*1
Leasing,
preclusion and others
Sales and
a Franchisee of
terms of SLUSA’s
Aaron’s, Inc.;
Inc,
not,
Enterprise
the district court
Boxer
do
we direct
Leasing,
Aaron’s Sales and
a
precluded
proceed
claims and
dismiss the
d/b/a
Aaron’s, Inc.;
Franchisee
of
Circle
claims.26
respect
to the other
City Rentals,
Aaron’s Sales and
d/b/a
Leasing,
Inc.;
Aaron’s,
a Franchisee of
IV. CONCLUSION
Leasing Partners, LLC,
CMH
d/b/a
judgment
of the district court is
Leasing,
Aaron’s Sales and
a Franchi-
VACATED, and the matter REMANDED
Aaron’s, Inc.;
Leasing,
see of
Cram
proceedings.
for further
In the interest of
Inc.,
Leasing,
Aaron’s
and
Sales
d/b/a
judicial economy, any appeals from the
Aaron’s,
Inc.;
a Franchisee of
DC
rulings
application
district court’s
on the
of
Inc,
Sales and Lease
Aaron’s
d/b/a
SLUSA to
claims shall be heard
Plaintiffs’
Leasing,
Sales and
a Franchisee of
panel.
this
Aaron’s,
Inc.; Dirigo Leasing Inc,
Leasing,
Aaron’s Sales and
a
d/b/a
Aaron’s,
Inc.;
Franchisee
of
DPR
LLC,
Alaska
Aaron’s
and
Sales
d/b/a
Leasing,
Aaron’s, Inc.;
a Franchisee of
LLC,
DPR Colorado
Aaron’s
d/b/a
Leasing,
and
Sales
a Franchisee of
Aaron’s, Inc.;
LLC,
DW3
Aar-
d/b/a
Leasing,
on’s Sales and
a Franchisee
Crystal BYRD;
Byrd,
Brian
Individual-
Aaron’s, Inc.;
LLC,
DWC Ventures
ly,
Similarly
and on Behalf of all
Leasing,
Aaron’s
and
Sales
a
d/b/a
Persons, Appellants
Situated
Aaron’s, Inc.; Fairway
Franchisee of
Leasing LLC,
Aaron’s Sales and
d/b/a
INC; Aspen Way Enterprises
AARON’S
Leasing,
Inc.;
Aaron’s,
a Franchisee of
Inc,
Leasing,
Aaron’s
and
Sales
LLC,
d/b/a
Five Star Financials
Aar
d/b/a
Inc.; Design
A Franchisee of Aaron’s
Leasing,
on’s Sales and
a Franchisee
LLC;
Leasing LLC,
erWare
AH & H
Aaron’s, Inc.;
LLC,
FT Got Three
Leasing,
Aaron’s Sales and
Leasing,
d/b/a
Aaron’s
Sales
d/b/a
Aaron’s, Inc.;
Franchisee of
AMG En
Aaron’s, Inc.;
Franchisee of
GNS &
terprises Group LLC,
Aaron’s
INC,
Associates
d/b/a
Aaron’s Sales
d/b/a
Leasing,
Sales and
a Franchisee
Leasing,
Aaron’s,
a Franchisee of
Aaron’s,
Inc.;
Corporation
Inc.;
Arona
Great American Rent
to Own
Leasing,
Inc,
Aaron’s Sales and
Leasing,
Aaron’s Sales and
d/b/a
d/b/a
Aaron’s,
Inc.;
Franchisee
Aaron’s,
Inc.;
Bear
Franchisee
Green
LTD,
Rental Purchase
Corp,
Aaron’s
River
Aaron’s
Sales
d/b/a
d/b/a
26. Defendants raised a number of
alternate
law causes of action
if
action is
grounds for dismissal of Plaintiffs’ claims that
“predicated solely
aon violation of the Martin
we do not here address. These issues remain
implementing regulations
Act or
its
open
Additionally,
denying
on remand.
would not exist but for the statute.’’ Assured
replead,
Plaintiffs leave to
the district court
(UK)
Morgan
Mgmt.
Ltd.
Guar.
v. J.P.
Inv.
-
ruled that all of Plaintiffs' non-fraud claims
Inc.,
274, 279,
18 N.Y.3d
939 N.Y.S.2d
would,
SLUSA,
precluded by
if not
nonethe-
(2011).
light
Leasing, Aaron’s, Inc.; a Franchisee of Corp,
NW Freedom Aaron’s d/b/a Leasing, a Franchisee of
Sales
Aaron’s, Inc.; Pomona Lane Partners
LLC, Leasing, Aaron’s Sales d/b/a Aaron’s, Inc.;
a Franchisee of R & LLC,
Double K Aaron’s Sales d/b/a Aaron’s, Leasing, a Franchisee of
Inc.; LLC, Rebco Investments d/b/a Leasing, a Franchi
Aaron’s Sales Aaron’s, Inc.; Inc,
see of Rex Neal *4 Erie, PA,
McLaughlin, Sennett, Gornall & Bizar, Jones, Esq., Steven E. Landon Y. Buchanan Esq., Ingersoll Rooney, & Phila- PA, Lillwitz, delphia, Timothy Esq., N. Strother, Esq., Todd A. Bradshaw Fowler Moines, IA, Fairgrave, Proctor & Des Mi- Begley, Esq., chael E. Michele L. Brauk- mann, McLinden, Esq., Esq., Ross W. MT, Bellingham, Billings, Moulton James McGovern, Williott, Esq., Anthony A. J. Marshall, Esq. [Argued], Dennehey, War- ner, Mancos, Goggin, & Coleman Brian M. White, Lane, Esq., Esq., Burns Mark R. McCormick, Dell, Moser, Esq., Donald J. PA, Loughney, Pittsburgh, Lane & Appellees. Bizar, E. Esq.
Steven and Landon Y. Jones, Esq., Ingersoll Buchanan & Roo- PA, Lane, ney, Philadelphia, Esq. Mark R. *5 McCormick, Dell, and Donald J. Esq., Moser, PA, Loughney, Lane & Pittsburgh, Lillwitz, Timothy N. Esq. and Todd A. Strother, Esq., Bradshaw Fowler Proctor Moines, IA, Fairgrave, & Des Brian M. Mancos, White, Esq., Burns Pittsburgh, PA, Non-Participating for Defendants. RENDELL, SMITH, Before: and Davis, Esq., A. Andrea S. Leonard KRAUSE, Judges. Circuit Hirsch, Gerel, Atlanta, GA, Esq., Herman Fleck, Orchard, Esq., R. Mel Daniel C. OPINION Ulmer, III, Bryan
Esq., Esq., G. The SMITH, Judge. Circuit Firm, Jackson, WY, Spence Law Matthew Levin, Gaughan, Esq., Esq., C. Arnold Crystal Plaintiffs Byrd bring and Brian Esq. Frederick Longer, [Argued], S. Lev- 23(f) interlocutory appeal this under Rule in, Fishbein, Berman, & Sedran Philadel- of the Federal Rules of Civil Procedure. PA, Parfitt, phia, Esq., Michelle A. Chris- Byrds brought The action Tisi, Gerel, topher Esq., Ashcraft & V.. Aaron’s, against Inc. and its franchisee DC, Robinson, Washington, Esq., John H. (collec- Aspen Way Enterprises, store Inc. Robinson, Jamieson & WY, Casper, for “Defendants”), tively they allege who vio- Appellants. lated the Electronic Pri- Communications Brown, Esq. (“ECPA”), Kristine M. [Argued], vacy Wil- Act of 1986 18 U.S.C. Jordan, Pryor, Concluding Byrds’ § liam H. Esq., pro- Thomas C. ascertainable, Esq., Rosenberg, Esq., posed Jason D. Alston & classes were not Bird, Atlanta, GA, Devlin, Neal R. their motion Esq., District Court denied Lanzillo, Knox, A. Esq., Richard class certification. Because the District screenshots, keystrokes, could collect our ascertainabili- and applying erred images computer webcam from the and its we will reverse and remand. ty precedent, users. Between November 2010 and 20, 2010, Byrds alleged December I. spyware secretly this laptop accessed their operates company-owned Aaron’s stores days.1 347 times on eleven different independently-owned also and oversees total, computers “the of 895 customers stores that sell and lease resi- franchise ... country across the [had] surveillance furniture, consumer elec- dential and office through conducted the Detective Mode tronics, and accessories. appliances, home Agent.” Byrd function of PC Rental 30, 2010, July Crystal Byrd entered On Aaron’s, Inc., 11101E, No. CIV.A. agreement laptop to rent a into lease (W.D.Pa. at *2 WL Mar. Aspen Way, an Aaron’s computer from 2014). Although Byrd franchisee. Ms. asserts Byrds’ operative The class-action com- payments according full she made Aaron’s, plaint against asserts claims As- 22, 2010, agreement, on December pen Way, independent more than 50 other Way Byrds’ came to the agent Aspen franchisees, DesignerWare, Aaron’s and on repossess laptop home to The complaint alleges LLC.2 violations of grounds payments that the lease had not ECPA, conspiracy and violate com- agent allegedly present- made. The been privacy, mon law invasion of and aiding poker ed a screenshot of a website Mr. and abetting. On Defendants’ motion to Byrd picture had visited well as a taken dismiss, the District Court dismissed the laptop’s played. of him the camera as he all against claims Aaron’s franchisees oth- Byrds surprised by were troubled and Aspen Way standing er than for lack of un- significant what considered and all claims for also common law inva- privacy. authorized of their invasion privacy, conspiracy, aiding sion of Thus, abetting. Byrds’ remaining Aspen Way picture obtained the *6 claims, class, against and those of the through spyware type screenshot —a Way liability direct Aspen Aaron’s and for computer designed by Design- software — under the ECPA. erWare, LLC and named “PC Rental Agent.” spyware optional meantime, an This had In Byrds the the moved to Mode,” certify function called “Detective which the class under Federal Rules of allegedly spyware captured way 1. The a wide ar- anteed that was of course no “[t]here ray personal and de- knowing you being information: “credit whether were watched at numbers, dates, expiration security moment,” Orwell, 1984, bit card any given George codes, numbers, pin passwords, social securi- 1950), (Signet Aspen Way's Classics because numbers, dates, ty identity birth of children (and corporate corporate intranet Aaron’s ser- records, personal and the children’s school by apparently proxy) ver activated the PC returns, information, personal tax health em- Agent's Rental Detective Mode “whenever records, records, ployment bank account they Id. wanted to.” addresses, credentials, login email answers to security questions private and communica- 20, 2012, 2. On the District Court is- March providers, therapists, tions with health care noting DesignerWare sued an order filed attorneys, and other confidants.” The record bankruptcy Bankruptcy in the U.S. appear also reveals what to be screenshots of Pennsylvania. Ac- for the Western District of adult-oriented and active webcam transmis- cordingly, the District Court ordered that no and sions conversations of intimate nature. against DesignerWare action be taken and administratively spyware, Byrds’ The that the case be closed as to as described in the complaint, guar- was Orwellian-like in that it that defendant. 23(b)(2) 23(b)(3), in proposed tion because the classes were Procedure Civil provided proposed two Byrds which the Regarding not ascertainable. owner and proposed class.3 and one alternative members, classes Magistrate lessee class the motion, Byrds proposed the briefing the Judge concluded that the classes definitions: following alternative class the were underinclusive because did “not persons I—All who leased encompass Class all those individuals whose in and/or computers more from purchased one or surreptitiously gathered formation [was] Aaron’s, Inc., mem- and their household Magis Aaron’s franchisees.” Id. The bers,' computers Designer- on whose Judge trate also determined that Mode was installed Ware’s Detective “overly classes were broad” because not person’s con- and activated without such “every computer upon which Detective January after 2007. sent on or Mode was activated will state a claim un persons II —All who leased Class and/or interception der the ECPA for the of an computers one or more from purchased Regarding electronic communication.” Id. Aaron’s, Aaron’s, Inc. or an Inc. franchi- members,” Magistrate “household members, see, on and their household Judge took issue with the fact that computers DesignerWare’s De- whose Byrds phrase. did not define the Id. Fur tective Mode was installed and activated ther, although Byrds stated that the person’s without such consent on or af- identity of household members could be January ter 2007. records,” gleaned “public Magis from at *5. Byrd, WL Judge, Bayer citing trate to Carrera (3d 300, 306, Corp., 727 F.3d Cir. Magistrate Judge recommended 2013), Byrds’ motion for certifica- not denying “[i]t [was] reasoned certification, or other In the motion for class devices or software without following Byrds proposed the [sic] classes: customers authorization. Byrd, Byrds WL at *4. The also (against I Inc. for direct lia- Class Aaron's forth an set alternative class definition for ECPA)— bility under Class II as: States, residing persons in the United All Inc., (against Aspen Class II Aaron's leased, purchased, rented or rent- who have ECPA, Way liability for direct under the inva- own, computers ed to Aaron's and individu- privacy, conspiracy, aiding sion computers person- als who used said whose (under law))'— abetting Wyoming information, al electronic communications States, persons residing All in the United used, images intercepted, were dis- and/or leased, purchased, who have rented or rent- closed, accessed, monitored trans- and/or *7 own, computers Aspen ed to Aaron's from Agent mitted via PC Rental or other devices Inc., Way Enterprises, Aarons Sales d/b/a au- [sic] or software without customers Leasing, and individuals] and who used thorization. computers personal said whose informa- Inc., (against Aspen Way, II Class Aaron's tion, electronic communications im- and/or and all other Franchisee for direct Defendants used, disclosed, ages intercepted, ECPA, were ac- liability privacy, under invasion of con- cessed, by monitored transmitted aiding and/or spiracy, abetting) and —(cid:127) Aspen Way via PC Aaron's Rental and/or All customers of the Aaron’s Defendants States, Agent or other devices or software without who reside in the United who have leased, own, [sic] the customers authorization. purchased, rented or rented to noting Byrds' Id. It is worth revised computers Aaron’s and individuals who expressly did computers personal class definitions not infor- used said whose mation, require an communication to electronic be electronic communications and/or used, disclosed, "intercepted,” although necessary images intercepted, is a were accessed, successfully proving by element in their ECPA monitored transmitted and/or 2511, 2520(a). Agent §§ Defendants via PC Rental claims. See 18 U.S.C. Aaron’s
161
legal
applied by
a method
which this
standard
a district court.
enough
propose
Carrera, 727
Byrd,
F.3d at 305.
may be obtained.”
information
1316055, at *5. The District
2014 WL
III.
Report
and Recom-
adopted
question
The central
appeal
of the court
this
opinion'
mendation as the
whether the District Court
Byrds
erred
deter-
Byrds’ objections.
over
mining
Byrds’ proposed
classes
timely appealed.
were not ascertainable. Because the Dis-
ascertainability
trict Court confused
II.
23,
inquiries
other relevant
under Rule
conclude it
its discretion
abused
and will
The District Court had federal
vacate and remand.
jurisdiction
under
28 U.S.C.
question
jurisdiction
§
have
under 28
1331. We
errors, however,
discussing
Before
these
1292(e)
§
and Federal Rule of Civil
U.S.C.
necessary
we believe it is
to address the
23(f).
Procedure
‘We review a class certi
scope
ascertainability
and source of the
discretion,
fication order
for abuse of
requirement
that our cases have articulat
if the district court’s decision
which occurs
ascertainability
ed. Our
decisions have
clearly
finding
erroneous
upon
rests
been consistent and reflect a relatively
fact, an
of law or an
errant conclusion
simple requirement. Yet there has been
law to fact.”
improper
application
apparent confusion in the invocation and
Inc.,
Quest Diagnostics
v.
Grandalski
application
767
ascertainability
this Cir
(3d Cir.2014)
(Whether
(quoting Hayes
175,
because,
F.3d
179
cuit.
that is
for exam
Inc.,
Stores,
349,
v. Wal-Mart
725
ple,
appeals
F.3d
the courts of
have discussed
(internal
(3d Cir.2013))
quotation
in varying
354
and distinct
omitted).
ways,4
marks
review de novo a
or the
requirement
We
example,
4. For
some of our sister courts of
bers are included in or excluded from the
appeals
interspersed
analysis
have
their
any particular
class without
reference to
ascertainability,
"identifiability,”
EQT
with ex
See, e.g.,
portion of Rule 23.
Prod. Co.
See,
plicit
requirements.
e.g.,
Rule 23
Colo.
Adair,
347,
(4th
v.
764 F.3d
358-60
Cir.
Disability
Fitch
Cross
Coal. Abercrombie &
2014) (explaining the Fourth Circuit’s im
Co.,
1205,
(10th Cir.2014) (dis
1215
plicit "readily
identifiable"
cussing ascertainability
numerosity
si
proposed class is the same as our Circuit's
multaneously);
Unumprovident
Romberio v.
"ascertainability” requirement, without dis
(6th Cir.2009)
Corp.,
Fed.Appx.
standard);
cussing the source of the
In re
(discussing
(unpublished)
ascertainability but
Horizon,
(5th
Deepwater
F.3d
reversing class certification based on lack of
Cir.2014) (requiring
"adequate
a class to be
typicality);
Offerings
In re Initial Pub.
Sec.
(cita
ly
clearly
defined
ascertainable”
(2d Cir.2006) (dis
Litig., 471 F.3d
omitted)),
quotation
tion and internal
marks
cussing ascertainability
predominance
si
Exploration
cert. denied sub nom. BP
&
multaneously, although noting they
sepa
Dev., Inc.,
Eugenie
Prod. Inc. v. Lake
Land &
inquiries),
rate
decision
on denial
clarified
of —
—,
U.S.
135 S.Ct.
190 L.Ed.2d
reh’g
Offering
sub nom. In re Initial Pub.
Sec.
(2014);
Corp.,
Matamoros v. Starbucks
(2d Cir.2007);
Litig.,
we need
litiga-
deviates from the normal
upon
actions have seized
this
course
in class
dants
large part
judicial
tion in
to achieve
by invoking the ascertain-
econo-
lack
precision
(dis-
Comcast,
my.
at
See
133 S.Ct.
increasing
with
fre
ability requirement
cussing generally the nature of the class-
to defeat class certificat
in order
quency
device). Ascertainability
action
functions
ion.6.
(or
necessary prerequisite
implicit
as a
dispel any
to
confu
requirement)
seek here
because it allows a trial court
We
for,
of,
effectively
or basis
explicit require-
sion. The source
to evaluate the
words,
as to a Rule
ascertainability requirement
ments of Rule 23.
In other
23(b)(3)
in the nature of
grounded
independent
ascertainability
inquiry
class is
en-
itself.
endeavor
proposed
actually
the class-action device
sures that a
class will
explain
concept,
this
ing
understanding
to further
function as a class. This
boundaries of ascer
the source
precise
ascertainability require-
adhere to
of the
quar
iterated in the
tainability previously
forward-looking
ment takes a
view of the
23(b)(3)
below. The ascer
tet of cases we discuss
administration of the Rule
class-
practice.
to a Rule
action device in
tainability
593,
rationales,
"identifiab[ility]”
policy
supporting
without discuss-
standard
the as-
rule);
certainability requirement.
v. El
Shook
Paso
These included
the source
963,
(10th Cir.2004)
removing
Cnty.,
administrative burdens that were
“identifiability” requirement
"incongruous
(noting
expected
for
with the efficiencies
in
action,”
23(b)(3)
declining
apply
providing
but
a class
classes
best notice
23(b)(2) class).
23(c)(2)
practicable under Rule
standard to a Rule
Rule
action,
23(b)(3)
upon
protecting
by
we relied
in Marcus
Even the citations
defendants
America, LLC,
ensuring
persons ultimately
to discuss the
that those
v. BMW North
bound
ascertainability,
judgment
clearly
policy rationales behind
the final
could be
identi-
583,
(3d Cir.2012),
opinion
failed to address
fied.
Id. at
F.3d
593. Our
in Catrera
undergirding
implicit
expanded
squarely the
for this
on some
concerns addressed
See,
Marcus,
requirement.
e.g.,
Philip
specifically relating
Xavier v.
Morris
to a defen-
Inc.,
USA,
F.Supp.2d
process right
challenge
dant’s "due
(N.D.Cal.2011) (relying
part
proof
on our deci
used to demonstrate class member-
Pierce,
Lynch,
ship.”
sion in Newton v. Merrill
Fenner
vidual named
added).
(emphasis
prelim
at 308 n. 2
This
—
Behrend,
U.S. —,
133 S.Ct.
Corp. v.
with,
inary analysis
sepa
dovetails
but is
(2013)
1426, 1432,
(quot
L.Ed.2d 515
23(c)(l)(B)’s
from,
rate
Rule
Yamasaki,
442 U.S.
Califano
the class-certification order include
700-01,
Shortly
stage,
members
the certification
Stores, Inc.,
straightforwardly
ascertainability only requires
plaintiff
Mart
we
ascertainability rule
applied the
estab
to show that class members can be identi-
added).
by
and remanded the ease
2 (emphasis
lished Marcus
Id. at 308 n.
fied.”
apply
court to
Marcus’s Accordingly,
require-
to the district
there is no records
plaintiffs
standard and to allow
to “of ment.
proposition
Carrera stands for the
administratively
party
merely provide
fer some reliable
that a
cannot
assur-
permit
feasible alternative
would
ances to the district court that it will later
court to determine” whether the class was meet Rule
requirements.
23’s
Id. at 306.
may
As to the use of
tainability requirement
on
focuses whether
Marcus,
explaining that
cautioned
fitting
“[w]e
individuals
the class
may
definition
‘against approving
mini-trials,
a method that would be identified without resort
amount to no
than ascertaining
predominance
more
whereas the
requirement fo-
”
potential
say
class members’
so.’
at
Id.
cuses on whether essential elements of the
594).
Marcus,
(quoting
687 F.3d at
proven
class’s claims can be
at trial with
rejected
plaintiffs
common,
individualized,
We
meth-
as opposed to
evi-
”
odology to screen out false
(quoting
affidavits be- dence.’
Id.
Hayes,
Id. at 311 n. 9. needs class to be “defined with reference specify
We were careful
objective
criteria” and some assurance
Carrera that “[although some evidence
that there can
“a
be
reliable and adminis
satisfy
used to
ascertainability,
tratively
such as
feasible mechanism for determin
records,
corporate
actually identify
will
whether
fall
class members
definition,”
Hayes,
—, 2541, 2551, 180 131 S.Ct. L.Ed.2d 374 explanation With this of ascertain- (2011)). mind, ability in we will reverse the District First, Court for four reasons. the District certification, after a trial And court is Court by misstating abused its discretion providing tasked with “the best notice that governing the rule ascertainability. Sec practicable” is to the class members under “ ond, engrafted the District Court an “un 23(c)(2)(B), ‘including Rule individual no derinclusive” foreign is tice to all class members who can be iden ” Third, to our ascertainability standard. through tified reasonable effort.’ Larson the District Court made an errant conclu LLC, AT T Mobility v. & sion of law in finding “overly that an (3d Cir.2012) (quoting Fed.R.Civ.P. broad” class was not ascertainable. And 23(c)(2)(B)). “stringent We enforc fourth, improperly ap the District Court requirement.” individual notice th[at] plied legal from principles Carrera to at separate ascertainability Id. 126. The the issue of whether “household members” requirement ensures class members could be ascertainable. certification, can be identified after Carr era, at n. F.3d and therefore 1. prepares a better district court to “direct to class members the best notice that is The District Court misstated law the. circumstances,” practicable governing ascertainability by conflating under the Fed. Larson, 23(c)(2)(B); governing R.Civ.P. see our also standards class definition (3d Cir.2013) post-certification (upholding 8. An additional concern re limited use argument by cy pres cautioning against lates to the some that the class- distributions but funds). purpose judgment largely cy pres Although action device fails in its if a we need not propriety cy or settlement cannot be executed pres without re address the case, funds in this sulting largely cy pres E.g., cypres in a fund. Marek do note that the risk of a fund , — —, 8, 9, reduced, removed, entirely U.S. 134 S.Ct. even if not when Lane (2013) (Roberts, C.J., affirmatively L.Ed.2d 392 statement court has concluded that there certiorari) respecting (noting administratively denial of "fun is "a reliable and feasible surrounding [cy determining damental concerns the use of mechanism for whether pres litigation”); ] remedies in class action In class members fall within the class defini- Baby Litig., Hayes, re Prods. See 725 F.3d at Antitrust tion.” aseertainability requirement. question of “whether the named Plaintiffs prefaced its discussion nothing The District Court are members class” has “Aseertainability requirements header with either the of a with the section do Wachtel, definition, 187-88, The District Defining Class.” 453 F.3d at following standard, Marcus, as the aseertainability then stated applicable legal fact, standard: 592-94. District point citation to on this Court’s Marcus prerequisite’ to the
“As
‘essential
numerosity—
related to its discussion of
analysis,
Rule 23
the Court must consid-
*12
1)
aseertainability.
not class definition or
See
precisely
er
whether there is a
de-
2)
1316055,
Byrd,
(citing
and
the named
2014 WL
at *3
Mar-
fined class
whether
cus,
(discussing
of the class.
at 596
Plaintiffs are members
numerosi-
America,
ty)).
although
gen-
Marcus v. BMW North
687
And
the District Court
(3d Cir.2012).
583,
... At
erally
Hayes,
F.3d
596
the
in that
cited to
case we
step
analysis, determining
first
“membership”
relating
addressed
not as
precisely
whether
there is a
defined aseertainability
only
regard
with
separate
important
class entails two
plaintiff
whether the named
had Article
‘first,
elements:
the class must be de-
III standing
representa-
to sue as a class
objective
fined with reference to
criteria’
Hayes,
tive. See
F.3d
355
1316055,
Byrd, 2014
at
WL
*3.
The District Court also abused its dis-
Although the District Court is cor
cretion in
determining
proposed
rect that
requirements
the class definition
classes
not
were
ascertainable because
order,
applicable
to a class-certification
they were underinclusive. The District
Wachtel,
187-88,
453 F.3d at
and that class
that although
Court reasoned
the records
definition
preliminary
valid
consider
provided by
“may
Aaron’s
reveal the com-
ation, Marcus,
591-92,
687 F.3d at
it was
puters upon which Detective Mode was
not the reason the District Court denied
activated and the
of that com-
owner/lessee
class certification. What
the District
puter,”
Byrds
provide
did “not
an ad-
requirements
Court described as the two
ministratively
way
feasible
to determine
a “precisely
was in fact
defined class”
whose information
surreptitiously
was
inquiry
aseertainability
relevant to the
1316055,
gathered.” Byrd, 2014 WL
at *5.
Hayes,
standard. See
inclusivity” standard onto the ascertaina bility Similarly, the District Court also requirement. Individuals who are injured determining a that by defendant but are excluded abused its. discretion simply proposed from a class are not bound the classes were not ascertain- permits any person bring through the 9. The ECPA a over the Internet and Aaron's wire, oral, civil action "whose or electronic disclosed, DesignerWare Byrd, Inc. and websites.” intercepted, communication is 2014 WL at *2. The relevant statuto- intentionally chap- used in violation of this ry terms were discussed because District 2520(a); § ter.” 18 U.S.C. see also id. gath- that "not all information Court observed Byrds’ complaint § operative 2511. The al- surreptitiously ered will constitute an 'inter- leges Agent that the PC Rental "allows its ception' of the ‘contents' of an ‘electronic ” (here, store) installer the rent-to-own to re- Agent. by the PC Rental communication' motely surreptitiously build and activate Id. laptop the 'Detective Mode' function on 23(a) (b) “overly satisfying require- were broad.” the Rule able because ments, that “plaintiff concluded “more must also show ... The District Court Plaintiffs is the fact that problematic for class is indeed identifiable as class.” overly definitions are Id. at Reasoning proposed alternative every computer “[n]ot broad” because class could “include millions who were not Mode upon grievance which Detective was activated deceived and thus have no under a claim under the for the Decep- will state ECPA Consumer Fraud and [Illinois Act],” interception of electronic communication.” tive Practices the Seventh Circuit was, Byrd, 2014 WL at *5. There affirmed the court’s determination district again, ascertainability no reference to our class was “not sufficient- precedent any ly or that of other court. definite to warrant class certification.” Id. 513-14. rely Bright
Defendants also
on
for the
that a
is not “ascertain
proposition
The “definiteness” standard from Osha
if it
decoupled
underlying
distinguishable
able
is
from the
na is
from our Circuit’s
allegations
rendering
of harm
it ... over- ascertainability requirement.
The stan
Bright,
broad.”
292 F.R.D. at
applied
See
197. dard
in the Seventh
is
Circuit
They
myriad
also cite
cases from other
based on the
premise
because
“[i]t
appeals
district courts and courts of
axiomatic that for a class action to be
justify
exist,”
the consideration of overbreadth in
certified
‘class’ must
Simer v.
(7th
Rios,
appli
Cir.1981),
our
standard. Such
cations of the
standard fuel
class definition must be
enough
definite
precise
attempted
ascertained,
mistake we
to cor
for the class to be
Alliance to
*14
Quest
rect in
v.
Diagnostics
Repression Rochford,
Grandalski
End
565F.2d
is,
(7th Cir.1977).
short,
Inc. —that
injecting
explicit require
In
the class
of Rule
into the ascertainability
ments
must be “indeed identifiable as a class.”
Oshana,
actually analyzing
standard without
may
those
trict ways Court with various which “household could members” be defined and how The relevant records could be used again District Court abused determining verify identity its discretion in the of household members. “house- at summarily Byrds present- District Court 311. Here the Because the Magistrate Judge’s Report adopted the multiple ed the District defini- Recommendation, argu- and no oral simply argued tions of class members and the class-certification ment held on was that a provided form similar to those could motion, why left to wonder the we are identify be used to household members. Byrds’ determined District Court a far cry This is from an unverifiable objections to Re- explanation in their affidavit, any or the absence of methodolo- inadequate. port and Recommendation was gy that can be used later to ascertain class dispute whether parties
The also members. See id. at 310-11. often
phrase “household members” is
used
it
Although
is true
class definitions.
Byrds’ proposed
method to
members” has
phrase
“household
ascertain “household members” is neither
definitions,10
in other class
been used
administratively infeasible nor a violation
categorically
the invitation
to con-
decline
process rights.
of Defendants’ due
Be
phrase
clude that the use of this
will al-
cause the location of household members is
ways
precision
have sufficient
in the ascer-
(a
already known
shared address with one
tainability
inquiry
any
context. The
by
of the 895 owners and lessees identified
given case should be whether a class is
Byrds),
unlikely
there are
to be “seri
objective
“defined with reference to
crite-
ous administrative burdens that are incon
ria” and whether there is
“reliable and
gruous with the efficiencies
in a
expected
administratively feasible mechanism for
Marcus,
class action.”
identity of class members can ever be we will remand to the District Court to case, no Rule If that were the dertaken. remaining consider the Rule 23 certifica 23(b)(3) be certified. class could ever We requirements tion in the At first instance. concluding alone in that “the size are not briefs, argument oral and in their Defen potential of a class and the need to review urged dants us to read the District Court’s identify its members are individual files to ruling predominance, indepen as one on deny to class certification.” not reasons case, dently review the record in this Co., Young v. Nationwide Mut. Ins. See Byrds’ proposed conclude that the classes Cir.2012) (col (6th 532, 539-40 693 F.3d 23(b)(3)’s satisfy fail to Rule predominance cases). lecting To hold otherwise would requirement. Defendants contend that of a Rule seriously purpose undermine the claim, particu the elements of an ECPA 23(b)(3) aggregate class to and vindicate larly that plaintiff each must show the claims in an efficient meritorious individual interception of the “contents” of an “elec 23(b)(3) manner. Fed.R.Civ.P. Rule communication,” tronic create insurmount (Rule 23(b)(3) advisory committee’s notes proving predominance. able barriers to time, effort, economies “achieve[s] (d). 2511(1)(a), (c), § For 18 U.S.C. See expense, promote[s] uniformity of de be, may though midable these barriers situated, persons similarly to cision as to in are not for us address the first sacrificing procedural without fairness or instance. bringing about other undesirable re Beginning Telephone General Co. of sults.”). Falcon, v. Southwest 457 U.S. 160- As to Defendants’ contention that their (1982), S.Ct. L.Ed.2d violated, rights process due would be Carr- through its recent decision Comcast process right era counsels that this due Behrend, Corp. v. 133 S.Ct. at ability “challenge relates to the the Supreme repeatedly emphasized has proof used demonstrate class member- for a district court to conduct a need Here, Byrds at ship.” rigorous analysis sup- of the evidence solely not on unverified affida- relying are “By under Rule 23. port certification ascertainability. id. vits to establish See nature, interlocutory appeals their dis- (reason- 307-08; Hayes, at ruptive, time-consuming, expensive”; ing that a class is not ascertainable where thus, “district it makes sense to allow the only proof membership “the of class [was] to fine-tune its class opportunity court members”). say-so putative opening ... than certification order rather Any form to indicate a used household interlocutory widely appel- the door too member’s status in the class must Mgmt. Holdings, late review.”' Inc. Waste be reconciled with the 895 known class (1st Mowbray, public members or some additional rec- Cir.2000) (exercising discretionary authori- Defendants, ords. are not foreclosed from 23(f) ty give under Rule in order to challenging Byrds pro- evidence which district court “a better sense as to *17 pose to use. aspects of the class certification decision sum, reasonably subsequent the District Court erred in its .to might open be reconsideration”). application concluding of and in This is consistent Carrera flexible, narrow, yet set of consider- bers here are In clearly ascertainable. 23(f) granting deed, we address Rule out, ations Judge points as Smith “Aaron’s petition. Lynch, Newton Merrill See computers upon own records reveal the Smith, Inc., Pierce, Fenner & activated, which Detective Mode was (3d Cir.2001); see also In re 164-65 identity well full as the of the customer Players League Nat’l Football Concussion purchased who leased or each of those (3d Injury Litig., 775 F.3d 578 n. 9 169) computers.” (Maj. Op. at (quoting Cir.2014). appellate We best exercise re- Aaron’s, Inc., 11-cv-101, Byrd v. No. view when the dust has settled and a (W.D.Pa. WL *5 Mar. fully district court has considered a motion 2014)). otherwise, It argue is hard to certification. for class-action However, I suggest do not. I do that the more, reading a close of Defen-
What lengths majority to which goes its briefs response dants’ demonstrates how attempt clarify to what our they ascertainability continue to conflate means, explain to how requirements with the other relevant implicit requirement this fits in the class again emphasize Rule 23. We write calculus, certification indicate that the time certification, explicit that at class Rule 23’s away come to newly has do with this creat requirements go beyond separate and are aspect ed of Rule 23 in the Third Circuit. ascertainability inquiry. from the Precise heightened ascertainability require Our analysis of requirements relevant Rule 23 Additionally, ment defies clarification. it always necessary. will be We therefore availability narrows the class actions go beyond scope decline to of the way drafters Rule 23 could opinion. District Court’s not have intended. Historically, IV. inquiry related whether the court will be able to relying The District Court erred both in determine who fits within the class defini on an improp- errant conclusion of law and tion for purposes of award or settlement erly applying law to fact. Accordingly, we preclusion distribution and the of the reliti will reverse and remand for further con- gation of It claims.1 is a test that scruti light opinion. sideration in of this definition, properly nizes class so.2 RENDELL, Judge, concurring: Circuit But this is now the first element of agree that, I our majority two-part ascertainability. with the under test for LLC, jurisprudence, Am., our current the class mem- Marcus v. BMW of N. tible to may ed.1999) (noting McLaughlin, McLaughlin to be able to determine with et Moore’s Federal If the class notice whether and thus if its members can be ascertained ence to § § See 21.222 4:2 al., object not Manual for (11th class definition is precise recognize may (2004) ("An objective ed.2014) ("[C]lass opt be definition”). out.”); Complex Litigation deprived they criteria.”); identifiable class exists Practice 23.21 class must be 5 James Wm. Moore amorphous, persons are in the class.... on Class Actions certainty are in the members need ¶ opportunity Joseph "suscep (Fourth) from [1] refer class, (3d M. 2. Courts have found classes to be ascertain ble of ble of bia, purchasers time members because class definition included dates of their incarceration included in the (holding specific. Compare tor able when the class definition is Am., replacement 214 F.R.D. period), definition), determining identifying prospective that 258 F.R.D. of a certain vehicle who prospective plaintiffs and Pigford v. of a certain Bynum Parkinson v. themselves based on the whether v. District Colum (D.D.C.2003) (hold members part they Glickman, (C.D.Cal.2008) Hyundai a in certain were class sufficiently are paid capa capa Mo
173 v. value consumer class (3d actions, Hayes see also Cir.2012); prospective 583, 594 Stores, Inc., 349, unlikely class members are to 355 have docu Wal-Mart Cir.2013) (“The (3d mentary proof purchase, very must be defined because class criteria.”). objective people keep receipts drug few from stores reference to with grocery stores. This should not be element, a second adopted In 2012 we certification of a class.5 As deny reason to to make namely, requiring district courts Judge dissent from Ambro’s the denial reliable, “a certain that there is adminis Carr- petition for en banc in rehearing determining tratively feasible” method “[wjhere noted, era defendant’s lack of class, thereby imposing into the who fits ... it records make more difficult to ascer Marcus, heightened evidentiary burden. objec tain members of an otherwise precluded F.3d at 594. We have class 687 class, tively verifiable the con low-value objective can certification unless there be up make sumers who class should not some proof beyond mere affidavits —that — Bayer v. suffer.” Carrera made to be Id.; ac actually one is a class member. 12-2621, 3887938, Corp., No. WL 300, Bayer Corp., v. cord Carrera (3d 2014) 2, (Ambro, May *3 Cir. J. dis (3d Cir.2013). concept This has 308-12 senting). years.3 I submit gained traction recent “paper way prove record” or trail” Records are not the to that this “business In most low- that someone is a class. It is the trial is ill-advised.4 341, (D.D.C.1998) (holding violating plaintiffs for antitrust laws because F.R.D. screening identifying propose did not model for capable feasible class members are LQ claims); Brey Corp. Mgmt. fraudulent ap- they had themselves based on whether LLC, 1-cv-718, 943445, WL No. 1 at *1 plied participation in a USDA federal farm for 30, 2014) (D.Md. (denying Jan. certification of dates), program during specified with In suing violating defendant for antitrust Litig., Copper re Antitrust 196 F.R.D. ascertaining belongs laws because who in the 350-51, (W.D.Wis.2000) (refusing require class would individualized fact-find certify copper "[a]ll class of or metals dealers ing). purchased physical copper” during ... specified period prices expressly time "at re- majority 4. While the cites a footnote in Carr copper prices” lated lo LME or Comex future standing proposition era as for the that we the class definition fell "far short of because requirement,” have no "records the class in communicating purchasers copper what Carrera failed the test because they need to know to decide whether there were no records from which the class class,” in or outside the in that the certainty. members could be ascertained explain "copper definition failed to the terms Carrera, (Maj. (citing Op. at 164 727 F.3d at dealers,” "physical copper,” or metals 2)). n. to”). “expressly related Co., LLC, See, McCrary e.g., v. Elations No. certifica 3. Several courts have denied class 13-cv-242, (C.D.Cal. 2014 WL at *8 ascertainability grounds to our tion on similar 13, 2014) ("It pursuant appears that Jan. See, e.g., Ran current test. any Carerra case where the consumer [sic] in Co., dolph Smucker 303 F.R.D. v. J.M. pur- have a verifiable record of its does not (S.D.Fla.2014) (denying certification of chase, receipt, such as a manufactur- suing mislabeling product defendant keep buyers, seller does not a record of er or in violation of Florida’s de as "All Natural” prohibits [sic] Carerra certification ceptive advertising potential LLC, law because class.”); Beverages Ries v. USA Ariz. unlikely that, (N.D.Cal.2012) were to remember if class members (warning F.R.D. label); certification, they bought product with such a receipts "there if lack of dooms (Metaxalone) Litig., thing re Skelaxin Antitrust no as a consumer class would be such (E.D.Tenn.2014) (denying deceptive concerning false or F.R.D. action” in cases items). labeling suing drug of small-value certification of class manufacturer *19 174 what proof process, to determine as this case makes manifest.
judge’s province
The
irony of this result is that it thwarts “[t]he
at the claims submission
may
required
be
policy
very
at the
core of the class action
stage.
up
It is
and claims administration
mechanism,” i.e., “to
prob-
overcome the
overseeing
to
the class action to
judge
lem that small recoveries do
provide
not
accept
proof
when
decide what she will
any
the incentive for
bring
individual to
the claim form. Could not the
approving
prosecuting
solo action
or
rights.”
his
her
that, in addition to an individ-
judge decide
Prods.,
Windsor,
Amchem
Inc. v.
521 U.S.
“say
that he is a member of the
ual’s
so”
591, 617,
2231,
117 S.Ct.
The pro- concerns about defendants’ due for is between a few compensating courts rights hand, injured, cess are also because on the overblown the one versus damages liability compensating corpo- under Rule 23 is deter- none allowing while unchecked, mined in the aggregate: go courts determine rate malfeasance to on such, monetary the extent of a liabil- defendant’s other. As where there small- Therefore, claims, ity the entire whether class. value class actions offer the membership an individual can in achieving establish means for individual redress. Eisen, rights Supreme that class does not affect As the Court stated in low, pay defendants not to in their when damages excess individual are so “[ejconomic liability. that allowing reality Carrera’s concern that petition- dictates undeserving damages proceed individuals to claim er’s suit class action or not at will dilute deserving class members’ recov- all.” 417 U.S. at S.Ct. 2140. noted, small, 10. As one court cumu- has individual consumer is but the injury group lative is [a]dopting approach consumers as a the Carrera would have substantial, significant negative ramifications for the class action mechanism ability inju- to obtain redress for consumer provides important one of its social most people receipts ries. New retain for low- benefits. priced goods, possibility since there is little Lilly, (citing WL at *4 Eisen v. they verify will need to later made Jacquelin, 417 Carlisle & U.S. purchase. precisely Yet it is in circum- (1974)). 40 L.Ed.2d S.Ct. these, injury any stances like where the defeating bility requirement way what is at that contra- that we are concern and, action was purpose my of what the “core” venes Rule 23 As accomplish very view, real. designed to is public. disserves the certifying a class Judge Rakoff noted objections regarding
over receipts or documentation:
based on device, very at its class action
[T]he
core, this designed for cases like large number of consumers
where consum-
have been defrauded but no one sufficiently injury er an has suffered LLC; GROUP, FRANK C. POLLARA individual justify bringing as to large Pollara, Individually Frank C. background, this Against lawsuit. difficulties, while formi- dable, a device should not be made into VIEW HOLD- OCEAN INVESTMENT action. defeating ING, LLC, Crossing Southgate f/k/a Inc., Food F.R.D. Kangadis Ebin v. Investments, LLC; Group, OMEI (S.D.N.Y.2014). rigorous While LLC; Lucy Cheng; Dubois, Ap- Mait *22 proof-of-purchase require- on a insistence pellants. ment, heightened which our ascertainabili- No. 13-4584. ty imposed, keeps has dam- jurisprudence uninjured, equally ages from the it does Appeals, States Court of United keeping damages from the job effective Third Circuit. well, truly injured as and “it does so on Argued Dec. 2014. efficiency.”11 brutal Therefore, judg- while I concur in the April 2015. Filed: ment, that it retreat suggest I is time to ascertainability heightened
from re- our
quirement following in favor of the histori- Rule meaning
cal under
23. I therefore the District would reverse (1) hereafter, ruling, and hold that
Court’s ascertainability analysis will focus on
our (2) only, the District definition analysis second regarding
Court’s un- of our test was
prong
necessary. thus would instruct We proceed
District Court to determine can under
whether the class be certified mandates
the traditional of Rule 23. Until as a or it is
we revisit this issue full Court Supreme or the
addressed Rules, on
Advisory Committee Civil
will to administer the ascertaina- continue Actions, Gilíes, DePaul L.Rev. Myriam Class Contem- sumer Class Dismissed: (2010). porary Hostility to Judicial Small-Claims Con-