Dunstan et al v. comScore, Inc.

Filing 192

MOTION by Defendant comScore, Inc. to stay (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bowland, Robyn)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of similarly
situated individuals,
Plaintiffs,
v.
COMSCORE, INC., a Delaware corporation,
Defendant.

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No. 11 C 5807
Chief Judge Holderman
Magistrate Judge Kim

DEFENDANT’S MOTION TO STAY
Now comes Defendant comScore, Inc., by its attorneys, and moves this Court for
entry of an order staying proceedings for a period of 60 days pending a determination by the
United States Court of Appeals for the Seventh Circuit of comScore’s Petition for Leave to
Appeal this Court’s ruling of April 2, 2013.
BACKGROUND
On April 2, 2013, this Court entered an opinion and order certifying a class and
subclass of Plaintiffs for various counts set forth in the Second Amended Complaint
(hereafter “Certification Order”). (Dkt. No. 186.) On April 16, 2013, Defendant filed with
the Court of Appeals a Petition for Leave to Appeal the Certification Order pursuant to Rule
23(f) (hereafter “Rule 23(f) Petition”). (Case No. 13-8007 Dkt. No. 1.)
On April 19, 2013, the Court of Appeals ordered Plaintiffs to file a response to
comScore’s Petition by May 6, 2013. (Ex. A, April 19, 2013 Order.)

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ARGUMENT
When ruling on a motion to stay proceedings pending consideration by the Court of
Appeals, “courts in this District have considered three factors: (1) whether the stay will
unduly prejudice or tactically disadvantage the non-moving party; (2) whether a stay will
simplify the issues in question and streamline the trial; and (3) whether a stay will reduce the
burden of litigation on the parties and on the Court.” Ezell v. City of Chicago, 2011 U.S. Dist.
LEXIS 38547, No. C 5135, at *3-4 (N.D. Ill. Apr. 8, 2011) (citing Pfizer Inc. v. Apotex, Inc.,
640 F. Supp. 2d 1006, 1007 (N.D. Ill. 2009); GE Bus. Fin. Servs. Inc. v. Spratt, No. 08 C 6504,
2009 U.S. Dist. LEXIS 33879, 2009 WL 1064608, at *1 (N.D. Ill. Apr. 20, 2009); Arrivalstar
S.S. v. Canadian Nat'l Ry. Co., No. 08 C 1086, 2008 U.S. Dist. LEXIS 60588, 2008 WL
2940807, at *2 (N.D. Ill. Jul. 25, 2008)).
1.

Granting the instant motion will not unduly prejudice or tactically
disadvantage the non-moving parties.

As set forth in the Certification Order, the certified class includes individuals who
have downloaded comScore software “at any time since 2005.” (Dkt. No. 186 at 1.) A class
going back eight years is unlikely to be prejudiced by the short period Defendant’s Petition
will be under consideration by the Court of Appeals. In addition, the Certification Order
moots any issues that could arise during the pendency of an appeal relating to the applicable
statutes of limitations. (Id. at 17-18.) Finally, the Court of Appeals has already ordered
Plaintiffs to respond to Defendant’s Rule 23(f) Petition and should be in a position to
determine quickly whether it will accept an appeal. (Ex. A, April 19, 2013 Order.)
It is also important to note that Plaintiffs bring no claims nor plead facts that any
individual has been placed at immediate risk by comScore’s actions. Rather, Plaintiffs “allege
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that comScore has exceeded the scope of the consumer’s consent to monitoring in the
ULA.” (Dkt. No. 186 at 4.) Whether comScore exceeded the scope of consent giving rise
to statutory relief does not create a circumstance where Plaintiffs run the risk of being worse
off at the end of the requested stay than they would be absent a stay. comScore submits that
the Plaintiffs will not suffer any direct harm, undue prejudice or tactical disadvantage from
the requested stay because the stay will be of a brief, finite duration and nothing will
transpire in the interim that would cause undue prejudice.
2.

Granting a stay will simplify the issues in question and streamline the
trial.

Following the entry of the Certification Order, Plaintiffs’ counsel noted that this
matter will be “the largest privacy case ever to be tried.” (Ex. B, Privacy Lawsuit Given Class
Action Status, NBCNews.com, available at http://www.nbcnews.com/technology/
technolog/privacy-lawsuit-against-comscore-given-class-action-status-1B9236418, accessed
April 22, 2013.) In its Petition, comScore presented five questions to the Court of Appeals.1
The resolution of any of these questions in comScore’s favor would both greatly simplify
and streamline resolution of the remaining issues in this case.
A stay may prevent this Court from having to make multiple rulings relating to the
class notification and discovery issues. Plaintiffs have already filed a motion seeking

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“[A] party seeking a stay need not show that it is more than 50% likely to succeed on appeal;
otherwise, no district court would ever grant a stay. It is enough that the [party] have a substantial
case on the merits.” Thomas v. Evanston, 636 F. Supp. 587, 590 (N.D. Ill. 1986). Other courts have
also granted stays based on recognition that the Court of Appeals may ultimately disagree with the
District Court’s analysis. See Andrews v. Chevy Chase Bank, FSB, 474 F. Supp. 2d 1006, 1010 (E.D.
Wis. 2007) (concluding that, despite a continued belief that the defendant should not prevail on
appeal, the Court of Appeals may disagree). comScore respectfully submits that at a minimum it has
raised significant issues in its petition to the Seventh Circuit.
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approval for their class notification plan. (Dkt. No. 189.) If the Seventh Circuit refines,
modifies and/or narrows the definition of the class, a stay will prevent this Court from
having to address multiple iterations of notification plans. At worst, the stay merely defers
for a short period of time the point at which this Court will have to rule on such motions.
Further, there is no reason that class notice should be the subject of undue urgency at this
point in the litigation. The notice must be issued prior to trial with sufficient time to permit
class members to decide whether to remain in the class or opt out. At this point, no trial
date is set.
3.

A stay will reduce the burden of litigation on the parties and on the
court.

Notwithstanding the fact comScore takes issue with the substance and procedure of
Plaintiffs’ proposed notice plan, one need not look further than Plaintiffs’ recently filed
motion regarding class notification to understand the significant burden facing comScore.
Among other things, Plaintiffs have asked for an order directing comScore “to ‘push’ the
Summary Notice to all current panelists” and “to produce a computer-readable file
containing the names, mailing addresses, and email addresses of all Class members found on
its database.” (Dkt. No. 189 at 6.) Both of these would require the investment of significant
financial, developmental, and administrative resources for comScore—all of which may be
for nothing if the Court of Appeals chooses to accept the appeal of the Certification Order
and modifies the class definition. (Ex. C, April 22, 2013 Decl. of Brown at ¶¶ 3-4.)
The technological burdens associated with just these two requests are daunting. First,
the process is far more complex than the Plaintiffs make it sound. The class defined by this
Court is limited to individuals who installed comScore’s software “via one of comScore’s
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third party bundling partners.” (Dkt. No. 186 at 1.) Therefore, the order would not go to
“all current panelists” as requested by Plaintiffs, rather it would be limited to a subset
consisting of those panelists who installed the software via a comScore bundling partner.
Accordingly, comScore will be forced to try to segregate its panelists by bundling partner
and then somehow program a notice to the segregated panelists on a scale it has never
before attempted. (Ex. C, April 22, 2013 Decl. of Brown at ¶ 5.)
Similarly, producing a file containing the names, mailing addresses, and email
addresses of all Class members will require comScore to search through literally millions of
records to determine which panelists currently fit the class definition, and then to identify
from this group the roughly three percent for which comScore still has contact information.
(Ex. C, April 22, 2013 Decl. of Brown at ¶ 6.)
In the event that the class definition is modified in any way, all of this effort will have
been in vain and will have to be repeated. comScore will again have to determine how to
segregate and load information matching the modified class definition into a system that can
send a notification, and will again have to scour its records under the new criteria. For
example, a simple change in the starting date of class membership, say from eight years to
two years, would cause the waste of countless hours and money spent assembling data which
would no longer be useable.
Beyond notice, discovery is also likely to impose a significant burden given that the
current class definition encompasses the download of comScore software onto
approximately ten million machines. (Ex. C, April 22, 2013 Decl. of Brown at ¶ 7.) Any
refinement of the class definition would mean that discovery relating to excluded members
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of the class is pointless. The potential for unnecessary burden is made even more significant
by the fact that Plaintiffs have admitted that there is little chance of continuing the
proceedings absent a class. (Dkt. No. 2 at ¶ 19 (Plaintiffs stated that if the class was not
certified “it would be difficult, if not impossible, for the individual members of the classes to
obtain effective relief” given that “[t]he injuries suffered by individual [c]lass members are
relatively small.”); Dkt. No. 169 at ¶ 76 (“[a]bsent 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.”).) Thus, given the slight chance that the Plaintiffs would bring this action
individually, this is not a circumstance where the question is whether to proceed with
discovery now or instead proceed with discovery later. Here, if class certification is
ultimately limited or denied, there would be no forum for any collected discovery that turns
out to be outside of the scope of the modified class definition. The time and effort involved
in the extraneous discovery process would simply have been wasted.
Moreover, although both parties would presumably work in good faith to resolve any
disputes relating to the scope and nature of discovery, it is reasonable to anticipate that
absent a stay the parties would at times need to request assistance from the Court to resolve
discovery disputes both in the form of motions to compel and motions for a protective
order. Absent a stay, third parties with information related to the class claims would also be
burdened with discovery requests that may ultimately prove to be beyond a modified scope.
Finally, the Plaintiffs’ class notification plan motion also calls for advertisements that
will generate 115 million unique impressions (Dkt. No. 189 at 3), as well as the creation of a
website and additional notices to be sent by email and U.S. Mail (Id. at 6). The form and
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scope of the notice plan is something the parties may not agree upon and must ultimately be
approved by the Court (with significant constitutional considerations) before it can be
implemented. These requests, along with the other notifications discussed above, represent
what is potentially a significant burden for this Court. In the event that the class is modified
in any way, the modification and reissuing of the notices is likely to cause significant
frustration and confusion among the notified class members, which will likely result in
demands for explanations from this Court and its personnel. Finally, the absence of a stay
can also place a significant burden on comScore’s operations, as repeated messaging can
negatively affect panelist experience, making it harder for comScore to retain those panelists.
(Ex. C, April 22, 2013 Decl. of Brown at ¶ 8.)
CONCLUSION
In light of the fact that the Court of Appeals has already set a date for Plaintiffs to
reply to Defendant’s Rule 23(f) Petition, a stay of these proceedings for a period of 60 days
pending that Court’s determination of whether to accept the appeal of the Certification
Order: (1) would be efficient and would avoid potentially wasted time and expense, (2)
would potentially eliminate burdens to this Court, the parties and third parties, and (3) would
not prejudice Plaintiffs or the Class.
For the reasons set out above, Defendant comScore respectfully requests this Court
grant a stay in this matter pending the Court of Appeals’ determination as to whether it will
accept Defendant’s Rule 23(f) Petition.

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DATED: April 22, 2013

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
_/s/Andrew H. Schapiro ____
Andrew H. Schapiro
[e-mail]
Stephen Swedlow
[e-mail]
Robyn Bowland
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, Illinois 60661
Telephone: [phone]
Facsimile: [phone]
Paul F. Stack
[e-mail]
Mark William Wallin
[e-mail]
Stack & O’Connor Chartered
140 South Dearborn Street
Suite 411
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant comScore, Inc.

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of the foregoing has
been caused to be served on April 22, 2013 to all counsel of record via the Court’s ECF
notification system..
_/s/Robyn M. Bowland
Robyn Bowland

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