United States: Ascertainability And Predominance Foil Certification Of Spyware Invasion Of Privacy Class

Last Updated: February 22 2017
Article by Gary M. Pappas

A Georgia district court denied certification of a multi-state common law invasion of privacy class in which plaintiff sought damages and an injunction against the lessor of computers allegedly containing unauthorized spyware. The court held that the class members could not be ascertained in an objective and administratively feasible manner. The court also held that common issues did not predominate over individual issues with regard to numerous variations in applicable state law as well as with the class members' relative expectations of privacy in computer use and the affirmative defense of consent.

Plaintiff was an attorney who leased laptop computers for his law firm from Aspen Way, a franchisee of Aaron's, Inc. He sued Aspen and Aaron's for common law invasion of privacy alleging defendants installed spyware called "PC Rental Agent" (PCRA) on the computers without his consent and then remotely accessed the computers to unlawfully capture private information.

Aaron's acknowledged that it pre-installed PCRA on all 4,195 class computers but insisted that PCRA only provided Aspen with non-private geolocation information and the ability to activate a kill switch. Aaron's acknowledged, however, that it offered Aspen an optional spyware feature known as "Detective Mode" that would allow Aspen to remotely capture keystrokes, screen shots and webcam images from the computers. Aarons did not pre-install Detective Mode on all the class computers. Aspen specifically requested Aaron's to install Detective Mode on only 167 of them. Aspen also asserted that it had routinely obtained customer consent as to the presence of PCRA on their computers and that some activations of Detective Mode had been at customer request after a computer was stolen.

The attorney sought to certify a multi-state class defined as: "(1) those persons who leased and/or purchased one or more computers from Aspen Way on which [PCRA] was installed without the lessor's consent and (2) their household members and employees." Defendants objected to certification on the ground that this class was overbroad because the members included numerous household members who never had access to the law firm computers, were not injured, and had no cause of action. Likewise, the class definition had no end date, so the class included household members and employees that did not overlap with the period of time the lessee or purchaser used the computer.

In response to defendants' arguments, plaintiff proposed an alternative class definition: "All users, and/or the lessor/owner, of computers leased and/or purchased from Aspen Way from June 6, 2008 to December 23, 2011, on which [PCRA] was installed without their consent, including users who were household members or employees of the lessor/purchaser." Defendants objected to the alternative definition on the ground that the class members were not ascertainable. In particular, by basing class membership on computer use, they argued plaintiff's alternative includes numerous users who would be extremely difficult to identify, such as a friend of a lessee or a babysitter who may have used the computer only for a short time.

The court agreed and observed that plaintiff did not provide any conceivable method – let alone an administratively feasible one – for identifying the class members. The court added that defendants had the right to raise contradictory arguments to plaintiff's two class definitions because plaintiff bears the burden of proving his class is ascertainable. "Defendants may point out the flaws in the alternative class definition, regardless of their arguments as to the first definition."

Defendants also objected to certification of either of plaintiff's class definitions because common questions did not predominate as required by Rule 23(b)(3). They argued that state law variations in the elements of common law invasion of privacy, the applicable statute of limitations, and recoverable damages would swamp any common issues and defeat predominance. In addition, defendants argued that to determine whether an invasion of privacy occurred, the jury would have to look at the particular circumstances under which each class member used the computer to evaluate his or her own expectations of privacy during such use. Finally, defendants argued that their affirmative defense of consent would require an individualized, fact-specific inquiry based on Aspen's evidence that some customers knew the spyware was installed.

After performing an extensive choice of law analysis, the court agreed with defendants on the state law variations. The court also reasoned that the differences between PCRA and Detective Mode would require a case-by-case inquiry into each class member's claim to determine what, if any, offensive invasions occurred with due consideration for each member's particularized privacy expectations based on his or her individual computer use patterns. Likewise, while recognizing that individualized damages calculations and individual affirmative defenses generally do not defeat predominance, the court relied on the exception, applicable here, that where such calculations and defenses are accompanied by significant individualized inquiries on liability, common issues do not predominate.

Finally, the court explained that these numerous individualized issues in plaintiff's proposed class would create a manageability problem for the court such that a class action is not superior to other available methods of adjudicating the controversy.

Peterson v. Aaron's, Inc. No. 14-CV-1919-TWT (N.D. Ga. January 25, 2017)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.