Dunstan et al v. comScore, Inc.

Filing 152

MOTION by Plaintiffs Jeff Dunstan, Mike Harris to certify class Supplemental Motion for Class Certification Responses due by 2/12/2013 (Balabanian, Rafey)

IN THE UNITED STATES DISTRICT COURT
FOR THE 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
Magistrate Judge Kim

PLAINTIFFS’ SUPPLEMENTAL MOTION FOR CLASS CERTIFICATION
Plaintiffs Mike Harris and Jeff Dunstan (“Plaintiffs”), on behalf of themselves and the
Class and Subclass (as defined below), through their undersigned counsel, respectfully move this
Court to enter an Order certifying this case as a class action pursuant to Federal Rule of Civil
Procedure 23(b)(3). In support of their supplemental motion, Plaintiffs state as follows:
1.

Plaintiffs filed this putative class action lawsuit against Defendant comScore, Inc.

(“comScore”) on August 23, 2011. (Dkt. 1.) On the same day, Plaintiffs also filed their initial
Motion for Class Certification, which, among other things, sought leave to file a supplemental
motion for class certification after the close of class discovery. (Dkt. 2.)
2.

On March 15, 2012, the Court granted Plaintiffs’ request to file a supplemental

motion in support of class certification, (Dkt. 98), and subsequently set January 15, 2013 as the
deadline to file the motion, (Dkt. 137).
3.

Accordingly, Plaintiffs hereby move the Court, pursuant to Fed. R. Civ. P.

23(b)(3), to certify the following Class and Subclass:
Class: All individuals who have had, at any time since 2005, downloaded and
installed comScore’s tracking software onto their computers via one of

1

comScore’s third party bundling partners.
Subclass: All Class members not presented with a functional hyperlink to an end
user license agreement before installing comScore’s software onto their
computers.
4.

As discussed in Plaintiffs’ contemporaneously-filed Memorandum in Support of

their Supplemental Motion for Class Certification, the Class and Subclass are sufficiently
numerous, face common legal and factual issues, feature claims that are typical of the named
Plaintiffs, and are adequately represented by both the Plaintiffs and their counsel. Further, the
common questions of law and fact predominate over any questions affecting only individual
Class or Subclass members and the class action mechanism is superior to other available
methods for fairly and efficiently adjudicating this controversy. Accordingly, the Class and
Subclass are readily certifiable under Rule 23(b)(3).
5.

Plaintiffs hereby incorporate their contemporaneously-filed Memorandum in

Support of their Supplemental Motion for Class Certification, along with all arguments made and
authorities cited therein.
WHEREFORE, Plaintiffs Jeff Dunstan and Mike Harris respectfully request that the
Court enter an Order (a) granting their Supplemental Motion for Class Certification, (b)
certifying the Class and Subclass pursuant to Federal Rule of Civil Procedure 23(b)(3), (c)
appointing Plaintiffs Dunstan and Harris as representatives of the Class and Plaintiff Harris as
representative of the Subclass, (d) appointing Plaintiffs’ counsel, Jay Edelson and Rafey S.
Balabanian, as Class Counsel, and (e) awarding such additional and further relief as this Court
deems necessary and appropriate.

2

Dated: January 15, 2013

Respectfully submitted,
MIKE HARRIS AND JEFF DUNSTAN,
INDIVIDUALLY AND ON BEHALF OF A CLASS OF
SIMILARLY SITUATED INDIVIDUALS,

By: /s/ Rafey S. Balabanian
One of their attorneys
Jay Edelson
Rafey S. Balabanian
Ari J. Scharg
Chandler Givens
Benjamin S. Thomassen
EDELSON MCGUIRE, LLC
350 North LaSalle, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

3

CERTIFICATE OF SERVICE
I, Rafey S. Balabanian, an attorney, certify that on January 15, 2013, I served the above
and foregoing Plaintiffs’ Supplemental Motion for Class Certification, by causing true and
accurate copies of such paper to be filed and transmitted to all counsel of record via the Court’s
CM/ECF electronic filing system, and further by causing true and accurate copies of such paper
to be transmitted to all counsel of record via electronic mail, all on this the 15th day of January,
2013.

/s/ Rafey S. Balabanian

4