sent to stand-alone fax machines—
not online fax services. Thus, identifying class members required identifying which of the
thousands of recipients used stand-alone fax machines.
The plaintiff contended that it could identify pertinent class members by sending a subpoena to
the telephone carrier associated with each recipient’s fax number and asking the carrier whether
it offered an online fax service in connection with each number. The Fourth Circuit found logical
flaws in this method, pointing out that just because a recipient’s telephone carrier did not offer an
online fax service did not necessarily mean that the recipient was therefore using a stand-alone
fax machine. The recipients may still have been using online fax services provided by someone
other than the carrier. Thus, the district court would be left to make individualized inquiries as to
whether each recipient was using a stand-alone fax machine at the relevant time, rendering a
class of stand-alone fax machine users not ascertainable. Therefore, the Fourth Circuit held, the
district court properly denied class certification.
