Dunstan et al v. comScore, Inc.

Filing 15

MEMORANDUM by comScore, Inc. of Points and Authorities in support of motion to dismiss under Rule 12(B)(3) or, in the alternative, to transfer venue under 28 U.S.C. 1404(A) 12 (Hudson, Leonard) (Docket Text modified by Clerks' Office.)

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.

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

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS
UNDER RULE 12(B)(3) OR, IN THE ALTERNATIVE, TO TRANSFER VENUE UNDER 28
U.S.C. 1404(A)

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Table of Contents
Page
I.

INTRODUCTION ............................................................................................................. 1

II.

BACKGROUND ............................................................................................................... 2
A.
B.

III.

comScore’s Business Model .................................................................................. 2
Plaintiffs’ Allegations ............................................................................................ 4

ARGUMENT..................................................................................................................... 5
A.
B.

Plaintiffs Agreed To The Forum Selection Clause And Cannot Overcome
The Presumption Of Enforceability....................................................................... 7

C.

The forum selection clause applies to Plaintiffs’ claims ....................................... 9

D.

Considerations Of Convenience Favor Enforcement Of The Forum
Selection Clause................................................................................................... 10

E.

Alternatively, This Action Should Be Transferred to The Eastern District
Of Virginia Under 28 U.S.C. § 1404(a)............................................................... 11

F.
IV.

The Forum Selection Clause Is Presumptively Valid And Should Be
Enforced................................................................................................................. 5

Plaintiffs’ Motion for Expedited Discovery is Not Properly Before the
Court .................................................................................................................... 14

CONCLUSION................................................................................................................ 14

-i-

Table of Authorities
Page
CASES
Abbott Laboratories v. Takeda Pharmaceutical Co. Ltd.,
476 F.3d 421 (7th Cir. 2007) .....................................................................................................6
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009)...........................................................................................................8, 9
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)...............................................................................................................8, 9
Bryant v. ITT Corp.,
48 F.Supp.2d 829 (N.D. Ill. 1999) ...........................................................................................13
Carnival Cruise Lines, Inc. v. Shute,
499 U.S. 585 (1991)...................................................................................................................6
Chicago, R.I. & P.R. Co. v. Igoe,
220 F.2d 299 (7th Cir. 1955) ...................................................................................................12
Corrosion Technology Intl., LLC v. Anticorrosive Industriales LTDA,
No. 1:10-cv-915 (AJT/TCB), 2011 WL 3664575, *2, n.5 (E.D. Va. Aug. 19, 2011)...............6
DeJohn v. The .TV Corporation Int’l,
245 F.Supp. 913 (N.D. Ill. 2003) ..................................................................................... passim
Forrest v. Verizon Comm’n Inc.,
805 A.2d 1007 (D.C. 2002) .......................................................................................................6
FUL Inc. v. Unified School Dist. No. 204,
839 F. Supp. 1307 (N.D. Ill. 1993) ..........................................................................................12
Genden v. Merrill Lynch Pierce Fenner & Smith,
621 F.Supp. 780 (N.D. Ill. 1985) .............................................................................................11
Georgouses v. NaTech Resources, Inc.,
963 F. Supp. 728 (N.D. Ill. 1997) ............................................................................................11
Hanley v. Omarc, Inc.,
6 F. Supp. 2d 770 (N.D. Ill. 1998) ...............................................................................11, 12, 13
Int’l Star Registry of Illinois v. Omnipoint Marketing, LLC,
No. 05 C 6923, 2006 WL 2598056 (N.D. Ill. Sept. 6, 2006)...................................................12

-ii-

Table of Authorities
(continued)
Page
Kochert v. Adagen Medical Int’l, Inc.,
491 F.3d 674 (7th Cir. 2007) .....................................................................................................6
Los Angeles Memorial Coliseum Comm'n v. NFL,
89 FRD 497,502-512 (C.D. Cal. 1981), affd, 726 F.2d 1381 (9th Cir. 1984) .........................13
Lou v. Belzberg,
834 F.2d 730 (9th Cir. 1987) ...................................................................................................11
M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972).......................................................................................................................5
Montgomery v. Corinthian Colleges, Inc.,
No. 11 C 365, 2011 WL 1118942 (N.D. Ill. March 25, 2011) ..................................................9
Nazaruk v. eBay Inc.,
No. 2:06 CV 242 DAK, 2006 WL 2666429 (D. Utah Sept. 14, 2006)......................................6
New Hampshire Ins. Co. v. Green Dragon Trading Co.,
No. 08 C 1326, 2008 WL 2477484 (N.D. Ill. Jun. 17, 2008) ..................................................12
Paper Express, Ltd. v. Pfankuch Maschinen GmbH,
972 F.2d 753 (7th Cir. 1992) ...............................................................................................9, 10
Rice Contracting Co. v. Callas Contractors, Inc.,
No. 1:08cv1163 (LMB), 2009 WL 21597 (E.D. Va. Jan. 2, 2009) ...........................................6
Schwarz v. Sellers Markets, Inc.,
No. 11 C 501, 2011 WL 3921425 (N.D. Ill. Sept. 7, 2011).......................................................9
Specht v. Netscape Comms. Corp.,
306 F.3d 17 (2d Cir. 2002).........................................................................................................8
Stewart Org., Inc. v. Ricoh Corp.,
487 U. S. 22 (1988)..................................................................................................................11
STATUTES
28 U.S.C. 1404(a) ................................................................................................................6, 11, 14
OTHER
Rule 12(b)(3)..........................................................................................................................2, 4, 14
Rule 12(b)(6)................................................................................................................................4, 9
-iii-

I.

INTRODUCTION
Plaintiffs’ Complaint should not be before this Court. In order to install the comScore

Inc. (“comScore”) software that is the subject of their claims, Plaintiffs were required to
affirmatively agree to the terms and conditions of comScore’s Privacy Statement and User
License Agreement (hereinafter collectively “ULA”). This ULA includes a mandatory forum
selection clause stated in capital letters, which provides:
FOR ANY NON-ARBITRAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATED TO THIS PROGRAM OR
THIS AGREEMENT, SOLE AND EXCLUSIVE JURISDICTION
SHALL RESIDE WITH THE APPROPRIATE STATE COURT
LOCATED IN FAIRFAX COUNTY, VIRGINIA OR FEDERAL
COURT LOCATED IN ALEXANDRIA VIRGINIA.
Under established black-letter law, forum selection clauses such as comScore’s must be
enforced absent a showing of unusual facts sufficient to overcome the strong presumption of
validity. There are no such circumstances alleged here; nor can Plaintiffs present any such facts
to avoid the terms they affirmatively agreed to. The process by which comScore’s contractual
terms are presented, and by which users like Plaintiffs must affirmatively manifest consent by
clicking, are in line with other online “click-through” agreements that have been routinely
enforced by courts throughout the country, including this District. Moreover, even a cursory
review of Plaintiffs’ claims shows that they are encompassed by the forum selection clause,
which applies broadly to all allegations “arising out of, or related to,” comScore’s data collection
program and the ULA that governs the program.
Pursuant to the forum selection clause that they agreed to, Plaintiffs were required to file
this action in Virginia state court or in the United States District Court for the Eastern District of
Virginia.

Accordingly, comScore respectfully requests that this court dismiss Plaintiffs’

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Complaint under Rule 12(b)(3)1 or, in the alternative, transfer this case to the Eastern District of
Virginia.
II.

BACKGROUND
A.

comScore’s Business Model

comScore is an Internet market research company that measures the online behavior of
Internet users (“Panelists”) who volunteer to participate in comScore’s program in exchange for
various benefits, such as the Trees for Knowledge program (where comScore works with Trees
For The Future and pledges the planting of trees in Central America, Africa, and Asia in
exchange for Panelists joining and remaining a part of the research panel), free third-party
software applications (for example computer security software or screensavers), and the chance
to win cash or prizes. (Declaration of John O’Toole [hereinafter “O’Toole Decl.”], ¶ 3; Compl.
¶¶ 25, 32). To participate in these programs, Panelists must download and install comScore’s
proprietary software. (O’Toole Decl., ¶ 3; Compl. ¶ 25).
A prospective Panelist is presented with the opportunity to download the software when
they join a panel directly through the panel’s website (e.g., PermissionResearch.com or
OpinionSquare.com) or through one of comScore’s recruitment partners. (O’Toole, Decl., ¶ 4).
Critically, comScore’s software can only be installed if a prospective Panelist affirmatively
clicks to acknowledge that he or she has “read [and] agree[d] to… the terms and conditions of
the Privacy Statement and User License Agreement.” Id. (emphasis added). For Panelists that
join directly through a panel website, this acknowledgement is presented on a registration page
that also displays the ULA, which includes the Privacy Policy and several other disclosures. Id.
Panelists joining through recruitment partners, on the other hand, are provided with this
acknowledgement on a Terms of Service dialog box that is presented before the installation
1

All Rules references are to the Federal Rules of Civil Procedure unless noted otherwise.

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process can occur. Id. Plaintiffs have attached a copy of the Terms of Service dialog box to
their Complaint as Exhibit A. The terms read, in pertinent part:
This software allows millions of participants in an online market
research community to voice their opinions by allowing their
online browsing and purchasing behavior to be monitored,
collected, and once anonymized, used to create market reports,
materials, and other forms of analysis that may be shared with our
clients to help our clients understand Internet trends and patterns
and other basic demographic information, certain hardware,
software, computer configuration and application usage
information about the computer on which you install [the software]
. . . By clicking I agree, you acknowledge that you are 18 years of
age or older, an authorized user of this computer, and that you have
read, agreed to, and have obtained the consent to the terms and
conditions of the Privacy Statement and User License Agreement
from anyone who will be using the computer on which you install
this application.
(Compl., Exh. A (emphasis added)).
Exhibit A shows four separate options presented directly underneath this language: (1) “I
Agree”; (2) “I Disagree”; (3) “Previous”; and (4) “Quit”.2 (Compl., Exh. A). Of these options,
only the “I Agree” option will activate the “Next” button, also shown in Exhibit A, and allow the
user to continue with the installation process of comScore’s software. (O’Toole Decl., ¶ 5). The
software is designed such that, if the computer user clicks any of the other options, comScore’s
software will not install. Id.
As indicated above, the Terms of Service dialog box presented to Panelists that join
through a registration partner contains an explicit reference to “the Privacy Statement and User
License Agreement.” (O’Toole Decl., ¶ 6). This text is a hyperlink that, when clicked, takes a

2

More typically, the following four options are presented to the user: (1) “I Accept”; (2) “I Decline”; (3) “Back”;
and (4) “Cancel”. (O’Toole Decl., ¶ 5). Although these labels are cosmetically different, the installation process
functions in the same manner.

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user to the full ULA.3 Id. The ULA in effect at the time the Plaintiffs allege they downloaded
the comScore software contains the following forum selection clause:
FOR ANY NON-ARBITRAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATED TO THIS PROGRAM OR
THIS AGREEMENT, SOLE AND EXCLUSIVE JURISDICTION
SHALL RESIDE WITH THE APPROPRIATE STATE COURT
LOCATED IN FAIRFAX COUNTY, VIRGINIA OR FEDERAL
COURT LOCATED IN ALEXANDRIA VIRGINIA.4
Id., at ¶ 7, Exh. A.
B.

Plaintiffs’ Allegations

Plaintiffs both acknowledge that they “downloaded and installed” comScore’s software.
(Compl. ¶¶ 67, 70). However, they allege that comScore packages its data collection software in
a manner that is confusing to consumers. Id. at ¶¶ 1, 4, 12, 30, 33, 39, 40, 117. Plaintiffs further
allege that comScore’s software modifies settings on Panelists’ computers that could potentially
expose those computers to future harm (such as infiltration by a third party hacker), although
Plaintiffs do not allege that this actually happened to their computers. Id. at ¶¶ 6, 16, 64-66.
Plaintiffs further allege that comScore’s Terms of Service and ULA fail to adequately reflect the

3

Through investigation, comScore has learned that, for a short period of time during the first half of 2010, one of
comScore’s registration partners employed a Terms of Service dialog box that failed to include a functioning
hyperlink to the full ULA. (O’Toole Decl., ¶ 6). This only affected a small number of users who installed an
experimental “beta” version of software comScore was testing to gauge whether it should extend its data collection
program to the Macintosh platform. Id. Although it released a beta version of Mac-compatible software, comScore
never sold, shared, or otherwise commercialized any of the data it collected from Macintosh users. Id. comScore
ultimately chose not to include Macintosh users in it data collection program. Id. What matters here is that, even in
the exceedingly small number of cases where comScore’s Terms of Service failed to include a functioning hyperlink
to the full ULA, computer users were still required to acknowledge that they had read and agreed to the terms of
conditions of the ULA, or comScore’s software would not have installed on their computers. Id. The
acknowledgement clearly referenced the name of the panel to be PremierOpinion, and the full text of the ULA was,
at all times, available at the PremierOpinion website (www.PremierOpinion.com). Id.
4
Although Plaintiffs failed to attach the ULA, or the forum selection clause contained therein, the Court may
consider it, or any other admissible evidence, in connection with a Rule 12(b)(3) motion to dismiss. Even if this
were a Rule 12(b)(6) motion, the Court could still consider the ULA because Plaintiffs repeatedly reference it in
their Complaint, and Exhibit A to the Complaint expressly refers to it. (Compl. ¶¶ 37, 103, Exh. A); DeJohn, 245
F.Supp.2d at 916, n. 2 (“Generally, in deciding a motion to dismiss under Rule 12(b)(6), the court is limited to the
four corners of the complaint. [citation.] However, the Seventh Circuit has recognized a narrow exception to this
rule: where a complaint or an attachment to the complaint expressly refers to another document, such as a contract,
the court can consider the referenced contract.”).

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breadth of data collected. (id. at ¶¶ 10, 11, 17, 37, 49-52, 54). Plaintiffs also claim that
comScore’s Terms of Service and ULA are not displayed prominently enough during the
installation process or, alternatively, that comScore makes it too hard for users to access the full
terms of the ULA. 5 Id. at ¶¶ 12, 30, 33, 38-40, 117. Plaintiffs further allege that, once installed,
comScore’s software is difficult to remove. Id. at ¶¶ 14, 15, 47, 55, 57, 58, 117. As a
consequence of all of the above, Plaintiffs allege that comScore obtained, intercepted, or
accessed data in violation of various statutes. Id. at ¶¶ 89-91, 98, 104-106, 117,121.
Notwithstanding some of its wilder assertions, the Complaint is more notable for what is
missing than what is alleged. Among other things, Plaintiffs makes no effort to dispute that they
were presented with comScore’s Terms of Service; nor do they dispute that they completed the
normal process to download comScore’s software, which requires prospective users to
affirmatively agree to the terms of the ULA. To the contrary, Plaintiffs confirm that they
“downloaded and installed” comScore’s software, and they attach the Terms of Service as an
Exhibit to their Complaint. (Compl. ¶¶ 67-68, 70-71, Exh. A).
III.

ARGUMENT
A.

The Forum Selection Clause Is Presumptively Valid And Should Be
Enforced.

Under established Supreme Court precedent, forum selection clauses are “prima facie
valid and should be enforced unless enforcement is shown by the resisting party to be
‘unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10
(1972). The burden to overcome this presumption of validity is a “heavy” one. Id. Under these
standards, parties cannot overcome the presumption of enforceability merely by claiming that a
5

In Paragraph 38 of the Complaint, Plaintiffs allege that “[o]ften, comScore’s TOS do not display an actual
reference to Defendant’s full license agreement whatsoever,” and attach Exhibit A as an example of this alleged
practice. But Exhibit A actually contradicts Plaintiffs allegation. The exhibit clearly and expressly references the
ULA. (Compl., Exh. A).

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forum selection clause is part of an adhesion contract that is not subject to negotiation. Carnival
Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-595 (1991) (“we do not adopt the Court of
Appeals’ determination that a nonnegotiated forum-selection clause in a form ticket contract is
never enforceable simply because it is not the subject of bargaining”).6 Nor can they claim they
did not subjectively understand or wish to be bound by terms to which they objectively
manifested agreement. (See Section III.B below.)
The same presumption of enforceability applies in the context of online “click-through”
agreements. See, e.g., DeJohn v. The .TV Corporation Int’l, 245 F.Supp. 913, 918-19 (N.D. Ill.
2003) (finding that an online User Agreement was enforceable because the user “expressly
indicated that he read, understood, and agreed to those terms when he clicked the box on [the
defendant’s] website,” and the user “always had the option to reject [the defendant’s] contract
and obtain. . .services elsewhere.”); Forrest v. Verizon Comm’n Inc., 805 A.2d 1007, 1010-1011
(D.C. 2002) (enforcing a forum-selection clause in an online User Agreement because “[a]
contract is no less a contract simply because it is entered into via a computer.”); Nazaruk v. eBay
Inc., No. 2:06 CV 242 DAK, 2006 WL 2666429, *3 (D. Utah Sept. 14, 2006).
Moreover, the fact that the actual text of a forum selection clause is provided through a
hyperlink is no defense to its enforcement. In DeJohn, the plaintiff, DeJohn, sought to register
several domain names with the defendant, an Internet domain name registrar. DeJohn, 245 F.

6

The Seventh Circuit has not yet settled “whether state or federal law applies in a dispute over a forum selection
clause when the case is dismissed rather than transferred pursuant to 28 U.S.C. § 1404(a).” Kochert v. Adagen
Medical Int’l, Inc., 491 F.3d 674, 677 (7th Cir. 2007) (quoting Muzumdar, 438 F.3d at 761 n.2). Although it has not
decided the issue, the Seventh Circuit has suggested that the law of the jurisdiction whose law governs the rest of the
contract in which the forum selection clause appears governs, which here is Virginia. Abbott Laboratories v.
Takeda Pharmaceutical Co. Ltd., 476 F.3d 421, 423 (7th Cir. 2007). Virginia law applies the same presumption of
enforceability as federal law. Rice Contracting Co. v. Callas Contractors, Inc., No. 1:08cv1163 (LMB), 2009 WL
21597, at *3 (E.D. Va. Jan. 2, 2009) (finding it “irrelevant” whether federal or Virginia law applies when deciding
whether to enforce a forum selection clause “because the federal and Virginia standards are substantially the same”);
Corrosion Technology Intl., LLC v. Anticorrosive Industriales LTDA, No. 1:10-cv-915 (AJT/TCB), 2011 WL
3664575, *2, n.5 (E.D. Va. Aug. 19, 2011) (accord).

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Supp. 2d at 915. As the court explained, “[t]he electronic format of the contract required DeJohn
to click on a box indicating that he had read, understood, and agreed to the terms of the contract
in order to accept its provisions and obtain the registration or reject the provisions and cancel the
application.” Id. at 915-916. The “actual text” of the Services Agreement, which contained a
forum selection clause, “was provided through a hyperlink available directly above the box.” Id.
at 916. This incorporation by hyperlink did not deter the court from enforcing the forum
selection clause, where “[t]he only logical reading of [DeJohn’s] allegations and the complaint as
whole is that DeJohn clicked on the click wrap agreement, which incorporated the [Services]
Agreement.” Id. at 916, n.2, 921 (emphasis added).
B.

Plaintiffs Agreed To The Forum Selection Clause And Cannot Overcome
The Presumption Of Enforceability.

There are no grounds here for Plaintiffs to overcome the strong presumption of validity
favoring enforcement of the forum selection clause at issue. As discussed above, the process for
installing comScore’s software requires a user to affirmatively acknowledge by clicking that he
or she has “read [and] agreed to… the terms and conditions of the Privacy Statement and User
License Agreement” before the software can be installed.

(O’Toole Decl., ¶¶ 4-5).

This

requirement was in place at the time when Plaintiffs allege they installed comScore’s software on
March and September of 2010, respectively. Id.; (Compl. ¶¶ 67, 70). As such, Plaintiffs could
not have downloaded the software they are now complaining about unless they affirmatively
acknowledged that they had “read” and “agreed to” comScore’s ULA and the forum selection
clause contained therein.7 (O’Toole Decl., ¶¶ 5-4); (Compl., Exh. A).

7

Plaintiffs’ allegations that comScore’s Terms of Service appear “during, and not before the installation process,” or
that the existence of comScore’s data collection software “is only disclosed . . . after the installation process has
already begun,” (¶¶ 39, 33 (emphasis added)), are straw man arguments. What matters is whether the software will
install at all – not whether the process initiates – absent an acknowledgment that the user has read and agreed to the
terms and conditions in comScore’s ULA. It will not. (O’Toole Decl., ¶¶ 4-5).

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This is precisely the type of “click-wrap” agreement that courts have routinely deemed to
be enforceable. See DeJohn, 245 F. Supp. 2d at 915 (confirming enforceability of online
contract that “required DeJohn to click on a box indicating that he had read, understood, and
agreed to the terms of the contract” and provided hyperlink to the complete contractual terms);
Specht v. Netscape Comms. Corp., 306 F.3d 17, 22 (2d Cir. 2002) (addressing click-wrap
agreement that “presents the user with a message on his or her computer screen, requiring that
the user manifest his or her assent to the terms of the ... agreement by clicking on an icon. The
product cannot be obtained or used unless and until the icon is clicked.”)
Tellingly, Plaintiffs do not dispute that they went through the normal click-through
process to agree to comScore’s ULA prior to downloading the comScore software. Nowhere do
Plaintiffs allege that they were able to install comScore’s software without navigating through
comScore’s Terms of Service. Indeed, they attach the Terms of Service as an Exhibit to their
Complaint.
Under these circumstances, the Court should give little weight to Plaintiffs’ bare
allegation that “[they] did not agree to comScore’s Terms of Service . . .” (Compl. ¶¶ 69, 73).8
Plaintiffs’ conclusory assertion is not supported by any facts and need not be considered by the
Court. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (court need not accept the truth of
legal conclusions couched as factual allegations); Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(court need not consider “labels and conclusions” or “naked assertions devoid of further factual

8

Plaintiffs’ assertion is belied by other allegations in their Complaint. For example, Paragraph 103 alleges that
comScore “breached its own Terms of Service and Privacy Policy” by accessing Plaintiffs’ computers. Plaintiffs
cannot allege that comScore breached the ULA, on the one hand, then allege that they are not parties to the ULA, on
the other. Similarly, in Paragraph 105 of the Complaint, Plaintiffs allege that comScore “accessed Plaintiffs’
computers, in the course of interstate commerce and/or communication, in excess of the authorization provided by
plaintiffs . . .” (Emphasis added). Thus, Plaintiffs admit that they authorized comScore to collect data, which
would have required them to make an electronic representation that they “agreed to” comScore’s contractual terms.
(O’Toole Decl., ¶¶ 4-5).

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enhancement”).9 At most, Plaintiffs appear to be claiming that they should not be bound by the
ULA because they apparently failed to read it or did not understand it – even though they
manifested agreement to it through the click-through process described above. Courts have
routinely rejected similar arguments to escape the application of a forum selection clause. See,
e.g., Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972 F.2d 753, 757 (7th Cir. 1992)
(enforcing forum selection clause that was written in German and was not mentioned in the
underlying contract because “a party who agrees to terms in writing without understanding or
investigating those terms does so at his own peril”); see also Schwarz v. Sellers Markets, Inc.,
No. 11 C 501, 2011 WL 3921425, at *3-*4 (N.D. Ill. Sept. 7, 2011) (court enforced a forum
selection clause that was “buried” in 182 pages of “complex legalese,” was “not highlighted and
no attention [was] drawn to it,” explaining that “a party to a contract has an obligation to read its
provisions” and “a person who signs a contract is presumed to know its terms and consents to be
bound by them.”) (internal quotations and citations omitted); Montgomery v. Corinthian
Colleges, Inc., No. 11 C 365, 2011 WL 1118942, at *4 (N.D. Ill. March 25, 2011).
C.

The forum selection clause applies to Plaintiffs’ claims.

The forum collection clause at issue states, in clear and conspicuous capital letters, that:
FOR ANY NON-ARBITRAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATED TO THIS PROGRAM OR
THIS
AGREEMENT,
SOLE
AND
EXCLUSIVE
JURISDICTION SHALL RESIDE WITH THE APPROPRIATE
STATE COURT LOCATED IN FAIRFAX COUNTY, VIRGINIA
OR FEDERAL COURT LOCATES IN ALEXANDRIA,
VIRGINIA.
(O’Toole Decl., ¶ 7, Exh. A (emphasis added)).

9

Twombly and Iqbal address the pleading standard plaintiffs must meet to survive a motion to dismiss under Rule
12(b)(6). This Court is not constrained to the face of the pleadings as it would be on an Rule 12(b)(6) motion.
DeJohn, 245 F. Supp. 2d at 916, n. 2. Accordingly, Plaintiffs’ conclusory allegations should be subject to even
greater scrutiny here.

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All of Plaintiffs’ claims fall under the scope of the forum selection clause because they
all arise out of or relate to comScore’s data collection program. Specifically, all of the wrongful
conduct alleged in the Complaint relates to: (1) the manner in which comScore’s Terms of
Service and ULA are displayed to Panelists; (2) the operation of comScore’s data collection
program; (3) difficulty Plaintiffs allegedly encountered in trying to uninstall comScore’s
software to cease participation in the program; and (4) the ULA’s alleged failure to accurately
reflect the breadth of data collected as part of the program. Because all of this conduct arises
from comScore’s data collection program, and/or the ULA that governs that program, the forum
selection clause encompasses Plaintiffs’ claims in their entirety.
D.

Considerations Of Convenience Favor Enforcement Of The Forum Selection
Clause.

While practical considerations have little bearing on the legal enforceability of a forum
selection clause, these factors further support enforcement of comScore’s ULA.

First, the

Eastern District of Virginia is a more convenient forum for this dispute considering that
comScore’s headquarters are located in that district and most, if not all, of the relevant witnesses
and documents are located there. (O’Toole Decl., ¶¶ 8-9). Moreover, because this lawsuit
purports to be a nationwide class action, any inconvenience Plaintiffs claim could not possibly
rise to the level of depriving Plaintiffs of their day in court. See Paper Exp., 972 F.2d at 758
(enforcing forum selection clause requiring litigation to take place in Germany). Likewise, there
is no inconvenience to counsel that could warrant overcoming the strong presumption of
enforceability. The firm maintains offices in New York, Denver, California, and Florida, and
routinely handles litigation in states where it does not appear to maintain offices, including
Massachusetts, Pennsylvania, Missouri, and Nevada. (Declaration of Ray Sardo [“Sardo Decl.”],
¶¶ 3-5, Exhs. A-D).

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In sum, the forum selection clause is valid and enforceable and should be enforced
according to its terms. Accordingly, Plaintiffs’ Complaint should be dismissed for improper
venue so that Plaintiffs can pursue their claims in the forum that they contractually agreed to.
E.

Alternatively, This Action Should Be Transferred to The Eastern District Of
Virginia Under 28 U.S.C. § 1404(a).

Apart from a motion to dismiss, a forum selection clause may be invoked through a
motion to transfer under 28 U.S.C. § 1404(a). “For the convenience of the parties and witnesses,
in the interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought.” 28 U.S.C. § 1404(a).
The “presence of a forum selection clause” in a contract is a “significant factor that
figures centrally in the district court’s calculus” of the factors governing motions to transfer
under Section 1404(a). Stewart Org., Inc. v. Ricoh Corp., 487 U. S. 22, 29 (1988). Other factors
include: “(1) plaintiff’s choice of forum; (2) the situs of material events; (3) the relative ease of
access to sources of proof; (4) the convenience of the witnesses; and (5) the convenience of the
parties of litigating in the respective forums.” Hanley v. Omarc, Inc., 6 F. Supp. 2d 770, 774
(N.D. Ill. 1998). Here, the forum selection clause and the balance of the factors strongly support
transfer to the Eastern District of Virginia.
First, Plaintiffs’ choice of forum is entitled to little weight because Plaintiffs expressly
agreed to the forum selection clause, and because they have chosen to bring their claims as a
class action. See Stewart Org., Inc., 487 U.S. at 29; Georgouses v. NaTech Resources, Inc., 963
F. Supp. 728, 730 (N.D. Ill. 1997) (“(B)ecause plaintiff alleges a class action, plaintiff’s home
forum is irrelevant.”); Genden v. Merrill Lynch Pierce Fenner & Smith, 621 F.Supp. 780, 782
(N.D. Ill. 1985) (the location of the main class representative is not relevant to a Section 1404(a)
determination); Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (accord). Indeed, Plaintiffs

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are precluded from asserting inconvenience as a basis to resist transfer given their agreement to
the forum selection clause. FUL Inc. v. Unified School Dist. No. 204, 839 F. Supp. 1307, 1311
(N.D. Ill. 1993) (party to forum selection clause has waived the right to assert its own
inconvenience as a reason to transfer the case).
Second, all of the relevant events underlying this action occurred in Reston, Virginia.
That is where comScore is headquartered, and where comScore’s software was developed.
(O’Toole Decl., ¶¶ 8-9). It is also the location from which comScore oversees the distribution of
its software, and is therefore the situs of the alleged conduct giving rise to Plaintiffs’ claims. Id.
Finally, Reston, Virginia is where comScore drafted its ULA, and where the ULA was allegedly
breached. Id. Given the above, it is clear that the vast majority of witnesses and documents
relevant to this action are located in Reston, Virginia, making transfer to the Eastern District of
Virginia appropriate. See e.g. Hanley, 6 F. Supp. 2d at 775-77 (transfer to New Jersey was
appropriate where negotiations, agreements, employees, and alleged breach were all located or
occurred in New Jersey); Int’l Star Registry of Illinois v. Omnipoint Marketing, LLC, No. 05 C
6923, 2006 WL 2598056, at *5-6 (N.D. Ill. Sept. 6, 2006) (factor favors transfer where “most
evidence for this litigation” and the “situs of material events” is in the target forum); New
Hampshire Ins. Co. v. Green Dragon Trading Co., No. 08 C 1326, 2008 WL 2477484, at *7
(N.D. Ill. Jun. 17, 2008).
Third, this action lacks any meaningful connection to the Northern District of Illinois.
See Hanley, 6 F. Supp. 2d at 775 (“[W]here the plaintiff’s chosen forum lacks any significant
contact with the underlying cause of action, the plaintiff’s chosen forum is entitled to less
deference.”); Chicago, R.I. & P.R. Co. v. Igoe, 220 F.2d 299, 304 (7th Cir. 1955) (grant of writ
of mandamus to compel transfer where “there is no controverted question which depends on any

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event occurring in the Northern District of Illinois.”) While plaintiff Mike Harris allegedly
resides in Illinois10, the fact that he is but one of purportedly “hundreds of thousands, if not
millions” of putative class members makes his connection to this forum immaterial.11 And while
plaintiffs’ counsel maintains an office in Chicago (among other cities), the convenience or
location of counsel is not typically relevant to a transfer under 1404(a). Los Angeles Memorial
Coliseum Comm'n v. NFL, 89 FRD 497,502-512 (C.D. Cal. 1981), affd, 726 F.2d 1381, 13991400 (9th Cir. 1984).
The final factor to be considered is whether the transfer will serve the interest of justice.
“The interest of justice component embraces traditional notions of judicial economy, rather than
the private interests of litigants and their witnesses.” Hanley, 6 F. Supp. 2d at 776-77 (citations
omitted). “The administration of justice is served more efficiently when the action is litigated in
the forum that is closer to the action.” Id. (citations omitted). Courts may also consider, as part
of the interests of justice component, “the speed at which the case will proceed to trial.” Bryant
v. ITT Corp., 48 F.Supp.2d 829, 835 (N.D. Ill. 1999).
Here, the Eastern District of Virginia is the forum closest to the action and transfer will
not result in any prejudicial delay to Plaintiffs. As of September 30, 2010, the median months
from filing to trial in the Northern District of Illinois is 28.2 months. Sardo Decl., ¶¶ 6-7, Exhs.
E and F. In comparison, as of the same date, the median months from filing to trial in the
Eastern District of Virginia is 9.3 months. Id. Thus, Plaintiffs will not suffer any prejudicial
delay if this action is transferred to the Eastern District of Virginia.
For all of the above reasons, Plaintiffs’ action should be transferred to the Eastern District
10

It is not even clear whether Plaintiff Mike Harris resides in the Northern District of Illinois. He merely alleged
that he is a “citizen of the State of Illinois.” (Compl. ¶ 20).
11
The other named plaintiff in this case Jeff Dunstan, claims to be a resident of California. (Compl. ¶ 21). The fact
that he chose to litigate his claims in the Northern District of Illinois belies any claims that Plaintiffs will be
inconvenienced by having to litigate their claims in the Eastern District of Virginia.

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of Virginia under 28 U.S.C. 1404(a) if it is not dismissed outright under Rule 12(b)(3).
F.

Plaintiffs’ Motion for Expedited Discovery is Not Properly Before the Court

Plaintiffs recently filed a motion for leave to conduct expedited discovery and assert, as
grounds for the motion, a purported concern that comScore is causing “immediate and
irreversible harm to consumers,” and “fearful[ness] that key evidence in the possession of
unknown third parties may be destroyed.” comScore has filed, concurrently with this motion, an
Opposition to Plaintiffs’ discovery motion. Here, comScore simply notes that it would be
improper to entertain Plaintiffs’ discovery motion when this action should not even be before this
Court.
IV.

CONCLUSION
Plaintiffs entered into a contract with comScore that contains a mandatory Virginia forum

selection clause. Plaintiffs’ Complaint should be dismissed for improper venue under Rule
12(b)(3) because Plaintiff breached that clause. Alternatively, this action should be transferred
to the Eastern District of Virginia in the interest of justice under 28 U.S.C. § 1404(a).
Dated: September 28, 2011

RESPECTFULLY SUBMITTED
COMSCORE, INC.
By: /s/ Leonard E. Hudson
One of Its Attorneys

Of counsel (pro hac vice applications pending):
Michael G. Rhodes, [e-mail]
Whitty Somvichian, [e-mail]
Ray Sardo, [e-mail]
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111
Telephone: [phone]

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Local counsel
David Z. Smith (ARDC #6256687)
Leonard E. Hudson (ARDC # 6293044)
REED SMITH LLP
10 South Wacker Drive
Chicago, IL 60606-7507
Telephone: [phone]
Facsimile: [phone]

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CERTIFICATE OF SERVICE
The undersigned attorney certifies that he or she caused a copy of the foregoing document to be
served on counsel listed below via the Court’s CM/ECF online filing system this 28th day of
September, 2011.
/s/ Leonard E. Hudson
Attorney for Defendant comScore, Inc.

TO:
Steven W. Teppler
William C. Gray
Ari J. Scharg
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
MIKE HARRIS and the Putative Class

US_ACTIVE-107381899.1-LEHUDSON 9/28/11 9:52 AM