Dunstan et al v. comScore, Inc.

Filing 281

DECLARATION of Rafey S. Balabanian regarding response in opposition to motion 280 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Larry, James)

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.
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__________________________________________)

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

DECLARATION OF RAFEY S. BALABANIAN
IN SUPPORT OF PLAINTIFFS’ RESPONSE IN OPPOSITION TO
DEFENDANT’S RENEWED MOTION TO DISMISS UNDER RULE 12(B)(3)
I, Rafey S. Balabanian, pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1.

I am an adult over the age of 18 and a citizen of the State of Illinois. I am licensed

to practice law in the State of Illinois, a partner at the law firm Edelson LLC, and one of the
attorneys representing Plaintiffs Mike Harris and Jeff Dunstan (“Plaintiffs”), the Class, and the
Subclass in this matter. I am fully competent to make this Declaration, have personal knowledge
of all matters set forth herein unless otherwise indicated, and could and would testify truthfully
to such matters if called as a witness in this action. I make this Declaration in support of
Plaintiffs’ Response in Opposition to Defendant’s Motion to Dismiss Under Rule 12(b)(3).
2.

On August 9, 2013, comScore propounded a written discovery request on

Plaintiffs asking them to admit that they “accepted comScore’s Privacy Statement and User
License Agreement.”
3.

On September 5, 2013, Plaintiffs, in addition to asserting certain objections,

denied that request.

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4.

On September 26, 2013, the Parties telephonically met and conferred regarding

their discovery requests and responses. During that phone call, comScore challenged Plaintiffs’
responses to comScore’s request that they admit consent to comScore’s Privacy Statement and
User License Agreements. I informed comScore that Plaintiffs have maintained throughout the
litigation that comScore was not a party to any agreement with Plaintiffs, and that comScore has
not produced any evidence to refute that position. I also informed comScore that while Plaintiffs
would stand by their denial of that request, if comScore wanted to propound another request
asking that Plaintiffs admit they clicked “Accept” when presented with the Sponsors’
Downloading Statements, Plaintiffs would admit that.
5.

On September 30, 2013, I sent comScore’s counsel a letter memorializing our

meet and confer, and reiterated that “Plaintiffs’ answers to these Requests for Admission are
entirely consistent with Plaintiffs’ long-standing position that comScore is not a party to the
Downloading Statement or the Privacy Policies and user License Agreement.” The letter also
reiterated that “these Requests as written lend themselves to denials, but . . . Plaintiffs will
respond in good faith to additional requests, should comScore choose to issue any.”
6.

comScore’s counsel responded by letter on October 3, 2013, and noted that

comScore “understand[s] that Plaintiffs will not amend their Responses to [those] Requests.”
7.

comScore never issued another Request to Admit Facts asking Plaintiffs to admit

that they clicked “Accept” when presented with the Downloading Statements.
8.

Attached hereto as Exhibit A is a true and accurate copy of an Excerpt of the

Transcript of the Rule 30(b)(6) Deposition of Michael Brown.
9.

Attached hereto as Exhibit B is a true and accurate copy of the

RelevantKnowledge Privacy Policy and User License Agreement (“ULA”). This particular copy

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of the ULA was previously filed contemporaneously with Plaintiffs’ Supplemental Motion for
Class Certification, (see Dkt. 156-9), and is reattached here for the sake of convenience.
10.

Attached hereto as Exhibit C is a true and accurate copy of an email from Sarah

Villyard to Armando Pantano, dated Dec. 27 2012, produced at Bates Nos. CS0071631.
11.

Attached hereto as Exhibit D is a true and accurate copy of an email from Latoya

Peterson-Renfrow to Helena Barkman, dated May 23, 2007, produced at Bates No. CS0042536.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this November 22, 2013 in Chicago, Illinois.

/s/ Rafey S. Balabanian

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CERTIFICATE OF SERVICE
I, J. Dominick Larry, an attorney, hereby certify that on November 22, 2013, I served the
above and foregoing Declaration of Rafey S. Balabanian in Support of Plaintiffs’ Response in
Opposition to Defendant’s Renewed Motion to Dismiss Under Rule 12(b)(3), 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, November 22, 2013.
s/

J. Dominick Larry

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