Dunstan et al v. comScore, Inc.

Filing 277

MOTION by Plaintiffs Jeff Dunstan, Mike Harris to be Excused from Personally Appearing at the Parties November 25, 2013 Settlement Conference (Attachments: # 1 Exhibit A)(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,

Case No. 1:11-cv-5807

Plaintiffs,

Hon. James F. Holderman

v.

Magistrate Judge Young B. Kim

COMSCORE, INC., a Delaware corporation,
Defendant.
PLAINTIFFS’ MOTION TO BE EXCUSED FROM PERSONALLY APPEARING AT
THE PARTIES’ NOVEMBER 25, 2013 SETTLEMENT CONFERENCE
Plaintiffs Jeff Dunstan and Mike Harris respectfully request, pursuant to the Court’s
Settlement Conference Order entered on November 13, 2013, (Dkt. 273), and the Court’s Case
Management Procedures regarding Settlement Conferences, that their personal attendances be
excused from the settlement conference in the above-entitled case, scheduled for Monday,
November 25, 2013, and that each Plaintiff be permitted to appear via telephone and through
their attorneys, who will be present in person. In support of this request, Plaintiffs state as
follows:
1.

This case arises from Plaintiffs’ allegations that they each unknowingly installed

software designed and operated by Defendant comScore, Inc. that (i) monitored and collected
information about them and (ii) damaged their personal computers. Both Plaintiffs—like every
member of the certified Class—installed comScore’s software only after attempting to download
and install an unrelated program off the Internet that was “bundled” with comScore’s software.
Plaintiffs’ personal experiences with comScore’s software are no different than the millions of
other individuals who comprise the Class, on whose behalf Plaintiffs filed suit.

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2.

On November 13, 2013, this Court noted that “[a]t the parties' request, an in-

person settlement conference is scheduled for November 25, 2013, at 10:30 a.m. in courtroom
1019” and ordered the Parties “to review and follow the court's standing order on ‘Settlement
Conferences’ on its webpage.” (Dkt. 273.)
3.

Under this Court’s Case Management Procedures for Settlement Conferences,

“[i]ndividuals with full and complete settlement authority on behalf of the parties [must]
personally attend the conference . . . [absent] extenuating circumstances.” Plaintiffs make this
written request to be excused from personally attending because they meet the Court’s
requirements to be excused from attendance at the conference.
4.

Mr. Dunstan lives and works in Bakersfield, California. (Declaration of Benjamin

S. Thomassen (“Thomassen Decl.”) at ¶ 2, a copy of which is attached hereto as Exhibit A.) He
currently works at Sears in the retail sector (i.e., he only earns money based on hours worked and
on sales commissions) and is of limited means. (Id.) As a result, it is important for him to
maintain uninterrupted employment both to remain in good standing with his employer and to
supplement his income. (Id. at ¶¶ 3-4.) Given the pending holiday season, which effectively
begins next week (i.e., on the date of the schedule conference itself) and represents the start of
the blackout window for anyone working retail in terms of requesting days off, it is extremely
difficult for Mr. Dunstan to secure time off of work to travel from California to Illinois. (Id.) Mr.
Dunstan’s difficulties in traveling are compounded by the fact that he already took three days off
of work this week (Monday through Wednesday, for which he received no pay whatsoever) to
travel to Chicago to have his deposition taken by comScore—for the second time in this
matter—on November 18, 2013. (Id. at ¶ 4.) Although he is presently unable to appear in
person—subject to the Court allowing his personal attendance to be excused—Mr. Dunstan

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understands the importance of this settlement conference and will be available via telephone
during the conference. (Id. at ¶ 5.)
5.

Mr. Harris lives in Illinois and currently works at another law firm in Chicago as a

legal assistant. (Id. at ¶ 6.) Like Mr. Dunstan, Mr. Harris is paid on an hourly basis and his
livelihood depends on his ability to maintain uninterrupted employment and maintain good
standing with his employer. (Id. at ¶ 7.) Due in part to his involvement in this litigation, Mr.
Harris would have difficulty taking additional time off to personally appear at the Parties’
settlement conference—doing so would require that Mr. Harris use up the remaining time he has
allocated for possible a sick day (i.e., before he is given more time for 2014) and take time off
during an especially important workday, given the shortened work week attributable to the
Thanksgiving holiday. (Id.) And, like Mr. Dunstan, comScore noticed the deposition of Mr.
Harris for a second time in this matter, which may result in Mr. Harris missing at least one
additional workday in December (i.e., before he accrues additional paid time off in January
2014). (Id. at ¶ 8.) All told, Mr. Harris’s personal attendance at the settlement conference would
cause him to suffer personal and financial hardship. (Id. at ¶¶ 6-7.) Although he is unable to
appear in person—subject to the Court allowing his personal attendance to be excused—Mr.
Harris too understands the importance of this settlement conference and has indicated that he can
be available by telephone throughout its duration. (Id. at ¶ 9.)
6.

Class Counsel does not believe that Plaintiffs’ remote presence would hinder the

process of the settlement conference, as both Plaintiffs simply downloaded comScore’s software
in the same manner as millions of other consumers and brought/maintain this action primarily to
protect the interests of absent Class members. While the Plaintiffs’ personal accounts of their
own experiences with comScore’s software are certainly central to this case (even though they

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are far from unique), they will be able to elaborate on such facts telephonically if needed and/or
consult with Class Counsel on any settlement offers that comScore makes or are otherwise
discussed. And given Class Counsel’s experience with other matters like this one—including
cases involving settlement conferences, both before other acting federal judges and private
mediators alike—Class Counsel are confident that they will be able to communicate and help the
named Plaintiffs “appreciate the process and the reasons which may justify a change in [the
Plaintiffs’] perspective towards settlement.” (Id. at ¶ 10.)
7.

On November 15, 2013, Plaintiffs’ counsel reached out to comScore to notify

them of their intent to request to be excused from personally appearing at the November 25,
2013 settlement conference. (Id. at ¶ 11.) For its part, comScore has stated that it takes no
position on this request. (Id.)
8.

For these reasons, Plaintiffs Mike Harris and Jeff Dunstan respectfully request

that their personal attendance at the settlement conference be excused and that they be permitted
to appear telephonically.
WHEREFORE, Plaintiffs respectfully request that this Court enter an order (1) excusing
both named Plaintiffs from personally appearing at the Parties November 25, 2013 settlement
conference, and (2) for such further relief as this Court deems just and proper.
Respectfully submitted,
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals,
Dated: November 19, 2013

By: s/ Benjamin S. Thomassen
One of Plaintiffs’ Attorneys
Jay Edelson
Rafey S. Balabanian
Chandler R. Givens

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Benjamin S. Thomassen
EDELSON LLC
350 North LaSalle, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I, Benjamin S. Thomassen, an attorney, hereby certify that on November 19, 2013, I
served the above and foregoing Plaintiffs’ Motion to be Excused from Personally Appearing at
the Parties’ November 25, 2013 Settlement Conference by causing true and accurate copies of
such paper to be transmitted to all counsel of record via the Court’s CM/ECF system on this,
November 19, 2013.
s/ Benjamin S. Thomassen

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