Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Byrd v. Aaron's, Inc.

United States District Court, W.D. Pennsylvania

March 22, 2017

CRYSTAL BYRD, et al, Plaintiffs,
v.
AARON'S, INC., et al., Defendants.

          Bissoon District Judge.

          MEMORANDUM OPINION [1]

          SUSAN PARADISE BAXTER United States Magistrate Judge.

         Presently pending before this Court is a Motion to Strike Plaintiffs' New Expert Report filed by Defendant Aaron's Inc. and joined by Defendant Aspenway. ECF No. 469. For the reasons set forth below, the motion to strike will be granted. !

         A. Relevant Procedural History

         On May 3, 2011, Plaintiffs Crystal and Brian Byrd, initiated this action. Plaintiffs allege that Defendants utilized spying software ("PCRA software") to illegally intercept, access, monitor, and/or transmit electronic communications from their consumers' computers in violation of 18 U.S.C § 2511, the Electronic Communications Privacy Act ("ECPA").

         Since the filing of the Original Complaint, this case has undergone a lengthy procedural process, only a portion of which is necessarily related herein. Currently, the operative complaint is Plaintiffs' Corrected Third Amended Complaint. ECF No. 296. Defendants remaining in this action are Aaron's Inc. and Aspen Way Enterprises, Inc.

         On July 1, 2013, Plaintiffs filed a motion for class certification in this action. ECF No. 174. Defendant Aaron's Inc. filed a brief in opposition, [ECF No. 219] as well as an expert report from Dr. Aviel Rubin ("Rubin Report"), on August 19, 2013. ECF No. 220-4. Thereafter, Plaintiffs filed a reply brief on September 23, 2013, along with their own expert report from Dr. Micah Sherr ("Original Sherr Report"), who reviewed the Rubin Report in preparation for his rebuttal report. ECF No. 293.

         This Court issued a Report and Recommendation denying Plaintiffs' motion for class certification on January 31, 2014, [ECF No. 319] which the District Court adopted as its opinion on March 31, 2014. ECF No. 340. On appeal, the Third Circuit Courts of Appeals reversed and remanded for further consideration. ECF No. 364.

         On October 14, 2016, Plaintiffs filed their Renewed Motion to Certify Class in this action. ECF 439. The September 2013 Sherr rebuttal report was included as an exhibit in support of the motion for class certification. ECF No. 440-2. Defendant Aaron's Inc. filed its Brief in Opposition on November 4, 2016, which continued to rely upon the Rubin Report. ECF No. 451. Thereafter, Plaintiffs submitted a reply brief in support of their Motion to Certify Class, which included a new expert report by Dr. Micah Sherr ("New Sherr Report"). ECF No. 463; 463-5.

         Defendant Aaron's Inc. filed a Motion to Strike Plaintiffs' New Expert Report, arguing that the report is improper rebuttal testimony, it is untimely by more than three years, and Defendants will be prejudiced if it is allowed to stand.[2] ECF No. 469. Additionally, Defendant Aaron's Inc. requests the Court to award Aaron's Inc. its costs and attorneys' fees in connection with this motion. Id. Plaintiffs filed a response brief in opposition to Defendant's motion to strike on January 6, 2017. ECF No. 474. On January 24, 2017, Defendant Aaron's Inc. filed a reply brief in further support of their motion to strike. ECF No. 489. This matter is fully briefed and is ripe for disposition by this Court.

         B. Discussion

         a. Improper Rebuttal Evidence

         i. Factual Background

         Defendant Aaron's Inc. argues the New Sherr Report goes beyond the permissible purpose of rebuttal evidence. Instead, Defendant Aaron's Inc. believes Plaintiffs are attempting to advance new theories and methodologies to account for deficiencies in their original rebuttal expert report as it pertains to their Rule 23(b)(3) "predominance" argument. ECF No. 470, pages 10-11.

         In order to understand Defendant Aaron's Inc.'s arguments in their motion to strike more clearly, it is important to examine the procedural history of Plaintiffs' pursuit of class certification, particularly the Rule 23(b)(3) "predominance" arguments throughout this litigation.[3]

         After Plaintiffs filed their Initial Motion for Class Certification on July 1, 2013, [ECF No. 174] Defendant Aaron's Inc. filed a brief in opposition on August 19, 2013. Defendant Aaron's Inc. argued that "Plaintiffs have wholly failed to identify a common method of proof to establish Defendants' liability under the ECPA." ECF No. 219, pages 26-27. Further, Defendant Aaron's Inc. asserted that Rule 23(b)(3) requires more than a simple contention that the evidence of record will establish that the PCRA software operated in the same manner to capture electronic communications from each of the class members. Id.

         In support of their argument in opposition to the Plaintiffs' motion for class certification, Defendant Aaron's Inc. included an expert report from Dr. Aviel Rubin, who concluded that it would be unreasonable to find that each and every use of the PCRA software constituted an "interception" of an electronic communication. ECF No. 220-4, ¶ 46. Notably, the Rubin Report casts doubt on the feasibility of differentiating which interceptions were communications from non-communications. Id. at ¶¶ 46-50.

         Thereafter, Plaintiffs filed a reply brief on September 23, 2013, along with their own Original Sherr Report. ECF No. 293. Importantly, Dr. Sherr reviewed the Rubin Report in preparation for his rebuttal report. As it pertains to Rule 23(b)(3), Plaintiffs argued they could present common evidence regarding the design, capabilities and operation of the PCRA software. ECF No. 293, pages 23-24. As such, Plaintiffs averred a uniform jury instruction could be used to allow the jury to broadly determine liability as to each element of the ECPA, including what matters are electronic communications, whether the PCRA software is capable of contemporaneous interceptions, and what interceptions fit within these findings. Id.

         The Original Sherr Report supported Plaintiffs' Rule 23(b) assertion, stating:

Not all screenshots and keypresses correspond to a communication and it is of course possible for a computer to never be connected to the Internet. However, the DesignerWare database provides a common means of determining which customers connected their computers to the Internet and when they did so. This follows from the behavior of Aaron's PCRA/Detective Mode System: entries for a computer only appear in the database if the PC Rental Agent software running on that computer was able to contact the DesignerWare database server via the Internet.

         ECF No. 293-2, ¶ 65. However, the Original Sherr Report did not set forth any claims or automated capabilities that would preclude the necessary individualized ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.