Third Circuit refuses to extend ascertainability further; Judge Rendell would scale it back

In last week's decision Byrd v. Aaron's, Inc., a unanimous panel of the Third Circuit reversed a district court's decision to deny class certification on ascertainability grounds. (You'll recall that ascertainability is the court-developed notion that a class must show an administratively feasible means of identifying class members; the test is particularly strict and plaintiff-unfriendly in the Third Circuit, where reliance on affidavits of the class members themselves has been held to be insufficient. See our previous commentary here and here discussing the Third Circuit's leading case Carerra v. Bayer.)

The most recent case, Byrd, concerned allegations of some pretty disturbing conduct: a computer-leasing company installed on its computers spyware that surreptitiously observed its customers' screens, keystrokes, and even the customers themselves through the computer's camera. The district court held that the class was unascertainable for a host of reasons, including that the class definition was "underinclusive" and its inclusion of the "household members" of computer buyers or lessees was too vague. The Third Circuit wisely rejected these arguments and declined to expand ascertainability to preclude even more classes than it already does.

Judge Rendell would have gone further. In a concurrence, she suggested that ascertainability has become an unreasonable barrier to class certification and thwarts the central purpose of the class action device:

The policy concerns animating our ascertainability doctrine boil down to ensuring that there is a surefire way to get damages into the hands of only those individuals who we can be 100% certain have suffered injury, and out of the hands of those who may not have. However, by disabling plaintiffs from bringing small-value claims as a class, we have ensured that other policy goals of class actions—compensation of at least some of the injured and deterrence of wrongdoing, for example—have been lost. In small-claims class actions like Carrera, the real choice for courts is between compensating a few of the injured, on the one hand, versus compensating none while allowing corporate malfeasance to go unchecked, on the other. As such, where there are small-value claims, class actions offer the only means for achieving individual redress. As the Supreme Court stated in Eisen, when individual damages are so low, “[e]conomic reality dictates that petitioner's suit proceed as a class action or not at all.” The concern that we are defeating what is at the “core” of what the class action was designed to accomplish is very real. (citation omitted)

You can read the whole decision here.


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