Dunstan et al v. comScore, Inc.

Filing 263

MOTION by Plaintiffs Jeff Dunstan, Mike HarrisApproval of Amended Class Notice Plan (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Thomassen, Benjamin)

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,

Case No. 1:11-cv-05807
Hon. James F. Holderman

v.

Magistrate Judge Young B. Kim

COMSCORE, INC., a Delaware corporation,
Defendant.
PLAINTIFFS’ AMENDED MOTION FOR APPROVAL OF CLASS NOTICE PLAN
Plaintiffs Mike Harris and Jeff Dunstan (the “Plaintiffs”), through their undersigned
counsel, respectfully move the Court for approval of their proposed Amended Notice Plan,
which, as shown below, fully satisfies all requirements under Rule 23(c) and Due Process. In
support of their motion, Plaintiffs state as follows:
I.

INTRODUCTION AND BACKGROUND
Plaintiffs bring this amended motion at this time because shortly after they filed their

original Motion for Approval of Notice Plan (“Motion for Notice”),1 the case was stayed pending
resolution of comScore Rule 23(f) petition for leave to appeal to the Seventh Circuit. Once the
petition was denied, the Parties decided to engage in the meet and confer process so as to address
comScore’s concerns with aspects of the proposed Notice Plan and in hopes of reaching an
agreement on providing notice to the Class and Subclass (collectively, the “Class”) of this
Court’s Order granting class certification (the “Certification Order”). At the same time that they
were meeting and conferring with comScore, Plaintiffs deposed comScore’s 30(b)(6) designee

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For the sake of clarity, here “Notice Plan” refers to the plan filed with the Court on April 16, 2013. (Dkt.
189.) “Amended Notice Plan,” in contrast, refers to the instant plan for which Plaintiffs now seek approval from the
Court.

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on notice in October to clarify and better understand key issues relating to how providing notice
to the Class in this matter could be effectuated.
Plaintiffs now present their Amended Notice Plan for approval. As explained below, the
Amended Notice Plan benefits greatly from the information learned through both the Parties’
several meet and confers and the notice-focused Rule 30(b)(6) deposition, and will provide the
Class with the best notice practicable under the circumstances, thus satisfying Rule 23 and Due
Process.
A.

Plaintiffs’ Original Motion for Approval of Class Notice Plan was Stayed
Pending Resolution of comScore’s Rule 23(f) Petition.
On April 2, 2013, this Court certified a Class and Subclass of individuals under Rule

23(b)(3) who allege that Defendant comScore “improperly obtained and used personal
information from [their] computers after they downloaded and installed comScore’s [tracking
software, OSSProxy.]” (Dkt. 186 at 1, 19–20.) Following the Certification Order, Plaintiffs
turned to the issue of notice to the Class and solicited bids from reputable class action
administrators experienced in developing and implementing notice plans in complex class
actions. (Declaration of Rafey S. Balabanian [cited as “Balabanian Decl.”] ¶ 2, a true and
accurate copy of which is attached hereto as Exhibit 1.) Plaintiffs retained Kurtzman Carson
Consultants (“KCC”), and with its assistance, developed a proposed Notice Plan for effectuating
notice to the Class of the Court’s Certification Order. (Id.) On April 16, 2013, Plaintiffs moved
the Court for approval of that proposed Notice Plan. (Dkt 189.)
The Notice Plan listed a four-pronged approach to effectuating notice to the Class, which
Plaintiffs believed—based on the information then available to them (i.e., information learned
during the class discovery period)—would provide the best notice practicable to the Class
pursuant to Rule 23(c)(2). (See id.) The plan included: (i) “push” notice, where comScore would

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notify Class and Subclass members (who presently have comScore’s software installed and
running on their computers) of the Certification Order directly through its panelist software,
OSSProxy; (ii) direct notice using the e-mail and U.S. Mail addresses of Class members in
comScore’s records; (iii) publication notice through an online media campaign (e.g., using
Internet banner ads targeted at individuals likely to have downloaded comScore’s panelist
software in the past); and (iv) a website to serve as the traditional “long form” notice, which
would provide detailed information about the litigation. (Dkt. 189 at 2–3.)
At about the same time that Plaintiffs filed their original Motion for Notice, comScore
filed a Rule 23(f) petition for leave to appeal the Certification Order to the Seventh Circuit and,
shortly thereafter, moved this Court to stay the underlying case pending resolution of the
petition. (Dkt. 192 at 1.) In that motion, comScore stated that it “[took] issue” with Plaintiffs’
proposed Notice Plan and otherwise explained how any efforts directed towards notifying the
Class and Subclass might be wasted, depending on the outcome of its Rule 23(f) petition. (Id. at
4–5.) The Court granted comScore’s motion, and the Parties directed their efforts towards the
23(f) petition. (Dkt. 194.)
B.

comScore’s 23(f) Petition is Denied and the Parties Discuss the Details of
Plaintiffs’ Proposed Notice Plan.
On June 11, 2013, the Seventh Court denied comScore’s 23(f) petition, (dkt. 199), and,

on June 19, 2013, the Parties embarked on what would be a series of meet and confers about the
proposed Notice Plan and comScore’s concerns about Plaintiffs’ suggested methods of providing
notice to the Class. (Balabanian Decl. at ¶ 3.) During their initial conference and through many
follow up conversations, e-mails, and written correspondence, the Parties explored the factual
bases underlying comScore’s concerns. (Id.) Through those communications, Plaintiffs
determined that obtaining further information about the types of Class-member contact

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information possessed by comScore and the Parties’ ability to reach those individuals would
require (i) limited notice-related discovery and, depending on the results of that discovery, (ii)
revisions to the Notice Plan previously filed with the Court. (Id.)
By way of example, Plaintiffs have always believed that “pushing” notice to Class
members directly through OSSProxy would be the most effective and, administratively, the
easiest, method of providing notice directly to Class members who currently have OSSProxy
installed on their computers. (Id. at ¶ 4.) comScore, however, took issue with that belief. (Id.) At
first, it took issue with the word “push,” claiming that OSSProxy was not capable of “pushing”
notice directly to current panelists (though comScore’s Rule 30(b)(6) designee previously spoke
of OSSProxy’s equivalent technology, which could render what are known as “web pop” boxes
on panelists’ computers). (Id.) comScore also claimed that even if the push notice were feasible,
doing so would be unduly burdensome on its servers and technical infrastructure (though
Plaintiffs understood otherwise, and indicated to comScore that it had effectively “pushed”
analogous notices to panelists in the past). (Id.) When Plaintiffs deposed comScore’s corporate
designee on the issue in October of this year, Plaintiffs found that comScore’s concerns
regarding “pushing” notice were based on a misunderstanding; apparently comScore believed
Plaintiffs wished to send push notice to the entire Class (e.g., even those who no longer have
OSSProxy installed and running on their computers), which was not the case. (Id. at ¶ 5.) Rather,
Plaintiffs have always been of the position that push notice should/could only be sent to Class
members with OSSProxy currently installed and running on their computers. (Id.) With the
Parties now on the same page (and speaking the same language), even comScore seems to agree
that Plaintiffs’ “push” notice proposal is feasible and not prohibitively expensive. (Id.)
Plaintiffs’ notice-related discovery requests were not limited to understanding

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comScore’s ability to “push” notice to Class members. (Id. at ¶ 6.) Plaintiffs were also
concerned, for example, with the veracity of the information that comScore provided them
regarding the contact information that it had in its possession for Class members. (Id.)
C.

Key Information Learned from the Deposition of comScore’s Rule 30(b)(6)
Designee and Chief Technology Officer on Notice-Related Issues and
comScore’s Latest Document Production.

Following their several meet and confers, on October 3, 2013, Plaintiffs moved forward
with the deposition of comScore’s Rule 30(b)(6) designee and Chief Technology Officer, Mike
Brown, on notice-related issues. (Id. at ¶ 7.) Through that deposition, and as corroborated by
materials from comScore’s most recent document production, Plaintiffs have now learned
several key pieces of information, including: (i) comScore’s ability to “push” notice directly to
Class members currently running OSSProxy on their computers with relative ease; (ii) details
regarding the number of individuals who currently have comScore’s panelist software installed
on their computers and who can be contacted directly (whether through a “push” or “pop” notice
via OSSProxy itself or through an e-mail); (iii) the number of former panelists that comScore has
contact information for, which might facilitate direct notice via telephone, U.S. Mail, e-mail, and
social network-based e-mail, such as Facebook e-mail addresses; and (iv) demographics of
individuals who have, or have had, comScore’s software installed on their personal computers.
(Id.)
D.

Key Revisions Reflected in Plaintiffs’ Amended Notice Plan Based on
Information Learned After Conducting Limited Notice-Related Discovery.

Based on the information gleaned from Plaintiffs’ several discussions with comScore’s
counsel, the deposition of Mr. Brown, and comScore’s latest document production, Plaintiffs
identified a need to revise their proposed Notice Plan in the following ways.
First, the Parties have moved the Court to amend the certified Class definition in this case

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to only include United States residents. (Dkt. 252.) The requested limitation will ensure that the
case proceeds as efficiently as possible, avoids manageability problems, and facilitates more
practicable and effective notice. (See id.) As such, the Amended Notice Plan is designed to reach
the maximum number of United States residents that fall within the definition of the Class.
Second, based on information learned from comScore concerning its ability to contact
current and former panelists (i.e., by “web pop” or “push” notice, through traditional means—
such as e-mail, U.S. mail, and telephone—and by sending e-mails to Class members using their
social networking contact information, like FacebookIDs), Plaintiffs, with the assistance of KCC,
have strengthened the proposed Notice Plan so as to directly reach a greater percentage of Class
members residing in the United States. (Balabanian Decl. at ¶ 8.) Relatedly, and based on the
new information learned from comScore concerning the demographic profile of its panelists,
Plaintiffs are confident that the below-proposed Amended Notice Plan—again, developed with
the assistance of KCC—will in fact reach as many individuals as possible who are likely to have
(or have had) OSSProxy installed on their computers. (Id. at ¶ 9.)
With these additions, Plaintiffs believe that their Amended Notice Plan is even stronger
than before and will reach (both directly and indirectly) the greatest number of Class and
Subclass members possible. (Id.) And as demonstrated below, the revised and proposed
Amended Notice Plan 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 that the Court approve their Amended Notice Plan.
II.

ARGUMENT
A.

The Amended 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
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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.
As before, Plaintiffs propose that Class notice be disseminated through a comprehensive
four-pronged approach, which has been significantly strengthened by information learned
subsequent to Plaintiffs’ original Motion for Notice.
1.

Direct notice “pushed” through active installations of OSSProxy.

First, comScore will “push” the Summary Notice through OSSProxy to all Class
members who currently have the software running on their computers, and will do so by
rendering a dialogue (or pop-up) box on their computer screens. (The Declaration of Gina M.
Intrepido-Bowen [cited as “Intrepido-Bowen Decl.”] at ¶ 20, a true and accurate copy of which is
attached hereto as Exhibit 2.) The proposed Summary Notice, which will contain an active
hyperlink to the Case Website, is attached to the Intrepido-Bowen Decl. as Attachment 1-B. This
form of “push notice” will reach individual Class members through the most direct means
possible—i.e., through the same computer onto which OSSProxy is installed. And because push

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notice effectively identifies, reaches, and notifies Class members with minimal effort, “the
express language and intent of Rule 23(c)(2) leave[s] no doubt that [such] individual notice must
be provided to [these] [C]lass members,” even through they only comprise a portion of the Class.
See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974) (requiring direct notice to 2.25
million of 6 million person class where that portion of the class was “identifiable through
reasonable effort”); accord Larson v. Sprint Nextel Corp., 07-5325JLL, 2009 WL 1228443, at *9
(D.N.J. Apr. 30, 2009) (“The fact that not every member of the class can receive the best notice
does not mean that everyone gets the least notice. Rather, those [class members] capable of
reasonable identification require individual notice.”).
2.

Traditional direct notice (i.e., e-mails and postcards) via Class
member contact information stored in comScore’s panelist database.

Second, KCC will send the Summary Notice via e-mail and a postcard to all addresses in
comScore’s records. (Intrepido-Bowen Decl. at ¶¶ 21, 22.) In terms of the actual e-mail
addresses in its possession, comScore will send the Summary Notice both to e-mail addresses
that current and former panelists have provided to comScore directly (i.e., through optional
“surveys” that some panelists completed at the time that they installed OSSProxy on their
computers) and through e-mail addresses that comScore has collected from panelists’ computers
through OSSProxy and now associates with individual panelists. (Id. at ¶ 21.) These e-mail
addresses will be supplemented with e-mails sent to Class members’ social media e-mail
addresses (e.g., “@facebook.com” e-mail addresses) in addition to their main e-mail accounts, to
the extent such information is available. (Id.) As before, because these e-mail addresses make
Class members “identifiable through reasonable effort,” they should be used to notify Class
members directly. Eisen, 417 U.S. at 175. The proposed forms of the e-mail and postcard
versions of the Summary Notice are attached to the Intrepido-Bowen Decl. as Attachments 1-C

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and 1-D, respectively.
On October 22, 2013, Plaintiffs provided comScore with a draft of their Amended Notice
Plan, which, inter alia, anticipated the use of Class member e-mail addresses (as collected and/or
maintained by comScore) to provide direct notice to the Class. (Balabanian Decl. ¶ 10.) In
response, comScore did not suggest that they were not in possession of such e-mail addresses,
but instead claimed that (i) certain e-mails in the list might identify multiple household users of a
single monitored computer (some of whom may not actually be Class members) and, second,
that certain stored e-mail addresses might represent duplicate contact points for a single panelist.
(Id. at ¶ 11.) Neither potential issue—to the extent either is true—should preclude use of the email lists for the purposes of providing notice to Class members. For the first, the fact that other
members of a given panelist’s household may receive notice is of little concern, especially
because such receipt of the Summary Notice is, if anything, more likely to increase the chance
that actual Class members are eventually notified of this case. Cf. Hernandez v. Talman Home
Mortgage Corp., 85 C 1330, 1986 WL 5205, at *8 (N.D. Ill. Apr. 29, 1986) (accepting objectors’
suggestion that publication notice in the Chicago Daily Law Bulletin would “further the
desirable end of providing notice to as many class members as possible” because attorneys who
previously represented such class members may see the notice and contact their clients). For the
second, Plaintiffs can see no reason why two e-mails sent to a single Class member would make
notice impracticable or otherwise inappropriate, especially since the cost differential of sending
one, two, or even ten identical e-mails is negligible. And besides, sending a single Class member
two e-mails will only increase the likelihood that s/he sees and reads one of them.
In the end, given that the list of collected e-mails is readily obtainable by comScore and
is guaranteed to reach a substantial portion of the Class, using it is eminently practicable and

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should remain a core part of the Class Amended Notice Plan.
3.

Consumer publication notice in People magazine.

Third, to build upon the reach of the individual notice effort, KCC will place a half-page
notice in People magazine, which offers a circulation of over 3.5 million and, factoring in pass
along readership, an adult audience of over 43 million. (Intrepido-Bowen Decl. at ¶ 24.) KCC
has calculated that the readership of People magazine is likely to include a significant portion of
the Class. (Id. at ¶¶ 16, 24.)
4.

Supplemental notice via Internet banner ads.

Fourth, KCC will supplement the above with Internet banner ads displayed on the 24/7
Real Media Internet network, which allows access to over 4,000 premium websites. (IntrepidoBowen Decl. at ¶¶ 25, 26.) These ads will run for a one-month period, contain active hyperlinks
to the Case Website, and result in 110 million unique impressions. (Id. at ¶ 25.)
Depending on the percentage of Class members reached through the OSSProxy “push”
notice and direct mail and e-mail campaigns, KCC will supplement the Amended Notice Plan
with additional publication notice and a second Internet media campaign sufficient to achieve
notice reach to at least 70% of Class members. (Id. at ¶ 27.) The proposed banner ads are
attached to the Intrepido-Bowen Decl. as Attachment 1-E.
5.

Website containing long-form notice and other information.

Fourth, the direct “push” notices, mail and e-mail campaigns, and supplemental Internet
notices will direct Class members to a website, www.comScoreClassAction.net (the “Case
Website”), which will be created and maintained by KCC. (Id. at ¶ 28.) 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

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litigation and their options and rights, as well as contact information for Class Counsel and
KCC.2 The proposed Long Form Notice is attached to the Intrepido-Bowen Decl. as Attachment
1-F.
All told, the direct OSSProxy “push” delivery, direct mailing, targeted Internet ads, and
website Amended 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. at ¶¶ 30, 34, 35.) Plaintiffs propose that the deadline for a
Class member to request to be excluded be sixty (60) days after the Amended Notice Plan has
been fully effectuated.
B.

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-tounderstand 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

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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 follow-up 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 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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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, U.S. mail, or e-mail,
including via social media 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 Decl. at ¶¶ 31–33.) The Summary Notice is concise and written
in plain, easy-to-understand language. (Id. at ¶ 32.) It provides a description of the defined Class
and Subclass, along with a basic description of the nature of the action and claims at issue. (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. (See id.) 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.
(Id.)
The Long Form Notice is also concise and written in plain, easy-to-understand language
to provide additional information about the lawsuit. (See Intrepido-Bowen Decl., Attachment 1F.) The first page of the Long Form Notice provides a basic description of the nature of the
action. (See id.) This information is further explained in the Answers to Questions Nos. 1–9,
which describe the posture of the action, the claims, the issues, the allegations, comScore’s
response, and the relief sought. (Id.) The Answers to Questions 10–12 provide a description of

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the Class and Subclass and explain how to determine if a person is a member. (Id.) 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. (Id.)
The Answer to Question 14 provides an explanation of the rights of Class members
should they elect to remain in the Class or Subclass and informs each member about the binding
effect of a class judgment on them. (Id.) The Answers to Questions 15–16 explain that the Court
will exclude from the Class and Subclass any member who requests exclusion and the time and
manner for requesting exclusion. (Id.) The Answer to Question 17 explains that each member
may enter an appearance through their own counsel if they so desire. (Id.) If further information
is desired, the Answer to Question 23 informs Class members that more information is available
by calling Class Counsel and/or the class action administrator. (Id.)
In sum, the format and language of each form of notice has been drafted so that it is
conveyed in plain language, is easy to read, and will be readily understood by the members of
the Class and Subclass. (Id. at ¶¶ 31–33.) Thus, the proposed notices satisfy the requirements of
Rule 23 and Due Process.
III.

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

request that the Court enter an Order (i) approving the Amended Notice Plan, finding that it
satisfies the requirements of both Rule 23 and Due Process, (ii) directing comScore, under
KCC’s supervision, to “push” the Summary Notice to all current panelists, (iii) directing
comScore to produce a computer-readable file containing the names, mailing addresses, and email addresses, including social media e-mail addresses, associated with all Class and Subclass
members contained in its database, (iv) authorizing that notice be sent by postcard and e-mail to

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all Class and Subclass members for whom comScore possesses such contact information, (v)
authorizing the dissemination of the Internet advertisements that comprise the online media
campaign, (vi) authorizing the creation of the Case Website, and (vii) awarding such additional
relief as the Court deems reasonable and just.
Respectfully submitted,
1.

Dated: November 8, 2013

MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals,
By: s/ Rafey S. Balabanian
One of Plaintiffs’ Attorneys
Jay Edelson
Rafey S. Balabanian
Benjamin S. Thomassen
Chandler R. Givens
EDELSON LLC
350 North LaSalle, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiffs and the Class and Subclass

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CERTIFICATE OF SERVICE
I, Benjamin S. Thomassen, an attorney, certify that on November 8, 2013, I served the
above and foregoing Plaintiffs’ Amended 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 8th day of November 2013.
s/ Benjamin S. Thomassen

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