Peterson et al v. Aaron's, Inc. et al

Filing 138

ORDER denying 84 Motion to Certify Class. Signed by Judge Thomas W. Thrash, Jr on 1/24/2017. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHAEL PETERSON, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:14-CV-1919-TWT

AARON'S, INC., et al.,
Defendants.

OPINION AND ORDER

The Plaintiffs Michael Peterson and Matthew Lyons allege in this action that
the Defendant Aspen Way Enterprises, Inc., a franchisee of the Defendant Aaron’s,
Inc., unlawfully accessed their computers from a remote location and collected
private information stored therein. It is before the Court on the Plaintiffs Michael
Peterson and Matthew Lyons’s Motion for Class Certification [Doc. 84]. For the
reasons set forth below, the Plaintiffs’ Motion for Class Certification [Doc. 84] is
DENIED.
I. Background
The Defendant Aaron’s, Inc. franchises independently-owned stores that are in
the business of, inter alia, selling and leasing consumer electronics. The Plaintiff
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Matthew Lyons – an Oklahoma resident – entered into a lease agreement to rent laptop
computers from Aspen Way – a Montana-based franchisee of Aaron’s. The Plaintiffs
contend that Mr. Lyons entered into the lease agreement on behalf of his law firm,
Peterson & Lyons, LLC. The Plaintiff Michael Peterson – a Colorado resident – was
the other named partner at the law firm, which is now defunct.
The Plaintiffs allege that Aspen Way remotely accessed their computers and
captured private information. They contend that Aspen Way was able to obtain their
private information through a spyware software program named PC Rental Agent
(“PCRA”), which was installed on their computers without their consent. The software
had an optional function called “Detective Mode.” When activated, Detective Mode
could collect screen shots, keystrokes, and webcam images from the computer. The
Plaintiffs allege that between 2008 and 2012, it was Aspen Way’s practice to install
PCRA on each of its customers’ computers. According to a report produced by Aspen
Way, as of August 2011, Aspen Way had installed PCRA on 4,195 computers and
activated Detective Mode on approximately 167 of them.1
The Plaintiffs’ class-action complaint asserts claims against Aaron’s and Aspen
Way, alleging common law invasion of privacy, aiding and abetting, and violations
of the Georgia Computer Systems Protection Act (“GCSPA”). On Defendants’ Motion

1

See Mot. for Class Cert., Exs. 10, 12, at No. 4.

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to Dismiss, the Court dismissed the Plaintiffs’ GCSPA claim.2 The Plaintiffs now
move to certify a class under Federal Rules of Civil Procedure 23(b)(2) and 23(b)(3).
II. Class Certification Standard
To maintain a case as a class action, the party seeking class certification must
satisfy each of the prerequisites of Rule 23(a) and at least one of the provisions of
Rule 23(b).3 Rule 23(a) sets forth the four prerequisites to maintain any claim as a
class action:
One or more members of a class may sue or be sued as representative
parties on behalf of all only if: (1) the class is so numerous that joinder
of all members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the interests of
the class.4
These prerequisites are commonly referred to as: (1) numerosity, (2) commonality, (3)
typicality, and (4) adequacy of representation.5 Failure to establish any one of the four

2

[Doc. 61].

3

Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004), abrogated
in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639
(2008).
4

Fed. R. Civ. P. 23(a).

5

Cooper v. Southern Co., 390 F.3d 695, 711 n.6 (11th Cir. 2004),
overruled in part on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58
(2006).
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factors precludes certification. In addition, under Rule 23(b), the individual plaintiffs
must convince the Court that: (1) prosecuting separate actions by or against individual
members of the class would create a risk of prejudice to the party opposing the class
or to those members of the class not parties to the subject litigation; (2) the party
opposing the class has refused to act on grounds that apply generally to the class,
necessitating final injunctive or declaratory relief; or (3) questions of law or fact
common to the members of the class predominate over any questions affecting only
individual members and that a class action is superior to other available methods for
fair and efficient adjudication of the controversy.6

The party seeking class

certification bears the burden of proving that these requirements are satisfied.7
The decision to grant or deny class certification lies within the sound discretion
of the district court.8 When considering the propriety of class certification, the Court
should not conduct a detailed evaluation of the merits of the suit.9 Nevertheless, the
Court must perform a “rigorous analysis” of the particular facts and arguments

6

Fed. R. Civ. P. 23(b).

7

General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Valley
Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003).
8

Klay, 382 F.3d at 1251; Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1386 (11th Cir. 1998) (en banc).
9

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).

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asserted in support of class certification.10 Frequently, that “rigorous analysis” will
entail some overlap with the merits of the plaintiff’s underlying claim.11
III. Discussion
A. Standing
“[I]t is well-settled that prior to certification of a class, and technically speaking
before undertaking any formal typicality or commonality review, the district court
must determine that at least one named class representative has Article III standing to
raise each class subclaim.”12 As such, “any analysis of class certification must begin
with the issue of standing.”13 For a plaintiff to have standing, he or she “must have
suffered an injury in fact – an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.”14 Thus, “[i]f the named plaintiff seeking to represent a class fails to

10

Falcon, 457 U.S. at 161; Gilchrist v. Bolger, 733 F.2d 1551, 1555 (11th

Cir. 1984).
11

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351-52 (2011).

12

Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir.

2000).
13

Id. at 1280 (quoting Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.

1987)).
14

London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1251 (11th Cir. 2003)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
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establish the requisite case or controversy, he may not seek relief on his behalf or on
that of the class.”15
The Defendant Aspen Way contends that the named Plaintiff Michael Peterson
does not have standing. Specifically, Aspen Way states that there is only evidence of
the named Plaintiff Matthew Lyons leasing a computer from Aspen Way. Moreover,
Peterson, as a partner of Peterson & Lyons, LLC, cannot be considered an employee
of Lyons or the law firm. As a result, Aspen Way asserts that Peterson is not a
member of the proposed class, because he is neither a lessee/purchaser nor an
employee of a lessee/purchaser. In response, the Plaintiffs argue that Peterson is an
employee of the law firm. And because Lyons leased the computer for the law firm’s
employees, Peterson is a member of the proposed class. To prove he is an employee,
the Plaintiffs point toward Peterson’s own testimony in which he stated he considered
himself an employee of the law firm.16

15

Church v. City of Huntsville, 30 F.3d 1332, 1340 (11th Cir. 1994)
(quoting Lynch v. Baxley, 744 F.2d 1452, 1456 (11th Cir. 1984)).
16

See Pls.’ Reply Br., at 8-9 (citing Peterson Dep., at 32). The Plaintiffs
also contend that, under the Fair Labor Standards Act, he can be considered an
employee. See id. at 9 (citing 29 U.S.C. § 203(e)(1)). However, other than pointing
to the statute, the Plaintiffs fail to provide any evidence that demonstrates he qualifies
as an employee under the statute.
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The Court finds that, based on the evidence presented, the named Plaintiff
Michael Peterson cannot be considered a member of the proposed class and therefore
cannot represent it. First, the Plaintiffs fail to provide any evidence beyond Peterson’s
own testimony that proves he was an employee of the law firm.17 Generally, a partner
at a small law firm is not considered an employee of the law firm.18 More problematic,
though, is the fact that the Plaintiffs do not provide evidence demonstrating the law
firm leased computers from Aspen Way. Despite claiming the law firm leased
multiple computers,19 the Plaintiffs only identify one computer lease agreement, No.
190999179, and that computer was leased by – and in the name of – Matthew Lyons.20
Lyons cannot recall whether he leased any computers in the law firm’s name.21 By

17

As a means to identify employees, the Plaintiffs suggest in their Motion
that W-2s or Form 1099-Misc. could be used. See Mot. for Class Cert., at 12. But the
Plaintiffs do not provide this information for Mr. Peterson.
18

See, e.g., Fountain v. Metcalf, Zima & Co., P.A., 925 F.2d 1398, 1401
(11th Cir. 1991) (finding a partner of a small accounting firm was not an employee
under the ADEA, because the partner participated “in the firm’s management control,
and ownership”).
19

The Plaintiffs’ own testimony is inconsistent with regard to how many
computers were leased from Aspen Way. Lyons testified that two computers were
leased. Lyons Dep., at 50. But Peterson testified that approximately four or five
computers were leased. Peterson Dep., at 35.
20

See Def. Aspen Way’s Resp. Br., Ex. 7; Second Am. Compl. ¶¶ 69-82.

21

See Lyons Dep., at 58.

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only providing evidence of the computer leased by Lyons, Peterson would need to
prove that he was an employee of Lyons. Peterson does not attempt such an
argument.22 As a result, the Court finds that the Plaintiffs have failed to demonstrate
that Peterson has standing and is a member of the proposed class. Peterson, therefore,
cannot represent the proposed class.23 Despite the Court’s holding as to Peterson, the
class may still move forward with Lyons as its representative.24
B. Ascertainability
Next, the Court will address the threshold question of ascertainability.25 To meet
the implicit requirement of ascertainability, a plaintiff “must establish that the
proposed class is ‘adequately defined and clearly ascertainable.’”26 A class definition

22

It should be noted that Peterson also does not argue that he used the
Aspen Way computer in question. Based on the Plaintiffs’ alternative class definition,
his computer use could have potentially qualified him as a class member. See infra
Section III.B.
23

See Bailey v. Patterson, 369 U.S. 31, 32-33 (1962) (“[Appellants] cannot
represent a class of whom they are not a part.”).
24

See Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993) (“At least one
named plaintiff must satisfy the actual injury component of standing in order to seek
relief on behalf of himself or the class.”).
25

Grimes v. Rave Motion Pictures Birmingham, LLC, 264 F.R.D. 659, 663
(N.D. Ala. 2010) (noting that ascertainability is “the first essential ingredient to class
treatment”).
26

Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)
(quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)); see also
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should contain “objective criteria that allow for class members to be identified in an
administratively feasible way.”27 To be administratively feasible, identifying class
members must be a “manageable process that does not require much, if any, individual
inquiry.”28
The Plaintiffs seek certification of the following class: “(1) those persons who
leased and/or purchased one or more computers from Aspen Way on which PC Rental
Agent (“PCRA”) was installed without their consent, and (2) their household members
and employees.”29 The Defendants contend that the proposed class is impermissibly
overbroad because it includes many individuals who never used a computer with
PCRA or Detective Mode. The Court agrees. The proposed class includes numerous
household members and employees who have not been injured and thus have no cause
of action.30 For example, it includes the employees of an individual who leased a

Walewski v. Zenimax Media, Inc., 502 F. App’x 857, 861 (11th Cir. 2012).
27

Karhu v. Vital Pharms., 621 Fed. Appx. 945, 946 (11th Cir. 2015).

28

Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App’x 782, 787
(11th Cir. 2014) (quoting NEWBERG ON CLASS ACTIONS § 3.3 (5th ed.)).
29

Mot. for Class Cert., at 1.

30

See Walewski, 502 F. App’x at 861 (affirming the denial of class
certification because the class included numerous individuals who were not injured);
see also Perez v. Metabolife Intern., Inc., 218 F.R.D. 262, 269 (S.D. Fla. 2003) (“A
court should deny class certification where the class definitions are overly broad,
amorphous, and vague, or where the number of individualized determinations required
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computer but never gave computer access to his or her employees. It also includes the
children of an individual who leased a computer for work but never gave computer
access to his or her children. Exacerbating this problem is the fact that the definition
provides no end date. The Plaintiffs simply state the class extends from any point on
or after June 6, 2008. As a result, the class includes all household members and
employees of a computer lessee or purchaser since June 6, 2008, even though some
household members and employees may not overlap with the period of time the
computer was used by the lessee or purchaser.
Though not mentioned by the Defendants, the Court also finds the term
“employee” to be vague. The Plaintiffs do not indicate in their Motion whether they
intend to give the term its plain and ordinary meaning.31 However, at the class
certification hearing, the Plaintiffs stated they were “using the common
understanding” of the term.32 Nevertheless, the vagueness of the term is demonstrated
by the debate over whether the named Plaintiff Peterson is considered an employee

to determine class membership becomes too administratively difficult.”).
31

See Mot. for Class Cert., at 12 (noting that the term “household
members” will be given its plain and ordinary meaning, but not indicating the same
regarding the term “employee”).
32

Class Cert. Hearing [Doc. 134], at 7.

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of his law firm.33 By trying to include Peterson as an employee, the Plaintiffs are not
giving the term its plain and ordinary meaning. For the Court to certify the proposed
class, the Plaintiff will need to better define the term “employee.”
Apparently recognizing the faults in their first proposed class definition, the
Plaintiffs provide an alternative class definition in their Reply Brief. The alternative
definition states: “All users, and/or the lessor/owner, of computers leased and/or
purchased from Aspen Way from June 6, 2008 until December 23, 2011, on which PC
Rental Agent was installed without their consent, including users who were household
members or employees of the lessor/purchaser.”34 Unfortunately for the Plaintiffs, the
alternative definition raises its own set of ascertainability problems. By basing class
membership on computer use, the alternative definition includes numerous computer
users who will be extremely difficult to identify.35 For example, the class would
include a friend of a lessee or purchaser who used the computer for a short period of
time. It will also include a babysitter who used the computer while babysitting a
lessee’s or purchaser’s children. The Plaintiffs provide no conceivable method for
33

See supra Section III.A.

34

Pls.’ Reply Br., at 5.

35

See Grimes v. Rave Motion Pictures Birmingham, LLC, 264 F.R.D. 659,
665 (N.D. Ala. 2010) (“Class certification is not appropriate if the court is called on
to engage in individualized determinations of disputed fact in order to ascertain a
person’s membership in the class.”).
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identifying these types of class members.36 Contrary to Plaintiffs’ claims, Aspen
Way’s records will not identify such class members.37 The names of
lessees/purchasers and their addresses will not significantly help identify the friend
or the babysitter in the examples above. And while the Plaintiffs may find the
Defendants’ arguments regarding both definitions to be contradictory, it is the
Plaintiffs that bear the burden of demonstrating the class is ascertainable.38 Thus, the
Defendants may point out the flaws in the alternative class definition, regardless of
their arguments as to the first definition.
36

The Plaintiffs also point out that the Defendants “stipulated in a related
quasi-class action brought by the California Attorney General that by examining
Aaron’s own books and records it was capable of identifying a complete list of
consumers eligible to receive restitution.” See Pls.’ Reply Br., at 5-6 n.6. But the
Defendants did not stipulate they could identify the putative class members at issue
in the present lawsuit. The California litigation stipulation was to “each customer of
an Aaron’s corporate-owned or franchised-owned store in California who, between
April 1, 2010 and March 31, 2014, entered into, or made payments on, a Covered rentto-own transaction.” Pls.’ Reply Br., Ex. R. Thus, this stipulation does not assist the
Plaintiffs’ argument.
37

Karhu v. Vital Pharms., 621 Fed. Appx. 945, 948 (11th Cir. 2015)
(finding that the plaintiff may use the defendant’s business records to identify
potential class members, but that “the plaintiff must also establish that the records are
in fact useful for identification purposes and that identification will be
administratively feasible” (internal punctuation omitted)).
38

See Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th
Cir. 2016) (“The party seeking class certification has the burden of proof. And the
entire burden of proof is that, if doubts remain about whether the standard is satisfied,
‘the party with the burden of proof loses.’” (citation omitted) (quoting Simmons v.
Blodgett, 110 F.3d 39, 42 (9th Cir. 1997))).
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Because the Court finds there are fatal flaws in both class definitions, the
Plaintiffs’ Motion for Class Certification should be denied. Nevertheless, because
deficient class definitions can be modified, the Court will continue with its class
certification analysis.39 The Plaintiffs’ Motion for Class Certification, as well as the
Defendants’ response briefs, primarily focus on whether the Plaintiffs satisfy Rule
23(b)(3)’s “predominance” requirement. Consequently, the Court will first address the
predominance prong of Rule 23(b)(3).
C. Rule 23(b)(3)
To certify a Rule 23(b)(3) class, the Plaintiffs must prove that “the questions
of law or fact common to class members predominate over any questions affecting
only individual members.”40 To establish predominance, it is not necessary that all
questions of law or fact be common. Nonetheless, “the issues in the class action that
are subject to generalized proof and thus applicable to the class as a whole, must
predominate over those issues that are subject only to individualized proof.”41
“Whether an issue predominates can only be determined after considering what value
the resolution of the class-wide issue will have in each class member’s underlying
39

Cohen v. Implant Innovations, Inc., 259 F.R.D. 617, 631 (S.D. Fla.

2008).
40

FED. R. CIV. P. 23(b)(3).

41

Cooper v. Southern Co., 390 F.3d 695, 722 (11th Cir. 2004).

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cause of action.”42 “Where, after adjudication of the classwide issues, plaintiffs must
still introduce a great deal of individualized proof or argue a number of individualized
legal points to establish most or all of the elements of their individual claims, such
claims are not suitable for class certification under Rule 23(b)(3).”43
“In a multi-state class action, variations in state law may swamp any common
issues and defeat predominance.”44 As a result, a district court must address how
variations in state law affect predominance. “To certify a multi-state class action, a
plaintiff must prove through ‘extensive analysis’ that there are no material variations
among the law of the states for which certification is sought.”45 A district court should
deny certification if the plaintiff fails to carry this burden.46 Here, the Plaintiffs
initially state that seven different state laws may apply to the putative class members’
claims. But in their reply brief, the Plaintiffs change their tune. There, they contend

42

Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004).

43

Id.

44

Id. at 1261 (quoting Castano v. American Tobacco Co., 84 F.3d 734, 741
(5th Cir. 1996)).
45

Id. at 1262.

46

Id.

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that because no foreign statues are involved, this Court should apply the common law
as developed in Georgia.47
“A federal court faced with the choice of law issue must look for its resolution
to the choice of law rules of the forum state.”48 Because the claim for invasion of
privacy is a tort claim, “this court will look to how Georgia courts determine the
applicable law in tort cases.”49 Georgia generally follows the doctrine of lex loci
delicti for tort cases.50 Lex loci delicti applies the substantive law of the place where
the wrong occurred.51 “The general rule is that ‘the place of the wrong, the locus
delicti, is the place where the injury was suffered . . . or, as it is sometimes more
generally put, it is the place where the last event necessary to make an actor liable for
the alleged tort takes place.’”52 Under this doctrine, therefore, the law of the

47

Pls.’ Reply Br., at 19-21.

48

Brenner v. Future Graphics, LLC, 258 F.R.D. 561, 571 (N.D. Ga. 2007)
(quoting Frank Briscoe Co., Inc. v. Georgia Sprinkler Co., Inc., 713 F.2d 1500, 1503
(11th Cir. 1983)).
49

Id.

50

Dowis v. Mud Slingers, Inc., 279 Ga. 808, 816 (2005).

51

International Bus. Machs. Corp. v. Kemp, 244 Ga. App. 638, 640 (2000).

52

Risdon Enters, Inc. v. Colemill Enters, Inc., 172 Ga. App. 902, 903

(1984).
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jurisdiction where each putative class member suffered harm would apply to the class
claims.
However, the Georgia choice of law system has a unique exception if the lex
loci delicti is foreign law. “Foreign law does not apply if ‘no foreign statutes are
involved.’”53 As a result, “Georgia courts apply the common law as developed in
Georgia rather than foreign case law.”54 It is presumed that no foreign statues are
involved if the parties do not identify any statutes in their pleadings.55 For the
Plaintiffs’ invasion of privacy and aid and abetting claims, neither party references
any applicable foreign statutes.56 “Therefore, Georgia’s choice of law rules require
application of Georgia law unless such application is inconsistent with due process.”57

53

In re Stand ‘N Seal, No. 1:07MD1804-TWT, 2009 WL 2998003, *2
(N.D. Ga. Sept. 15, 2009) (quoting In re Tri-State Crematory Litig., 215 F.R.D. 660,
677 (N.D. Ga. 2003)).
54

In re Tri-State Crematory Litig., 215 F.R.D. at 677.

55

See In re Tri-State Crematory Litig., 215 F.R.D. at 678 n.6 (citing Avnet,
Inc. v. Wyle Labs., Inc., 263 Ga. 615, 620 (1993)).
56

It should be noted that the Plaintiffs also seek punitive damages. Punitive
damages are covered by statute, and thus the Court cannot apply Georgia law to all of
the class members’ punitive damages claims. See, e.g., Colo. Rev. Stat. § 13-25127(2).The Plaintiffs fail to provide any sort of analysis of the foreign punitive
damages statutes at issue. As a result, the Court finds that punitive damages are not
appropriate for class certification in the instant class action.
57

Brenner v. Future Graphics, LLC, 258 F.R.D. 561, 571 (N.D. Ga. 2007).

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To be consistent with due process, Georgia must have “significant contact or
significant aggregation of contacts to the claims asserted by each member of the
plaintiff class, contacts creating state interests, in order to ensure that the choice of
[Georgia] law is not arbitrary or unfair.”58
The Plaintiffs argue that there are significant contacts to Georgia. Specifically,
they note that Aaron’s is incorporated in Georgia and the technical assistance for
PCRA “emanated from Georgia.”59 Additionally, citing the franchisee agreement, the
Plaintiffs state that Aaron’s franchisees expected Georgia law to apply.60 But none of
the contacts identified by the Plaintiffs establish significant connections between their
claims and Georgia. Aspen Way – a Montana based franchisee – operates stores in
Colorado, Idaho, Montana, South Dakota, Washington, and Wyoming.61 The Plaintiffs
have not alleged that Aspen Way conducted any unlawful acts outside of those six
states. Indeed, the Plaintiffs’ claim against Aaron’s is based on vicariously liability for
Aspen Way’s out-of-state conduct.

58

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-22 (1985).

59

Pls.’ Reply Br., at 20 n.16.

60

Id. at 20, Ex. 5.

61

Mot. for Class Cert., Ex. 1.

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Furthermore, the cases cited by the Plaintiffs in support of their argument are
distinguishable.62 For example, in Brenner v. Future Graphics, LLC, all the defendants
either resided or maintained an office in Georgia, all investment monies were wired
or mailed to Georgia, and other payments by defendants were mailed or wired to
Georgia.63 By contrast – here – the best evidence the Plaintiffs have put forth is
Aaron’s headquarters in Georgia. But that is not enough to satisfy due process under
the circumstances. Consequently, the Court finds that there are insufficient contacts
to apply Georgia common law to all claims. Because Georgia law cannot apply to all
claims, the Court would have to conduct individualized choice of law analyses,
including due process analyses, for each putative class member. This alone defeats
predominance.64

62

See In re Stand ‘n Seal, Prods. Liab. Litig., No. 1:07MD1804-TWT, 2009
WL 2998003, at *2 (N.D. Ga. Sept. 15, 2009) (holding that Georgia law would apply
to all out-of-state claims, but the plaintiffs, who did not bring the motion, did not
assert a due process challenge); In re Tri-State Crematory Litig., 215 F.R.D. 660, 67778 (N.D. Ga. 2003) (finding that human remains – which gave rise to the plaintiffs’
claims – located in Georgia created significant contacts with the state).
63

Brenner v. Future Graphics, LLC, 258 F.R.D. 561, 571 (N.D. Ga. 2007).

64

See Automotive Leasing Corp. v. Mahindra & Mahindra, Ltd., No. 1:12cv-2048-TWT, 2014 WL 988871, at *4 (N.D. Ga. Mar. 14, 2014) (holding that
commonality was not met where “the Court would have to conduct differing due
process analyses for many of the approximately 340 potential class members”).
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The Plaintiffs contend that if the Court rules against them on the issue of due
process, then their original choice of law analysis is sufficient. For multiple reasons,
the Court disagrees. Where the law of several states may apply to the putative class
members’ claims, the Plaintiff must provide an analysis of state law variations to
determine whether these variations prohibit class certification.65 Indeed, “it is ‘the
court’s duty to determine whether the plaintiffs have borne their burden where a class
will involve multiple jurisdictions and variations in state law.’”66 Here, the Plaintiffs
contend that the impacted states articulate an invasion of privacy claim in a virtually
identical manner. They state that four states – Georgia, Colorado, Idaho, and
Washington – have adopted Section 652B of the Restatement (Second) of Torts,
which provides the elements of an invasion of privacy claim.67 Then, the Plaintiffs lay
out the elements of an invasion of privacy claim in South Dakota, Wyoming, and

65

See Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs.,
Inc., 601 F.3d 1159, 1180 (11th Cir. 2010) (“The issue can only be resolved by first
specifically identifying the applicable state law variations and then determining
whether such variations can be effectively managed through creation of a small
number of subclasses grouping the states that have similar legal doctrines.” (quoting
Walsh v. Ford Motor Co., 807 F.2d 1000, 1017 (D.C. Cir. 1986))).
66

Id. (quoting Spence v. Glock, Ges.m.b.H., 227 F.3d 308, 313 (5th Cir.

2000)).
67

See Mot. for Class Cert., Ex. B, at 5-10.

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Montana, contending that the differences between the elements are largely stylistic.68
Any differences beyond style, the Plaintiffs state, can be accounted for in the jury
instructions.
The Court finds the Plaintiffs’ state law analysis to be lacking. As the
Defendants correctly point out, there are many variations among the seven states’ laws
that the Plaintiffs fail to acknowledge. First, the Plaintiffs misstate Wyoming law;
Wyoming does not recognize the tort of invasion of privacy.69 Second, the states differ
in the necessary degree of offensiveness. Georgia only requires that the conduct be
“offensive or objectionable,”70 while in Montana, the conduct must “outrage or cause
mental suffering, shame or humiliation.”71 Third, the jurisdictions do not interpret the
element of intent in the same manner. Washington requires the defendant to have
“acted deliberately to achieve the result, with the certain belief that the result would

68

Id.

69

See Byrd v. Aaron’s, Inc., 14 F. Supp. 3d 667, 692 & n.18 (W.D. Pa.
2014), rev’d on other grounds by 784 F.3d 154 (3d Cir. 2015). The Plaintiffs cite two
authorities in support of their contention that Wyoming recognizes the tort. The Court
has analyzed both authorities and neither of them even mentions the tort. See Green
River v. Bunger, 58 P.2d 456, 460-62 (Wyo. 1936); Wyo. Stat. Ann. § 8-1-101.
70

Association Servs., Inc. v. Smith, 249 Ga. App. 629, 632 (2001).

71

Deserly v. Department of Corr., 995 P.2d 972, 977 (Mont. 2000).

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happen,”72 but Georgia analyzes intrusion under an objective standard.73 Fourth, the
states evaluate damages differently. For example, Colorado has different categories
of damages,74 while Idaho decides damages based on the jury’s “sense of fairness and
justice.”75 Finally, the statute of limitations vary among the states.76 These variations
in the implicated states’ laws necessitate a more detailed analysis from the Plaintiffs.
An even more egregious omission, however, is the Plaintiffs’ failure to address their
aiding and abetting claim in their analysis. In their response brief, the Defendants
point to the different variations of the states’ laws for an aiding and abetting claim.
They note that while several jurisdictions have adopted the Restatement (Second) of
Torts § 876, Colorado has adopted an alternative test77 and Wyoming may not even
recognize the claim. It is the Plaintiffs’ burden to provide an analysis for state law

72

Fisher v. State, 106 P.3d 836, 879 (Wash. Ct. App. 2005).

73

Johnson v. Allen, 272 Ga. App. 861, 864 (2005).

74

Doe v. High-Tech Inst., 972 P.2d 1060, 1066 (Colo. Ct. App. 1998).

75

Alderson v. Bonner, 132 P.3d 1261, 1272 (Idaho Ct. App. 2006).

76

See, e.g., Colo. Rev. Stat. Ann. § 13-80-102 (two years); Mont. Code
Ann. § 27-2-204 (three years).
77

See Holmes v. Young, 885 P.2d 305, 308 (Colo. Ct. App. 1994).

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variations for all of their claims.78 As a result, the Court finds that the Plaintiffs have
“failed to articulate adequately how these variations in state law would not preclude
predominance in this case.”79
Even if the Plaintiffs’ choice of law analysis was sufficient, their intrusion upon
seclusion claim raises other predominance problems. The Plaintiffs contend that
merely installing PCRA on the Plaintiffs’ computers is sufficient to find an invasion
of privacy claim. However, using the Plaintiffs’ proposed jury instructions, it is clear
to the Court that their intrusion upon seclusion claim is highly individualized. The
Plaintiffs propose the following instructions:
Plaintiffs and the class seek to recover damages based upon a claim of
invasion of privacy by intrusion into private affairs. The essential
elements of such a claim are:
One: The intentional intrusion, physically or otherwise, upon the solitude
or seclusion, private affairs or concerns of another;
Two: The intrusion was substantial, and of a kind that would be highly
offensive to an ordinarily reasonable person; and
Three: The intrusion caused plaintiff to sustain injury, damage, loss or
harm.

78

Cole v. General Motors Corp., 484 F.3d 717, 724 (5th Cir. 2007)
(“Failure to engage in an analysis of state law variations is grounds for
decertification.”).
79

Id. at 726.

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In determining whether an intrusion is highly offensive, you should
consider all the evidence, including the degree of the intrusion; the
context, conduct and circumstances surrounding the intrusion as well as
the intruder’s motives and objectives; the setting in which the intrusion
occurred, and the plaintiff’s expectations in that setting.80
Thus, in order to determine whether an offensive invasion occurred, the jury will have
to look at the particular circumstances of each class member. For example, an
employee using a work computer that was leased by his or her employer may not have
the same expectation of privacy as a lessor using a computer as his or her personal
computer.
The Plaintiffs’ contention also fails to acknowledge PCRA’s limited functions
and differences from Detective Mode. From 2008 through most of 2011, PCRA’s
main function was a “kill switch.”81 Through the kill switch, Aspen Way could
remotely shut down any computer.82 However, the kill switch did not capture any
private information. After 2011, PCRA had the ability to capture geolocation
information.83 PCRA also provided Aspen Way with a log containing technical data

80

See Mot. for Class Cert., Ex. B, at 9-10.

81

See Def. Aaron’s Resp. Br., Ex. B, at 72.

82

Id.

83

See id., Ex. A., at 77.

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from each computer, but the log did

not contain any personally identifiable

information.84
Detective Mode is a separate software.85 It enabled Aspen Way to capture
personal information, such as screen shots, key strokes, and webcam images.86
Importantly, though, Detective Mode was not preinstalled on any Aspen Way
computers.87 Instead, Aspen Way had to request Detective Mode be activated on a
computer. Aspen Way requested that Detective Mode be activated on a limited
number of class members’ computers.88 Because of the differences between PCRA
and Detective Mode, individual inquiries into each class member’s claim will be
necessary to determine what, if any, offensive invasions occurred. For example, a
class member could have leased a computer in 2008 and returned it to Aspen Way in
84

See Mot. for Class Cert., Exs. 2, 9. Other courts have held that technical
information about a computer, like an IP address or a serial number, is not personal
information. See In re iPhone Application Litigation, 844 F. Supp. 2d 1040, 1063
(N.D. Ca. 2012) (finding that disclosure of electronic device identifier and geolocation
information did not constitute an invasion of privacy under California’s constitutional
right to privacy).
85

See Def. Aaron’s Resp. Br., Ex. B, at 38, 46, 68.

86

See Def. Aspen Way’s Answer ¶ 41.

87

See Def. Aaron’s Resp. Br., Ex. B., at 90.

88

See id.; Mot. for Class Cert., Ex. 12. (Aspen Way’s Supplemental
Answer) ¶ 4 (admitting to activating Detective Mode on 167 computers).

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2009. If Detective Mode was never activated on the class member’s computer, his or
her private information was likely never captured. These inquiries will be very factdependent, resulting in individual issues predominating the class claims.
The Plaintiffs respond by pointing to cases where courts have found an invasion
of privacy because a person simply installed a device capable of capturing private
information. For example, in Koeppel v. Speirs, the Iowa Supreme Court found that
a female employee who discovered a hidden camera in a workplace bathroom had
sufficiently alleged an invasion of privacy claim to survive summary judgment,
despite a lack of evidence that someone actually watched the camera.89 But the instant
situation is very different from a hidden camera in a bathroom, where everyone has
a reasonable expectation of privacy. As previously noted, not all class members may
have maintained an expectation of privacy while using their computers. Moreover,
PCRA – without Detective Mode activated – was not capable of capturing private
information. Thus, the jury will need to examine the individual circumstances of each
class member to determine if an invasion of privacy occurred.90
89

See 808 N.W.2d 177, 184 (Iowa 2011).

90

See Castro v. NYT Television, 895 A.2d 1173, (N.J. Super. Ct. App.
Div. 2006) (denying class certification where “the determination of defendants’
liability for [intrusion upon seclusion] will necessarily turn on the particular
circumstances of the videotaping of each individual plaintiff, including the nature of

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The issue of damages creates even more hurdles for the Plaintiffs. The Plaintiffs
are seeking compensatory damages, arguing that they should be determined by the
enlightened conscience of an impartial jury. They state “a total, single monetary sum”
can be awarded by the jury.91 This single sum would be based on the Plaintiffs’
presentation of “a handful of the Defendants’ own witnesses and documents.”92 Then,
“[a] post-judgment molding of the verdict would follow, in which the Defendants’
own records would be used to distribute checks to each individual Class member
based on a pro rata or other court-approved calculation of individual class members’
damages.”93
However, this proposal offends the Rules Enabling Act. Under the Rules
Enabling Act, a class action may not “abridge, enlarge, or modify” substantive
rights.94 “Roughly estimating damages to the class as a whole and only subsequently
allowing for processing of individual claims would inevitably alter defendants’
the area where the videotaping was conducted, the appearance of the plaintiff during
the videotaping, what medical procedure, if any, was being performed, and whether
the plaintiff objected to or welcomed the videotaping”).
91

Mot. for Class Cert., Ex. B., at 2.

92

Id.

93

Id.

94

28 U.S.C. § 2072(b).

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substantive right to pay damages reflective of their actual liability.”95 Indeed, by
determining damages through a sampling of witnesses and documents, the damages
calculation will neither accurately reflect the number of class members actually
injured nor the amount of harm actually caused by the defendants.96 Thus, the jury will
have to consider the individual circumstances of each class member to determine the
appropriate damages.97 To be sure, “the ‘black letter rule’ recognized in every circuit
is ‘individual damage calculations generally do not defeat a finding that common
issues predominate.’”98 But – as the Eleventh Circuit has acknowledged – “the blackletter rule has always been subject exceptions.”99 And one such exception applies here:

95

McLaughlin v. American Tobacco Co., 522 F.3d 215, 231 (2d Cir. 2008),
abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639
(2008).
96

Id.

97

The Plaintiffs point to In re Tri-State Crematory Litigation as evidence
that – in a class action – damages can be left to the jury’s discretion. However, that
case did not involve the same fluid recover argument presented by the Plaintiffs. See
215 F.R.D. 660, 699 (N.D. Ga. 2003) (finding that bifurcation of the class was
appropriate and that damages would be tried individually during the second phase of
the trial).
98

Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1239 (11th Cir.

2016).
99

Id.

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“individual damages defeat predominance when they are accompanied by ‘significant
individualized questions going to liability.’”100
Finally, the Defendants raise the affirmative defense of consent.101 They claim
that while Aspen Way did not have a specific policy regarding whether to inform
customers about PCRA and Detective Mode, some customers may have been aware
of the software and consented to it. For example, the Defendants point to evidence of
an Aspen Way store manager stating that he routinely obtained consent from
customers.102 Moreover, they note that some activations of Detective Mode were made
only after customers requested it in order to locate a stolen or lost computer.103 Thus,
according to the Defendants, whether a customer consented to the use of PCRA or
Detective Mode is a fact-specific inquiry. The Plaintiffs respond by arguing that
consent can be determined on a classwide basis, because Aspen Way admitted that

100

Id. (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1251 (11th Cir.

2004)).
101

See, e.g., Canziani v. Visiting Nurse Health Sys., Inc., 271 Ga. App. 677,
679 (2005) (noting that the right to privacy may be waived).
102

Def. Aaron’s Resp. Br., Ex. D.

103

See Mot. for Class Cert., Ex. 12 (Addendum to Aspen Way’s
Supplemental Answer to Pls.’ Interrogatory 4(c)) (identifying four instances in which
a customer requested that Detective Mode be activated).

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it had no policy to inform its customers about PCRA or Detective Mode.104 Moreover,
they note that affirmative defenses do not defeat predominance.
The Court disagrees that consent can be proven on a classwide basis. While
Aspen Way may not have maintained a policy regarding PCRA, that does not mean
every class member was unaware of the software. As the Defendants’ evidence
demonstrates, some class members may have been aware of the software or may have
requested it be activated on their computers. Thus, the issue of consent will be an
individual inquiry. And though the Court recognizes that “individual affirmative
defenses generally do not defeat predominance . . . the individual nature of affirmative
defenses is still relevant to whether predominance is satisfied.”105 As a result, the issue
of consent, especially when coupled with the other individual issues already
discussed, contributes to the class’s predominance problems.
Because the Court finds that common issues do not predominate, it is not
required to determine whether a class action is superior.106 Nevertheless, because the

104

Id., Ex. 7 ¶ 30.

105

Brown, 817 F.3d at 1240.

106

See Mills v. Foremost Ins. Co., 511 F.3d 1300, 1308 (11th Cir. 2008)
(noting that a plaintiff must show that common questions of law or fact predominate
and show superiority of a class action in order to satisfy Rule 23(b)(3)).

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Order is subject to interlocutory review, the Court will provide a brief discussion
regarding the superiority requirement. Rule 23(b)(3) requires “that a class action [be]
superior to other available methods for fairly and efficiently adjudicating the
controversy.”107 The factors relevant to the superiority requirement include:
(A)

the class members’ interests in individually controlling the
prosecution or defense of separate actions;

(B)

the extent and nature of any litigation concerning the controversy
already begun by or against class members;

(C)

the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and

(D)

the likely difficulties in managing a class action.108

These factors weigh against certification of the proposed class. First, several putative
class members have filed their own individual lawsuits, which demonstrates the
putative class members may have a strong interest in controlling their own
litigation.109 Second, of the lawsuits already filed, this case is the only one filed in
Georgia, suggesting that it may not be desirable to concentrate the litigation in the

107

FED. R. CIV. P. 23(b)(3).

108

Carriuolo v. General Motors Co., 823 F.3d 977, 989 (11th Cir. 2016)
(quoting FED. R. CIV. P. 23(b)(3)).
109

See Def. Aaron’s Resp. Br., Exs. G, L, U, S.

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Northern District of Georgia. Third, the numerous individualized issues create a
manageability problem for the Court.110 This manageability problem is exacerbated
by the Plaintiffs’ inadequate trial plan and choice of law analysis. Consequently, the
Court finds that a class action is not superior to other available methods of
adjudication of this controversy.
D. Rule 23(b)(2)
In conjunction with certification under Rule 23(b)(3), the Plaintiffs seek to
certify a class under Rule 23(b)(2). Specifically, they seek “a Court-approved notice
to the class that their computers are laden with spyware.”111 The Plaintiffs’ (b)(2) class
fails for two reasons. First, in order to certify a Rule 23(b)(2) class, any individualized
money damages sought must be incidental to the equitable relief requested.112 If the
monetary damages are not incidental, the absence of notice and opt-out under Rule

110

See Shelley v. Amsouth Bank, No. CIV.A.97-1170-RV-C, 2000 WL
1121778, at *9 (S.D. Ala. July 24, 2000) (“[T]he complexity of the individual issues
weighs further against manageability of the class action. Most if not all the individual
issues identified above would require extensive individualized examination of each
class member.” ).
111

Pls.’ Reply Br., at 27.

112

See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 363 (2011) (“In the
context of a class action predominately for money damages we have held that absence
of notice and opt-out violates due process.”).

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23(b)(2) would violate the putative class members’ due process rights.113 Here, the
Plaintiffs are seeking monetary relief for each putative class member, and the damages
calculation will be individualized. Thus, the requested monetary relief cannot be
considered incidental to the injunctive relief. Second, injunctive relief cannot be
granted unless “a serious risk of continuing irreparable injury” is apparent.114 The
Plaintiffs have not presented an argument as to why there is a serious risk of future
injury. As a matter of fact, there appears to be little to no risk of continuing injury
because the Defendants have entered into consent decrees with the Federal Trade
Commission agreeing to cease any use of the monitoring software at issue.115 The
Court, therefore, finds that the Plaintiffs’ Rule 23(b)(2) class should not be certified.

IV. Conclusion
For the reasons set forth above, the Plaintiffs’ Motion for Class Certification
[Doc. 84] is DENIED.

113

Id.

114

Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000).

115

See Def. Aaron’s Resp. Br., Exs. O, P, Q.

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SO ORDERED, this 24 day of January, 2017.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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