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)

EXHIBIT 1

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.
DECLARATION OF RAFEY S. BALABANIAN IN SUPPORT OF
PLAINTIFFS’ AMENDED MOTION FOR APPROVAL OF CLASS NOTICE PLAN
I, Rafey S. Balabanian, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1.

I am a Partner at the law firm of Edelson LLC, which has been retained to

represent Plaintiffs Mike Harris and Jeff Dunstan (collectively, “Plaintiffs”) in this matter. I am
an adult over the age of 18, and I am fully competent to make this Declaration. I have personal
knowledge of all matters set forth herein. If called upon to testify as to such matters, I could and
would competently do so.
2.

Following the Court’s certification of the Class and Subclass in this matter, my

firm began soliciting bids from class action administrators for the purposes of effectuating notice
to the Class and Subclass of the Court’s Certification Order. Among other reputable class action
administrators experienced in developing and implementing notice plans in complex class
actions, Plaintiffs communicated with and ultimately retained Kurtzman Carson Consultants
(“KCC”). With KCC’s assistance, Plaintiffs developed a proposed plan.
3.

After resolution of comScore’s Rule 23(f) petition to the Seventh Circuit, the

Parties met and conferred about Plaintiffs’ then-proposed notice plan and discussed certain

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concerns raised by comScore. That meeting prompted many follow-up calls, e-mails, and other
written correspondence, wherein the Parties explored the factual bases underlying comScore’s
concerns. Ultimately, Plaintiffs concluded that focused discovery on notice-related issues was
the best way to better understand how best to provide notice to the Class and Subclass, and may
lead to additions to the notice plan Plaintiffs previously presented with the Court.
4.

A good example of an area needing clarification was Plaintiffs’ belief that notice

of the Court’s Certification Order could be “pushed” to current panelists directly through
comScore’s software, OSSProxy, with relative ease and minimal cost to comScore. comScore’s
position on this issue was that “pushing” notice was overly burdensome and not feasible. First, it
claimed that “pushing” notice through the software was not technically possible (even though
Plaintiffs understood otherwise, based on information learned from the previous deposition of
Mike Brown, comScore’s Chief Technical Officer and Rule 30(b)(6) designee). Next, comScore
claimed that even if “pushing” notice were technically feasible, doing so would be overly
burdensome on comScore’s technical infrastructure (even though Plaintiffs identified instances
where similar notices, like surveys, had been “pushed” through OSSProxy in the past).
5.

As it turns out, when Plaintiffs eventually deposed Mr. Brown on issues limited to

Class notice (who was, once again, produced by comScore in response to a Rule 30(b)(6) notice),
they found that all of comScore’s apprehensions were based on an apparent misunderstanding,
because comScore apparently understood that Plaintiffs were proposing to “push” notice to the
entire Class (i.e., even those individuals who did not currently have comScore’s software
installed on their systems). That was not Plaintiffs’ proposal, however, as Plaintiffs acknowledge
that any such “push” notice could only be accomplished if a Class member currently has
OSSProxy installed and running on his or her computer. With the misunderstanding cleared up,

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Mr. Brown agreed that Plaintiffs’ “push” notice proposal wouldn't require the investment of
significant time or capital. (See comScore Rule 30(b)(6) Dep. Tr. (Mike Brown) at 38:8-21, true
and accurate excerpts of which are attached hereto as Exhibit A.)
6.

In addition to addressing issues related to “pushing” notice through OSSProxy to

Class members, Plaintiffs also tested comScore’s own understanding of its ability to contact
Class members directly through information in its control.
7.

As such, through the October 3, 2013 deposition of comScore (through its

designee, Mr. Brown) on notice issues and as corroborated by key pieces of information found
through comScore’s document production, Plaintiffs have identified several key pieces of
information relevant to their plan for providing notice to the Class, 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.
8.

With the above information, Plaintiffs have worked with KCC to make additions

the proposed notice plan to directly reach as many Class members as possible through individual
notice (and, depending on the totality of information within comScore’s systems, that reach may
far surpass the estimates used in the proposed notice plan) and through other sources, such as by
using targeted Internet banner ads.

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9.

With these revisions, Plaintiffs believe their proposed amended notice plan will be

effective in reaching the greatest number of Class and Subclass members possible.
10.

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.
11.

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.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this the 8th day of November 2013 at Chicago, Illinois.
s/ Rafey S. Balabanian

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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 Declaration of Rafey S. Balabanian in Support of 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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Exhibit A
[Filed Under Seal]