Laptop Magnifying glassIn a recent ruling vacating denial of class certification, the Third Circuit provided guidance on the scope of the implied “ascertainability” requirement under Rule 23. Byrd v. Aaron’s, Inc., 2015 U.S. App. LEXIS 6190 (3d Cir. April 16, 2015) involved a putative class action against Aaron’s, which leases, among other things, laptop computers to consumers. The plaintiffs alleged that Aaron’s and its affiliates had violated the Electronic Communications Privacy Act (ECPA) by surreptitiously monitoring the activity of the rental laptops’ users via spyware that collected screenshots, keystrokes, and webcam images.

The plaintiffs sought to certify a class of “all persons who leased and/or purchased one or more computers from Aaron’s Inc., and their household members, on whose computers DesignerWare’s Detective Mode was installed and activated without such person’s consent on or after January 1, 2007.” The district court refused to certify because the class was not ascertainable. According to the magistrate judge’s report and recommendation, which was summarily adopted by the district judge, the class was underinclusive, because owners, lessees, and their household members did not encompass all individuals whose information might have been surreptitiously gathered. Moreover, the class was overinclusive because mere installation of the spyware was not sufficient to satisfy the interception requirement of the ECPA. Finally, the magistrate judge took issue with the plaintiffs’ failure to define “household members.”

The Third Circuit reversed, finding that the district court had misapplied the ascertainability standard. Judge Smith, in his majority opinion for the panel, took the opportunity to “dispel any confusion” regarding the standard for ascertainability, which “consists of nothing more” than two inquiries: a plaintiff must show that “(1) the class is defined with reference to objective criteria; and (2) there is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.”

Judge Smith pointed out that although the ascertainability requirement may relate to or dovetail with other Rule 23 requirements, it is its own separate inquiry, and he cautioned courts about grafting additional criteria onto the ascertainability analysis. In particular, the district court in Byrd had conflated ascertainability with the standards governing class definition. The district court’s rejection of the class as both underinclusive and overbroad similarly fell outside the “narrow” ascertainability inquiry. Judge Smith noted that plaintiffs are not required to represent every individual who has been harmed by the same defendant, and concerns about overbreadth are more properly directed to analysis of predominance under Rule 23(b)(3) and Article III standing.

Finally, Judge Smith rejected the district court’s holding that household members were not sufficiently ascertainable. The plaintiffs argued, and the Third Circuit agreed, that such class members could be objectively identified through the use of publicly available government records that define and include data related to household members for census, taxation, and immigration purposes. The plaintiffs’ proposed method of identifying these class members differed markedly from that rejected by the Third Circuit in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), where the plaintiffs proposed identifying class members based on affidavits of the class members themselves, amounting to “no more than ascertaining by potential class members’ say-so.” The Byrd plaintiffs’ proposed use of public records sidestepped this problem.

Although the stated purpose of the Byrd opinion was to dispel confusion, one panelist expressed skepticism that such clarification of the ascertainability standard is possible. Concurring separately, Judge Rendell opined that “the lengths to which the majority goes in its attempt to clarify what our requirement of ascertainability means, and to explain how this implicit requirement fits in the class certification calculus, indicate that the time has come to do away with this newly created aspect of Rule 23 in the Third Circuit.” Thus, the fate of the ascertainability requirement in the Third Circuit may still remain uncertain.