Court May Bestow Class Status in Spyware Suit


     PHILADELPHIA (CN) – A couple suing Aaron’s Inc. over spyware hidden on its computer rentals urged the 3rd Circuit on Friday to let them represent a class.
     Crystal and Brian Bird filed suit over a computer they leased in 2010 at a Wyoming-based franchise of Aaron’s.
     On 11 different days between Nov. 16 and Dec. 20 that year, the spyware program installed on the computer that the Birds had rented accessed their web activity and keystrokes 347 times, even taking pictures of Brian while played a game of Internet poker, the complaint alleges.
     While the franchisee, Aspen Way Enterprises, allegedly collected the data in this case, the Byrds say Aaron’s franchisees across the country have been secretly installing spyware on their rent-to-own computers since 2009.
     The couple sought to represent a class all customers and their “household members” who had used computers with the spyware.
     A federal judge handling the case in Pittsburgh shot down the motion for class certification last year, however, based on a magistrate’s finding that the class was defined too broadly and that its members were not “ascertainable,” or objectively identifiable.
     Urging the federal appeals court to reverse Friday, the Byrds’ attorney, Frederick Longer, said that figuring out who the alleged spying affected is not so hard.
     “There’s a hard drive in the District Court clerk’s office that has every single captured spying session,” Longer said.
     “Pictures of people?” asked Judge Marjorie Rendell.
     “Yes.
     “In every instance?”
     “In every instance, there is a packet of information from the computer the person is operating, shipped to wherever Aaron’s corporate server is.”
     Christie Brown, the attorney for Aaron’s Inc., meanwhile lobbied the three-judge panel to affirm.
     “This class is drafted so broadly that it unquestionably encompasses people who don’t have a claim,” Brown said.
     Judge D. Brooks Smith replied that broadness was not an obstacle at the trial stage, citing 3rd Circuit precedent that says “you don’t need to know how many” members of a class there are to define the class.
     Brown emphasized the lower court’s finding that “household members” included a group of people for whom proving harm would be impossible in most cases.
     Longer, the plaintiff’s attorney, said his experience dictates a different outcome.
     “I’ve been doing for this for a long time,” he said, “and I thought this was the perfect class action, the paradigm class action.”
     Aaron’s entered into a settlement with the Federal Trade Commission in March 2014 and agreed to cease all of its spying.

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