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Court Clarifies Class Ascertainability in Computer Spyware Case

By Casey C. Sullivan, Esq. on April 17, 2015 | Last updated on March 21, 2019

A couple may proceed in their class action lawsuit against Aaron's, a furniture and office rental store, and many of its franchisees, the Third Circuit ruled yesterday. Clarifying the Circuit's standards on class ascertainability, the Circuit held that the ascertainability test should be a simple, narrow examination of the proposed class.

The decision marks an important clarification in a rule that had been used by defendants to defeat class actions before the class is even formed. The facts of the case, which involve spyware installed on rental computers, serves as another reminder that rental furniture might not be the best idea.

Check if PC Rental Agent is Running, Right Now

Crystal Bird rented a laptop from an Aaron's franchisee. After five months, the laptop was repossessed for nonpayment. When collecting the computer, the repo man allegedly showed Byrd a screenshot of an online poker website and an image of Mr. Byrd playing it, taken by the laptop's camera.

The screenshot and picture had been taken via a spyware program called "PC Rental Agent," which collected screenshots, keystrokes and webcam images of users. According to the Byrds, the spyware snooped on them well over 300 times in 11 days, capturing information such as credit card numbers, passwords, personal health information, and their children's school records.

Alleging a gross violation of their privacy, and presumably others', the Byrds filed a class action lawsuit. The suit asserts that Aaron's, its franchisees, and the maker of the spyware violated common law privacy protections and the Electronic Communications Privacy Act.

Ascertainability Standards Clarified

The Byrds sought certification of the class under Federal Rules of Civil Procedure, Rule 23(b). They proposed two classes, covering everyone who has purchased or leased a computer from Aaron's and those who had information intercepted. The district court denied their certification because the proposed classes were not "ascertainable."

Ascertainability is a relatively simple requirement, the Third Circuit held on appeal. Since there had been confusion in lower courts, the Third sought to clarify: The ascertainability of a class requires a two-fold inquiry. First, the class must be "defined with reference to objective criteria." Second, there must be a reliable and feasible way to determine who falls within the class. Nothing more, nothing less.

The Byrds' class passed the test. The district court erred in considering whether the class was both overbroad in some aspects and too narrow in others. The Byrds' proposed classes of "owners" and "lessees" are ascertainable and can be determined by objective records; that's all the court needs to focus on.

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