Third Circuit Emphasizes Distinction Between Ascertainability Analysis And Rule 23 Requirements

Action Item: Byrd, the latest in a recent line of cases from the Third Circuit concerning the ascertainability standard, emphasizes the importance of keeping the ascertainability analysis distinct from Rule 23's other requirements.

In Byrd v. Aaron's, Inc., the Third Circuit reversed a decision denying class certification on ascertainability grounds after concluding that the District Court conflated its ascertainability analysis with the explicit requirements of Rule 23. 2015 WL 1727613 (3d Cir. April 16, 2015). While citing to and discussing its recent decisions that required an ascertainability finding at the class certification stage in class actions arising under Rule 23(b)(3), (see Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012); Hayes v. Wal-Mart Stores, Inc., 725 F.3,d 349 (3d Cir. 2013); Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013)), the Court emphasized that the ascertainability requirement is separate from Rule 23's other requirements and consists of "nothing more" than the following inquiries: "(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." Byrd, 2015 WL 1727613, at *3.

Crystal and Brian Byrd filed a putative class action against Aaron's, Inc. and its franchisees ("Defendants") alleging violations of the Electronic Communications Privacy Act of 1986 ("ECPA"). The Byrds moved for class certification under Rules 23(b)(2) and 23(b)(3) providing two proposed classes:

Class I: 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.

Class II: All persons who leased and/or purchased one or more computers from Aaron's, Inc. or an Aaron's, Inc. franchisee, 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 reasons the District Court denied the motion for certification on ascertainability grounds was threefold: (1) the classes were underinclusive because they did not include all those whose interests were harmed; (2) the classes were overly broad because not every person who purchased or leased a computer had a claim under the ECPA; and (3) the term...