Dunstan et al v. comScore, Inc.

Filing 122

MOTION by Plaintiff Jeff Dunstan to dismiss RE: Motion to Voluntarily Dismiss Count IV (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Thomassen, Benjamin)

Exhibit A

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
situated individuals,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
COMSCORE, INC., a Delaware corporation,
)
)
Defendant.
)
__________________________________________)

Case No. 1:11-5807
Hon. James F. Holderman

DECLARATION OF RAFEY S. BALABANIAN
I, Rafey S. Balabanian, hereby declare and state as follows:
1.

I am a Partner at the law firm of Edelson McGuire, LLC, I am admitted to

practice law in the State of Illinois, and I represent Plaintiffs Mike Harris and Jeff Dunstan (the
“Plaintiffs”) in the above-titled action. I am over the age of eighteen and am fully competent to
make this declaration. This declaration is based upon my personal knowledge, except where
expressly noted otherwise.
2.

In response to Defendant comScore, Inc.’s (“comScore”) discovery requests to

Plaintiff Jeff Dunstan (“Dunstan”), Dunstan produced printouts of log files created by his antivirus software. These logs evidence that Dunstan’s anti-virus software identified comScore’s
software as a dangerous item, and removed it from his computer.
3.

Those printouts also contain information not relevant to this lawsuit—including

data revealing Dunstan’s private and sensitive web browsing viewing history. Accordingly, we
redacted such information in the printouts provided to comScore.

1

4.

On May 31, 2012, comScore requested via e-mail “Dunstan’s full, unredacted

antivirus logs” relating to “Plaintiffs . . . [certification of a class of] ‘All individuals and entities
in the United States that have incurred costs in removing the Surveillance Software.’”
5.

In a July 2, 2012 letter response to comScore’s request, I indicated that, as a

threshold matter, any information that may be gleaned from the anti-virus logs only related to
damages incurred by Dunstan as a result of installing comScore’s software, which is a merits
issue not properly sought at this stage of bifurcated discovery. The foregoing notwithstanding, I
advised defense counsel that the redacted portions of the printout show Dunstan’s “private and
sensitive Internet usage data,” and thus, in the interest of his privacy, would not be turned over at
this juncture.
6.

Setting aside the issue of the anti-virus logs, after further analyzing the viability of

the Illinois Consumer Fraud Act (“ICFA”) claims brought on behalf of the Dunstan Subclass, my
firm determined that the unique challenges associated with succeeding on such claims at the
class certification stage warrant voluntarily dismissing the count altogether. Dunstan has also
decided not to individually pursue his ICFA claims.
7.

Accordingly, my firm communicated to comScore’s counsel on numerous

occasions that Plaintiffs would no longer seek certification of the Dunstan Subclass and thus
consider comScore’s request for the anti-virus logs to be moot, as that request only seeks to
obtain information relating to his ICFA claim.
8.

On July 26, 2012, the Parties appeared before this Court for a status hearing.

There, I explained to the Court that Plaintiffs intended to amend their complaint to (1) drop the
claims brought on behalf of the Dunstan Subclass under the ICFA and (2) add a count for
trespass to chattels.

2

9.

On August 1, 2012, comScore’s counsel requested confirmation via e-mail as to

whether Plaintiffs would be amending their Complaint as described above (supra, ¶ 8), and
indicated that the decision would affect the scope of comScore’s deposition of Dunstan.
10.

On August 2, 2012, Plaintiffs’ counsel responded via e-mail and explained that

Plaintiffs would not be adding the trespass to chattels claim and invited comScore to join a
stipulation that permits Plaintiffs to drop the Dunstan Subclass and the ICFA claim brought on
behalf of the Subclass. Plaintiffs’ counsel offered to draft a stipulation for comScore’s review by
the next day.
11.

On August 8, 2012, comScore deposed Dunstan. In that deposition, comScore

questioned Dunstan about the anti-virus program he purchased to remove comScore’s software,
and inquired about the anti-virus logs discussed in Plaintiffs’ instant motion.
12.

On August 14, 2012, and pursuant to Judge Kim’s order, my firm circulated a

draft stipulation to comScore, which sought voluntary dismissal of Count IV of the Complaint
(the ICFA claim) and indicated that Plaintiffs would not pursue relief on behalf of the Dunstan
Subclass. comScore responded to that draft on August 21, 2012 with its own revisions.
13.

On August 24, 2012—i.e., before the date (August 31, 2012) that Judge Kim

ordered Plaintiffs to respond to comScore’s draft of the Parties’ stipulation for voluntary
dismissal—counsel for comScore e-mailed to explain that it would not stipulate to any voluntary
dismissal, and repeated its position that Plaintiffs should move the Court for leave to amend the
Complaint.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 7th day of September, 2012 at Chicago, Illinois.
/s/ Rafey S. Balabanian

3