Dunstan et al v. comScore, Inc.

Filing 189

MOTION by Plaintiffs Jeff Dunstan, Mike Harris Approval of Class Notice Plan (Attachments: # 1 Exhibit A)(Scharg, Ari)

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

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

PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE PLAN
Plaintiffs Mike Harris and Jeff Dunstan, through their undersigned counsel, respectfully
move the Court for approval of their proposed Notice Plan, which fully satisfies all requirements
under Rule 23(c) and Due Process. In support of their Motion, Plaintiffs state as follows:
I.

INTRODUCTION
On April 2, 2013, the Court entered an Order in this case granting class certification of a

Class and Subclass under Rule 23(b)(3). (Dkt 186.) Following entry of the Court’s Order
certifying the Class and Subclass, and pursuant to Rule 23(c)(2), Plaintiffs solicited bids from
reputable class action administrators experienced in developing and implementing notice plans in
complex class actions. Plaintiffs ultimately retained Kurtzman Carson Consultants (“KCC”), and
with its assistance, developed the proposed Notice Plan.1 As demonstrated below, the proposed
notice constitutes the best notice practicable under the circumstances and otherwise satisfies the
requirements of Rule 23(c)(2)(B) and Due Process. Accordingly, Plaintiffs respectfully request

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It should be noted that on April 4, 2013, Class Counsel requested to hold a meet and
confer conference with comScore’s counsel to obtain comScore’s input and views on how to
provide Class members with notice in the hopes of providing the Court with an agreed-upon
plan. To date, comScore’s counsel have not responded to Class Counsel’s request.
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that the Court approves their proposed Notice Plan.
II.

THE PROPOSED NOTICE PLAN IS THE BEST PRACTICABLE UNDER THE
CIRCUMSTANCES.
Rule 23(c)(2)(B) provides that “[f]or any class certified under Rule 23(b)(3), the court

must direct to class members the best notice practicable under the circumstances, including
individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ.
P. 23(c)(2)(B); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011). Class notice must
be “reasonably calculated, under all circumstances to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.” F.C.V., Inc. v. Sterling
Nat. Bank, 652 F. Supp. 2d 928, 944 (N.D. Ill. 2009). Further, Rule 23 “accords considerable
discretion to a district court in fashioning notice” and seeks “cooperative ingenuity on the part of
counsel and the court in determining the most suitable notice in each case.” Tylka v. Gerber
Prods. Co., 182 F.R.D. 573, 578 (N.D. Ill. 1998) (quotations and citations omitted). The Federal
Judicial Center has concluded that a notice plan that reaches at least 70% of the class is
reasonable. Federal Judicial Center, Judges’ Class Action Notice and Claims Process Checklist
and Plain Language Guide (2010), p. 3.
Plaintiffs propose that class notice be disseminated through a comprehensive fourpronged approach. First, comScore will “push” the Summary Notice through its OSSProxy
software to all current “panelists” by rendering a dialogue (or pop-up) box on their computer
screens. (The Declaration of Gina M. Intrepido-Bowen is attached hereto as Exhibit A, ¶ 20.)
The proposed Summary Notice, which will contain an active hyperlink to the Case Website, is
attached to the Intrepido-Bowen Declaration as Attachment 1-B.
Second, KCC will send the Summary Notice through and e-mail and First Class U.S.
Mail to all addresses obtained from comScore’s records. (Intrepido-Bowen Decl., ¶¶ 21-22). The

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proposed forms of the e-mail and postcard versions of the Summary Notice are attached to the
Intrepido-Bowen Declaration as Attachments 1-C and 1-D, respectively.
Third, KCC will supplement the “push” notice and mail and e-mail campaigns with
Internet banner ads on the 24/7 Real Media Internet Network, which allows access to over 4,000
premium websites. (Intrepido-Bowen Decl., ¶¶ 24-25.) These ads will run for a one-month
period, contain active hyperlinks to the Case Website, and make 115 million unique impressions.
(Intrepido-Bowen Decl., ¶ 24.) Depending on the percentage of Class members reached through
the OSSProxy “push” notice and direct mail and e-mail campaigns, KCC will supplement the
Notice Plan with publication notice and a second Internet media campaign sufficient to achieve
notice reach to over 70% of Class members. (Intrepido-Bowen Decl., ¶ 26.) The proposed banner
ads are attached to the Intrepido-Bowen Declaration as Attachment 1-E.
Fourth, the direct “push” notices, mail and e-mail campaigns, and supplemental Internet
notices will direct Class members to a website, www.comScoreClassAction.net, which will be
created and maintained by KCC. (Intrepido-Bowen Decl., ¶ 27.) This website is an easily
remembered domain that will serve as the traditional “long form” notice, will provide access to
relevant Court documents, and will provide Class members with additional information about the
litigation and their options and rights, and contact information for Class Counsel and KCC.2 The

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The Manual For Complex Litigation confirms that using a dedicated website to provide
supplemental information is an effective notice technique:
Posting notices on dedicated Internet sites, likely to be visited by class members
and linked to more detailed certification information, is a useful supplement to
individual notice, might be provided at a relatively low cost, and will become
increasingly useful as the percentage of the population that regularly relies on the
Internet for information increases. An advantage of Internet notice is that followup information can easily be added, and lists can be created to notify class
members of changes that may occur during the litigation. Similarly, referring
class members to an Internet site for further information can provide complete
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proposed Long Form Notice is attached to the Intrepido-Bowen Declaration as Attachment 1-F.
The direct OSSProxy “push” delivery, direct mailing, targeted Internet ads, and website
Notice Plan is consistent with other effective court-approved notice plans, is the best practicable
notice to the Class under the circumstances, and complies with Rule 23 and Due Process.
(Intrepido-Bowen Decl., ¶¶ 29, 33-34.) Plaintiffs propose that the deadline for a Class member to
request to be excluded be fifty-six (56) days after the Notice Plan has been fully effectuated.
III.

THE PROPOSED NOTICES ARE EASY TO READ AND UNDERSTAND, AND
THUS, COMPORT WITH RULE 23 AND DUE PROCESS.
To satisfy Rule 23(c)(2)(B), the class notice must concisely state in plain, easy-to-

understand language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the
class claims, issues, or defenses; (iv) that a class member may enter an appearance through
counsel if the member so desires; (v) that the court will exclude from the class any member who
requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect
of a class judgment on class members under Rule 23(c)(3). “The federal judicial center has
created illustrative clear-notice forms that provide a helpful starting point for actions similar to
those described in the forms.” Adv. Cmte. Notes (2003) to Fed. R. Civ. P. 23(c). Ultimately,
notice is “adequate if it may be understood by the average class member.” ALBA CONTE &
HERBERT B. NEWBERG, 4 NEWBERG ON CLASS ACTIONS, §11:53, 167 (4th ed. 2002).
Here, the Summary Notice (whether delivered via OSSProxy, the U.S. mail, or e-mail)
and the Long Form Notice are based upon the question and answer format suggested by the
Federal Judicial Center and comply with Rule 23(c)(2)(B) and Due Process. (Intrepido-Bowen

access to a wide range of information about a class settlement. Many courts
include the Internet as a component of class certification and class settlement
notice programs.
ANN. MANUAL COMPLEX LIT. § 21.311 (4th ed.).
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Decl., ¶¶ 30-32.) The Summary Notice is concise and written in plain, easy-to-understand
language. It provides a concise description of the defined class, along with a basic description of
the nature of the action and class claims. See Intrepido-Bowen Decl., Attachments 1-B, 1-C, and
1-D. The Summary Notice informs each Class member that: he or she may enter an appearance
through counsel if the member so desires, the binding effect of a class judgment on Class
members, and that the Court will exclude from the Class any member who requests exclusion. If
any Class member desires additional information, the Summary Notice provides a toll free
telephone number and a website address where they can speak to a claims administrator, reach
Class Counsel, and view Court documents.
The Long Form Notice also uses easy-to-understand language to provide additional
information about the lawsuit. See Intrepido-Bowen Decl., Attachment 1-F. The first page of the
Long Form Notice provides a basic description of the nature of the action. This information is
further explained in the Answers to Questions Nos. 1-9, which describe the posture of the action,
the class claims, the issues, allegations, comScore’s response, and the relief sought. The Answers
to Questions 10-12 provide a description of the Class and Subclass and explain how to determine
if a person is a member. And, if potential Class members are still unsure as to whether they are
included, Answer to Question 13 encourages them to call Class Counsel for further help.
The Answer to Question 14 provides an explanation of the rights of Class members
should they elect to remain as Class members in the action and informs each Class member about
the binding effect of a class judgment on them. The Answer to Question 17 explains that each
Class Member may enter an appearance through their own counsel if they so desire. The
Answers to Questions 15-16 explain that the court will exclude from the class any member who
requests exclusion and the time and manner for requesting exclusion. If further information is

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desired, the Answer to Question 23 informs Class members that more information is available by
calling Class Counsel and/or the class action administrator.
In sum, the format and language of each form of notice has been drafted so that it is
conveyed in plain language, easy to read, and will be readily understood by the members of the
Class. (Intrepido-Bowen Decl., ¶¶ 30-32.) Thus, the proposed notices satisfy the requirements of
Rule 23 and Due Process.
IV.

CONCLUSION
For the reasons discussed above, Plaintiffs Mike Harris and Jeff Dunstan respectfully

request that the Court enter an Order (1) approving the proposed Notice Plan, finding that it
satisfies the requirements of both Rule 23 and Due Process, (2) directing comScore, under
KCC’s supervision, to “push” the Summary Notice to all current panelists, (3) directing
comScore to produce a computer-readable file containing the names, mailing addresses, and email addresses of all Class members found on its database, (4) authorizing notice be sent by U.S.
first class mail and e-mail to all such Class members, (5) authorizing the dissemination of the
Internet advertisements contemplated by the Notice Plan, (6) authorizing the creation of the Case
Website, and (7) awarding such additional relief as the Court deems reasonable and just.
Dated: April 16, 2013

Respectfully submitted,
MIKE HARRIS AND JEFF DUNSTAN,
By: /s/ Ari J. Scharg
One of their attorneys

Jay Edelson
Rafey S. Balabanian
Ari J. Scharg
Benjamin S. Thomassen
Chandler R. Givens
EDELSON LLC
350 North LaSalle, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
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[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I, Ari J. Scharg, an attorney, certify that on April 16, 2013, I served the above and
foregoing Plaintiffs’ Motion For Approval of Class Notice Plan, by causing true and accurate
copies of such paper to be filed and transmitted to all counsel of record via the Court’s CM/ECF
electronic filing system, on this 16th day of April, 2013.
/s/ Ari J. Scharg

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