Computer Spyware Case Suitable for Class Action

     PHILADELPHIA (CN) – A couple’s spyware claims against computer-rental company Aaron’s are enough to warrant class certification, the 3rd Circuit ruled.
     The couple in question, Brian and Crystal Byrd of Wyoming, say that a franchisee of Aaron’s used spyware software installed on its computers to log Brian’s keystrokes and web traffic on a product he rented. The spyware even allegedly took pictures of Brian using the computer’s webcam.
     Evidence showed that the franchisee, Aspen Way, accessed the Byrd’s computer 347 times over 11 days.
     The Byrds seek to represent a class of customers “who leased and/or purchased one or more computers from Aaron’s, Inc., and their household members, on whose computers DesignerWare’s Detective Mode [the spyware] was installed and activated without such person’s consent on or after January 1, 2007.”
     Alternatively, they proposed to include customers “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 case faced an appellate hearing of the 3rd Circuit earlier this year after a federal judge handling the case in Pittsburgh shot down the motion for class certification, based on a magistrate’s finding that the class was defined too broadly and that its members were not “ascertainable,” or objectively identifiable.
     A three-judge panel reversed on April 16, finding that the lower court misapplied precedent.
     “First, the District Court abused its discretion by misstating the rule governing ascertainability,” Judge D. Brooks Smith wrote for the panel. “Second, the District Court engrafted an ‘underinclusive’ requirement that is foreign to our ascertainability standard. Third, the District Court made an errant conclusion of law in finding that an ‘overly broad’ class was not ascertainable. And fourth, the District Court improperly applied the legal principles from Carrera to the issue of whether ‘household members’ could be ascertainable.”
     Published in 2013, Carrera v. Bayer Corp. expanded on some of the concerns relating to a defendant’s “due process right to challenge the proof used to demonstrate class membership.”
     Smith emphasized that objective records exist for the plaintiffs to “readily identify” members of owner or lessee classes.
     The District Court itself explained that “Aaron’s own records reveal the computers upon which Detective Mode was activated, as well as the full identity of the customer who leased or purchased each of those computers,” according to the 45-page lead opinion.

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