Every class action lawsuit always involves the question of how to identify, or “ascertain”, who is a member of the class.  Consumers keep expensive products or at least keep records related to their purchase.  Inexpensive or transitory products are generally gone by the time litigation commences and no records of the purchase exist.  In such cases, courts often rely on a class members’ word.  The United States Court of Appeals for the Third Circuit’s Carrera v. Bayer Corp.[1] decision has been read for the proposition that class members should not be allowed to identify themselves solely on the basis of their say-so because such a process would deny the defendant the ability to challenge the validity of such a claim.  Recently, the Third Circuit clarified its thinking on “ascertainability” and the role of objective criteria in class determinations in Byrd v. Aaron’s Inc.^[2]

The Byrds leased a computer from an Aaron’s store.  They discovered the Aaron’s had taken screenshots and pictures using spyware installed on the computer to activate the computer’s camera.  The Byrds sued Aaron’s on behalf of a class defined as computer owners and lessees and members of their households.

On the issue of class certification, the District Court found that the Byrds had not met their burden in showing that the class was ascertainable.  The court found that the proposed class was both under and over-inclusive.  More importantly, the court rejected the Byrds’ position that the identity of “household members” could be gleaned from public records.

On appeal, the Third Circuit Court found that the District Court had abused its discretion in determining that the term “household members” was vague and not ascertainable.  The Court explained that the ascertainability inquiry is very narrow.  The plaintiff is only required to 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.  The Court clarified that Carrera only indicated that proposed reliance on affidavits alone, without any objective records to identify class members or a method to weed out unreliable affidavits, could not satisfy the ascertainability requirement.

The Court found that “owners” and “lessees” of the computers could be ascertained from Aaron’s records, which identify which computers had the spyware activated as well as the identity of the owner or lessee.  The Court further found that, on the facts of this case, the term “household members” was easily defined and not vague.  Finally, the court found that the Byrds’ had offered an objective method of determining household members from public records.  Thus, the court found that the class was ascertainable.

The ascertainability requirements set out in Carrera have been relied upon by defendants in attempting to deny class certification.  The Byrd opinion clarifies, but does not diminish the effect of Carrera.  Plaintiffs will still have great difficulty defining an ascertainable class in cases of low cost consumer products.  The only question is whether plaintiffs can convince other circuits to follow the Third Circuit’s approach in determining ascertainability.

As privacy and data breach suits continue to proliferate, the scope of the ascertainability requirement willl continue to be presented to the courts.

[1] Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013).

[2]Byrd v. Aaron’s Inc., No. 14-3050, 2015 WL 1727613 (3d Cir. Apr. 16, 2015).