Dunstan et al v. comScore, Inc.

Filing 180

ANSWER to amended complaint by comScore, Inc.(Stack, Paul)

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,

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

No. 11 C 5807
Judge Holderman
Magistrate Judge Kim

ANSWER TO SECOND AMENDED COMPLAINT
Now comes COMSCORE, INC. (“comScore”), defendant herein, by its attorneys, and for
its Answer to the Second Amended Complaint, states as follows:
1.

comScore designs, distributes, and deploys its data collection software in a deceptive

and calculated fashion to unlawfully monitor the most personal online movements of millions of
consumers without their knowledge.
ANSWER:

comScore denies the allegations contained in paragraph 1 of the Complaint

and each of them. Answering further, comScore affirmatively states that it is a leading Internet
market research company that designs and distributes software to measure the online activity of
Internet users (“Panelists”) who volunteer to join a comScore market research panel in exchange for
various benefits. comScore specifically denies that its business practices are “deceptive” or are
implemented “without the[] knowledge” of its Panelists, for the reasons set forth in response to
Paragraph 12 of the Complaint, below.
2.

comScore provides high profile clients such as the Wall Street Journal, the New York

Times, and Fox News with detailed data that it collects from millions of consumers online
(hereinafter referred to as “monitored consumers”). These clients pay enormous fees for access to
comScore’s highly valuable and comprehensive store of information about consumers.

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ANSWER:

comScore admits that it measures certain online activity of its Panelists.

comScore further admits that its clients have included companies like the Wall Street Journal, the
New York Times, and Fox News, which use the information for their ordinary business purposes.
comScore denies that any client of comScore’s syndicated services, like the clients called out in this
paragraph, was provided with any detailed data that comScore had collected from its Panelists, as
those clients are only provided aggregated data (i.e., comScore would disclose, for example, that in
December, four million people went to www.anydomain.com, and has never and would never
disclose that on December 18, a specific Panelist went to www.anydomain.com). Except as expressly
admitted herein, comScore denies the remaining allegations of paragraph 2 of the Complaint and
each of them.
3.

comScore asserts that its data provides insight into the purchasing habits, market

trends, and other online behavior of consumers. In order to gather such extensive data, comScore
relies upon a large pool of consumers with comScore’s software operating on their computers:
“[C]entral to most comScore services is the comScore panel, the largest continuously measured
consumer panel of its kind. With approximately 2 million worldwide consumers under continuous
measurement, the comScore panel utilizes a sophisticated methodology that is designed to accurately
measure people and their behavior in the digital environment.”
ANSWER:

comScore admits that its data provides insight into the purchasing habits,

market trends, and other online behavior of Panelists. comScore further admits that in order to
gather such data, comScore relies on a pool of Internet users who voluntarily install comScore’s
software on their computers and thereby become Panelists. comScore further admits that the quoted
text within the second sentence appeared on certain comScore web pages at certain times.
Answering further, plaintiffs set forth various statements in footnotes to their Complaint contrary to
Rule 10(b) of the Federal Rules of Civil Procedure which requires that “all averments of claim . . .
shall be made in numbered paragraphs . . . .” (Emphasis added). Since the statements in the
footnotes do not appear in numbered paragraphs, they are mere surplusage and should be stricken.

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4.

As one of the biggest players in the Internet research industry, statistics gleaned from

comScore’s consumer data are featured in major media outlets on a daily basis. However, what lies
beneath comScore’s data gathering techniques is far more sinister and shocking to all but the few
who fully understand its business practices. Namely, comScore has developed highly intrusive and
robust data collection software known by such names as RelevantKnowledge, OpinionSpy, Premier
Opinion, OpinionSquare, PermissionResearch, and MarketScore (hereinafter collectively referred to
in the singular as “Surveillance Software”) to surreptitiously siphon exorbitant amounts of sensitive
and personal data from consumers’ computers. Through subsidiaries bearing innocuous names,
comScore uses deceitful tactics to disseminate its software and thereby gain constant monitoring
access to millions of hapless consumers’ computers and networks.
ANSWER:

comScore admits that the media has featured some of its reports, which are

based on data gathered from Panelists that have been weighted and aggregated to form a releasable
product. comScore further admits that it has developed software which has been branded with
names including RelevantKnowledge, Premier Opinion, OpinionSquare, PermissionResearch, and
MarketScore (although not all of these brands currently exist), each of which is designed to collect
information about the online activity of Internet users who volunteer to be Panelists. comScore
denies that its software has been designed to collect sensitive or personal data, as the current
software has actually been designed to automatically filter out these types of data (including credit
card numbers, social security numbers, account numbers, User IDs, and passwords), so that such
information is not transmitted to comScore. comScore admits that it does have subsidiaries, but
denies the use of deceitful tactics to disseminate its software. Plaintiffs use the term “Surveillance
Software” to describe comScore’s proprietary software. comScore affirmatively states that this term
is both pejorative and false and comScore denies the accuracy of the term when it appears in passim
in the Complaint. Except as expressly admitted herein, comScore denies the allegations of paragraph
4 of the Complaint and each of them.

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5.

comScore’s sophisticated computer applications monitor every action conducted by

users. This data is sent to comScore’s servers, and then organized and sold to its clients.
ANSWER:

comScore denies the allegations of paragraph 5 of the Complaint and each of

them. comScore affirmatively states that its software measures certain limited information regarding
the online activity of its Panelists. comScore further acknowledges that some of this limited
information is sent to comScore’s servers and is then aggregated for analysis. comScore admits that
its syndicated clients pay for access to this aggregated data. comScore specifically denies that it
monitors “every action” conducted by its Panelists.
6.

To extract this data, comScore’s Surveillance Software injects code into the user’s

web browser to monitor everything viewed, clicked, or inputted online. In addition, the software
opens ports, modifies the consumer’s firewall, and places “root certificates” on the affected
computer to ensure unimpeded access.
ANSWER:

comScore admits that when a Panelist voluntarily installs the comScore

software, it works with the Panelist’s web browser (e.g., Internet Explorer, Firefox) to measure
certain of the Panelist’s online activity. comScore admits that certain versions of its software can
make modifications to the Windows Firewall that was introduced with XP Service Pack 2, and
further states that any such modifications are done in accordance with publically available Windows
documentation and, to comScore’s knowledge, comply with the purpose of, or are consistent with,
this feature as provided by the Windows operating system. comScore admits that its software, like
any other Internet enabled software, connects to a port on a web server. comScore specifically
denies that its software monitors “everything viewed, clicked, or inputted online.” comScore also
specifically denies that its software currently installs “root certificates.” Except as expressly admitted
herein, comScore denies the allegations of paragraph 6 of the Complaint and each of them.
7.

The scope and breadth of data that comScore collects from unsuspecting consumers

is terrifying. By way of illustration, comScore’s Surveillance Software constantly collects and
transmits the following data, among others, from a consumer’s computer to comScore’s servers:

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a)

the monitored consumer’s usernames and passwords;

b)

queries on search engines like Google;

c)

the website(s) the monitored consumer is currently viewing;

d)

credit card numbers and any financial or otherwise sensitive information
inputted into any website the monitored consumer views;

e)

the goods purchased online by the monitored consumer, the price paid by
the monitored consumer for the goods, and amount of time the monitored
consumer views the goods before purchase; and

f)
ANSWER:

specific advertisements clicked by the monitored consumer.
Except as expressly stated herein, comScore denies the allegations of

paragraph 7 of the Complaint and each of them. comScore affirmatively states that its software
collects certain data from Panelists, including queries on search engines; what websites are viewed by
Panelists; what goods are purchased by Panelists; what advertisements are clicked by Panelists; the
length of time a Panelist is online; and how much a Panelists pays for items in online transactions.
comScore specifically denies that its software “constantly collects and transmits” items like credit
card numbers, social security numbers, account numbers, user IDs, or passwords; instead, comScore
affirmatively states that its software is designed to identify these types of data so that it can
irreversibly mask that information or otherwise prevent its transmission to comScore.
8.

After the Surveillance Software is installed on a monitored consumer’s computer,

information concerning all Internet traffic from the consumer’s computer is transmitted to
comScore servers.
ANSWER:

comScore denies the allegations of paragraph 8 of the Complaint and each of

them. comScore specifically denies that any Internet traffic from a panelist’s computer is rerouted
through comScore servers.
9.

Furthermore, comScore’s Surveillance Software seeks out and scans every file on the

monitored consumer’s computer (including word processing documents, emails, PDFs, image files,

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spreadsheets, etc.), and sends information resulting from examination of those files to comScore’s
servers.
ANSWER:

Except as expressly stated herein, comScore denies the allegations of

paragraph 9 of the Complaint and each of them. comScore affirmatively states that its software
collects statistics on the number of files installed on a Panelist’s computer (such as the number of
PDF or Microsoft Word files). comScore further admits that its software collects statistics on the
versions and types of installed software on a Panelist’s machine (e.g., whether a Panelist’s machine
has Microsoft Word installed). comScore denies that it scans every file on a Panelist’s computer.
10.

Although comScore claims that its software only mines data from the individual

consumer’s computer, it designed its Surveillance Software to scan files located on any network the
host computer is connected to, and sends data about those files back to comScore’s servers. In this
way, every available file housed on the monitored consumer’s local network is accessed by comScore
without authorization.
ANSWER:

Except as expressly stated herein, comScore denies the allegations of

paragraph 10 of the Complaint and each of them. comScore affirmatively states that, for a limited
period of time, it experimented with establishing a panel for Macintosh users (“Mac Panel”), and
developed Macintosh-compatible software specifically for that purpose. comScore admits that the
Mac Panel software was publically available as a limited release beginning on September 29, 2009.
comScore further admits that a bug in the Macintosh version of its software potentially allowed the
software to count the number of specific types of files located on networks to which Panelists’
Macintosh computers were connected, and that this bug was corrected in June 2010. comScore
terminated the Mac Panel on or around September 25, 2010. None of the data collected through the
Mac Panel was ever shared with, or sold to, a third party.
11.

Because of Defendant’s covert methods for deploying its software, millions of

monitored consumers remain wholly unaware that their every online movement is under constant
surveillance by comScore.

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ANSWER:

comScore denies the allegations of paragraph 11 of the Complaint and each

of them. comScore denies that it employs “covert methods for deploying its software.” To the
contrary, comScore’s software is designed so that comScore’s Terms of Service (“TOS”) are
presented directly to prospective Panelists prior to completion of the installation process. The TOS
disclose the types of information that comScore collects and the methods by which it is collected.
Prospective Panelists must click to indicate they have read and agreed to the TOS or comScore’s
software will not install. Moreover, in Fall 2007, comScore implemented its “Watchdog” or “RK
Verify” program, a computer program that ensures the TOS is shown to users during the installation
process. comScore’s software will not install unless the “Watchdog” or “RK Verify” program
verifies that the TOS was shown to, and accepted by, the user. comScore further notes that, in early
2008, it introduced an icon that appears on a Panelist’s “system tray” any time that comScore
software is running, which conspicuously discloses the presence of the software to Panelists. The
icon is also displayed in Windows’ “All Programs” menu. In addition, comScore continually delivers
messages to Panelists after they join. These messages include a Welcome message sent after
installation that thanks Panelists for joining the Panel and provides a link to comScore’s Privacy
Policy and to an FAQ that discusses, among other things, how to uninstall comScore’s software.
These messages also include invitations to participate in surveys, clearly branded with the name of
the panel of which the user is a member. Panelists may also receive benefits that remind them of
their participation, including rewards programs that allow them to collect points for doing things like
participating in surveys - the collected points can then be redeemed for a variety of items including
gift cards or household items. Finally, comScore’s privacy policy and practices have been vetted by a
number of third party auditors including TRUSTe, Grant Thornton, and Ernst and Young,.
comScore has received certificates of approval for its privacy policy and practices (including for the
manner in which it discloses its software) from WebTrust, Better Business Bureau, VeriSign Trusted,
Trust Guard, and Network Solutions (among others).

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12.

To induce individuals to download and install its software, comScore “bundles” its

Surveillance Software with software developed by third parties. The third-party software is generally
offered at no cost, and includes popular items such as free screensavers and games, and functional
applications such as music-copying programs, or greeting-card templates. comScore pays the thirdparty every time a consumer downloads the bundled software.
ANSWER:

comScore admits that it recruits Panelists through a variety of online

methods, including through third-parties that offer comScore’s software during the installation
process of their own software applications. comScore further admits that third parties may offer this
third-party software at no cost to prospective Panelists. comScore further admits that it compensates
its third party partners that offer the comScore software during the installation process of their own
software. Except as expressly admitted herein, comScore denies the allegations of paragraph 12 of
the Complaint and each of them.
13.

In many cases, comScore provides no method for the monitored consumer to

uninstall its software, and often deceives the consumer into thinking that all of comScore’s nefarious
software has been removed. Moreover, comScore designed its computer applications to resist
attempts to uninstall the Surveillance Software. For example, when a consumer uninstalls the thirdparty freeware program, comScore’s Surveillance Software will not be removed.
ANSWER:

comScore denies the allegations of paragraph 13 of the Complaint and each

of them. comScore’s software is designed so that it can be permanently and easily uninstalled using
the standard Windows “Add or Remove Programs” utility. Moreover, when the software has been
installed, an icon appears in the Panelist’s system tray to conspicuously disclose the software’s
presence, thereby signaling to the user whether the software is currently installed. The icon
disappears when the software has been uninstalled. comScore affirmatively states that it is inaccurate
to refer to the relationship between comScore and its third party distribution partners as involving a
“bundle.” In fact, once installed, the comScore software is independent of the software provided by
the third party, precisely so that an individual may remove the comScore software at any time and

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independent of the other software installed on this individuals’ computer. comScore admits that to
remove comScore’s software, a Panelist must uninstall the comScore software, but the converse is
also true: the removal of comScore’s software does not also remove the third party software. In this
instance, the comScore software is simply a separate offer made as part of the third party provider’s
installation process; it is not a “bundle.”
14.

comScore designed its Surveillance Software to be highly persistent. User attempts to

disable comScore’s applications are wholly ineffectual, as the software automatically re-starts itself
when deactivated. As a result, it is impossible to “turn off” comScore’s 24/7 monitoring.
ANSWER:

comScore denies the allegations of paragraph 14 of the Complaint and each

of them. comScore affirmatively states that its software can be permanently uninstalled using the
Windows “Add or Remove Programs” utility. After a Panelist properly uninstalls the comScore
software, the software does not automatically restart itself.
15.

Even if a monitored consumer can manage to manually uninstall the Surveillance

Software, Defendant programmed its applications to secretly leave behind a comScore root
certificate. As discussed in more detail in Section VII, infra, leaving an untrusted root certificate on a
user’s computer exposes that individual to attacks by hackers, and allows comScore to re-monitor
the consumer’s computer in the future.
ANSWER:

comScore denies that it “programmed its applications to secretly leave

behind a comScore root certificate.” comScore made use of root certificates with an early version of
its software, but no current version of its software has employed root certificates since April 2005.
comScore further denies that the installation of a root certificate exposes users to harm from
hacking or that it allows comScore to “re-monitor the consumer’s computer.” comScore believes
that installation of a root certificate in and of itself does not expose users to harm from hacking, as
no alternative use may be made of this certificate without possession of a master certificate, to
comScore’s knowledge. comScore has strictly limited internal access to the certificate authority and
is not aware of any instances in which third parties have had access to the certificate authority. A

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root certificate does not create “back door” access to a consumer’s computer, so comScore is
incapable of “re-monitoring the consumer’s computer” with the existence of a root certificate by
itself. Except as expressly admitted herein, comScore denies the allegations of paragraph 15 of the
Complaint and each of them.
16.

Defendant’s Terms of Service (“TOS”) do not reveal the extensive and highly

intrusive amount of data collected by comScore from consumers’ computers.
ANSWER:

comScore denies the allegations of paragraph 16 of the Complaint and each

of them. comScore’s TOS discloses to all prospective Panelists what types of information comScore
collects and how the information is collected.
17.

On information and belief, comScore has intentionally designed its Surveillance

Software and business practices to surreptitiously maximize both the number of consumers
monitored by Defendant, as well as the breadth of information collected.
ANSWER:

comScore denies the allegations of paragraph 17 of the Complaint and each

of them.
18.

comScore’s nefarious tactics drive its bottom line by enabling the company to sell

valuable consumer information to clients for enormous fees. While highly lucrative to the company,
comScore’s methods demonstrate a wholesale disregard for consumer privacy rights and violate
numerous federal laws.
ANSWER:

comScore denies the allegations of paragraph 18 of the Complaint and each

of them.
19.

Plaintiff Mike Harris is a natural person and citizen of the State of Illinois.

ANSWER:

comScore lacks knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 19, and on that basis, denies them.
20.

Plaintiff Jeff Dunstan is a natural person and citizen of the State of California.

ANSWER:

comScore lacks knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 20, and on that basis, denies them.

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21.

Defendant comScore, Inc. is a Delaware corporation with its headquarters located at

11950 Democracy Drive, Suite 600, Reston, Virginia 20190. Defendant does business throughout
the State of Illinois and the United States.
ANSWER:
22.

comScore admits the allegations set forth in paragraph 21 of the Complaint.

This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. § 1331. This Court has jurisdiction over Defendant because it conducts business in Illinois
and/or because the improper conduct alleged in the Complaint occurred in, was directed from,
and/or emanated or exported from Illinois.
ANSWER:

The allegations of paragraph 22 are legal conclusions to which no response is

required. To the extent a response is required, comScore denies that subject matter jurisdiction
exists.
23.

Venue is proper in this District under 28 U.S.C. § 1391(a) because the injury arose in

this District. Venue is additionally proper because Defendant transacts significant business in this
District, including entering into consumer transactions, and because Plaintiff Mike Harris is a
resident of Illinois.
ANSWER:

The allegations of paragraph 23 are legal conclusions to which no response is

required. To the extent a response is required, comScore admits that it transacts business in this
District.
24.

comScore is an Internet research corporation that provides marketing data to a wide

variety of clients, generally in the form of aggregated reports about online consumer behavior. To
collect the data necessary for its reports, comScore monitors consumers’ actions using Surveillance
Software operating on users’ computers.
ANSWER:

comScore admits that it measures the online activity of Internet users who

volunteer to become Panelists, using proprietary software that Panelists voluntarily install on their
computers, and that it provides market research data to its clients. Except as expressly admitted
herein, comScore denies the allegations of paragraph 24 of the Complaint and each of them.

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25.

The data collected about monitored consumers by the Surveillance Software is

transmitted, often in real-time, to comScore’s servers. This information is aggregated and organized
for Defendant’s marketing reports, which are then sold to its clients. comScore currently monitors at
least two million computers worldwide.
ANSWER:

comScore admits that the data collected from Panelists through comScore’s

software is transmitted to comScore’s servers. comScore further admits that it provides certain
syndicated clients with access to reports after the information is aggregated (e.g., comScore would
disclose, for example, that in December, four million people went to www.anydomain.com, and has
never and would never disclose that on December 18, a specific panelist went to
www.anydomain.com). comScore admits that there are currently over two million people under
measurement worldwide. Except as expressly admitted herein, comScore denies the allegations of
paragraph 25 of the Complaint and each of them.
26.

comScore’s clients vary widely by industry and size, and include high-profile

companies such as the New York Times, the Wall Street Journal, Procter and Gamble, and Eli Lilly
and Company. These companies use comScore’s reports for, among other things, statistics for news
articles and gauging consumer interest in products and services.
ANSWER:

comScore admits that its clients vary by industry and size, and include

companies such as the New York Times, the Wall Street Journal, Proctor and Gamble, and Eli Lilly
and Company, who use comScore’s data as part of their ordinary business practices. Except as
expressly admitted herein, comScore lacks information sufficient to form a belief as to the truth of
the remaining allegations in paragraph 26 of the Complaint, and on that basis, denies them.
27.

comScore is capable of parsing enormous amounts of information and extrapolating

narrowly defined trends and statistics, as evidenced by the following quote from the New York
Times: “ComScore found a decline of 10 percent in time spent on Web-based email among 18- to
24-year-olds, about the same as it found for people up to the age of 54.”

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ANSWER:

comScore admits that its data can be used to identify certain trends and

statistics. Except as expressly admitted herein, comScore lacks information sufficient to form a
belief as to the truth of the remaining allegations in paragraph 27 of the Complaint, and on that
basis, denies them.
28.

To provide the highly targeted research data noted above, comScore—through its

Surveillance Software—constantly collects, monitors, and analyzes every online move, no matter
how private, of over two million people.
ANSWER:

comScore admits that its software obtains limited information about the

online activity of Internet users who volunteer to become Panelists. comScore denies that it
“collects, monitors, and analyzes every online move” of its Panelists, and offers as an example that
comScore’s software is specifically designed not to collect text messages or the text of emails, and
that this is just one example of the many areas not monitored by comScore’s software. comScore
denies the remaining allegations of paragraph 28 of the Complaint and each of them.
29.

Unfortunately, most, if not all monitored consumers are not aware of the depth of

data comScore mines from their computers every day. In many cases, consumers are not even aware
of the Surveillance Software’s very existence.
ANSWER:

comScore incorporates its response to paragraph 11. Except as expressly

admitted therein, comScore denies the allegations of paragraph 29 of the Complaint and each of
them.
30.

As stated in Section I, supra, comScore tracks the online behavior of over two

million (2,000,000) consumers worldwide. To accomplish this, comScore has developed proprietary
software that monitors every action conducted on an individual’s computer. comScore deploys this
software primarily by two methods: 1) online respondent acquisition and 2) a third-party application
provider program.
ANSWER:

comScore admits that its worldwide Panel consists of around two million

Internet users. comScore further admits that it has developed proprietary software that Panelists

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voluntarily download and install, which measures the Panelists’ online activity. comScore further
admits that its software is distributed through multiple methods. comScore denies that its software
monitors every action conducted on an individual’s computer. comScore denies the remaining
allegations of paragraph 30 of the Complaint and each of them.
31.

Online respondent acquisition simply refers to comScore’s method of paying affiliate

partners to post comScore’s advertisements on their websites in an effort to solicit consumers to
download comScore’s Surveillance Software. To entice consumers to download the Surveillance
Software, comScore offers sweepstakes enrollments and prizes in exchange for membership in its
“program.” Potential members are also offered software, such as computer games, for free.
ANSWER:

comScore admits that it recruits Panelists through a variety of online

methods, which include the use of banner advertisements on third party websites. comScore admits
that it pays third parties to post comScore’s advertisements on their websites. comScore further
admits that in exchange for volunteering to become a member of a panel, Panelists may be offered
various benefits including planting of trees in their name, sweepstakes enrollments, prizes, points, or
free software. Except as expressly admitted herein, comScore denies the allegations of paragraph 31
of the Complaint and each of them.
32.

The second and more devious method that comScore uses to induce consumers to

install its Surveillance Software is through its third-party application provider program. This method
involves comScore paying developers to bundle the Surveillance Software with the third-party
application provider’s software. The third-party computer application included in the bundled
software may be a free screensaver, game, CD burning software, greeting card template, or any other
type of “freeware.” In many cases, the existence of the Surveillance Software bundled with the
freeware is only disclosed, in an inconspicuous fashion, after the installation process has already
begun.
ANSWER:

comScore admits that it recruits Panelists through a variety of online

methods, which include partnering with third party software developers that offer comScore’s

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software during the installation of their own software. comScore further admits that the third-party
software may consist of free screensavers, games, CD burning software, greeting card templates, or
other types of “freeware.” comScore denies that the incorporation of its software with the thirdparty software is done “in an inconspicuous fashion” and incorporates by reference its response to
paragraph 11 regarding comScore’s various methods of disclosure. Except as expressly admitted
herein, comScore denies the allegations of paragraph 32 of the Complaint and each of them.
33.

For example, if a consumer downloads a free screensaver bundled with comScore’s

Surveillance Software, the third-party developer of the screensaver is then paid by comScore for the
download of the bundled software.
ANSWER:

comScore admits that it compensates the third-parties who provide an offer

for comScore’s software as part of the third parties’ software applications. Except as expressly
admitted herein, comScore denies the allegations of paragraph 33 of the Complaint and each of
them.
34.

comScore’s monitoring software is marketed through subsidiaries bearing names

such as TMRG, Inc. and VoiceFive, Inc., with varying names for its Surveillance Software, such as
RelevantKnowledge, OpinionSpy, Premier Opinion, OpinionSquare, PermissionResearch, and
MarketScore.
ANSWER:

comScore admits that its software is marketed through subsidiaries, including

but not limited to, TMRG, Inc. and VoiceFive, Inc. comScore further admits that its subsidiaries
have used varying names for comScore’s software over time, such as RelevantKnowledge, Premier
Opinion, OpinionSquare, PermissionResearch, and MarketScore. Except as expressly admitted
herein, comScore denies the allegations of paragraph 34 of the Complaint and each of them.
35.

As discussed herein, comScore’s intrusive methods for collecting highly sensitive

information from consumers’ computers are staggering. However, comScore’s Terms of Service
(“TOS”) presented (or not presented) to the user paint a far different picture than reality.

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ANSWER:

comScore denies the allegations of paragraph 35 of the Complaint and each

of them.
36.

comScore’s full Privacy Policy and Terms of Service fail to disclose the following

facts regarding Surveillance Software operations performed on a consumer’s computer:
(a)

the Surveillance Software scans files on both local and network volumes;

(b)

the Surveillance Software has full rights to access and change any file on
the consumer’s computer;

(c)

the Surveillance Software opens an HTTP “backdoor” to transmit data;

(d)

the Surveillance Software has no user interface from which a consumer
can turn off the software, modify the settings, or otherwise determine what

information the software is collecting;
(e)

the Surveillance Software implants a “root certificate” that modifies the
consumer’s computer security settings, and the “root certificate” remains
on a consumer’s system even after the Surveillance Software is removed;

(f)

the Surveillance Software modifies a computer’s firewall settings;

(g)

the Surveillance Software transmits information concerning all of a consumer’s
internet traffic to comScore’s servers;

(h)

the Surveillance Software injects code without user intervention into

various web browsers and instant messaging applications;
(i)

the Surveillance Software can be upgraded, modified, and controlled

remotely, without consumer intervention or permission;
(j)

the Surveillance Software will not be deleted if a consumer deletes the free

application (e.g., free screensaver) with which the Surveillance Software
was bundled.
ANSWER:

comScore denies the allegations of paragraph 36 of the Complaint and each

of them, as well as Plaintiffs’ characterization of the TOS, which is a document that speaks for itself.

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comScore affirmatively states that its proprietary software operates in a manner consistent with its
Privacy Policy and Terms of Service. comScore also affirmatively states that it has already denied
many of the so called “facts” upon which Paragraph 36 of the Complaint expressly relies.
37.

Often, comScore’s TOS do not display any actual reference to Defendant’s full

license agreement whatsoever. (See Exhibit A, attached hereto as a true and accurate copy of
comScore’s Premier Opinion Surveillance Software Terms of Service bundled with a screensaver.).
ANSWER:

Except as expressly set forth herein, comScore denies the allegations of

paragraph 37 of the Complaint and each of them. comScore affirmatively states that for a limited
period one third party partner failed to include a link to comScore’s full Privacy Policy and User
License Agreement, however, in these cases, the consumer was presented with comScore’s TOS and
was required to accept the terms of this TOS. However, this situation was quickly corrected and
affected a very small portion of Mac Panel users only. These Mac Panel users’data was never used in
any comScore reports, and thus was never provided, even in aggregate form, to anyone outside of
comScore. Moreover, the full terms of the Privacy Policy and User License Agreement were
available at all times to those Panelists through links installed in the Windows Start Menu, or
through an icon on a Mac. In the vast majority of cases, comScore’s TOS is presented directly to
prospective Panelists within a dialog box that pops up during the installation process. This dialog
box contains a link to comScore’s full User License Agreement and Privacy Policy (“ULA”), as
reflected in Exhibit A of the Complaint. comScore denies the remaining allegations of paragraph 37
of the Complaint, and each of them.
38.

In many instances, when a consumer installs third-party applications bundled with

comScore’s Surveillance Software, the graphical display shown to the user makes it appear that only
one piece of software is being installed. For example, if a person installs a free screensaver bundled
with Defendant’s RelevantKnowledge Surveillance Software, a screen will appear during, and not
before, the installation process displaying a brief description of comScore’s product. Importantly,
however, the screen is presented seamlessly with the rest of the installation.

17

ANSWER:

comScore admits that, when a prospective Panelist installs a free screensaver

that includes an offer for comScore’s RelevantKnowledge software, a dialog box appears during the
installation process containing comScore’s TOS, which discloses what type of information will be
collected and references comScore’s full ULA. Except as expressly admitted herein, comScore
denies the allegations of paragraph 38 of the Complaint and each of them.
39.

Other comScore TOS display screens are presented to the user during the bundled

software installation process in such a way that the average, non-expert consumer would not notice
the hyperlink to Defendant’s full agreement. Examples of these inadequacies include comScore
designing its TOS without a functioning link to the full terms, or wedging the link within a sentence,
only offset by color.
ANSWER:

comScore denies the allegations of paragraph 39 of the Complaint and each

of them.
40.

Once installed, comScore’s Surveillance Software continuously transmits the

monitored consumer’s online actions back to its servers, including information concerning virtually
all of the consumer’s Internet traffic.
ANSWER:

comScore admits that, once installed, its software collects and transmits

certain aspects of a Panelist’s online activity back to comScore’s servers. comScore denies that any
Internet traffic from a Panelist’s computer is sent through comScore’s servers before reaching a
destination website. Except as expressly admitted herein, comScore denies the allegations of
paragraph 40 of the Complaint and each of them.
41.

In order to collect information about a monitored consumer, comScore designed its

Surveillance Software to scan and examine a wide variety of items on the consumer’s computer.
Through its Surveillance Software, comScore injects code into the monitored consumer’s web
browser (i.e., Internet Explorer, Safari, Firefox) to monitor everything viewed, clicked, or typed into
the browser.

18

ANSWER:

comScore admits that when a Panelist downloads the comScore software,

computer code is installed that works with the Panelist’s web browser (e.g., Internet Explorer,
Chrome, Firefox) to measure the Panelist’s online activity. Except as expressly admitted herein,
comScore denies the allegations of paragraph 41 of the Complaint and each of them.
42.

Additionally, to facilitate its monitoring, comScore’s Surveillance Software adds an

exception to a the computer’s firewall, allowing it unfettered access. Because certain consumers’
firewalls are stricter than others, such an attempt to modify the firewall settings, or the subsequent
redirection of Internet traffic resulting from the firewall modification, often causes the firewall to
lockdown or “freeze” the computer to prevent further harm.
ANSWER: comScore admits that certain versions of its software make modifications to the
Windows Firewall that was introduced with XP Service Pack 2, and incorporates its response to
paragraph 6 of the Answer, as though fully set forth herein. comScore lacks knowledge and
information sufficient to form a belief as to the truth of the remaining allegations in paragraph 42 of
the Complaint, and on that basis, denies them.
43.

In addition to identifying the specific webpage that the monitored consumer is

viewing, the Surveillance Software also transmits information to comScore revealing how much the
individual pays for items in online transactions,1 how long the individual views items before
purchase, and much more. For example, comScore’s Surveillance Software observes and reports
where the monitored individual’s mouse is moving, such as whether or not the monitored consumer
is hovering over an advertisement.
ANSWER:

comScore admits that its software is able to identify the web pages that a

Panelist is viewing, and the length of time a Panelist is online. comScore denies that it has ever

1

In the aggregate, this information is used to provide insight into customer spending
habits, as evidenced by the following quote from Reuters: “U.S. consumers spent more than $35
billion online this holiday season, up 15 percent from the same period last year, comScore Inc
(SCOR.O) estimated on Tuesday.” Alistair Barr, Online holiday spending rises 15 percent:
comScore, Reuters (Dec. 27, 2011), available at http://www.reuters.com/article/2011/12/27/uscomscore-online-spending-idUSTRE7BQ1CO20111227.
19

measured the location or movement of the mouse. Except as expressly admitted herein, comScore
denies the remaining allegations of paragraph 43 of the Complaint.
44.

Perhaps more striking, the Surveillance Software is indiscriminate about the

information gathered and sent to comScore’s servers. Therefore, names, addresses, credit card
numbers, Social Security Numbers, and search terms on search engines are all siphoned and
transmitted to comScore.
ANSWER:

comScore denies the allegations of paragraph 44 of the Complaint and each

of them, and incorporates its response to paragraphs 4 and 7 of the Answer, as though fully set forth
herein.
45.

Because comScore requires precise demographic information to create its marketing

reports, the Surveillance Software must distinguish which user is currently using the computer at
what time. In other words, comScore must know whether or not a father (male, age 45) or his
daughter (female, age 14) is using the computer, as that information is necessary to produce accurate
demographic marketing reports. To that end, comScore has developed a patented procedure known
as “User Demographic Reporting” for creating biometric signatures of consumers by tracking
mouse movements and keystrokes. In this way, each time an individual uses the computer,
comScore’s Surveillance Software tracks his or her keystrokes and mouse movements until it
identifies the user as the 14-year-old daughter or 45-year-old father in the household.
ANSWER:

comScore admits that it developed “User Demographic Reporting”

(“UDR”), a proprietary technology designed to identify a particular Panelist in a household. Except
as expressly admitted herein, comScore denies the allegations of paragraph 45 of the Complaint and
each of them.
46.

comScore’s software is highly persistent and constantly runs in the background

during all computer activities, yet provides no mechanism to turn it off. If, for any reason, the
software stops running (including manual user attempts to stop it), it automatically restarts.

20

Accordingly, it is nearly impossible for a consumer to disable the Surveillance Software to avoid
spying on certain users of the computer system.
ANSWER:

comScore denies the allegations of paragraph 46 of Complaint and each of

them. comScore’s software is designed so that it can be permanently uninstalled using the standard
Windows “Add or Remove Programs” utility and so it is not “impossible” to “turn off” the
software. For those Panelists who do not uninstall the software, comScore admits that its software
runs in the background during a Panelist’s computer activities.
47.

By definition, comScore’s Surveillance Software is “spyware,” meaning it is designed

to gather data from a consumer’s computer without consent and transfer it to a third party. Because
of this characterization, scores of anti-virus and anti-spyware websites identify comScore
applications as “severe” or “high risk” spyware or adware. For example, Microsoft’s Malware
Protection Center has singled out several comScore applications as problematic. In the same vein,
numerous U.S. colleges and universities warn students of the dangers of running comScore’s
software and ban Internet traffic to Defendant’s servers.
ANSWER:

comScore denies that its software constitutes “spyware,” or that it is designed

to gather data from a consumer’s computer without consent. comScore affirmatively states that antivirus offerings from companies including Microsoft, AVG and McAfee categorize comScore’s
software as clean, and do not classify it as spyware. comScore lacks knowledge and information
sufficient to form a belief as to the truth of the remaining allegations in paragraph 47 of the
Complaint, and on that basis, denies each of them.
48.

comScore’s TOS indicate that the application will only monitor and collect data

about the computer on which it is installed. (See Exhibit A, and Section III, supra).
ANSWER:

comScore denies the characterization in Paragraph 48 of the Complaint of

comScore’s TOS, which speaks for itself.

21

49.

Defendant’s TOS are devoid of any mention that all files on that individual’s

computer will be scanned—and that information about those files will be sent to comScore’s
servers.
ANSWER:

comScore denies the characterization in Paragraph 49 of comScore’s Terms

of Service, which is a document that speaks for itself. comScore notes that its TOS informs users
that its software monitors and collects “certain hardware, software, computer configuration and
application usage information,” as depicted in Exhibit A to the Complaint. Further, comScore
denies the premise upon which paragraph 49 is based – that comScore’s software causes “all files on
that individual’s computer [to] be scanned.”
50.

In clear contrast to comScore’s TOS, its Surveillance Software additionally scans and

sends information about available files located on the local network—not just the individual
consumer’s computer—to Defendant’s servers.
ANSWER:

comScore incorporates its response to paragraph 10 of the Answer. Except

as expressly admitted herein, comScore denies the allegations of paragraph 50 of the Complaint.
51.

Put another way, if a monitored consumer uses a local network to store and access

files—a nearly ubiquitous practice among modern organizations—then the Surveillance Software
also scans all accessible files on the network and sends information about the data to comScore’s
servers. Depending on the network, these files may include confidential business files, financial
documents, trade secrets, or classified government documents.
ANSWER: comScore incorporates its response to paragraph 50 of the Complaint. Except
as expressly admitted therein, comScore denies the allegations of paragraph 51 of Complaint and
each of them.
52.

comScore’s Surveillance Software has no user interface from which a consumer can

turn off or uninstall the software, modify the settings, or otherwise control what information the
software is collecting.

22

ANSWER: comScore denies the allegations of paragraph 52 of the Complaint and each of
them. comScore’s software is designed so that it can be uninstalled using a Windows user’s “Add or
Remove Programs” utility.
53.

As discussed in Section II, supra, comScore pays third-party developers to bundle

Surveillance Software with their applications.
ANSWER: comScore admits that it pays third-party developers to offer comScore’s
software with their applications. Except as expressly admitted herein, comScore denies the
allegations of paragraph 53 of Complaint and each of them.
54.

Even assuming that an individual recognizes the implications of installing

comScore’s Surveillance Software in tandem with software such as a free screensaver, or later
determines that the free screensaver was the source of the comScore software, a reasonable
consumer would believe that once the screensaver was uninstalled, comScore’s software would be
uninstalled as well. That is not the case.
ANSWER: comScore denies Plaintiffs’ characterizations regarding what a “reasonable
consumer would believe,” and on that basis denies the allegations of paragraph 54 of the Complaint
and each of them. comScore’s software is designed so that it can be permanently uninstalled using
the standard Windows “Add or Remove Programs” utility. Any time comScore software is running,
an icon appears in the Panelists’ system tray to conspicuously disclose the software’s presence,
thereby signaling to the user whether or not the software has been uninstalled. Moreover, the
presence of comScore’s software is made known to Panelists in numerous other ways, as described
in comScore’s response in paragraph 11 of the Answer.
55.

When a monitored consumer uninstalls bundled software, comScore’s Surveillance

Software remains active on that monitored consumer’s computer. As a result, comScore continues
to collect information about the monitored consumer, even though the individual believes
comScore’s Surveillance Software was uninstalled. Indeed, the only way to remove comScore’s
Surveillance Software is by manually locating and removing it from the system.

23

ANSWER: comScore admits that, to remove comScore’s software, a Panelist must uninstall
comScore’s software and not the separate third-party freeware program, and incorporates its
response in paragraph 13 of the Answer as if fully set forth herein. comScore lacks knowledge and
information sufficient to form a belief as to the truth of the remaining allegations in paragraph 55
regarding the purported beliefs of consumers as characterized by Plaintiffs, and on that basis, denies
them. comScore notes, however, that its software can be uninstalled using a Windows user’s “Add
or Remove Programs” utility. Moreover, any time comScore software is running, an icon appears in
the Panelists’ system tray to conspicuously disclose the software’s presence, thereby signaling to the
user whether or not the software has been uninstalled.
56.

Because many consumers lack the requisite technical expertise to manually remove

comScore’s software, these users remain unwitting members of Defendant’s monitoring program. In
many cases, consumers are forced to purchase automated spyware removal software to fully
eliminate any traces of Defendant’s software.
ANSWER: comScore lacks knowledge and information sufficient to form a belief as to the
truth of the allegations in paragraph 56 of the Complaint and each of them, which reflects Plaintiffs’
characterizations of the “technical expertise” of consumers, and on that basis, denies them.
57.

If a monitored consumer manages to manually uninstall comScore’s Surveillance

Software, Defendant still leaves its own “root certificate” on the user’s computer.
ANSWER: comScore denies the allegations of paragraph 57 of Complaint and each of
them. comScore’s software stopped installing “root certificates” in April 2005.
A.

What is a Root Certificate?

58.

In very basic terms, a root certificate is part of an intricate system that helps ensure

that websites on the Internet are secure. Web browsers, such as Microsoft’s Internet Explorer, come
pre-packaged with a store of root certificates issued by trustworthy Certificate Authorities such as
VeriSign.2 A Certificate Authority, such as VeriSign, distributes certificates to trustworthy
2

VeriSign is a company that specializes in, among other things, online security and digital
certificates. To date, VeriSign is the largest provider of digital certificates.
24

companies like Amazon.com. When an individual browses Amazon.com, the user’s web browser
identifies a certificate that was “signed” by VeriSign, and the individual is given assurance that the
website is secure. Without this system, it would be extremely difficult, if not impossible, for users to
verify which websites were secure and thus safe to transmit sensitive information to, i.e. credit card
numbers and Social Security Numbers.
ANSWER: Paragraph 58 reflects Plaintiffs’ characterizations of general industry
information and does not require a response. To the extent a response is required, comScore lacks
information sufficient to form a belief as to the truth of the allegations in paragraph 58 of the
Complaint, and on that basis, denies them.
59.

A Certificate Authority, such as VeriSign, must follow stringent regulations in order

to have its root certificate included in a popular web browser. For example, Microsoft requires
entities applying for root certificates to comply with rigorous guidelines delineated by the WebTrust
for Certification Authorities program sponsored by the American Institute for Certified Public
Accountants (AICPA).
ANSWER: Paragraph 59 reflects Plaintiffs’ characterizations of general industry
information and does not require a response. To the extent a response is required, comScore lacks
information sufficient to form a belief as to the truth of the allegations in paragraph 59 of the
Complaint, and on that basis, denies them. comScore notes, however, its Panels are certified by
WebTrust, the very “certification authority” identified in this paragraph of the Complaint.
comScore’s Panels are also certified by, among others, the Better Business Bureau, VeriSign Trusted,
Trust Guard, and Network Solutions.
60.

To average users, the significance of a root certificate is most readily manifested by

the small lock in the top left of a web browser that appears when conducting secure transactions
over the Internet. This image provides the individual with peace of mind that sensitive information
can be transmitted to the website without interception by nefarious actors.

25

ANSWER: Paragraph 60 reflects Plaintiffs’ characterizations of the expectations of “average
users” and does not require a response. To the extent a response is required, comScore lacks
information sufficient to form a belief as to the truth of the allegations in paragraph 60 of the
Complaint, and on that basis, denies them.
B.
comScore Installs its Own Root Certificate Through its Surveillance
Software
61.

Included in the installation of the Surveillance Software is a comScore root

certificate. This root certificate allows comScore to collect information transmitted through the
user’s browser, regardless of whether or not the transaction is secure. In other words, because
comScore has installed its own root certificate, when a monitored consumer is viewing a website—
such as Amazon.com—and thinks that the transaction is free from interception by third-parties
because of the image of a small lock in the top left of the browser, that information is still captured
by Defendant.
ANSWER: comScore denies the allegations of paragraph 61 of the Complaint and each of
them. comScore’s software stopped installing “root certificates” in April 2005. comScore further
denies Plaintiffs’ characterizations of what “a monitored consumer” might believe with respect to
the monitoring of online activity.
62.

If a monitored consumer uninstalls the Surveillance Software, comScore has

designed its software to leave behind the root certificate.
ANSWER: comScore denies the allegations of paragraph 62 of the Complaint and each of
them. comScore’s software stopped installing “root certificates” in April 2005.
63.

The risks caused by untrusted root certificates are well documented and Defendant’s

actions pose serious risks to monitored consumers’ computer systems.3
3

Hackers use untrusted root certificates such as comScore’s to intercept personal data from
users without detection. Because the consumer mistakenly believes that the transaction is secure,
he or she assumes that it is safe to input sensitive financial or other information. Armed with
comScore’s root certificate, a hacker can create the faux appearance of a secure transaction.
Accordingly, the prospect that comScore may attempt to utilize the root certificates it has
intentionally left behind on monitored consumers’ computers is a very real threat.
26

ANSWER: comScore is not aware of any instances in which any consumers have been
harmed by the presence of a root certificate installed by the comScore software and, on that basis,
denies the allegations of paragraph 63 of the Complaint. Moreover, comScore stopped installing
“root certificates” in April 2005.
FACTS RELATING TO PLAINTIFFS
64.

In or around March of 2010, Plaintiff Mike Harris downloaded and installed a free

screensaver secretly bundled with comScore’s Surveillance Software onto his Macintosh computer.
The computer Plaintiff used was connected to a local wireless network.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 64 of the Complaint, and on that basis, denies them.
65.

After discovering that he had inadvertently installed this software, he searched the

World Wide Web to determine how to get rid of the application. Harris attempted to uninstall the
screensaver, however the Surveillance Software continued operating. Plaintiff Harris has a high level
knowledge of information technology, and was still only able to uninstall the software after
conducting hours of diligent research.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 65 of the Complaint, and on that basis, denies them.
66.

Plaintiff Harris did not agree to comScore’s Terms of Service and did not know that

he was installing Surveillance Software when he installed the free software.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 66 of the Complaint, and on that basis, denies them. comScore notes,
however, that Plaintiff Harris would not have been able to install comScore’s software unless he
affirmatively clicked to agree to comScore’s Terms of Service, which expressly informs users of the
presence of comScore’s software. Assuming Plaintiff Harris installed comScore’s software, he would
have also been presented with a “welcome” pop up, after installation, thanking him for joining the

27

Panel and providing a link to comScore’s Privacy Policy and to an FAQ that discusses, among other
things, how to uninstall comScore’s software.
67.

In or around September of 2010, Plaintiff Jeff Dunstan downloaded and installed

free greeting card template software secretly bundled with comScore’s Surveillance Software onto
his personal computer running the Microsoft Windows operating system.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 67 of the Complaint, and on that basis, denies them.
68.

After installation, Dunstan’s firewall detected the re-routing of his Internet traffic to

comScore servers, and in response, effectively disabled his computer from accessing the Internet. In
fact, Plaintiff Dunstan’s computer became entirely debilitated in reaction to the Surveillance
Software operating on his computer.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 68 of the Complaint, and on that basis, denies them.
69.

Plaintiff Dunstan spent approximately ten hours investigating and researching how

comScore’s software became installed on his computer and how to remove it.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 69 of the Complaint, and on that basis, denies them.
70.

Eventually, Plaintiff Dunstan had to pay forty dollars ($40) for third-party anti-virus

software to entirely remove the software from his computer and restore it to a functioning state.
Plaintiff Dunstan did not agree to comScore’s Terms of Service and did not know that he was
installing Surveillance Software when he installed the free software.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 70 of the Complaint, and on that basis, denies them. comScore notes,
however, that Plaintiff Dunstan would not have been able to install comScore’s software unless he
affirmatively clicked to agree to comScore’s Terms of Service, which expressly informs users of the
presence of comScore’s software. Assuming Plaintiff Dunstan installed comScore’s software, he

28

would have also been presented with a “welcome” pop up, after installation, thanking him for
joining the Panel and providing a link to comScore’s Privacy Policy and to an FAQ that discusses,
among other things, how to uninstall comScore’s software. comScore further denies that Dunstan
“had to” purchase third-party anti-virus software to remove the comScore software, since the
software can be removed using a standard Windows utility.
CLASS ALLEGATIONS
71.

Plaintiffs Mike Harris and Jeff Dunstan bring this action pursuant to Fed. R. Civ. P.

23(b)(2) and (3) on behalf of themselves and the following Class and Subclass (together “the Class”):
Class: All individuals who have had, at any time since 2005, downloaded and installed
comScore’s tracking software onto their computers via one of comScore’s third party
bundling partners.
Subclass: All Class members not presented with a functional hyperlink to an end user
license agreement (“ULA”) before installing comScore’s tracking software onto their
computers.
ANSWER: Paragraph 71 of the Complaint reflects Plaintiffs’ characterization of their own
complaint and proposed classes and does not require a response. To the extent a response is
required, this allegation is denied.
72.

Excluded from the Class are Defendant, its legal representatives, assigns and

successors, and any entity in which Defendant has a controlling interest. Also excluded is the judge
to whom this case is assigned and the judge’s immediate family, as well as any individual who
contributed to the design and deployment of Defendant’s software products.
ANSWER: Paragraph 72 of the Complaint reflects Plaintiffs’ characterization of their own
complaint and proposed classes and does not require a response, and denies that this action can be
maintained as a class action. To the extent a response is required, this allegation is denied.
73.

The Class consist of hundreds of thousands, if not millions, of individuals and other

entities, making joinder impractical. On information and belief, Defendant has deceived millions of
consumers who fall into the definition set forth in the Class.

29

ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 73 of the Complaint, and on that basis, denies them. comScore denies that it
has “deceived millions of consumers,” and denies that this action can be maintained as a class
action.
74.

Plaintiffs’ claims are typical of the claims of all other members of the Class, as

Plaintiffs and other members sustained damages arising out of the wrongful conduct of Defendant,
based upon the same actions of the software products which were made uniformly to Plaintiffs and
the Class.
ANSWER: The allegations set forth in paragraph 74 of the Complaint assert conclusions of
law to which no response is required. To the extent paragraph 74 may purport to assert allegations
of fact to which a response may be required, comScore denies each and every allegation contained in
this paragraph, and denies that this action can be maintained as a class action.
75.

Plaintiffs will fairly and adequately represent and protect the interests of the other

members of the Class. Plaintiffs have retained counsel with substantial experience in prosecuting
complex litigation and class actions. Plaintiffs and their counsel are committed to vigorously
prosecuting this action on behalf of the members of the Class, and have the financial resources to
do so. Neither Plaintiffs nor their counsel have any interest adverse to those of the other members
of the Class.
ANSWER: The allegations set forth in paragraph 75 of the Complaint assert conclusions of
law to which no response is required. To the extent paragraph 75 may purport to assert allegations
of fact to which a response may be required, comScore denies those allegations and denies that this
action can be maintained as a class action. comScore lacks knowledge or information sufficient to
form a belief as to the truth of the allegations in paragraph 78 regarding the motivations of Plaintiffs
and their counsel, or their financial wherewithal, and on that basis, denies them.
76.

Absent a class action, most members of the Class would find the cost of litigating

their claims to be prohibitive and will have no effective remedy. The class treatment of common

30

questions of law and fact is also superior to multiple individual actions or piecemeal litigation in that
it conserves the resources of the courts and the litigants, and promotes consistency and efficiency of
adjudication.
ANSWER: The allegations set forth in paragraph 76 of the Complaint assert conclusions of
law to which no response is required. To the extent paragraph 76 may purport to assert allegations
of fact to which a response may be required, comScore denies those allegations, and denies that this
action can be maintained as a class action.
77.

Defendant has acted and failed to act on grounds generally applicable to Plaintiffs

and the other members of the Class, requiring the Court’s imposition of uniform relief to ensure
compatible standards of conduct toward the members of the Class.
ANSWER: The allegations set forth in paragraph 77 of the Complaint assert conclusions of
law to which no response is required. To the extent paragraph 77 may purport to assert allegations
of fact to which a response may be required, comScore denies those allegations, and denies that this
action can be maintained as a class action.
78.

The factual and legal bases of Defendant’s liability to Plaintiffs and to the other

members of the Class are the same, and resulted in injury to Plaintiffs and all of the other members
of the Class. Plaintiffs and the other members of the Class have all suffered harm as a result of
Defendant’s wrongful conduct.
ANSWER: The allegations set forth in paragraph 78 of the Complaint assert conclusions of
law to which no response is required. To the extent paragraph 78 may purport to assert allegations
of fact to which a response may be required, comScore denies those allegations, and denies that this
action can be maintained as a class action
79.

There are many questions of law and fact common to the claims of Plaintiffs and the

other members of the Class, and those questions predominate over any questions that may affect
individual members of the Class. Common questions for the Class include but are not limited to the
following:

31

(a)

whether comScore intentionally designed its software to scan files located on

a monitored consumer’s local network;
(b)

whether comScore intentionally designed its software and/or business model

with third-party application providers to avoid uninstallation when the third-party
application was uninstalled, thus thwarting user attempts to remove the software;
(c)

whether comScore intentionally designed its Terms of Service to exclude the

true functionality of its Surveillance Software;
(d)

whether comScore’s conduct described herein violated the Stored

Communications Act (18 U.S.C. §§ 2701, et seq.);
(e)

whether comScore’s conduct described herein violated the Electronic

Communications Privacy Act (18 U.S.C. §§ 2510, et seq.);
(f)

whether comScore’s conduct described herein violated the Computer Fraud

& Abuse Act (18 U.S.C. § 1030);
(g)

whether comScore has been unjustly enriched at the expense of Plaintiffs and

the Class.
ANSWER: The allegations set forth in paragraph 79 of the Complaint assert conclusions of
law to which no response is required. To the extent paragraph 79 may purport to assert allegations
of fact to which a response may be required, comScore denies those allegations, and denies that this
action can be maintained as a class action.
80.

Plaintiffs reserve the right to revise these definitions based on facts learned in

discovery.
ANSWER: Paragraph 80 of the Complaint reflects Plaintiffs effort to reserve certain rights
and does not require a response.
FIRST CAUSE OF ACTION
Violations of the Stored Communications Act
(18 U.S.C. §§ 2701, et seq.)
(On Behalf of Plaintiffs and the Class)
81.

Plaintiffs incorporate the foregoing allegations as if fully set forth herein.

32

ANSWER: comScore hereby incorporates as though fully set forth herein its answers to
paragraphs 1 through 80.
82.

The Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. (the

“ECPA”) broadly defines an “electronic communication” as “any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that affects interstate or foreign
commerce. . . .” 18 U.S.C. § 2510(12). The Stored Communications Act incorporates this definition.
ANSWER: The allegations set forth in paragraph 82 assert conclusions of law to which no
response is required. To the extent paragraph 82 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
83.

Pursuant to the ECPA and Stored Communications Act (“SCA”), “electronic

storage” means any “temporary storage of a wire or electronic communication incidental to the
electronic transmission thereof.” 18 U.S.C. § 2510(17)(A). This type of electronic storage includes
communications in intermediate electronic storage that have not yet been delivered to their intended
recipient.
ANSWER: The allegations set forth in paragraph 83 assert conclusions of law to which no
response is required. To the extent paragraph 83 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.

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84.

The SCA mandates, among other things, that it is unlawful for a person to obtain

access to stored communications on another’s computer system without authorization. 18 U.S.C. §
2701.
ANSWER: The allegations set forth in paragraph 84 assert conclusions of law to which no
response is required. To the extent paragraph 84 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
85.

Congress expressly included provisions in the SCA to address this issue so as to

prevent “unauthorized persons deliberately gaining access to, and sometimes tampering with,
electronic or wire communications that are not intended to be available to the public.” S. Rep. No.
99–541, 35, 1986 U.S.C.C.A.N. 3555, 3589.
ANSWER: The allegations set forth in paragraph 85 assert conclusions of law to which no
response is required. To the extent paragraph 85 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
86.

comScore has violated 18 U.S.C. § 2701(a)(1) because it intentionally accessed

consumers’ communications without authorization and obtained, altered, or prevented authorized
access to a wire or electronic communication while in electronic storage by continuing to operate
after the user uninstalled bundled software. comScore had actual knowledge of, and benefited from,
this practice.
ANSWER: The allegations set forth in paragraph 86 assert conclusions of law to which no
response is required. To the extent paragraph 86 may purport to assert allegations of fact to which a

34

response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
87.

Additionally, comScore has violated 18 U.S.C. § 2701(a)(2) because it intentionally

exceeded authorization to access consumers’ communications and obtained, altered, or prevented
authorized access to a wire or electronic communication while in electronic storage by continuing to
operate after the user uninstalled bundled software. Defendant had actual knowledge of, and
benefited from, this practice.
ANSWER: The allegations set forth in paragraph 87 assert conclusions of law to which no
response is required. To the extent paragraph 87 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
88.

comScore has also violated 18 U.S.C. § 2701(a)(2) because it intentionally exceeded

authorization to access consumers’ communications and obtained, altered, or prevented authorized
access to a wire or electronic communication while in electronic storage by accessing files on the
Plaintiffs’ and the Class’s local networks without permission.
ANSWER: The allegations set forth in paragraph 88 assert conclusions of law to which no
response is required. To the extent paragraph 88 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.

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89.

As a result of Defendant’s conduct described herein and its violation of § 2701,

Plaintiffs and the Class have suffered injuries to their privacy rights, and economic harm due to
comScore’s unjust enrichment at their expense. Plaintiffs, on behalf of themselves and the Class,
seek an order enjoining Defendant’s conduct described herein and awarding themselves and the
Class the maximum statutory and punitive damages available under 18 U.S.C. § 2707.
ANSWER: comScore admits that Plaintiffs purport seek the relief requested in paragraph
89. Except as otherwise expressly admitted herein, comScore denies the allegations of paragraph 89.
SECOND CAUSE OF ACTION
Violations of the Electronic Communications Privacy Act
(18 U.S.C. §§ 2510, et seq.)
(On Behalf of Plaintiffs and the Class)
90.

Plaintiffs incorporate the forgoing allegations as if fully set forth herein.

ANSWER: comScore hereby incorporates as though fully set forth herein its answers to
paragraphs 1 through 89.
91.

The Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. (the

“ECPA”) broadly defines an “electronic communication” as “any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that affects interstate or foreign
commerce. . . .” 18 U.S.C. § 2510(12).
ANSWER: The allegations set forth in paragraph 91 assert conclusions of law to which no
response is required. To the extent paragraph 91 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
92.

The ECPA defines “electronic communications system” as any wire, radio,

electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic

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communications, and any computer facilities or related electronic equipment for the electronic
storage of such communications. 18 U.S.C. § 2510(14).
ANSWER: The allegations set forth in paragraph 92 assert conclusions of law to which no
response is required. To the extent paragraph 92 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
93.

The ECPA broadly defines the contents of a communication. Pursuant to the

ECPA, “contents” of a communication, when used with respect to any wire, oral, or electronic
communications, include any information concerning the substance, purport, or meaning of that
communication. 18 U.S.C. § 2510(8). The definition thus includes all aspects of the communication
itself. The privacy of the communication to be protected is intended to be comprehensive.
ANSWER: The allegations set forth in paragraph 93 assert conclusions of law to which no
response is required. To the extent paragraph 93 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
94.

Plaintiffs’ and Class Members’ personal computers and computer networks

constitute “electronic computer systems.” Plaintiffs and Class members transmit “electronic
communications” by and through their computers and computer networks in the form of, among
others, emails, sending requests to visit websites, online chats, file transfers, file uploads, and file
downloads.
ANSWER: The allegations set forth in paragraph 94 assert conclusions of law to which no
response is required. To the extent paragraph 94 may purport to assert allegations of fact to which a

37

response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
95.

comScore’s conduct violated 18 U.S.C. § 2511(1)(a) because it intentionally

intercepted and endeavored to intercept Plaintiffs’ and Class Members’ electronic communications
to, from, and within their computers and computer networks.
ANSWER: The allegations set forth in paragraph 95 assert conclusions of law to which no
response is required. To the extent paragraph 95 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
96.

comScore’s conduct violated 18 U.S.C. § 2511(1)(d) because it used and endeavored

to use the contents of Plaintiffs’ and Class Members’ electronic communications to profit from its
unauthorized collection and sale, knowing and having reason to know that the information was
obtained through interception in violation of 18 U.S.C. § 2511(1).
ANSWER: The allegations set forth in paragraph 96 assert conclusions of law to which no
response is required. To the extent paragraph 96 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
97.

comScore intentionally obtained and/or intercepted, by device or otherwise, these

electronic communications, without the knowledge, consent or authorization of Plaintiffs or the
Class.

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ANSWER: The allegations set forth in paragraph 97 assert conclusions of law to which no
response is required. To the extent paragraph 97 may purport to assert allegations of fact to which a
response may be required, comScore states that the statutes cited by Plaintiffs speak for themselves,
and comScore denies any characterization of the laws applicable to this case that is inconsistent with
their language. Except as specifically admitted, comScore denies each and every allegation contained
in this paragraph.
98.

Plaintiffs and the Class suffered harm as a result of comScore’s violations of the

ECPA, and therefore seek (a) preliminary, equitable and declaratory relief as may be appropriate, (b)
the sum of the actual damages suffered and the profits obtained by Defendant as a result of their
unlawful conduct, or statutory damages as authorized by 18 U.S.C. § 2520(2)(B), whichever is
greater, (c) punitive damages, and (d) reasonable costs and attorneys’ fees.
ANSWER: comScore admits that Plaintiffs purport seek the relief requested in paragraph
98. Except as otherwise expressly admitted herein, comScore denies the allegations of paragraph 98.
THIRD CAUSE OF ACTION
Violation of the Computer Fraud and Abuse Act (“CFAA”)
(18 U.S.C. § 1030)
(On Behalf of Plaintiffs and the Class)
99.

Plaintiffs incorporate the foregoing allegations as if fully set forth herein.

ANSWER: comScore hereby incorporates as though fully set forth herein its answers to
paragraphs 1 through 98.
100.

comScore intentionally accessed a computer without authorization and/or exceeded

any authorized access and in so doing intentionally breached its own Terms of Service and Privacy
Policy.
ANSWER: The allegations set forth in paragraph 100 assert conclusions of law to which no
response is required. To the extent paragraph 100 may purport to assert allegations of fact to which
a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is

39

inconsistent with their language. Except as specifically admitted, comScore denies each and every
allegation contained in this paragraph.
101.

Defendant illegally obtained this information from a protected computer involved in

interstate or foreign communication.
ANSWER: The allegations set forth in paragraph 101 assert conclusions of law to which no
response is required. To the extent paragraph 101 may purport to assert allegations of fact to which
a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and every
allegation contained in this paragraph.
102.

By scanning and removing information from local and network files, monitoring

internet behavior, including keystroke logging consumer input, and injecting code and data onto
Plaintiffs’ computers, comScore accessed Plaintiffs’ computers, in the course of interstate commerce
and/or communication, in excess of the authorization provided by Plaintiffs as descried in 18 U.S.C.
§ 1030(a)(2)(C).
ANSWER: The allegations set forth in paragraph 102 assert conclusions of law to which no
response is required. To the extent paragraph 102 may purport to assert allegations of fact to which
a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and every
allegation contained in this paragraph.
103.

comScore violated 18 U.S.C. § 1030(a)(2)(C) by intentionally accessing Plaintiffs’ and

Class Members’ computers and computer networks without authorization and/or by exceeding the
scope of that authorization.
ANSWER: The allegations set forth in paragraph 103 assert conclusions of law to which no
response is required. To the extent paragraph 103 may purport to assert allegations of fact to which

40

a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and every
allegation contained in this paragraph.
104.

Plaintiffs’ computers, and those belonging to Class Members, are protected

computers pursuant to 18 U.S.C. § 1030(e)(2)(B) because they are used in interstate commerce
and/or communication. Specifically, Plaintiff Dunstan spent $40 to purchase a spyware removal
program to fully remove the program and restore his computer to a functioning state.
ANSWER: The allegations set forth in paragraph 104 assert conclusions of law to which no
response is required. To the extent paragraph 104 may purport to assert allegations of fact to which
a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and every
allegation contained in this paragraph.
105.

By accessing, collecting, and transmitting Plaintiffs and Class Members’ computer

data without authorization, comScore intentionally caused damage to those computers by impairing
the integrity of information and/or data.
ANSWER: The allegations set forth in paragraph 105 assert conclusions of law to which no
response is required. To the extent paragraph 105 may purport to assert allegations of fact to which
a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and every
allegation contained in this paragraph.
106.

Through the conduct described herein, comScore has violated 18 U.S.C.

§ 1030(a)(5)(A)(iii).

41

ANSWER: The allegations set forth in paragraph 106 assert conclusions of law to which no
response is required. To the extent paragraph 106 may purport to assert allegations of fact to which
a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and every
allegation contained in this paragraph.
107.

As a result, comScore’s conduct has caused a loss to one or more persons during any

one-year period aggregating at least $5,000 in value in real economic damages.
ANSWER: The allegations set forth in paragraph 107 assert conclusions of law to which no
response is required. To the extent paragraph 107 may purport to assert allegations of fact to which
a response may be required, comScore states that it lacks knowledge or information sufficient to
form a belief as to the truth of the allegations of paragraph 110, and on that basis, denies them.
108.

Plaintiffs and the Class expended time, money and resources to investigate and

remove comScore’s tracking software from his computer.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 108, and on that basis, denies them.
109.

Plaintiffs and Class members have additionally suffered loss by reason of these

violations, including, without limitation, violation of the right of privacy.
ANSWER: The allegations set forth in paragraph 109 assert conclusions of law to which no
response is required. To the extent paragraph 109 may purport to assert allegations of fact to which
a response may be required, comScore states that it lacks knowledge or information sufficient to
form a belief as to the truth of the allegations of paragraph 109, and on that basis, denies them.
110.

comScore’s actions were knowing and/or reckless and caused harm to Plaintiffs and

members of the Class.

42

ANSWER: The allegations set forth in paragraph 110 assert conclusions of law to which no
response is required. To the extent paragraph 110 may purport to assert allegations of fact to which
a response may be required, comScore denies those allegations.
FOURTH CAUSE OF ACTION
Unjust Enrichment
(On Behalf of Plaintiffs and the Class)
111.

Plaintiffs incorporate the foregoing allegations as if fully set forth herein.

ANSWER: comScore hereby incorporates as though fully set forth herein its answers to
paragraphs 1 through 110.
112.

Plaintiffs and members of the Class conferred a monetary benefit on comScore.

Defendant received and retained money by selling data collected from Plaintiffs and the Class
through its Surveillance Software to its clients. Much of this information was collected from
Plaintiffs and the Class without authorization and through deceptive business practices.
ANSWER: comScore denies the allegations of paragraph 112.
113.

comScore appreciates or has knowledge of such benefit, as demonstrated by its

public representations regarding its sales of reports regarding online consumer activity.
ANSWER: comScore denies the allegations of paragraph 113.
114.

Under principles of equity and good conscience, comScore should not be permitted

to retain the money obtained by selling information about Plaintiffs and members of the Class,
which comScore has unjustly obtained as a result of its unlawful actions.
ANSWER: The allegations set forth in paragraph 114 assert conclusions of law to which no
response is required. To the extent paragraph 114 may purport to assert allegations of fact to which
a response may be required, comScore states that the legal principles cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with those principles. Except as specifically admitted, comScore denies each and every
allegation contained in this paragraph.
115.

Accordingly, Plaintiffs and the Class seek full disgorgement and restitution of any

43

money comScore has retained as a result of the unlawful and/or wrongful conduct alleged herein.
ANSWER: comScore admits that Plaintiffs purport to seek the relief requested in paragraph
115. Except as otherwise expressly admitted herein, comScore denies the allegations of paragraph
115.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of the Class, pray for the following
relief:
A.

Certify this case as a class action on behalf of the Class defined above, appoint Mike

Harris and Jeff Dunstan as class representatives, and appoint their counsel as class counsel;
B.

Declare that comScore’s actions, as described herein, violate the Stored

Communications Act (18 U.S.C. §§ 2701, et seq.), the Electronic Communications Privacy Act (18
U.S.C. §§ 2510, et seq.), and the Computer Fraud and Abuse Act (18 U.S.C. § 1030);
C.

Award injunctive and other equitable relief as is necessary to protect the interests of

the Plaintiffs and the Class, including, inter alia: (i) an order prohibiting comScore from engaging in
the wrongful and unlawful acts described herein; (ii) requiring comScore to refrain from accessing
files attached to consumers’ local networks; (iii) requiring comScore to delete its root certificate
when the Surveillance Software is removed; (iv) requiring comScore to conspicuously and truthfully
display the manner in which it collects data about monitored consumers in its Terms of Service; and
(v) requiring comScore to uninstall its Surveillance Software when bundled software is uninstalled.
D.

Award damages, including statutory damages of $1,000 per violation under the

Stored Communications Act, 18 U.S.C. § 2707(c), and the Electronic Communications Privacy Act,
18 U.S.C. § 2520, and punitive damages where applicable, to Plaintiffs and the Class in an amount to
be determined at trial;
E.

Award Plaintiffs and the Class their reasonable litigation expenses and attorneys’

fees;

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F.

Award Plaintiffs and the Class pre- and post-judgment interest, to the extent

allowable; and
G.

Award such other and further relief as equity and justice may require.

ANSWER: comScore denies that Plaintiffs are entitled to a judgment or to any other relief
as requested in their “PRAYER FOR RELIEF.”
SEPARATE AND ADDITIONAL DEFENSES
comScore asserts the following separate and additional defenses to Plaintiffs’ Second
Amended Complaint, without assuming the burden of proof on such defenses that would otherwise
fall on Plaintiffs. comScore reserves the right to supplement or amend these defenses as discovery is
conducted, and does not knowingly or intentionally waive any applicable separate and additional
defense. comScore reserves all other affirmative defenses pursuant to Rule 8(c) of the Federal Rules
of Civil Procedure, the Patent Laws of the United States, and any other defenses, at law or in equity,
that now exist or in the future may be available based on discovery and further factual investigation
in this case.
First Separate and Additional Defense
(Venue)
1.

Plaintiff entered into an agreement with comScore that contains a binding forum

selection clause providing for exclusive venue in Virginia state court or the Eastern District of
Virginia.
Second Separate and Additional Defense
(Waiver)
2.

The Complaint and the claims asserted therein are barred by the doctrine of waiver.
Third Separate and Additional Defense
(Failure to Mitigate Damages)

3.

Plaintiffs failed to properly mitigate their alleged damages by, among other things: (1)

failing to remove comScore’s software through the Windows Add/Remove programs utility, which

45

is the industry standard, rather than purchasing unnecessary antivirus software; (2) failing to review
comScore’s FAQ and Privacy Policy, which would have quickly and expressly informed them how
to remove comScore’s software; and (3) objectively manifesting their assent to the installation of
comScore’s software, and to comScore’s TOS and Privacy Policy, when that was apparently not their
intention.
Fourth Separate and Additional Defense
(Statute of Limitations and Laches)
4.

Plaintiffs define the putative class to include individuals that fall outside the

applicable statute of limitations and/or whose claims are barred by the doctrine of laches.
ADDITIONAL DEFENSES
1.

The complaint fails to state a claim upon which relief can be granted.

2.

The Second Count of the complaint does not allege the requisite jurisdictional

amount and therefore this Honorable Court lacks jurisdiction over the subject matter of such Count.
PRAYER FOR RELIEF
Wherefore, comScore prays for relief and judgment as follows:
1.

That the Court deny Plaintiffs’ prayer for relief in its entirety and that the Court

dismiss the Complaint with prejudice and enter judgment in comScore’s favor and against Plaintiffs;
2.

That the Court award comScore its costs and expenses that it incurs in this action

and attorneys’ fees as permitted by law; and
3.

That the Court award comScore such other and further relief that it deems

appropriate.
Jury Demand
Defendant demands a jury trial of all issues so triable.

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Dated: February 28, 2013
Respectfully Submitted,
By: /s/ Paul F. Stack_
Paul F. Stack
[e-mail]
Mark William Wallin
[e-mail]
STACK & O'CONNOR CHARTERED
140 South Dearborn Street
Suite 411
Chicago, Illinois 60603
Telephone:
[phone]
Facsimile:
[phone]
Andrew Schapiro
Email: [e-mail]
Stephen Swedlow
Email: [e-mail]
Robyn Bowland
[e-mail]
QUINN EMANUEL URQUHART & SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
Telephone:
[phone]
Facsimile:
[phone]

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_____