Dunstan et al v. comScore, Inc.

Filing 291

REPLY by comScore, Inc. to response in opposition to motion 280 to dismiss (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
Plaintiff,

CASE NO. 1:11-cv-5807
Judge Holderman
Magistrate Judge Kim

v.
COMSCORE, INC., a Delaware corporation
Defendant.

COMSCORE, INC.’S REPLY IN SUPPORT OF ITS RENEWED MOTION TO DISMISS
UNDER RULE 12(B)(3)

INTRODUCTION
Plaintiffs’ response to comScore’s renewed motion to dismiss is the third time that
Plaintiffs have changed their position on whether they accepted comScore’s Terms of Service.
At the outset of the litigation, Plaintiffs alleged that Harris and Dunstan did not agree to
comScore’s terms. (Dkt. 169 at ¶¶ 66, 70). But Plaintiffs directly contradicted their Complaint
when they argued that “Plaintiffs and each Class member . . . accepted the ULA” to support their
commonality argument at the class certification stage. (Dkt. 184 at 1-2) (emphasis added).
Now, Plaintiffs say that they did accept the terms, but that comScore is not a party to the
agreement. (Pl. Br. at 2). But Plaintiffs’ most recent position still contradicts the Complaint,
because the Complaint describes the agreement as “comScore’s Terms of Service” or
“Defendant’s Terms of Service” throughout.
In any event, taking Plaintiffs’ most recent representation as true, Plaintiffs admit that
they have agreed to litigate this case in Virginia. comScore is entitled to enforce that agreement
as a party thereto. To the extent that Plaintiffs argue that comScore is not a party, that is
irrelevant, because comScore would still be entitled to enforce the forum selection clause as a
non-party, pursuant to Seventh Circuit precedent. Further, Plaintiffs’ claim that comScore has
waived its right to enforce the forum selection clause is without merit. Any delay in transferring
this case to the proper forum has been caused by Plaintiffs’ own contradictory assertions
throughout the litigation and, in particular, their continued assertion in the Complaint that the
Plaintiffs did not agree to the Terms of Service. The forum selection clause is enforceable by
comScore, and comScore has timely asserted its rights. The motion should be granted.

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ARGUMENT
I.

comScore is Entitled to Enforce the Forum Selection Clause
Plaintiffs’ argument that comScore is a non-party to the agreement who cannot enforce

the forum selection clause is specious. The very first sentence of the Downloading Statement
notified the Plaintiffs that “RelevantKnowledge software, provided by TMRG, Inc., a comScore,
Inc. company, is included in this download.” (Dkt. No. 176-4 at 45-73) (emphasis added). And
the very first paragraph of the ULA advised Plaintiffs that “[t]he information that you contribute
is used by comScore, Inc.” (Pl. Br., Ex. B) (emphasis added). Moreover, Plaintiffs’ Second
Amended Complaint repeatedly describes the agreement as “comScore’s Terms of Service,”
“Defendant’s Terms of Service,” or substantively the same. (Dkt. 169, at ¶¶ 16, 35-37, 39, 4850, 79(c), 100). comScore is plainly a party to the agreement. However, even if comScore were
a “non-party,” as Plaintiffs assert, comScore would still be entitled to enforce the forum selection
clause.
Under Seventh Circuit precedent, a non-party may enforce a forum selection clause. In
Adams v. Raintree Vacation Exch., LLC, the court held that a parent company may enforce a
forum selection clause contained in a subsidiary’s contract, “since the effect is merely to
substitute one party for another . . . bound by the forum selection clause to which plaintiffs had
agreed.” 702 F.3d 436, 442 (7th Cir. 2012) (emphasis in original); see also Am. Patriot Ins.
Agency, Inc. v. Mut. Risk Mgmt., Ltd., 364 F.3d 884, 889 (7th Cir. 2004) (“Nor is a forumselection clause to be defeated by suing an affiliate or affiliates of the party to the contract in
which the clause appears.”) (collecting cases). Plaintiffs allege that they contracted with
comScore’s subsidiaries. (Pl. Br. at 1). As the parent company of a party to the contract,

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comScore may assert the forum selection clause that Plaintiffs agreed to, irrespective of whether
comScore is a party to that agreement.
Plaintiffs try to avoid this result by claiming that the third party rights clause in the ULA
precludes comScore from asserting the agreement at all. The third party rights clause states that
the agreement “shall not create any rights or remedies in any parties other than the parties to the
agreement and no person shall assert any rights as a third party beneficiary under this
agreement.” (Pl. Br., Ex. B). But in Productive People, LLC v. Ives Design, the court held that a
similar contractual provision did not prevent non-party enforcement of a forum selection clause
under Seventh Circuit precedent:
The Agreement does contain a clause stating that the agreement was not intended to
confer any rights, remedies, obligations, or liabilities on a third party unless otherwise
provided for in the agreement. The Court need not determine whether the second forum
selection clause was intended to fall under the exception of this provision, however,
because “third-party beneficiary status is not required” for non-parties to benefit from or
be bound by forum selection clauses.
No. CV-09-1080, 2009 WL 1749751, at *4 (D. Ariz. June 18, 2009) (quoting Hugel v. Corp. of
Lloyd’s, 999 F.2d 206, 210 n.7 (7th Cir. 1993)). In Hugel, the Court of Appeals rejected the
argument that “the court must make a threshold finding that a non-party to a contract is a thirdparty beneficiary before binding him to a forum selection clause,” and instead held that “third
party beneficiary status is not required.” 999 F.2d at 210 n.7. Thus, contrary to Plaintiffs’
argument, the contract does not have to confer rights upon a non-party to be enforceable by the
non-party. It is sufficient if the non-party is a parent company enforcing its subsidiaries’
contracts, as comScore is here. See Adams, 702 F.3d at 442.
However, the agreement does grant comScore rights. comScore is a party to the
agreement, but to the extent that Plaintiffs claim otherwise, comScore is at minimum a thirdparty beneficiary. A third-party beneficiary is “a person who, although not a party to the
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contract, the contracting parties intended to benefit from the contract.” Am. United Logistics,
Inc. v. Catellus Dev. Corp., 319 F.3d 921, 930 (7th Cir. 2003). comScore is expressly identified
as a beneficiary in the ULA—“The information that you contribute is used by comScore, Inc., a
U.S.-based market research company . . .” (Pl. Br., Ex. B). Further, the third party rights clause
does not preclude enforcement of an agreement by a third-party, when the beneficiary is
identified by name as comScore is here. Am. United Logistics, Inc., 319 F.3d at 930 (holding
that a party identified by name and accruing a benefit from the agreement was a third-party
beneficiary, despite contract language which stated that “nothing herein is intended to create any
third party benefit.”).
Plaintiffs’ characterization of comScore as a non-party is inaccurate, but it is not
determinative of comScore’s legal right to enforce the forum selection clause. comScore is
entitled to assert that clause regardless of whether comScore is a party to the agreement, a thirdparty beneficiary of the same, or a non-party parent company.
II.

comScore has Diligently Sought Enforcement of the Forum Selection Clause
The Complaint in this case still alleges that the plaintiffs did not agree to comScore’s

terms of service. (Dkt. 169, at ¶¶ 66, 70). Plaintiffs would be better off (though still
unsuccessful) arguing that a motion to dismiss that Complaint is therefore premature rather than
too late. In any event, there has been no waiver or delay. First, comScore has objected to
improper venue at least six separate times—in its original motion to dismiss, its Answers to
Plaintiffs’ three Complaints, its Rule 23(f) appeal to the Seventh Circuit, and in its present
motion. (Dkt. 15; Dkt. 59, at 50; Dkt. 140, at 45; Dkt. 180, at 45; comScore, Inc. v. Dunstan, et
al., No. 13-8007, Dkt. No. 1 at 7 (7th Cir. April 16, 2013)).

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Second, the ULA’s “waiver” clause expressly states that a failure to enforce “any right or
provision of the Agreement shall not constitute a waiver of such right or provision.” (Pl. Br., Ex.
B). Given the frequency with which comScore has raised its improper venue defense, and the
language of the agreement, Plaintiffs cannot plausibly suggest that comScore intended to waive
its right to litigate in Virginia. comScore’s intent has been precisely the opposite.
Plaintiffs support their argument for waiver by manufacturing instances of “delay.” First,
Plaintiffs state that “comScore completely abandoned its venue challenge” from the date of this
Court’s Order on comScore’s first 12(b)(3) motion on October 7, 2011, to Plaintiffs’ filing of
their class certification brief over a year later. (Pl. Br. at 11). But Plaintiffs mischaracterize the
facts. comScore objected to improper venue three separate times within the time frame
identified by the Plaintiffs. (Dkt. 59, at 50; Dkt. 140, at 45; Dkt. 180, at 45). Plaintiffs also
argue that comScore should have objected to venue in its class certification brief. (Pl. Br. at 11).
But as Plaintiffs are aware, Plaintiffs did not make the critical concession that “Rule 23
commonality and typicality exist because Plaintiffs and each Class member . . . was presented
with a form ULA, [and] each accepted the ULA . . .” until their reply brief. (Dkt. 184 at 1-2)
(emphasis added). Therefore, comScore had no grounds to renew its objection on the basis of
that concession in its class certification briefing. However, once the Court granted class
certification, based in part on Plaintiffs’ representation, comScore pursued its improper venue
defense in a Rule 23(f) appeal to the Seventh Circuit. (Dkt. 186 at 9) (holding that Plaintiffs
satisfied the commonality requirement because “each Class member agreed to a form contract
(made up of the ULA and the Downloading Statement)”) (emphasis added). Plaintiffs
nonetheless claim that after the appeal, comScore “again abandoned its venue challenge.” (Pl.
Br. at 12). This again misstates the facts. After the appeal, comScore served written discovery

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requests on Plaintiffs with the intent of forcing Plaintiffs to acknowledge that they had agreed to
the ULA. When the Plaintiffs made clear in a meet and confer on September 26, 2013 that they
did not intend to admit that they accepted comScore’s terms, comScore filed the present motion.
To the extent the delays purported by the Plaintiffs were actually the result of Plaintiffs’
contradictory positions on whether they agreed to the forum selection clause, Plaintiffs should
not be allowed to attribute those delays to comScore. It is Plaintiff’s refusal to amend the
Complaint to conform with their concession that has caused any delay, not comScore’s
unwillingness to assert its rights. Plaintiffs should not be permitted to change their positions
throughout the litigation and to subsequently argue that the resulting delays are evidence that
comScore waived its rights.
Plaintiffs also claim that comScore has waived its rights under the forum selection clause
by participating in merits discovery. (Pl. Br. at 12). But there is no waiver “where the parties
merely participated in pretrial motions, moved to dismiss after discovery has been completed, or
where the opposing party was not prejudiced by dismissal.” Ferraro Foods, Inc. v. M/V IZZET
INCEKARA, No. 01 CIV 2682, 2001 WL 940562, at *4 (S.D.N.Y. Aug. 20, 2001). Here, the
Court’s Order on comScore’s first motion to dismiss expressly contemplated comScore’s
participation in merits discovery—“further factual development may indicate that the plaintiff’s
allegations are incorrect . . . At this stage, however, the court must take plaintiffs’ word for it.”
(Dkt. 31 at 4-5) (emphasis added). Plaintiffs agree that “the Court recognized comScore’s right
to develop the record and renew its motion with evidence that it could seek to enforce the forum
clause.” (Pl. Br. at 1). comScore has done exactly that. comScore has not filed dispositive
motions on the merits in the Northern District of Illinois.

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Further, the prejudice claimed by the Plaintiffs, specifically the time and expense of
setting a new case schedule, engaging in motion practice, and “getting the transferee court up to
speed,” is minimal. (Pl. Br. at 13). Plaintiffs agreed to litigate in Virginia. And Plaintiffs
presumably knew that they accepted the Downloading Statement and ULA when they first filed
this case in the Northern District of Illinois, the wrong venue. “[W]hatever lack of fairness
Plaintiff claims results from this decision is at least equaled by the prospect of subjecting
Defendants to trial in a forum they have specifically contracted against.” AIG Mexico Seguros
Interamericana, S.A. de C.V. v. M/V Zapoteca, 844 F. Supp. 2d 440 (S.D.N.Y. 2012), aff’d AIG
Mexico Seguros Interamericana, S.A. de C.V. v. M/V Zapoteca, 508 F. App’x 58 (2d Cir. 2013).
CONCLUSION
Because the forum selection clause is prima facie valid and enforceable by comScore,
comScore respectfully requests that this action be dismissed pursuant to Rule 12(b)(3).

Dated: December 6, 2013

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
By: /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]
Stack & O'Connor Chartered
140 South Dearborn Street
8

Suite 411
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant comScore, Inc.

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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing has
been caused to be served on December 6, 2013 to all counsel of record via the Court’s ECF
notification system.
By: /s/ Robyn Bowland
Robyn Bowland

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