PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3050

_____________

CRYSTAL BYRD; BRIAN BYRD, Individually, and on

Behalf of all Similarly Situated Persons,

Appellants

v.

AARON’S INC; ASPEN WAY ENTERPRISES INC,

d/b/a Aaron’s Sales and Leasing, A Franchisee of 

Aaron’s Inc.;

DESIGNERWARE LLC; AH & H LEASING LLC,

d/b/a Aaron’s Sales and Leasing, a Franchisee of 

Aaron’s, Inc.;

AMG ENTERPRISES GROUP LLC, d/b/a Aaron’s 

Sales and Leasing,

a Franchisee of Aaron’s, Inc.; ARONA CORPORATION 

d/b/a Aaron’s Sales

and Leasing, a Franchisee of Aaron’s, Inc.; BEAR 

RENTAL PURCHASE LTD,

d/b/a Aaron’s Sales and Leasing, a Franchisee of 

Aaron’s, Inc.;

BOXER ENTERPRISE INC, d/b/a Aaron’s Sales and 
2

Leasing,

a Franchisee of Aaron’s, Inc.; CIRCLE CITY 

RENTALS, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.; CMH LEASING 

PARTNERS, LLC,

d/b/a Aaron’s Sales and Leasing, a Franchisee of 

Aaron’s, Inc.;

CRAM LEASING, INC., d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

DC SALES AND LEASE INC, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

DIRIGO LEASING INC, d/b/a Aaron’s Sales and 

Leasing, a Franchisee of Aaron’s, Inc.;

DPR ALASKA LLC, d/b/a Aaron’s Sales and Leasing, a 

Franchisee of Aaron’s, Inc.;

DPR COLORADO LLC, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

DW3 LLC, d/b/a Aaron’s Sales and Leasing, a 

Franchisee of Aaron’s, Inc.;

DWC VENTURES LLC, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

FAIRWAY LEASING LLC, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

FIVE STAR FINANCIALS LLC, d/b/a Aaron’s Sales 

and Leasing, a Franchisee of Aaron’s, Inc.;

FT GOT THREE LLC, d/b/a Aaron’s Sales and Leasing, 

a Franchisee of Aaron’s, Inc.;

GNS & ASSOCIATES INC, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;
3

GREAT AMERICAN RENT TO OWN INC, d/b/a 

Aaron’s Sales and Leasing, a Franchisee of Aaron’s, Inc.;

GREEN RIVER CORP, d/b/a Aaron’s Sales and Leasing, 

a Franchisee of Aaron’s, Inc.;

HANSON HOLDING CO, d/b/a Aaron’s Sales and 

Leasing, a Franchisee of Aaron’s, Inc.;

HONEY HARBOR INVESTMENTS LLC, d/b/a 

Aaron’s Sales and Leasing, a Franchisee of Aaron’s, Inc.;

HOWARD RENTS LLC, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

HPH INVESTMENTS LLC, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

J&L BEACH ENTERPRISES INC, d/b/a Aaron’s Sales 

and Leasing, a Franchisee of Aaron’s, Inc.;

J.R. RENTS, d/b/a Aaron’s Sales and Leasing, a 

Franchisee of Aaron’s, Inc.;

J.M. DARDEN AND CO, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

JENFOUR LLC, d/b/a Aaron’s Sales and Leasing, a 

Franchisee of Aaron’s, Inc.;

JENKINS RENTAL LLC, d/b/a Aaron’s Sales and

Leasing, a Franchisee of Aaron’s, Inc.;

KFJ ENTERPRISES LLC, d/b/a Aaron’s Sales and 

Leasing, a Franchisee of Aaron’s, Inc.;

LIFESTYLE FURNITURE LEASING, d/b/a Aaron’s 

Sales and Leasing, a Franchisee of Aaron’s, Inc.;

LTL INVESTMENTS LLC, d/b/a Aaron’s Sales and 

Leasing, a Franchisee of Aaron’s, Inc.;

MADISON CAPITAL INVESTMENTS INC, d/b/a 
4

Aaron’s Sales and Leasing, a Franchisee of Aaron’s, Inc.;

MKW INVESTMENTS INC, d/b/a Aaron’s Sales and 

Leasing, a Franchisee of Aaron’s, Inc.;

NO THREE PUTTS ENTERPRISES LLC, d/b/a Aaron’s 

Sales and Leasing, a Franchisee of Aaron’s, Inc.;

NW FREEDOM CORP, d/b/a Aaron’s Sales and 

Leasing, a Franchisee of Aaron’s, Inc.;

POMONA LANE PARTNERS LLC, d/b/a Aaron’s Sales 

and Leasing, a Franchisee of Aaron’s, Inc.;

R & DOUBLE K LLC, d/b/a Aaron’s Sales and Leasing, 

a Franchisee of Aaron’s, Inc.;

REBCO INVESTMENTS LLC, d/b/a Aaron’s Sales and 

Leasing, a Franchisee of Aaron’s, Inc.;

REX NEAL INC, d/b/a Aaron’s Sales and Leasing, a 

Franchisee of Aaron’s, Inc.;

ROYAL RENTS INC, d/b/a Aaron’s Sales and Leasing, 

a Franchisee of Aaron’s, Inc.;

ROYAL ROCKET RETAIL LLC, d/b/a Aaron’s Sales 

and Leasing, a Franchisee of Aaron’s, Inc.;

SHINING STAR, d/b/a Aaron’s Sales and Leasing, a 

Franchisee of Aaron’s, Inc.;

SHOWCASE HOME FURNISHINGS INC, d/b/a 

Aaron’s Sales and Leasing, a Franchisee of Aaron’s, Inc.;

SULTAN FINANCIAL CORP, d/b/a Aaron’s Sales and 

Leasing, a Franchisee of Aaron’s, Inc.;

TANGLEWOOD MANAGEMENT LLC, d/b/a Aaron’s 

Sales and Leasing, a Franchisee of Aaron’s, Inc.;

TDS FOODS INC, d/b/a Aaron’s Sales and Leasing, a

Franchisee of Aaron’s, Inc.;
5

TUR INC, d/b/a Aaron’s Sales and Leasing, a Franchisee 

of Aaron’s, Inc.;

WATERSHED DEVELOPMENT CORP, d/b/a Aaron’s 

Sales and Leasing, a Franchisee of Aaron’s, Inc.;

WGC LLC, d/b/a Aaron’s Sales and Leasing, a 

Franchisee of Aaron’s, Inc.;

JOHN DOES (1-45) AARON’S FRANCHISEES

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 1-11-cv-00101

District Judge: The Honorable Cathy Bissoon

Argued on January 23, 2015

Before: RENDELL, SMITH, and KRAUSE,

Circuit Judges

(Filed: April 16, 2015)

Leonard A. Davis, Esq.

Andrea S. Hirsch, Esq.

Herman Gerel

230 Peachtree Street

Suite 2260

Atlanta, GA 30303
6

R. Daniel Fleck, Esq.

Mel C. Orchard, Esq.

G. Bryan Ulmer, III, Esq.

The Spence Law Firm

15 South Jackson Street

P.O. Box 548

Jackson, WY 83001

Matthew C. Gaughan, Esq.

Arnold Levin, Esq.

Frederick S. Longer, Esq. [ARGUED]

Levin, Fishbein, Sedran & Berman

510 Walnut Street

Suite 500 

Philadelphia, PA 19106

Michelle A. Parfitt, Esq.

Christopher V. Tisi, Esq.

Ashcraft & Gerel

2000 L Street, N.W.

Washington, DC 20036

John H. Robinson, Esq.

Jamieson & Robinson

215 South Grant Street

Casper, WY 82601

Counsel for Appellants
7

Kristine M. Brown, Esq. [ARGUED]

William H. Jordan, Esq.

Thomas C. Pryor, Esq.

Jason D. Rosenberg, Esq.

Alston & Bird

1201 West Peachtree Street

One Atlantic Center

Atlanta, GA 30309

Neal R. Devlin, Esq.

Richard A. Lanzillo, Esq.

Knox, McLaughlin, Gornall & Sennett

120 West Tenth Street

Erie, PA 16501

Steven E. Bizar, Esq.

Landon Y. Jones, Esq.

Buchanan Ingersoll & Rooney

50 South 16th Street

Two Liberty Place, Suite 3200

Philadelphia, PA 19102

Mark R. Lane, Esq.

Donald J. McCormick, Esq.

Dell, Moser, Lane & Loughney

112 Washington Place

Two Chatham Center, Suite 1500

Pittsburgh, PA 15219
8

Timothy N. Lillwitz, Esq.

Todd A. Strother, Esq.

Bradshaw Fowler Proctor & Fairgrave

801 Grand Avenue

Suite 3700

Des Moines, IA 50309

Michael E. Begley, Esq.

Michele L. Braukmann, Esq.

Ross W. McLinden, Esq.

Moulton Bellingham

27 North 27th Street

Crown Plaza, Suite 1900

Billings, MT 59103

James A. McGovern, Esq.

Anthony J. Williott, Esq. [ARGUED]

Marshall, Dennehey, Warner, Coleman

 & Goggin

600 Grant Street

2900 U.S. Steel Tower

Pittsburgh, PA 15219

Brian M. Mancos, Esq.

Burns White

106 Isabella Street

Four Northshore Center

Pittsburgh, PA 15212

Counsel for Appellees
9

________________

OPINION

________________

SMITH, Circuit Judge.

Plaintiffs Crystal and Brian Byrd bring this 

interlocutory appeal under Rule 23(f) of the Federal 

Rules of Civil Procedure. The Byrds brought a putative 

class action against Aaron’s, Inc. and its franchisee store 

Aspen Way Enterprises, Inc. (collectively “Defendants”), 

who they allege violated the Electronic Communications 

Privacy Act of 1986 (“ECPA”), 18 U.S.C. § 2511. 

Concluding that the Byrds’ proposed classes were not 

ascertainable, the District Court denied their motion for 

class certification. Because the District Court erred in 

applying our ascertainability precedent, we will reverse 

and remand.

I.

Aaron’s operates company-owned stores and also 

oversees independently-owned franchise stores that sell 

and lease residential and office furniture, consumer 

electronics, home appliances, and accessories. On July 

30, 2010, Crystal Byrd entered into a lease agreement to 

rent a laptop computer from Aspen Way, an Aaron’s 

franchisee. Although Ms. Byrd asserts that she made full 

payments according to that agreement, on December 22, 
10

2010, an agent of Aspen Way came to the Byrds’ home 

to repossess the laptop on the grounds that the lease 

payments had not been made. The agent allegedly 

presented a screenshot of a poker website Mr. Byrd had 

visited as well as a picture taken of him by the laptop’s 

camera as he played. The Byrds were troubled and 

surprised by what they considered a significant and 

unauthorized invasion of their privacy.

Aspen Way obtained the picture and screenshot 

through spyware—a type of computer software—

designed by DesignerWare, LLC and named “PC Rental 

Agent.” This spyware had an optional function called 

“Detective Mode,” which could collect screenshots, 

keystrokes, and webcam images from the computer and 

its users. Between November 16, 2010 and 

December 20, 2010, the Byrds alleged that this spyware

secretly accessed their laptop 347 times on eleven 

different days.1 In total, “the computers of 895 

 

1 The spyware allegedly captured a wide array of 

personal information: “credit and debit card numbers, 

expiration dates, security codes, pin numbers, passwords, 

social security numbers, birth dates, identity of children 

and the children’s personal school records, tax returns, 

personal health information, employment records, bank 

account records, email addresses, login credentials, 

answers to security questions and private 

communications with health care providers, therapists, 
11

customers across the country . . . [had] surveillance 

conducted through the Detective Mode function of PC 

Rental Agent.” Byrd v. Aaron’s, Inc., No. CIV.A. 11-

101E, 2014 WL 1316055, at *2 (W.D. Pa. Mar. 31, 

2014).

The Byrds’ operative class-action complaint

asserts claims against Aaron’s, Aspen Way, more than 50 

other independent Aaron’s franchisees, and 

DesignerWare, LLC.2 The complaint alleges violations 

 

attorneys, and other confidants.” The record also reveals 

what appear to be screenshots of adult-oriented and 

active webcam transmissions and conversations of an 

intimate nature.

The spyware, as described in the Byrds’ complaint, 

was Orwellian-like in that it guaranteed that “[t]here was 

of course no way of knowing whether you were being 

watched at any given moment,” George Orwell, 1984, at 

3 (Signet Classics 1950), because Aspen Way’s corporate 

intranet (and Aaron’s corporate server by proxy) 

apparently activated the PC Rental Agent’s Detective 

Mode “whenever they wanted to.” Id. 

2 On March 20, 2012, the District Court issued an 

order noting that DesignerWare filed for bankruptcy in 

the U.S. Bankruptcy Court for the Western District of 

Pennsylvania. Accordingly, the District Court ordered 

that no action be taken against DesignerWare and that the 

case be administratively closed as to that defendant. 
12

of and conspiracy to violate the ECPA, common law 

invasion of privacy, and aiding and abetting. On 

Defendants’ motion to dismiss, the District Court 

dismissed the claims against all Aaron’s franchisees other 

than Aspen Way for lack of standing and also all claims 

for common law invasion of privacy, conspiracy, and 

aiding and abetting. Thus, the Byrds’ remaining claims, 

and those of the class, are against Aaron’s and Aspen 

Way for direct liability under the ECPA.

In the meantime, the Byrds moved to certify the 

class under Federal Rules of Civil Procedure 23(b)(2) 

and 23(b)(3), in which the Byrds provided two proposed 

classes and one alternative proposed class.3 In briefing 

 

3

In the motion for class certification, the Byrds 

proposed the following classes:

Class I (against Aaron’s Inc. for direct liability 

under ECPA) –

All persons residing in the United 

States, who have purchased, leased, rented 

or rented to own, Aaron’s computers and 

individuals who used said computers whose 

personal information, electronic 

communications and/or images were 

intercepted, used, disclosed, accessed, 

monitored and/or transmitted via PC Rental 

Agent or other devices or software without 

the customers [sic] authorization. 
13

 

Class II (against Aaron’s Inc., Aspen Way, and all 

other Franchisee Defendants for direct liability under 

ECPA, invasion of privacy, conspiracy, and aiding and 

abetting) –

All customers of the Aaron’s 

Defendants who reside in the United States, 

who have purchased, leased, rented or rented 

to own, Aaron’s computers and individuals 

who used said computers whose personal 

information, electronic communications 

and/or images were intercepted, used, 

disclosed, accessed, monitored and/or 

transmitted by the Aaron’s Defendants via 

PC Rental Agent or other devices or 

software without the customers [sic] 

authorization.

Byrd, 2014 WL 1316055, at *4. The Byrds also set forth 

an alternative class definition for Class II as: 

Class II (against Aaron’s Inc., and Aspen Way for 

direct liability under the ECPA, invasion of privacy, 

conspiracy, and aiding and abetting (under Wyoming 

law)) –

All persons residing in the United 

States, who have purchased, leased, rented 

or rented to own, Aaron’s computers from 

Aspen Way Enterprises, Inc., d/b/a Aarons 

Sales and Leasing, and individual[s] who 
14

the motion, the Byrds proposed the following alternative

class definitions:

Class I – All persons who leased and/or 

purchased one or more computers from 

Aaron’s, Inc., 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.

Class II – All persons who leased and/or 

 

used said computers whose personal 

information, electronic communications 

and/or images were intercepted, used, 

disclosed, accessed, monitored and/or 

transmitted by Aspen Way and/or Aaron’s 

via PC Rental Agent or other devices or 

software without the customers [sic] 

authorization.

Id. It is worth noting that the Byrds’ revised 

proposed class definitions did not expressly require 

an electronic communication to be “intercepted,” 

although that is a necessary element in 

successfully proving their ECPA claims. See 18 

U.S.C. §§ 2511, 2520(a).
15

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.

Byrd, 2014 WL 1316055, at *5.

The Magistrate Judge recommended denying the 

Byrds’ motion for certification because the proposed 

classes were not ascertainable. Regarding owner and 

lessee class members, the Magistrate Judge concluded 

that the proposed classes were underinclusive because 

they did “not encompass all those individuals whose 

information [was] surreptitiously gathered by Aaron’s 

franchisees.” Id. The Magistrate Judge also determined 

that the classes were “overly broad” because not “every 

computer upon which Detective Mode was activated will 

state a claim under the ECPA for the interception of an 

electronic communication.” Id. Regarding “household 

members,” the Magistrate Judge took issue with the fact 

that the Byrds did not define the phrase. Id. Further, 

although the Byrds stated that the identity of household 

members could be gleaned from “public records,” the 

Magistrate Judge, citing to Carrera v. Bayer Corp., 727 

F.3d 300, 306, 308 (3d Cir. 2013), reasoned that “[i]t 

[was] not enough to propose a method by which this 

information may be obtained.” Byrd, 2014 WL 1316055, 

at *5. The District Court adopted the Report and 
16

Recommendation as the opinion of the court over the 

Byrds’ objections. The Byrds timely appealed.

II.

The District Court had federal question jurisdiction 

under 28 U.S.C. § 1331. We have jurisdiction under 28 

U.S.C. § 1292(e) and Federal Rule of Civil 

Procedure 23(f). “We review a class certification order 

for abuse of discretion, which occurs if the district 

court’s decision rests upon a clearly erroneous finding of 

fact, an errant conclusion of law or an improper 

application of law to fact.” Grandalski v. Quest 

Diagnostics Inc., 767 F.3d 175, 179 (3d Cir. 2014) 

(quoting Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 

354 (3d Cir. 2013)) (internal quotation marks omitted). 

We review de novo a legal standard applied by a district 

court. Carrera, 727 F.3d at 305.

III.

The central question in this appeal is whether the 

District Court erred in determining that the Byrds’ 

proposed classes were not ascertainable. Because the 

District Court confused ascertainability with other 

relevant inquiries under Rule 23, we conclude it abused 

its discretion and will vacate and remand.

Before discussing these errors, however, we 

believe it is necessary to address the scope and source of 
17

the ascertainability requirement that our cases have

articulated. Our ascertainability decisions have been 

consistent and reflect a relatively simple requirement. 

Yet there has been apparent confusion in the invocation 

and application of ascertainability in this Circuit. 

(Whether that is because, for example, the courts of 

appeals have discussed ascertainability in varying and 

distinct ways,4 or the ascertainability requirement is 

 

4 For example, some of our sister courts of appeals 

have interspersed their analysis of ascertainability, or 

“identifiability,” with explicit Rule 23 requirements. See, 

e.g., Colo. Cross Disability Coal. v. Abercrombie & 

Fitch Co., 765 F.3d 1205, 1215 (10th Cir. 2014) 

(discussing ascertainability and numerosity 

simultaneously); Romberio v. Unumprovident Corp., 385 

F. App’x 423, 431 (6th Cir. 2009) (unpublished) 

(discussing ascertainability but reversing class 

certification based on lack of typicality); In re Initial 

Pub. Offerings Sec. Litig., 471 F.3d 24, 44-45 (2d Cir. 

2006) (discussing ascertainability and predominance 

simultaneously, although noting they are separate 

inquiries), decision clarified on denial of reh’g sub nom. 

In re Initial Pub. Offering Sec. Litig., 483 F.3d 70 (2d 

Cir. 2007); Oshana v. Coca-Cola Co., 472 F.3d 506, 514 

(7th Cir. 2006) (discussing identifiability—the Seventh 

Circuit’s approximation of the “ascertainability” 

standard—in conjunction with the typicality 

requirement). 
18

 

Conversely, others have framed ascertainability as 

requiring that there be an “objective standard” to 

determine whether class members are included in or 

excluded from the class without reference to any 

particular portion of Rule 23. See, e.g., EQT Prod. Co. v. 

Adair, 764 F.3d 347, 358–60 (4th Cir. 2014) (explaining 

the Fourth Circuit’s implicit “readily identifiable” 

requirement for a proposed class is the same as our

Circuit’s “ascertainability” requirement, without 

discussing the source of the standard); In re Deepwater 

Horizon, 739 F.3d 790, 821 (5th Cir. 2014) (requiring a 

class to be “adequately defined and clearly ascertainable” 

(citation and internal quotation marks omitted)), cert. 

denied sub nom. BP Exploration & Prod. Inc. v. Lake 

Eugenie Land & Dev., Inc., 135 S. Ct. 754 (2014); 

Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st 

Cir. 2012) (discussing only that the “presence of such an 

objective criterion overcomes the claim that the class is 

unascertainable”); Little v. T-Mobile USA, Inc., 691 F.3d 

1302, 1308 (11th Cir. 2012) (mentioning ascertainability 

but ruling under Rule 23(b)(3)’s predominance standard); 

Oshana, 472 F.3d at 513–14 (applying an 

“identifiab[ility]” standard without discussing the source 

of the rule); Shook v. El Paso Cnty., 386 F.3d 963, 972 

(10th Cir. 2004) (noting an “identifiability” requirement 

for 23(b)(3) classes but declining to apply the standard to 

a Rule 23(b)(2) class).
19

implicit rather than explicit in Rule 23,5 we need not 

 

Even the citations we relied upon in Marcus v. 

BMW of North America, LLC, to discuss the policy 

rationales behind ascertainability, 687 F.3d 583, 593 (3d 

Cir. 2012), failed to address squarely the undergirding for 

this implicit requirement. See, e.g., Xavier v. Philip 

Morris USA, Inc., 787 F. Supp. 2d 1075, 1089 (N.D. Cal. 

2011) (relying in part on our decision in Newton v. 

Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 

154, 191–93 (3d Cir. 2001), which in fact analyzed a 

proposed class under Rule 23(b)(3) and the superiority 

requirement); Sanneman v. Chrysler Corp., 191 F.R.D. 

441, 446 & n.9 (E.D. Pa. 2000) (blending the issue of 

ascertainability with class definition and crossreferencing a later discussion on predominance and 

superiority); Federal Judicial Center, Manual for 

Complex Litigation § 21.222 (4th ed. 2004) (citing to 

Rule 23(c)(2)’s requirement that class members in a Rule 

23(b)(3) action receive the “best notice practicable”).

5 Ascertainability is an “essential prerequisite,” or 

an implied requirement, of Rule 23, “at least with respect 

to actions under Rule 23(b)(3).” Marcus, 687 F.3d 

at 592–93. Marcus identified “important objectives,” id. 

at 593, or policy rationales, supporting the 

ascertainability requirement. These included removing 

administrative burdens that were “incongruous with the 

efficiencies expected in a class action,” providing the 

best notice practicable under Rule 23(c)(2) in a 
20

say.) Not surprisingly, defendants in class actions have 

seized upon this lack of precision by invoking the 

ascertainability requirement with increasing frequency in 

order to defeat class certification.6 

We seek here to dispel any confusion. The source 

 

Rule 23(b)(3) action, and protecting defendants by 

ensuring that those persons ultimately bound by the final 

judgment could be clearly identified. Id. at 593. Our 

opinion in Carrera expanded on some of the concerns 

addressed in Marcus, specifically relating to a 

defendant’s “due process right to challenge the proof 

used to demonstrate class membership.” 727 F.3d at 307.

6 See, e.g., Class Action Reporter, Courts 

Scrutinize Class Certification “Ascertainability,” Vol. 

17, Feb. 6, 2015, (explaining that “courts across the 

country are increasingly scrutinizing ‘ascertainability’ at 

the class certification stage”); Melody E. Akhavan,

Ascertainability Challenge Is Viable Weapon for 

Defense, Law360, Nov. 26, 2014, 

http://www.law360.com/articles/599335/ascertainabilitychallenge-is-viable-weapon-for-defense (“Courts’ focus 

on ascertainability has become an increasingly useful tool 

for defendants fighting class certification.”); Alida Kass, 

Third Circuit Case Could Limit Consumer Class Actions, 

N.J. Law Journal, June 25, 2014 (“[T]he Third Circuit

will be a fertile ground for exploring the boundaries of 

ascertainability.”).
21

of, or basis for, the ascertainability requirement as to a 

Rule 23(b)(3) class is grounded in the nature of the classaction device itself. In endeavoring to further explain 

this concept, we adhere to the precise boundaries of 

ascertainability previously iterated in the quartet of cases 

we discuss below. The ascertainability requirement as to 

a Rule 23(b)(3) class is consistent with the general 

understanding that the class-action device deviates from 

the normal course of litigation in large part to achieve 

judicial economy. See Comcast, 133 S. Ct. at 1432 

(discussing generally the nature of the class-action 

device). Ascertainability functions as a necessary 

prerequisite (or implicit requirement) because it allows a 

trial court effectively to evaluate the explicit 

requirements of Rule 23. In other words, the independent 

ascertainability inquiry ensures that a proposed class will 

actually function as a class. This understanding of the 

source of the ascertainability requirement takes a 

forward-looking view of the administration of the Rule 

23(b)(3) class-action device in practice.

A.

The class-action device is an exception to the rule 

that litigation is usually “‘conducted by and on behalf of

the individual named parties only.’” Comcast Corp. v. 

Behrend, 133 S. Ct. 1426, 1432 (2013) (quoting Califano 

v. Yamasaki, 442 U.S. 682, 700–01 (1979)). 

Accordingly, the party proposing class-action 

certification bears the burden of affirmatively 
22

demonstrating by a preponderance of the evidence her 

compliance with the requirements of Rule 23. Id. And a 

court evaluating a motion for class certification is 

obligated to probe behind the pleadings when necessary 

and conduct a “rigorous analysis” in order to determine 

whether the Rule 23 certification requirements are 

satisfied. Id.; In re Hydrogen Peroxide Antitrust Litig., 

552 F.3d 305, 309 (3d Cir. 2008), as amended (Jan. 16, 

2009). A plaintiff seeking certification of a Rule 

23(b)(3) class must prove by a preponderance of the 

evidence that the class is ascertainable.7 Hayes, 725 F.3d 

at 354. The rigorous analysis requirement applies 

equally to the ascertainability inquiry. Carrera, 727 F.3d 

at 306.

The ascertainability inquiry is two-fold, requiring a 

plaintiff to show that: (1) the class is “defined with 

reference to objective criteria”; and (2) there is “a reliable 

 

7

In Shelton v. Bledsoe, we held that 

ascertainability is not a requisite of a Rule 23(b)(2) class. 

775 F.3d 554, 559–63 (3d Cir. 2015). The Byrds sought 

certification of their proposed classes under both Rule 

23(b)(2) and Rule 23(b)(3). Lacking the benefit of our 

Shelton decision, the District Court denied certification 

without distinguishing between Rule 23(b)(2) and 

Rule 23(b)(3). Accordingly, the District Court on 

remand should also consider whether the classes may be 

separately certified under Rule 23(b)(2).
23

and administratively feasible mechanism for determining 

whether putative class members fall within the class 

definition.” Id. at 355 (citing Marcus v. BMW of N. Am., 

LLC, 687 F.3d 583, 593–94 (3d Cir. 2012)). The 

ascertainability requirement consists of nothing more 

than these two inquiries. And it does not mean that a 

plaintiff must be able to identify all class members at 

class certification—instead, a plaintiff need only show 

that “class members can be identified.” Carrera, 727 

F.3d at 308 n.2 (emphasis added). This preliminary 

analysis dovetails with, but is separate from, 

Rule 23(c)(1)(B)’s requirement that the class-certification 

order include “(1) a readily discernible, clear, and precise 

statement of the parameters defining the class or classes 

to be certified, and (2) a readily discernible, clear, and 

complete list of the claims, issues or defenses to be 

treated on a class basis.” Wachtel ex rel. Jesse v. 

Guardian Life Ins. Co. of Am., 453 F.3d 179, 187–88 (3d 

Cir. 2006).

We have on four occasions addressed the 

requirement that a Rule 23(b)(3) class be “ascertainable” 

in order to be certified. Our quartet of cases began with

Marcus v. BMW of North America, LLC, in which we 

adopted this implicit ascertainability requirement. 687 

F.3d at 592–94. We explained, “If class members are 

impossible to identify without extensive and 

individualized fact-finding or ‘mini-trials,’ then a class 

action is inappropriate.” Id. at 593. We concluded that 
24

the proposed class “raise[d] serious ascertainability 

issues,” largely because the plaintiffs could not identify 

cars with the allegedly defective run-flat tires. Id. at 593. 

The defendants did not maintain records that would 

demonstrate whether a putative class member’s run-flat 

tires “‘ha[d] gone flat and been replaced,’ as the class 

definition require[d],” and the plaintiffs had not proposed 

“a reliable, administratively feasible alternative” to 

identify class members. Id. at 594.

Shortly thereafter, in Hayes v. Wal-Mart Stores, 

Inc., we straightforwardly applied the ascertainability 

rule established by Marcus and remanded the case to the 

district court to apply Marcus’s standard and to allow the

plaintiffs to “offer some reliable and administratively 

feasible alternative that would permit the court to 

determine” whether the class was ascertainable. 725 

F.3d at 355. That same month, we decided Carrera v. 

Bayer Corp., an appeal involving the proposed 

certification of a “class of consumers who purchased 

Bayer’s One-A-Day WeightSmart diet supplement in 

Florida.” 727 F.3d at 303. To prove ascertainability, the 

plaintiff proposed using retailer records and class 

member affidavits attesting to purchases of the diet 

supplement. Id. at 308. Although we opined that retail 

records “may be a perfectly acceptable method of 

proving class membership,” we noted that the plaintiff’s 

proposed retail records did not identify a single purchaser 

of the Bayer diet supplement. Id. at 308–09. We 
25

therefore rejected the proposed methods of proving 

ascertainability.

As to the use of affidavits, we began by explaining 

that in Marcus, “[w]e cautioned ‘against approving a 

method that would amount to no more than ascertaining 

by potential class members’ say so.’” Id. at 306 (quoting 

Marcus, 687 F.3d at 594). We rejected the plaintiff’s 

proposed methodology to screen out false affidavits 

because the plaintiff’s expert declaration did not establish 

that the “affidavits will be reliable” or “propose a model 

for screening claims.” Id. at 311. Remarkably, even the 

named plaintiff could not recall whether he had 

purchased the diet supplement. Id. at 311 n.9. 

We were careful to specify in Carrera that 

“[a]lthough some evidence used to satisfy 

ascertainability, such as corporate records, will actually 

identify class members at the certification stage, 

ascertainability only requires the plaintiff to show that 

class members can be identified.” Id. at 308 n.2 

(emphasis added). Accordingly, there is no records 

requirement. Carrera stands for the proposition that a 

party cannot merely provide assurances to the district 

court that it will later meet Rule 23’s requirements. Id.

at 306. Nor may a party “merely propose a method of 

ascertaining a class without any evidentiary support that 

the method will be successful.” Id. at 306, 307, 311. 
26

Following the Marcus-Hayes-Carrera trilogy, we 

again considered the issue of ascertainability in 

Grandalski v. Quest Diagnostics Inc., 767 F.3d at 184–

85. There we affirmed the denial of certification of a 

Rule 23(b)(3) class on predominance grounds, but noted 

that the district court also erred in denying certification 

based on ascertainability. Id. at 184–85. We concluded 

that the district court’s analysis “conflated 

ascertainability with the predominance inquiry.” Id.

at 184. The predominance and ascertainability inquiries 

are distinct, we explained, because “‘the ascertainability 

requirement focuses on whether individuals fitting the 

class definition may be identified without resort to minitrials, whereas the predominance requirement focuses on 

whether essential elements of the class’s claims can be 

proven at trial with common, as opposed to 

individualized, evidence.’” Id. (quoting Hayes, 725 F.3d 

at 359).

Ascertainability is closely tied to the other relevant 

preliminary inquiry we addressed in Marcus, 687 F.3d at 

592, that plaintiffs provide a proper class definition, Fed. 

R. Civ. P. 23(c)(1)(B). A trial court also needs a class to 

be “defined with reference to objective criteria” and 

some assurance that there can be “a reliable and 

administratively feasible mechanism for determining 

whether putative class members fall within the class 

definition,” Hayes, 725 F.3d at 355, in order to rigorously 

analyze the explicit Rule 23(a) and (b) certification 
27

requirements, Comcast, 133 S. Ct. at 1432. When 

combined with the separate class-definition requirement 

from Wachtel, that a class-certification order contain “a 

readily discernible, clear, and precise statement of the 

parameters defining the class or classes to be certified,” 

453 F.3d at 187–88, district courts have the necessary 

tools to determine whether “a party seeking to maintain a 

class action” can “‘affirmatively demonstrate his 

compliance’ with Rule 23.” See Comcast, 133 S. Ct. 

at 1432 (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. 

Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011)).

And after certification, a trial court is tasked with 

providing “the best notice that is practicable” to the class 

members under Rule 23(c)(2)(B), “‘including individual 

notice to all class members who can be identified through 

reasonable effort.’” Larson v. AT & T Mobility LLC, 687 

F.3d 109, 123 (3d Cir. 2012) (quoting Fed. R. Civ. P. 

23(c)(2)(B)). We are “stringent in enforcing th[at] 

individual notice requirement.” Id. at 126. The separate 

ascertainability requirement ensures that class members 

can be identified after certification, Carrera, 727 F.3d at 

308 n.2, and therefore better prepares a district court to 

“direct to class members the best notice that is 

practicable under the circumstances,” Fed. R. Civ. P. 
28

23(c)(2)(B); see also Larson, 687 F.3d at 117 n.10, 123–

31 (applying the Rule 23(c)(2)(B) requirement).

8

The ascertainability inquiry is narrow. If 

defendants intend to challenge ascertainability, they must 

be exacting in their analysis and not infuse the 

ascertainability inquiry with other class-certification 

requirements. As we said in Carrera, “ascertainability 

only requires the plaintiff to show that class members can 

be identified.” 727 F.3d at 308 n.2. This inquiry will not 

 

8 An additional post-certification concern relates to 

the argument by some that the class-action device fails in 

its purpose if a judgment or settlement cannot be 

executed without resulting in a largely cy pres fund. 

E.g., Marek v. Lane, 134 S. Ct. 8, 9 (2013) (Roberts, C.J., 

statement respecting denial of certiorari) (noting

“fundamental concerns surrounding the use of [cy pres] 

remedies in class action litigation”); In re Baby Prods. 

Antitrust Litig., 708 F.3d 163, 172–74 (3d Cir. 2013) 

(upholding limited use of cy pres distributions but 

cautioning against largely cy pres funds). Although we 

need not address the propriety of cy pres funds in this 

case, we do note that the risk of a cy pres fund is reduced, 

even if not entirely removed, when a court has 

affirmatively concluded that there is “a reliable and 

administratively feasible mechanism for determining 

whether putative class members fall within the class 

definition.” See Hayes, 725 F.3d at 355.
29

be relevant in every case and is independent from the 

other requirements of Rule 23.

B.

With this explanation of ascertainability in mind, 

we will reverse the District Court for four reasons. First, 

the District Court abused its discretion by misstating the

rule governing ascertainability. 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.

1.

The District Court misstated the law governing 

ascertainability by conflating our standards governing 

class definition with the ascertainability requirement. 

The District Court prefaced its discussion with the 

section header “Ascertainability and Defining the Class.” 

The District Court then stated the following as the 

applicable legal standard: 

“As an ‘essential prerequisite’ to the Rule 23 

analysis, the Court must consider 1) whether 

there is a precisely defined class and 
30

2) whether the named Plaintiffs are members 

of the class. Marcus v. BMW of North 

America, 687 F.3d 583, 596 (3d Cir. 2012) . 

. . . At the first step of the analysis, 

determining whether there is a precisely 

defined class entails two separate and 

important elements: ‘first, the class must be 

defined with reference to objective criteria’ 

and ‘second, there must be a reliable and 

administratively feasible mechanism for 

determining whether putative class members 

fall within the class definition.’ Hayes v. 

Wal-Mart Stores, Inc., 725 F.3d 349, 355 

(3d Cir. 2013).” 

Byrd, 2014 WL 1316055, at *3.

Although the District Court is correct that the class 

definition requirements are applicable to a classcertification order, Wachtel, 453 F.3d at 187–88, and that 

class definition is a valid preliminary consideration, 

Marcus, 687 F.3d at 591–92, it was not the reason the 

District Court denied class certification. What the 

District Court described as the two requirements for a 

“precisely defined class” was in fact the inquiry relevant 

to the ascertainability standard. See Hayes, 725 F.3d 

at 355. In blending the issue of ascertainability with that 

of class definition (which Marcus took pains to address 

as separate preliminary inquiries that preceded the Rule 

23 analysis, 687 F.3d at 591–94), the District Court erred. 
31

Also troubling is the District Court’s discussion of 

class membership. Byrd, 2014 WL 1316055, at *3, *6 

n.8. The question of “whether the named Plaintiffs are 

members of the class” has nothing to do with either the 

requirements of a class definition, Wachtel, 453 F.3d at 

187–88, or the ascertainability standard, Marcus, 687 

F.3d at 592–94. In fact, the District Court’s citation to 

Marcus on this point related to its discussion of 

numerosity—not class definition or ascertainability. See 

Byrd, 2014 WL 1316055, at *3 (citing Marcus, 687 F.3d 

at 596 (discussing numerosity)). And although the 

District Court generally cited to Hayes, in that case we 

addressed “membership” not as relating to 

ascertainability and only with regard to whether the 

named plaintiff had Article III standing to sue as a class 

representative. See Hayes, 725 F.3d at 360–61. In sum, 

we conclude that the District Court should have applied 

nothing more or less than the ascertainability test that has 

been consistently laid out by this Court.

2.

The District Court also abused its discretion in 

determining that the proposed classes were not 

ascertainable because they were underinclusive. The 

District Court reasoned that although the records 

provided by Aaron’s “may reveal the computers upon 

which Detective Mode was activated and the 

owner/lessee of that computer,” the Byrds did “not 

provide an administratively feasible way to determine 
32

whose information was surreptitiously gathered.” Byrd, 

2014 WL 1316055, at *5. For this reason, the District 

Court explained, the proposed “class definition [did] not 

encompass all those individuals whose information ha[d]

been surreptitiously gathered by Aaron’s franchisees.” 

Id. But the District Court was looking to an old, nolonger-operative class definition, see supra, n.3, because

the Byrds had redefined the proposed classes by 

eliminating the requirement that a class member’s 

information was “intercepted” or “surreptitiously

gathered.”9 Thus, the District Court’s analysis was not 

germane to the Byrds’ proposed class definitions or the 

relevant bases for class membership. 

 

9 The ECPA permits any person to bring a civil 

action “whose wire, oral, or electronic communication is 

intercepted, disclosed, or intentionally used in violation 

of this chapter.” 18 U.S.C. § 2520(a); see also id. § 

2511. The Byrds’ operative complaint alleges that the 

PC Rental Agent “allows its installer (here, the rent-toown store) to remotely and surreptitiously build and 

activate the ‘Detective Mode’ function on the laptop over 

the Internet and through the Aaron’s Inc. and 

DesignerWare websites.” Byrd, 2014 WL 1316055, at 

*2. The relevant statutory terms were discussed because 

the District Court observed that “not all information 

gathered surreptitiously will constitute an ‘interception’ 

of the ‘contents’ of an ‘electronic communication’” by 

the PC Rental Agent. Id.
33

Defendants contend that “underinclusiveness” was 

an appropriate consideration in support of the denial of 

class certification. They rely on a district court decision, 

Bright v. Asset Acceptance, LLC, 292 F.R.D. 190, 197 

(D.N.J. 2013), to support their argument. But “whether 

the defined class specifies a particular group that was 

harmed during a particular time frame, in a particular 

location, in a particular way,” Bright, 292 F.R.D. at 197

(emphasis added), is not included in our ascertainability 

test. Further, requiring such specificity may be 

unworkable in some cases and approaches requiring a 

fail-safe class. See Messner v. Northshore Univ. 

HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012)

(explaining that a fail-safe class is “one that is defined so 

that whether a person qualifies as a member depends on 

whether the person has a valid claim”). Defining the 

class “in terms of the legal injury,” In re Nexium 

Antitrust Litig., 777 F.3d at 22, is not the same as 

requiring the class to be defined “with reference to 

objective criteria.” See Hayes, 725 F.3d at 355. 

We decline to engraft an “underinclusivity” 

standard onto the ascertainability requirement. 

Individuals who are injured by a defendant but are 

excluded from a class are simply not bound by the 

outcome of that particular action. Cf., e.g., Taylor v. 

Sturgell, 553 U.S. 880, 884, 894 (2008) (“Representative 

suits with preclusive effect on nonparties include 

properly conducted class actions.”); United States v. 
34

Mendoza, 464 U.S. 154, 158 n.3 (1984) (“Under res 

judicata, a final judgment on the merits bars further 

claims by parties or their privies on the same cause of 

action.”). In the context of ascertainability, we have only 

mentioned “underinclusivity” with regard to whether the 

records used to establish ascertainability were sufficient, 

see Hayes, 725 F.3d at 355 (citing Marcus, 687 F.3d at 

594), not whether there are injured parties that could also 

be included in the class. Requiring a putative class to 

include all individuals who may have been harmed by a 

particular defendant could also severely undermine the 

named class representative’s ability to present typical 

claims (Fed. R. Civ. P. 23(a)(3)) and adequately 

represent the interests of the class (Fed. R. Civ. 

P. 23(a)(4)). The ascertainability standard is neither 

designed nor intended to force all potential plaintiffs who 

may have been harmed in different ways by a particular 

defendant to be included in the class in order for the class 

to be certified. 

3.

Similarly, the District Court also abused its 

discretion in determining that the proposed classes were 

not ascertainable because they were “overly broad.” The 

District Court concluded that “more problematic for 

Plaintiffs is the fact that the alternative definitions are 

overly broad” because “[n]ot every computer upon which 

Detective Mode was activated will state a claim under the 

ECPA for the interception of electronic communication.” 
35

Byrd, 2014 WL 1316055, at *5. There was, again, no 

reference to our ascertainability precedent or that of any 

other court.

Defendants also rely on Bright for the proposition 

that a class is not “ascertainable if it is decoupled from 

the underlying allegations of harm rendering it . . . 

overbroad.” See Bright, 292 F.R.D. at 197. They also 

cite myriad cases from other district courts and courts of 

appeals to justify the consideration of overbreadth in our 

ascertainability standard. Such applications of the 

ascertainability standard fuel the precise mistake we 

attempted to correct in Grandalski v. Quest Diagnostics 

Inc.—that is, injecting the explicit requirements of Rule 

23 into the ascertainability standard without actually 

analyzing those requirements under the correct portion of 

Rule 23. See 767 F.3d at 184 n.5 (“Predominance and 

ascertainability are separate issues.”). And at oral 

argument, Defendants conceded that the District Court’s 

analysis regarding overbreadth was really identifying a 

potential predominance problem. 

Defendants’ reliance on authority outside this 

Circuit does nothing to bolster their argument. For 

example, they extensively discuss Oshana v. Coca-Cola 

Co., 472 F.3d 506 (7th Cir. 2006), to support the 

proposition that an overbroad class is not ascertainable. 

In Oshana, the Seventh Circuit considered whether a 

class consisting of “all Illinois purchasers of fountain 

Diet Coke from March 12, 1999 forward” was certifiable 
36

under Rule 23. Id. at 509. The Court required that in 

addition to satisfying the Rule 23(a) and (b) 

requirements, a “plaintiff must also show . . . that the 

class is indeed identifiable as a class.” Id. at 513. 

Reasoning that the proposed class could “include 

millions who were not deceived and thus have no 

grievance under the [Illinois Consumer Fraud and 

Deceptive Practices Act],” the Seventh Circuit affirmed 

the district court’s determination that the proposed class 

was “not sufficiently definite to warrant class 

certification.” Id. at 513–14.

The “definiteness” standard from Oshana is 

distinguishable from our Circuit’s ascertainability 

requirement. The standard applied in the Seventh Circuit 

is based on the premise that because “[i]t is axiomatic 

that for a class action to be certified a ‘class’ must exist,” 

Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981), a class 

definition must be definite enough for the class to be 

ascertained, Alliance to End Repression v. Rochford, 565 

F.2d 975, 977 (7th Cir. 1977). In short, the class must be 

“indeed identifiable as a class.” Oshana, 472 F.3d at 

513. A class may be indefinite where “the relevant 

criteria for class membership [is] unknown.” Jamie S. v. 

Milwaukee Pub. Sch., 668 F.3d 481, 495 (7th Cir. 2012). 

Although this doctrine is similar to the parameters laid 

out in our ascertainability cases, it blends together our 

Circuit’s ascertainability and class definition 

requirements. Compare Oshana, 472 F.3d at 513, with
37

Hayes, 725 F.3d at 355, and Wachtel, 453 F.3d at 187–

88. As we made patent in Marcus, we address class 

definition and ascertainability as separate inquiries. 687 

F.3d at 591–94.

Defendants also argue that a proposed class is 

overbroad “where putative class members lack standing 

or have not been injured.” Defendants’ argument 

conflates the issues of ascertainability, overbreadth (or 

predominance), and Article III standing. We have 

explained that the issue of standing is separate from the 

requirements of Rule 23. See, e.g., Holmes v. Pension 

Plan of Bethlehem Steel Corp., 213 F.3d 124, 135 (3d 

Cir. 2000) (“In addition to the requirements expressly 

enumerated in Rule 23, class actions are also subject to 

more generally applicable rules such as those governing 

standing and mootness.”). To the extent Defendants 

meant to challenge any potential differences between the 

proposed class representatives and unnamed class 

members, such differences should be considered within 

the rubric of the relevant Rule 23 requirements—such as 

adequacy, typicality, commonality, or predominance. 

See Grandalski, 767 F.3d at 184–85; see also Holmes, 

213 F.3d at 137–38 (discussing an “overbroad” class as 

requiring individual determinations that fail to satisfy

Rule 23(b)(3)’s predominance requirement). Conversely, 

if Defendants intended to argue that all putative class 

members must have standing, such challenges should be 

squarely raised and decided by the District Court. 
38

Because the District Court has yet to conduct a rigorous 

analysis of the Rule 23 requirements, we decline to 

address these issues in the first instance. 

The Byrds’ proposed classes consisting of 

“owners” and “lessees” are ascertainable. There are 

“objective records” that can “readily identify” these class 

members, cf. Grandalski, 767 F.3d at 184 n.5, because, 

as explained by the District Court, “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.” Byrd, 

2014 WL 1316055, at *5. The District Court’s 

conclusion to the contrary was an abuse of discretion.

4.

The District Court again abused its discretion in 

determining that “household members” were not 

ascertainable. The District Court concluded that the 

inclusion of the phrase “household members” in the 

Byrds’ revised class definitions was vague and not 

ascertainable. In the Byrds’ reply brief on the motion for 

class-action certification, they asserted in a footnote that 

“[h]ousehold members can easily be objectively verified 

through personal and public records. And their usage of 

the owner/lessee’s computers can also be easily 

objectively established.” The Magistrate Judge 

recommended denying class certification because the 

Byrds did not define “household members” or prove by a 
39

preponderance of the evidence how “‘household 

members’ can be verified through personal and public 

records.”

In their objections to the Magistrate Judge’s 

Report and Recommendation, the Byrds argued that they 

intended “the plain meaning of ‘household members.’” 

On appeal, the Byrds continue to argue that they intended 

the plain meaning of “household members” to be “all of 

the people, related or unrelated, who occupy a housing 

unit.” By way of example, the Byrds cite to multiple 

definitions used in government documents for census, 

taxation, and immigration purposes. With these 

definitions, they contend that the simple act of 

confirming membership would mean matching addresses 

in public records with that of an owner or lessee that had

already been identified. 

The “household members” of owners or lessees are

ascertainable. Although the government documents cited 

by the Byrds do contain slight variations on the definition 

of a household member (as noted by Defendants), the 

Byrds presented the District Court with various ways in 

which “household members” could be defined and how 

relevant records could be used to verify the identity of 

household members. Because the District Court 

summarily adopted the Magistrate Judge’s Report and 

Recommendation, and no oral argument was held on the 

class-certification motion, we are left to wonder why the

District Court determined that the Byrds’ explanation in 
40

their objections to the Report and Recommendation was 

inadequate.

The parties also dispute whether the phrase

“household members” is often used in class definitions. 

Although it is true that the phrase “household members” 

has been used in other class definitions,10 we decline the 

invitation categorically to conclude that the use of this 

phrase will always have sufficient precision in the 

ascertainability context. The inquiry in any given case 

should be whether a class is “defined with reference to 

 

10 See, e.g., Ortiz, 527 U.S. at 827 n.5 (reversing 

the approval of an asbestos settlement class that 

happened to include “household member” in the class 

definition); Amchem Prods., Inc., 521 U.S. at 602 

(analyzing the validity of a class that included 

“household members” on grounds other than 

ascertainability); Georgine v. Amchem Prods., Inc., 83 

F.3d 610, 619 & n.3, 633 (3d Cir. 1996) (including in the 

class “occupational exposure of a spouse or household 

member to asbestos, or to asbestos-containing products”), 

aff’d sub nom. Amchem Prods., Inc. v. Windsor, 521 U.S. 

591 (1997); In re Flonase Antitrust Litig., 291 F.R.D. 93, 

108 (E.D. Pa. 2013) (settlement class definition that 

included “household members”), appeal dismissed (July 

25, 2013); Carlough v. Amchem Prods., Inc., 158 F.R.D. 

314, 319 (E.D. Pa. 1993) (using a similar definition as 

Georgine).
41

objective criteria” and whether there is a “reliable and 

administratively feasible mechanism for determining 

whether putative class members fall within the class 

definition.” Hayes, 725 F.3d at 355. Whether a class is 

ascertainable is dependent on the nature of the claims at 

issue. But as used here, “household members” is a 

phrase that is easily defined and not, as Defendants 

argue, inherently vague. 

We also conclude that Defendants’ and the District 

Court’s reliance on Carrera is misplaced. In Carrera, 

we concluded that the plaintiffs’ 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. 727 F.3d at 311. Here the Byrds presented 

the District Court with multiple definitions of class 

members and simply argued that a form similar to those 

provided could be used to identify household members. 

This is a far cry from an unverifiable affidavit, or the 

absence of any methodology that can be used later to 

ascertain class members. See id. at 310–11. 

The Byrds’ proposed method to ascertain 

“household members” is neither administratively 

infeasible nor a violation of Defendants’ due process 

rights. Because the location of household members is 

already known (a shared address with one of the 895 

owners and lessees identified by the Byrds), there are 

unlikely to be “serious administrative burdens that are 
42

incongruous with the efficiencies expected in a class 

action.” Marcus, 687 F.3d at 593 (citation and internal 

quotation marks omitted). There will always be some 

level of inquiry required to verify that a person is a 

member of a class; for example, a person’s statement that 

she owned or leased an Aspen Way computer would 

eventually require anyone charged with administering the 

fund resulting from a successful class action to ensure 

that person is actually among the 895 customers 

identified by the Byrds. Such a process of identification

does not require a “‘mini-trial,’” nor does it amount to 

“‘individualized fact-finding,’” Carrera, 727 F.3d at 307

(quoting Marcus, 687 F.3d at 594), and indeed must be 

done in most successful class actions. 

Certainly, Carrera does not suggest that no level 

of inquiry as to the identity of class members can ever be 

undertaken. If that were the case, no Rule 23(b)(3) class 

could ever be certified. We are not alone in concluding 

that “the size of a potential class and the need to review 

individual files to identify its members are not reasons to 

deny class certification.” See Young v. Nationwide Mut. 

Ins. Co., 693 F.3d 532, 539–40 (6th Cir. 2012) 

(collecting cases). To hold otherwise would seriously 

undermine the purpose of a Rule 23(b)(3) class to 

aggregate and vindicate meritorious individual claims in 

an efficient manner. Fed. R. Civ. P. Rule 23(b)(3) 1966 

advisory committee’s notes (Rule 23(b)(3) “achieve[s]

economies of time, effort, and expense, and promote[s]
43

uniformity of decision as to persons similarly situated, 

without sacrificing procedural fairness or bringing about 

other undesirable results.”).

As to Defendants’ contention that their due process 

rights would be violated, Carrera counsels that this due 

process right relates to the ability to “challenge the proof 

used to demonstrate class membership.” 727 F.3d at 307. 

Here, the Byrds are not relying solely on unverified

affidavits to establish ascertainability. See id. at 307–08; 

Hayes, 725 F.3d at 356 (reasoning that a class is not 

ascertainable where “the only proof of class membership 

[was] the say-so of putative class members”). Any form 

used to indicate a household member’s status in the 

putative class must be reconciled with the 895 known 

class members or some additional public records. 

Defendants are not foreclosed from challenging the 

evidence the Byrds propose to use. 

In sum, the District Court erred in its application of 

Carrera and in concluding that the phrase “household 

members” was inherently vague.

C.

In light of the errors discussed above, we will 

remand to the District Court to consider the remaining 

Rule 23 certification requirements in the first instance. 

At oral argument and in their briefs, Defendants urged us 

to read the District Court’s ruling as one on 
44

predominance, independently review the record in this 

case, and conclude that the Byrds’ proposed classes fail 

to satisfy Rule 23(b)(3)’s predominance requirement. 

Defendants contend that the elements of an ECPA claim, 

particularly that each plaintiff must show the interception 

of the “contents” of an “electronic communication,” 

create insurmountable barriers to proving predominance. 

See 18 U.S.C. § 2511(1)(a), (c), (d). Formidable though 

these barriers may be, they are not for us to address in the 

first instance.

Beginning in General Telephone Co. of Southwest 

v. Falcon, 457 U.S. 147, 160–161 (1982), through its

recent decision in Comcast Corp. v. Behrend, 133 S. Ct. 

at 1432, the Supreme Court has repeatedly emphasized 

the need for a district court to conduct a rigorous analysis 

of the evidence in support of certification under Rule 23. 

“By their nature, interlocutory appeals are disruptive, 

time-consuming, and expensive”; thus, it makes sense to 

allow the “district court an opportunity to fine-tune its 

class certification order . . . rather than opening the door 

too widely to interlocutory appellate review.” Waste 

Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 294–95

(1st Cir. 2000) (exercising discretionary authority under 

Rule 23(f) in order to give a district court “a better sense 

as to which aspects of the class certification decision 

might reasonably be open to subsequent 

reconsideration”). This is consistent with the narrow, yet 

flexible, set of considerations we address in granting a 
45

Rule 23(f) petition. See Newton v. Merrill Lynch, Pierce, 

Fenner & Smith, Inc., 259 F.3d 154, 164–65 (3d Cir. 

2001); see also In re Nat’l Football League Players 

Concussion Injury Litig., 775 F.3d 570, 578 n.9 (3d Cir. 

2014). We best exercise appellate review when the dust 

has settled and a district court has fully considered a 

motion for class-action certification.

What is more, a close reading of Defendants’ 

response briefs demonstrates how they continue to 

conflate ascertainability with the other relevant 

requirements of Rule 23. We write again to emphasize

that at class certification, Rule 23’s explicit requirements 

go beyond and are separate from the ascertainability 

inquiry. Precise analysis of relevant Rule 23 

requirements will always be necessary. We therefore 

decline to go beyond the scope of the District Court’s 

opinion.

V.

The District Court erred both in relying on an 

errant conclusion of law and improperly applying law to 

fact. Accordingly, we will reverse and remand for 

further consideration in light of this opinion.
RENDELL, Circuit Judge, concurring:

I agree with the majority that, under our current 

jurisprudence, the class members here are clearly 

ascertainable. Indeed, as Judge Smith points out, “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.” 

(Maj. Op. at 37) (quoting Byrd v. Aaron’s, Inc., No. 11-cv101, 2014 WL 1316055, at *5 (W.D. Pa. Mar. 31, 2014)). It 

is hard to argue otherwise, and I do not. However, I do 

suggest that the lengths to which the majority goes in its 

attempt to clarify what our requirement of ascertainability 

means, and to explain how this implicit requirement fits in the 

class certification calculus, indicate that the time has come to 

do away with this newly created aspect of Rule 23 in the 

Third Circuit. Our heightened ascertainability requirement 

defies clarification. Additionally, it narrows the availability 

of class actions in a way that the drafters of Rule 23 could not 

have intended.
2

Historically, the ascertainability inquiry related to 

whether the court will be able to determine who fits within 

the class definition for purposes of award or settlement

distribution and the preclusion of the relitigation of claims.1

It is a test that scrutinizes the class definition, and properly 

 

1 See Manual for Complex Litigation (Fourth) § 21.222 

(2004) (“An identifiable class exists if its members can be 

ascertained by reference to objective criteria.”); Joseph M. 

McLaughlin, McLaughlin on Class Actions § 4:2 (11th ed. 

2014) (“[C]lass members need to be able to determine with 

certainty from a class notice whether they are in the class. . . . 

If the class definition is amorphous, persons may not 

recognize that they are in the class, and thus may be deprived 

of the opportunity to object or opt out.”); 5 James Wm. 

Moore et al., Moore’s Federal Practice ¶ 23.21[1] (3d ed. 

1999) (noting that a class must be “susceptible to precise 

definition”).
3

so.2 But this is now only the first element of our two-part test 

for ascertainability. Marcus v. BMW of N. Am., LLC, 687 

F.3d 583, 594 (3d Cir. 2012); see also Hayes v. Wal-Mart 

Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013) (“The class 

must be defined with reference to objective criteria.”).

 

2 Courts have found classes to be ascertainable when the class 

definition is sufficiently specific. Compare Parkinson v. 

Hyundai Motor Am., 258 F.R.D. 580, 593 (C.D. Cal. 2008) 

(holding that prospective plaintiffs are capable of determining 

whether they were class members because class definition 

included purchasers of a certain vehicle who paid for the 

replacement of a certain part in a certain time period), and

Bynum v. District of Columbia, 214 F.R.D. 27, 31-32 (D.D.C. 

2003) (holding that prospective class members are capable of 

identifying themselves based on the dates of their 

incarceration included in the class definition), and Pigford v. 

Gickman, 182 F.R.D. 341, 346 (D.D.C. 1998) (holding that 

class members are capable of identifying themselves based on 

whether they had applied for participation in a USDA federal 

farm program during the specified dates), with In re Copper 

Antitrust Litig., 196 F.R.D. 348, 350-51, 358-60 (W.D. Wis. 

2000) (refusing to certify class of “[a]ll copper or metals 

dealers . . . that purchased physical copper” during a specified 

time period “at prices expressly related to LME or Comex 

copper future prices” because the class definition fell “far 

short of communicating to copper purchasers what they need 

to know to decide whether they are in or outside the proposed 

class,” in that the definition failed to explain the terms 

“copper or metals dealers,” “physical copper,” and “expressly 

related to”).
4

In 2012 we adopted a second element, namely, 

requiring district courts to make certain that there is “a 

reliable, administratively feasible” method of determining 

who fits into the class, thereby imposing a heightened 

evidentiary burden. Marcus, 687 F.3d at 594. We have 

precluded class certification unless there can be objective 

proof—beyond mere affidavits—that someone is actually a 

class member. Id.; accord Carrera v. Bayer Corp., 727 F.3d 

300, 308-12 (3d Cir. 2013). This concept has gained traction 

in recent years.3 I submit that this “business record” or 

 

3 Several courts have denied class certification on 

ascertainability grounds similar to our current ascertainability 

test. See, e.g., Randolph v. J.M. Smucker Co., 303 F.R.D. 

679, 689 (S.D. Fla. 2014) (denying certification of class suing 

defendant for mislabeling product as “All Natural” in 

violation of Florida’s deceptive advertising law because 

potential class members were unlikely to remember if they 

bought a product with such a label); In re Skelaxin 

(Metaxalone) Antitrust Litig., 299 F.R.D. 555, 572 (E.D. 

Tenn. 2014) (denying certification of class suing drug 

manufacturer for violating antitrust laws because plaintiffs 

did not propose feasible model for screening fraudulent 

claims); Brey Corp. v. LQ Mgmt. LLC, No. 11-cv-718, 2014 

WL 943445, at *1 (D. Md. Jan. 30, 2014) (denying 

certification of class suing defendant for violating antitrust 

laws because ascertaining who belongs in the class would 

require individualized fact-finding).
5

“paper trail” requirement is ill-advised.4 In most low-value 

consumer class actions, prospective class members are 

unlikely to have documentary proof of purchase, because very 

few people keep receipts from drug stores or grocery stores. 

This should not be the reason to deny certification of a class.5 

As Judge Ambro’s dissent from the denial of the petition for 

rehearing en banc in Carrera noted, “[w]here a defendant’s 

lack of records . . . make it more difficult to ascertain the 

members of an otherwise objectively verifiable low-value 

class, the consumers who make up that class should not be 

made to suffer.” Carrera v. Bayer Corp., No. 12-2621, 2014 

WL 3887938, at *3 (3d Cir. May 2, 2014) (Ambro, J. 

dissenting). 

Records are not the only way to prove that someone is 

 

4 While the majority cites a footnote in Carrera as standing 

for the proposition that we have no “records requirement,” the 

class in Carrera failed the ascertainability test because there 

were no records from which the class members could be 

ascertained with certainty. (Maj. Op. at 25 (citing Carrera, 

727 F.3d at 308. n.2)).

5 See, e.g., McCrary v. Elations Co., LLC, No. 13-cv-242, 

2014 WL 1779243, at *8 (C.D. Cal. Jan. 13, 2014) (“It 

appears that pursuant to Carerra [sic] in any case where the 

consumer does not have a verifiable record of its purchase, 

such as a receipt, and the manufacturer or seller does not keep 

a record of buyers, Carerra [sic] prohibits certification of the 

class.”); Ries v. Ariz. Beverages USA LLC, 287 F.R.D. 523, 

535 (N.D. Cal. 2012) (warning that, if lack of receipts dooms 

certification, “there would be no such thing as a consumer 

class action” in cases concerning false or deceptive labeling 

of small-value items).
6

in a class. It is the trial judge’s province to determine what 

proof may be required at the claims submission and claims 

administration stage. It is up to the judge overseeing the class 

action to decide what she will accept as proof when 

approving the claim form. Could not the judge decide that, in 

addition to an individual’s “say so” that he is a member of the 

class, the claimant needs to submit an affidavit from another 

household member or from his doctor corroborating his 

assertion that he did, in fact, take Bayer aspirin? Is that not 

permissible and appropriate? Yet, we foreclose this process 

at the outset of the case by requiring that plaintiffs conjure up 

all the ways that they might find the evidence sufficient to 

approve someone as a class member. 

This puts the class action cart before the horse and 

confuses the class certification process, as this case makes 

manifest. The irony of this result is that it thwarts “[t]he 

policy at the very core of the class action mechanism,” i.e., 

“to overcome the problem that small recoveries do not 

provide the incentive for any individual to bring a solo action 

prosecuting his or her rights.” Amchem Prods., Inc. v. 

Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru 

Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)). Indeed, 

“[a] class action solves this problem by aggregating the 

relatively paltry potential recoveries into something worth 

someone’s (usually an attorney’s) labor.” Id. We have 

effectively thwarted small-value consumer class actions by 

defining ascertainability in such a way that consumer classes 

will necessarily fail to satisfy for lack of adequate 
7

substantiation.6 Consumers now need to keep a receipt or a 

can, bottle, tube, or wrapper of the offending consumer items 

in order to succeed in bringing a class action.

 

6 Small-value consumer class actions certified by district 

courts nationwide would not pass muster in our Circuit 

because of our heightened ascertainability requirement. See, 

e.g., Hughes v. Kore of Ind. Enter., Inc., 731 F.3d 672, 675 

(7th Cir. 2013) (reversing district court’s order decertifying 

class of consumers who brought action against owners of 

automatic teller machines for failing to post notice on 

machines that they charged fee for use despite difficulty in 

determining which plaintiffs would have been deceived by 

lack of notice); Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 

567 (S.D.N.Y. 2014) (certifying class of consumers who 

claimed defendant placed misleading “All Natural” label on 

olive oil bottles even though plaintiffs were unlikely to have 

retained receipts or packaging proving membership in class); 

Boundas v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 

408, 417 (N.D. Ill. 2012) (certifying class of plaintiffs who 

possessed promotional gift cards stating “No expiration date” 

that were voided by defendant or told that the cards had 

expired or been voided and thrown away cards even though 

some class members would only be able to claim class 

membership through affidavit); see also Lilly v. Jamba Juice 

Co., No. 13-cv-2998, 2014 WL 4652283, at *4 (N.D. Cal. 

Sept. 18, 2014) (certifying class of consumers who purchased 

frozen smoothie kits containing label “All Natural” where 

product allegedly contained various artificial ingredients and 

where consumers did not necessarily have proof of purchase); 

Allen v. Hylands, Inc., 300 F.R.D. 643, 658-59, 672 (C.D. 

Cal. 2014) (certifying class of plaintiffs who purchased 

homeopathic products where packaging contained alleged 
8

The policy rationales that we cite in support of our 

expanded ascertainability requirement are relatively weak 

when compared to the significant policy justifications that 

motivate the class action mechanism. We have noted three 

rationales for our ascertainability requirement: (1) eliminating 

administrative burdens “incongruous” with the efficiencies of 

a class action, (2) protecting absent class members’ rights to 

opt out by facilitating the best notice practicable, and (3) 

protecting the due process rights of defendants to challenge 

plaintiffs’ proffered evidence of harm. Marcus, 687 F.3d at 

593.

 

misrepresentations even though class members would have to 

self-identify without corroborating evidence); Forcellati v. 

Hylands, Inc., No. 12-1983, 2014 WL 1410264, at *5, *13 

(C.D. Cal. Apr. 9, 2014) (certifying class of plaintiffs who 

purchased children’s cold or flu products within a prescribed 

time frame despite purchasers’ lack of proof of purchase and 

defendants’ lack of records identifying consumers who 

purchased their products via retail intermediaries); McCrary, 

2014 WL 1779243, at *7-8 (certifying class of purchasers of 

dietary joint supplement containing allegedly deceptive label 

despite plaintiffs’ lack of proof of purchase); Astiana v. Kashi 

Co., 291 F.R.D. 493, 500 (S.D. Cal. 2013) (certifying class of 

consumers who purchased cereal and snack products labeled 

as “All Natural” or “Nothing Artificial” but which allegedly 

contained synthetic ingredients in violation of various false 

advertising laws even though plaintiffs unlikely to have 

retained receipts or containers); Ries, 287 F.R.D. at 535 

(certifying class of consumers who purchased iced tea with 

“natural” on label despite plaintiffs’ lack of proofs of 

purchase, finding self-identification sufficient for 

ascertainability).
9

Eliminating “administrative burdens” really means 

short-circuiting the claims process by assuming that when 

individuals file claims, they burden the court. But claims 

administration is part of every class action. Imposing a proofof-purchase requirement does nothing to ensure the 

manageability of a class or the “efficiencies” of the class 

action mechanism; rather, it obstructs certification by 

assuming that hypothetical roadblocks will exist at the claims 

administration stage of the proceedings.7

Denying class certification due to concerns about 

providing notice to class members makes little sense. Rule 23 

requires the “best notice that is practicable under the 

circumstances” to potential class members after a class has 

been certified.8 Potential difficulties in providing 

individualized notice to all class members should not be a 

reason to deny certification of a class. As the Supreme Court 

noted in Phillips Petroleum Co. v. Shutts, due process is 

satisfied when notice is “reasonably calculated” to reach the 

defined class. 472 U.S. 797, 812 (1985). The question is not 

whether every class member will receive actual individual 

notice, but whether class members can be notified of their 

opt-out rights consistent with due process. See Dusenbery v. 

United States, 534 U.S. 161 (2002) (holding that due process 

did not require actual notice to federal prisoner of his right to 

contest civil forfeiture, but rather, due process must be 

 

7 See Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 

(7th Cir. 2004) (“[T]here is a big difference from the 

standpoint of manageability between the liability and remedy 

phases of a class action.”).

8 Fed. R. Civ. P. 23(c)(2)(B).
10

“reasonably calculated” to apprise a party of the pendency of 

an action).9 

The concerns regarding the due process rights of 

defendants are unwarranted as well, because there is no 

evidence that, in small-claims class actions, fabricated claims 

impose a significant harm on defendants. The chances that 

someone would, under penalty of perjury, sign a false 

affidavit stating that he or she bought Bayer aspirin for the 

sake of receiving a windfall of $1.59 are far-fetched at best. 

On the other hand, while most injured individuals will find 

that it is not worth the effort to claim the few dollars in 

damages that the class action can provide, in the aggregate, 

this sum is significant enough to deter corporate misconduct. 

Our ascertainability doctrine, by focusing on making 

absolutely certain that compensation is distributed only to 

those individuals who were actually harmed, has ignored an 

equally important policy objective of class actions: deterring 

and punishing corporate wrongdoing. As Judge Posner, 

writing for the Court of Appeals for the Seventh Circuit, 

stated in Hughes v. Kore of Indiana Enterprises, Inc., “when 

what is small is not the aggregate but the individual claim . . . 

that’s the type of case in which class action treatment is most 

needful. . . . A class action, like litigation in general, has a 

deterrent as well as a compensatory objective.” 731 F.3d 672, 

677 (7th Cir. 2013). The rigorous application of the 

ascertainability requirement translates into impunity for 

 

9 See also Girsh v. Jepson, 521 F.2d 153, 159 n.12 (3d Cir. 

1975) (“We do not mean to indicate that individual notice 

must be given in all cases.”). Furthermore, Rule 23 requires 

courts to provide the best practicable notice after a class has 

been certified. See Fed. R. Civ. P. 23(c)(2)(B).
11

corporate defendants who have harmed large numbers of 

consumers in relatively modest increments.10 Without the 

class action mechanism, corporations selling small-value 

items for which it is unlikely that consumers would keep 

receipts are free to engage in false advertising, overcharging, 

and a variety of other wrongs without consequence.

The concerns about defendants’ due process rights are 

also overblown because damages liability under Rule 23 is 

determined in the aggregate: courts determine the extent of a 

defendant’s monetary liability to the entire class. Therefore, 

whether an individual can establish membership in that class 

does not affect the rights of defendants not to pay in excess of 

their liability. Carrera’s concern that allowing undeserving 

individuals to claim damages will dilute deserving class 

 

10 As one court has noted, 

[a]dopting the Carrera approach would have 

significant negative ramifications for the ability 

to obtain redress for consumer injuries. Few 

people retain receipts for low-priced goods, 

since there is little possibility they will need to 

later verify that they made the purchase. Yet it 

is precisely in circumstances like these, where 

the injury to any individual consumer is small, 

but the cumulative injury to consumers as a 

group is substantial, that the class action 

mechanism provides one of its most important 

social benefits.

Lilly, 2014 WL 4652283, at *4 (citing Eisen v. Carlisle & 

Jacquelin, 417 U.S. 156, 161 (1974)).
12

members’ recoveries is unrealistic in modern day class action 

practice, and it makes little sense when used to justify the 

wholesale dooming of the small-value class action such that 

no injured plaintiff can recover at all. Moreover, this is an 

issue to be dealt with in the implementation of a class action 

settlement, not in conjunction with ascertaining the class for 

purposes of certification. Concerns about claims processing 

should not be used to scuttle these types of class actions 

altogether.

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.” 417 U.S. at 161. The concern that 

we are defeating what is at the “core” of what the class action 

was designed to accomplish is very real. As Judge Rakoff 

noted in certifying a class over objections regarding 

ascertainability based on receipts or documentation:
13

[T]he class action device, at its very core, is 

designed for cases like this where a large 

number of consumers have been defrauded but 

no one consumer has suffered an injury 

sufficiently large as to justify bringing an 

individual lawsuit. Against this background, the 

ascertainability difficulties, while formidable, 

should not be made into a device for defeating 

the action.

Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 567 (S.D.N.Y. 

2014). While a rigorous insistence on a proof-of-purchase 

requirement, which our heightened ascertainability 

jurisprudence has imposed, keeps damages from the 

uninjured, it does an equally effective job of keeping damages 

from the truly injured as well, and “it does so with brutal 

efficiency.”11

Therefore, while I concur in the judgment, I suggest 

that it is time to retreat from our heightened ascertainability 

requirement in favor of following the historical meaning of 

ascertainability under Rule 23. I would therefore reverse the 

District Court’s ruling, and hold that (1) hereafter, our 

ascertainability analysis will focus on class definition only, 

and (2) the District Court’s analysis regarding the second 

prong of our ascertainability test was unnecessary. We thus 

would instruct the District Court to proceed to determine 

whether the class can be certified under the traditional 

mandates of Rule 23. Until we revisit this issue as a full 

 

11 Myriam Gilles, Class Dismissed: Contemporary Judicial 

Hostility to Small-Claims Consumer Class Actions, 59 

DePaul L. Rev. 305, 308 (2010).
14

Court or it is addressed by the Supreme Court or the Advisory 

Committee on Civil Rules, we will continue to administer the 

ascertainability requirement in a way that contravenes the 

purpose of Rule 23 and, in my view, disserves the public.