Third Circuit Clarifies Ascertainability Requirement for Class Certification | Practical Law

Third Circuit Clarifies Ascertainability Requirement for Class Certification | Practical Law

In Byrd v. Aaron's, Inc., the US Court of Appeals for the Third Circuit clarified the ascertainability standard for purposes of class action certification.

Third Circuit Clarifies Ascertainability Requirement for Class Certification

Practical Law Legal Update 6-609-4805 (Approx. 3 pages)

Third Circuit Clarifies Ascertainability Requirement for Class Certification

by Practical Law Litigation
Published on 21 Apr 2015 • USA (National/Federal)
In Byrd v. Aaron's, Inc., the US Court of Appeals for the Third Circuit clarified the ascertainability standard for purposes of class action certification.
On April 16, 2015, in Byrd v. Aaron's, Inc., the US Court of Appeals for the Third Circuit clarified the ascertainability standard for purposes of class action certification (No. 14-3050, (3d Cir. Apr. 16, 2015).
The plaintiffs brought a putative class action against Aaron's, Inc. and its franchise stores, alleging that the defendants violated the Electronic Communications Privacy Act (ECPA) by installing spyware on computers the stores leased or sold which collected screenshots, keystrokes, and webcam images from the computers and their users. The plaintiffs moved for certification of a class comprised of people who had leased or purchased the computers, and their household members, and on whose computers the spyware was installed and activated without consent. The United States District Court for the Western District of Pennsylvania denied the motion, holding that the proposed classes were not ascertainable.
The Third Circuit vacated and remanded. The appellate court noted that confusion surrounding the ascertainability issue has led defendants increasingly to invoke ascertainability as a way to defeat class certification. Therefore, the court sought to clarify the standard, which requires a plaintiff to show that:
  • The class is defined with reference to objective criteria.
  • There is a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition.
Ascertainability does not mean that a plaintiff must be able to identify all class members at class certification. Instead, a plaintiff need only show that class members can be identified. The court further noted that the ascertainability inquiry is narrow, and a defendant's challenge to a class action on this ground must be exacting. The inquiry will not be relevant in every case and is independent of the other FRCP 23 requirements. However, the court found that the ascertainability analysis dovetails with (but is separate from):
  • FRCP 23(c)(1)(B)'s requirement that the class certification order include a readily discernible, clear and precise statement of the parameters defining the class.
  • FRCP 23(c)(2)(B)'s requirement that notice be provided to class members in a FRCP 23(b)(3) class, including individual notice to all class members that can be identified through reasonable effort.
The Third Circuit found that the district court erred in the ascertainability analysis by:
  • Misstating the rule governing ascertainability.
  • Engrafting an "underinclusive" requirement that is foreign to the ascertainability standard.
  • Making an errant conclusion of law in finding that an "overly broad" class is not ascertainable.
  • Improperly applying the court's prior rulings to the issue of whether "household members" could be ascertainable.
As a result, the appellate court remanded the case for further consideration of the remaining FRCP 23 certification requirements.