Dunstan et al v. comScore, Inc.

Filing 311

RESPONSE by Jeff Dunstan, Mike Harrisin Opposition to MOTION by Defendant comScore, Inc. for leave to file Motion to Transfer Under 28 U.S.C. §1404(a) 302 (Plaintiffs Response in Opposition to Defendants Motion to Transfer Under 28 U.S.C. §1404(a), per Dkt. No. 309) (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
Magistrate Judge Young B. Kim

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

PLAINTIFFS’ RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TO TRANSFER UNDER 28 U.S.C. § 1404(a)

TABLE OF CONTENTS
I.

INTRODUCTION..............................................................................................................1

II.

BACKGROUND ................................................................................................................2
A.
B.

III.

comScore mines troves of data from consumers through separately
incorporated subsidiaries. .....................................................................................2
comScore failed to timely re-raise its venue challenge. ......................................4

ARGUMENT ......................................................................................................................5
A.

This Court should deny comScore’s motion to transfer because it has
no right to enforce the forum clause it relies on. .................................................6
1.
2.

comScore cannot transfer this case simply because its
subsidiary agreed to a forum selection clause. .......................................8

3.
B.

The Subclass cannot be transferred to Virginia because the
Subclass members did not agree to any forum selection clause. ...........7

comScore is not an intended third party beneficiary of the
ULA, and cannot enforce the forum selection clause as one. ...............10

Even if comScore had a right to enforce the forum clause, it cannot be
enforced now.........................................................................................................12
1.
2.

III.

Transferring this case to Virginia would waste judicial time
and resources, and result in a delayed road to trial..............................13
Granting comScore’s motion would only encourage litigants to
sit on a purported right to seek transfer as a litigation tool,
which would result in increased delays and inefficiencies ..................14

CONCLUSION ................................................................................................................15

i

TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES:
Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct. for the W. Dist. of Tx.,
134 S. Ct. 568 (2013) ...................................................................................................5, 7, 9, 12
UNITED STATES CIRCUIT COURT OF APPEALS CASES:
Adams v. Raintree Vacation Exch., LLC, 702 F.3d 436 (7th Cir. 2012) .....................................8, 9
A.E.I. Music Network, Inc. v. Business Computers, Inc., 290 F.3d 952 (7th Cir. 2002) ..........10, 12
Atl. Mut. Ins. Co. v. Metron Engineering and Const. Co., 83 F.3d 897 (7th Cir. 1996) ...............11
Am. Patriot Ins. Agency, Inc. v. Mut. Risk Mgmt., Ltd., 364 F.3d 884 (7th Cir. 2004) ...................8
Am. United Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921 (7th Cir. 2003) ...................10, 11
Armstrong v. LaSalle Bank Nat’l Ass’n, 522 F.3d 613 (7th Cir. 2009) .........................................15
Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388 (7th Cir. 1995)............15
Chicago, Rock Island & P. R.R. Co. v. Igo, 220 F.2d 299 (7th Cir. 1955)....................................13
Coffey v. Von Dorn Iron Works, 796 F.2d 217 (7th Cir. 1986) .....................................................12
Corrugated Paper Products, Inc. v. Longview Fibre Co., 868 F.2d 908 (7th Cir. 1989)..............11
Hugel v. Corp. of Lloyd, 999 F.2d 206 (7th Cir. 1993) ...................................................................9
Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973 (7th Cir. 2010) ......13
UNITED STATES DISTRICT COURT CASES:
Business Sys. Engineering v. Int’l Business Machines Corp.,
520 F. Supp. 2d 1012 (N.D. Ill. 2007) .....................................................................................12
ExpressJet Airlines, Inc. v. RBC Capital Markets Corp.,
No. 09-cv-922, 2009 WL 2244468 (S.D. Tex. July 27, 2009) ..................................................7
F.T.C. v. American Tax Relief LLC,
No. 10-cv-6123, 2011 WL 2893059 (N.D. Ill. July 20, 2011) ................................................14
Jarmillo v. DineEquity, Inc., 664 F.Supp.2d 908 (N.D. Ill. 2009) ................................................12

ii

Productive People, LLC v. Ives Design,
No. 09-cv-1080, 2009 WL 1749751 (D. Ariz. June 18, 2009) ..................................................9
Vandeveld v. Christoph, 877 F. Supp. 1160 (N.D. Ill. 1995) ..........................................................7
Yellow Cab Affiliation, Inc. v. New Hampshire Ins. Co.,
10-cv-6896, 2011 WL 307617 (N.D. Ill. Jan. 28, 2011)..........................................................11

iii

I.

INTRODUCTION
After more than two years of motion practice and discovery, Defendant comScore, Inc.

(“comScore”) now seeks an eleventh-hour transfer of the claims of Plaintiffs Jeff Dunstan and
Mike Harris, along with the Class and Subclass (collectively, the “Class”) they represent, to the
Eastern District of Virginia. To support its request, comScore relies on the forum selection clause
contained in the User License Agreements (“ULAs”) that accompanied the distribution of its
monitoring software, and cites recent Supreme Court authority affirming the enforceability of
forum clauses between contracting parties. comScore’s motion fails for two primary reasons.
First, comScore isn’t a party to the ULAs, and has no right to enforce the forum selection
clause contained therein. The ULAs, by their plain and explicit terms, only purport to bind the
users of the software (i.e., Class members), and the independently-incorporated distributors of
comScore’s software (known as “Sponsors”). The ULAs even include a clause unambiguously
stating that they create no “rights or remedies” in any party other than the users and Sponsors.
(Dkt. 281-2 at 7.) Thus, there is no argument that the ULAs give comScore an enforceable right
to transfer. Still, comScore suggests that it can enforce the forum clause because it is the
corporate parent of each Sponsor and because the ULAs supposedly give it rights as a third party
beneficiary, but again, comScore’s arguments are foreclosed by the plain terms. The ULAs
confer rights and obligations only on the users and Sponsors, and unequivocally state that “no
person shall assert any rights as a third party beneficiary under this agreement.” (Id. (emphasis
added).) And comScore’s motion is particularly defective as to the Subclass, which was never
presented with the ULA, never received notice of the forum clause, never assented to litigate in
Virginia, and instead exercised its privilege to choose this Court as its venue.
Second, even if comScore had some right under the ULA to enforce the forum clause, it

1

cannot do so now. This case has been pending for two-and-a-half years. The Court has overseen
the evolution of three complaints and three answers. It has ruled on three motions to dismiss,
certified a Class and Subclass, seen the Seventh Circuit deny interlocutory review of the
certification decision, resolved countless discovery disputes, and presided over months of
settlement negotiations. And as the Court invested itself in the case, comScore sat on its
supposed right to seek transfer, deciding to “wait and see” how the case progressed in this Court.
Now, comScore has decided it would rather be in Virginia and finally seeks transfer—but its
motion presents no new facts and could have been asserted at any point after the filing of
Plaintiffs’ initial complaint over two years ago. Transferring this case at this stage—after
substantial delay by comScore, after the close of fact discovery, and with summary judgment
motions approaching—would, at minimum, require another court to invest countless hours to
match this Court’s level of familiarity with the highly technical facts of this case.
comScore asks this Court to enforce an agreement that on its face grants it no rights, and
that—if enforced—would waste the time and resources of this Court and the Eastern District of
Virginia. Its motion has no justification, and should be denied.
II.

BACKGROUND
A.

comScore mines troves of data from consumers through separately
incorporated subsidiaries.

comScore makes its money by collecting and analyzing data about consumers’ Internet
behavior, measuring their online activity, and selling that information to its clients. (See Dkt. 180
at ¶¶ 1 – 3.) To gather that data, comScore developed proprietary software called OSSProxy that
continuously collects and sends data obtained from consumers (the “Panelists”) back to
comScore’s servers. (See Transcript of Rule 30(b)(6) Deposition of Michael Brown (“Brown
Tr.”) at 9:5 – 15, attached as Exhibit A to the Declaration of Rafey S. Balabanian, filed

2

concurrently herewith; Dkt. 156-3 at 3 – 6.)
Rather than distribute OSSProxy itself, however, comScore uses the Sponsors—its
separately-incorporated subsidiaries. (Brown Tr. at 74:9 – 79:22.) The Sponsors then distribute
their own (functionally identical) “brands” of OSSProxy to consumers.1 (See Dkt. 156-4 at 6.)
During OSSProxy’s download and installation, the user is presented with the “Downloading
Statement”—a “pop-up” dialog window presenting an abbreviated statement relating to the
Sponsor’s brand of OSSProxy. (See Dkt. 154 at 14 – 15.) None of the Downloading Statements
contain the full terms governing OSSProxy’s download, installation, or use, and none contain the
venue clause at issue here. (See Dkt. 156-5.) Instead, each Downloading Statement contains a
hyperlink to the relevant Sponsor’s ULA and privacy policy. A user must navigate to the
Sponsor’s website in order to view the ULA.2 Subclass members, however, were never provided
with any such opportunity—their Downloading Statements lacked any functional hyperlink to
the ULA or any instructions for accessing it. (See Dkt. 180 at ¶ 37.)
On the off chance a user could locate a Sponsor’s ULA, he or she would have seen no
mention of comScore as a contracting party. That’s because each of the “materially identical”
ULAs, (Dkt. 156-4 at 6), made clear that the only contracting parties were the users and the
Sponsor. (See Brown Tr. at 128:16 – 129:6 (Rule 30(b)(6) designee testifying that the ULAs are
agreements “between the [users] and the brand they signed up for.”); Dkt. 186 at 9 (recognizing
that comScore “is not listed as a contracting party.”).) What’s more, each ULA includes a “Third
Party Rights” clause, stating that “[t]his 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
1

The Sponsor and brand most relevant to this case are “TMRG, Inc.” and “RelevantKnowledge,”
respectively. (See Dkt. 281-2 at 2, 7.)
2

TMRG, Inc.’s website for the RelevantKnowledge ULA is
http://www.relevantknowledge.com/RKPrivacy.aspx (last accessed January 28, 2014).

3

party beneficiary under this agreement.” (Dkt. 281-2 at 7 (emphasis added).) As such, while
each ULA included a forum selection clause, they only govern disputes between users and “the
brand they signed up for” and, per the ULA’s “Third Party Rights” clause, are not enforceable by
any third parties, including comScore. (See Brown Tr. at 128:16 – 129:6.)
B.

comScore failed to timely re-raise its venue challenge.

Shortly after Plaintiffs filed their class action complaint, comScore filed its first Rule
12(b)(3) motion, arguing, as it does here, that Plaintiffs and all Class members assented to
“comScore’s [ULA]” as part of OSSProxy’s installation, which contained a forum selection
clause. (See Dkt. 15 at 5.) The Court denied comScore’s motion, holding that Plaintiffs’
complaint adequately alleged that the forum clause would not have been apparent to a reasonable
consumer downloading the bundled software. And although it denied the motion, the Court
invited comScore to provide it with “further factual development” showing that it could enforce
the forum clause. (See Dkt. 31 at 4 – 5.) But instead of immediately producing evidence to
support its venue challenge, comScore proceeded with litigation, moving to bifurcate discovery
and compiling evidence to oppose Plaintiffs’ forthcoming class certification motion. (See Dkts.
66, 87.) When Plaintiffs moved for class certification, comScore again didn’t challenge venue.
After this Court certified the Class and Subclass, comScore sought—but was denied the
opportunity to—appeal the Certification Order to the Seventh Circuit. (See Dkt. 199.) The case
was sent back to this Court in June of last year, but rather than seek transfer, comScore chose not
to raise its venue challenge for another four months. Instead, comScore agreed that discovery
should “commence . . . immediately,” (Dkt. 209 at 3), produced tens of thousands of documents,
engaged in substantive motion practice and almost a dozen motion-related hearings (and status
conferences), conferred repeatedly over discovery issues, and otherwise continued toward trial in

4

this Court. comScore did not, however, indicate that it planned to renew its venue challenge.
Eventually, more than two years after the case was filed and nearly a year after comScore
claims the facts supporting transfer came to light, on October 30, 2013, comScore renewed its
Rule 12(b)(3) motion to dismiss. (Dkt. 242.) On December 23, 2013, following a recent Supreme
Court decision, comScore withdrew its motion to dismiss and moved for leave to file its motion
to transfer under 28 U.S.C. §1404(a). (Dkts. 302, 309.)
III.

ARGUMENT
comScore’s newest motion claims to arise from the Supreme Court’s recent Atlantic

Marine decision. (See Dkt. 302-1 (cited as “Def. Br.”) at 2 (citing Atl. Marine Constr. Co., Inc. v.
U.S. Dist. Ct. for the W. Dist. of Tx., 134 S. Ct. 568 (2013)).) In Atlantic Marine, the Court held
that when contracting parties negotiate a forum selection clause and one of the parties files suit in
a different jurisdiction, the “private interests” of the parties are irrelevant when evaluating a
motion to transfer to the district designated by the forum clause. 134 S. Ct. at 581. The rationale
for this rule is straightforward: while plaintiffs normally have the privilege of choosing where to
sue, by “agree[ing] by contract to bring suit only in a specified forum—presumably in exchange
for other binding promises by the [other contracting party]—[plaintiffs can] effectively exercise
[their] ‘venue privilege’ before a dispute arises.” Id. at 582 (emphasis added). On this basis,
comScore contends that (i) the Class agreed to the forum clauses included in the ULAs, and (ii)
the Court may only consider the public interest—which, according to comScore, (iii) always
favors enforcement of forum clauses.
In rushing to latch on to Atlantic Marine, however, comScore misses two important
points. First, it has no right to enforce the forum selection clause it relies on. It is not a party to
the contract, and it has no third party right (as either a parent or an intended beneficiary) to

5

enforce the forum clause. And as to the Subclass, nobody has a right to force transfer, as the
Subclass neither received notice of, nor assented to, the forum clause. Second, even if comScore
had an enforceable right under the forum clause, transfer at such a late stage in this litigation—
after considerable and unjustified delay by comScore—would waste judicial resources and harm
the public interest. As such, comScore’s motion should be denied and this Court should be
allowed to oversee this litigation through to its end.
A.

This Court should deny comScore’s motion to transfer because comScore has no
right to enforce the forum clause it relies on.
comScore provides three reasons for why it it is entitled to enforce the forum selection

clause: (i) it’s a party to the ULAs, (ii) it’s the parent of a subsidiary that is a party to the ULAs,
and (iii) it’s a third party beneficiary to the ULAs. (Def. Br. at 7 – 8.) The first is easily
dispatched. Although comScore once again asserts it is “plainly” a party to the ULA, it offers
neither facts nor law in support of that assertion. (Def. Br. at 7.). To the contrary, the ULA
expressly states that the only contracting parties are the users and the Sponsors, and comScore is
never identified or referred to as a party, while the actual parties to the contract—the users and
the Sponsors—are. (See, e.g., Dkt. 281-2 at 7 (“ENTIRE AGREEMENT” clause identifying
contracting parties.) comScore has even admitted it isn’t a party to the contract. (See Brown Tr.
at 128:16 – 129:6 (Rule 30(b)(6) designee testifying that the ULAs are agreements “between the
[users] and the brand they signed up for.”).) Thus, comScore’s argument that it can assert the
forum clause as a contracting party fails.
comScore’s other two arguments are also unavailing. The ULA expressly precludes
comScore from enforcing any rights as a corporate parent (especially against the Subclass), and
comScore isn’t an intended third party beneficiary of the contract. Because comScore advances
no justification for transfer other than the forum selection clause that it has no right to enforce,

6

this court should deny its motion.
1.

The Subclass cannot be transferred to Virginia because the Subclass
members did not agree to any forum selection clause.

First and foremost, there is no question that comScore cannot enforce the forum selection
clause against the Subclass. It is undisputed that before they installed comScore’s monitoring
software, Subclass members were never presented with any hyperlink to comScore’s ULA or
instructions for how to access it. (See Dkt. 14 at ¶ 6; Dkt. 186 at 3 n.2.) Without an opportunity
to view and accept the ULA, Subclass members could not have assented to the forum clause
(and, by extension, could not have bargained away their venue privilege) because the clause was
only present in the full ULA. (Dkt. 31 at 4.) See Atl. Marine Constr., 134 S. Ct. at 582. Neither
comScore nor the contracting Sponsors can enforce the forum clause against the Subclass.
Absent the forum clause, comScore offers no basis for transferring the Subclass, nor can
it. The Subclass is represented by Mike Harris, an Illinois resident who chose to file his case in
this Court. (Dkt. 1 at ¶ 20.) And absent a compelling reason, Mr. Harris’s “choice of forum is
entitled to substantial weight under Section 1404(a), particularly [because] it is also the
plaintiff’s home forum.” (See Dkt. 31 at 5 (quoting Vandeveld v. Christoph, 877 F. Supp. 1160,
1167 (N.D. Ill. 1995)).) Thus, because the forum clause cannot be enforced against the Subclass,
Mr. Harris’s choice to sue in this District should be honored, and his claims, along with those of
the Subclass, should not be transferred.
Additionally, if the Subclass isn’t transferred, the larger Class shouldn’t be either.
Transferring the larger Class while leaving the Subclass in this District would harm the public
interest by wasting judicial resources, and risking inconsistent rulings and results. See ExpressJet
Airlines, Inc. v. RBC Capital Markets Corp., No. 09-cv-922, 2009 WL 2244468, at *7 (S.D. Tex.
July 27, 2009). Thus, because the Subclass can’t be transferred, the Court should ensure that the

7

litigation proceeds as efficiently and uniformly as possible—by denying comScore’s motion.
2.

comScore cannot transfer this case simply because its subsidiary agreed to a
forum selection clause.

comScore claims that even if it isn’t a party to the contract, it can enforce the forum
selection clause because, as the Sponsors’ corporate parent, it supposedly wields unlimited
power to enforce its subsidiaries’ contracts. (Def. Br. at 6.) Not true. While corporate parents can
enforce their subsidiaries’ forum clauses in many instances, here the ULAs explicitly preclude
any such parental right. (See Dkt. 281-2.)
comScore misreads the Seventh Circuit’s decision in Adams v. Raintree Vacation
Exchange, LLC, 702 F.3d 436 (7th Cir. 2012), in arguing that its rights as a parent trump the
ULA’s plain language. (Def. Br. at 6.) Although the Seventh Circuit noted that a parent can
enforce certain forum clauses binding its subsidiaries, the Court also recognized that the right is a
qualified one—namely, because all contracting parties (including contracting subsidiaries) can
“decide in the contract . . . to limit the forum selection clause to [only] the named entities.”
Adams, 702 F.3d at 442. And that’s exactly what happened here. Every ULA includes a “Third
Party Rights” clause that prohibits “any parties other than the parties to the agreement” from
asserting any rights under the ULA. (Dkt. 281-2 at 7 (emphasis added.)3 Per Adams, then,
comScore’s attempts to enforce the ULA are foreclosed.
Notwithstanding the ULA’s plain limitation, comScore insists that the analysis offered by
3

comScore argues that Adams reflects the idea that a plaintiff shouldn’t be able to avoid the effects
of a forum clause by picking and choosing which subsidiaries or parents to sue based on which was a
direct party to the clause. (See Def. Br. at 6 (citing Am. Patriot Ins. Agency, Inc. v. Mut. Risk Mgmt., Ltd.,
364 F.3d 884, 889 (7th Cir. 2004).) The Court should not be concerned by this. Rather than suing
comScore as a way to punish the contracting Sponsors without being subject to the forum clause,
Plaintiffs sued comScore because it was comScore that designed the OSSProxy software, comScore that
controlled and updated OSSProxy while installed on Class members’ computers, and comScore that
directly monitored and collected information from the Class. (See Brown Tr. at 71:21 – 92:9, 112:9 –
115:8, 152:25 – 153:14.) Thus, not only did the Parties specifically contract themselves out of the Adams
rule (a choice that Adams anticipated), none of the justifications for the rule apply here.

8

Productive People—a district court opinion from Arizona—also shows that it can enforce the
ULA’s forum clause. (Def. Br. at 7 (citing Productive People, LLC v. Ives Design, No. 09-cv1080, 2009 WL 1749751 (D. Ariz. June 18, 2009)).) That reliance is also misplaced because,
unlike here, the contract in Productive People expressly and specifically anticipated that third
parties could enforce the relevant forum selection clause for specific disputes because:
First, as comScore recognizes, “[t]he Agreement [contained] a clause stating that
[it] was not intended to confer any rights . . . on a third party unless otherwise
provided for in the agreement,” (id. (quoting Productive People, 2009 WL
1749751 at *3, n. 4)) (emphasis added)); and
Second, the contract contained two forum selection clauses, one of which was
expressly limited to disputes “arising out of [the contract]” and the other of which
“[did] not apply to only disputes between the parties over rights and obligations in
the Agreement,” Productive People, 2009 WL 1749751 at *2.
Thus, although the Productive People plaintiffs were third parties to the contract, they could
enforce the forum clause against the defendant (a party to the contract) because their claims were
contemplated by, and fell under, the contract’s second (and broader) forum clause. Id. at *2 – 3.
Here, in contrast, there is no carve-out (not even a qualified one, like in Productive
People) for third party rights in either the ULA’s “Third Party Rights” or forum selection
clauses, and comScore cannot enforce them as a non-party. (Dkt. 281-2 at 7.) These same facts
also doom comScore’s reliance on Hugel v. Corp. of Lloyd, 999 F.2d 206 (7th Cir. 1993)—a case
that didn’t involve a limitation on third party rights. (Def. Br. at 7 (citing Hugel, 999 F.2d at 210
n.7).) In fact, given that the ULA expressly excludes any third party rights, (Dkt. 281-2 at 7),
Hugel is even more off-point than Productive People. See Adams, 702 F.3d at 442 (Parties may
contract “to limit the forum selection clause to [only] the named entities.”).
Accordingly, because it is explicitly precluded from enforcing “any” rights under the
ULA, comScore cannot negate Plaintiffs’ venue privilege. See Atl. Marine, 134 S. Ct. at 582.

9

3.

comScore is not an intended third party beneficiary of the ULA, and cannot
enforce the forum selection clause as one.

Finally, comScore claims that it is a third party beneficiary to the ULA, and can therefore
enforce the forum selection clause. (Def. Br. 7 – 8.) But comScore forgets that “[t]hird parties,
that is, persons who are not parties to a contract, are permitted to enforce the contract if and only
if the parties made clear in the contract an intention that they be permitted to do so.” A.E.I. Music
Network, Inc. v. Business Computers, Inc., 290 F.3d 952, 955 (7th Cir. 2002) (emphasis added).
Here, the ULA’s contracting parties certainly made their intentions crystal clear: 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 the agreement.”
(Dkt. 281-2 at 7.) Simply put, comScore cannot claim it has a right to enforce the forum clause
as a third-party beneficiary because the ULA includes two clear statements to the contrary.
Faced with the ULA’s unambiguous “Third Party Rights” clause, comScore suggests that
because it is mentioned in the ULA’s preamble (which, as explained below, is non-binding), the
“Third Party Rights” clause is rendered ineffective and, thus, comScore “is entitled to assert the
forum selection clause” as a third party beneficiary. (Def. Br. at 7 – 8 (citing Am. United
Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921, 930 (7th Cir. 2003).) But comScore’s
reliance on American United is misplaced. In that case, the relevant “third party rights” clause
(Section 17.1.8 of the subject tenant lease) stated only that it was not “intended to create any
third party benefit,” but another clause (Paragraph 15 of the lease) clearly gave a third party (the
appellant) an enforceable right to a benefit of the contract (there, operating a warehouse). Am.
United Logistics, Inc., 319 F.3d at 930 – 31. The ambiguity showed that, at least, the appellant
was contemplated to “receive a benefit from the contract,” id. at 931, and therefore could enforce
the clause against a party that had knowingly negotiated and agreed to the contract.

10

Here, in contrast, the ULA could not be clearer. The “Third Party Rights” clause states
“no person shall assert any rights as a third party beneficiary under [the] agreement.” (Dkt. 281-2
at 7.) Since no binding section of the ULA even mentions comScore, no ambiguity is created
and, thus, American United—which dealt with contradictory terms in a contract—is off point.
Apparently, comScore hopes that because it is mentioned in the ULA’s non-binding
preamble,4 the ULAs suffer from the same kind of ambiguity found in American United—but
there’s no reason to stir up ambiguity where none exists. While the preamble mentions that
comScore may use the data that is collected pursuant to the ULA’s terms, nothing in the ULA
suggests an intent to give comScore an enforceable third party right against the Parties, as
“introductory language or recitals are not binding obligations ‘unless so referred to in the
operative portion of the instrument as to show a design that they should form a part of it.’” See
Atl. Mut. Ins. Co. v. Metron Engineering and Const. Co., 83 F.3d 897, 899 (7th Cir. 1996)
(internal citation omitted). And as noted, the terms of the ULA contain no such reference and
instead unambiguously state that they create no third party rights whatsoever, thus establishing
the Parties’ intent and controlling over any equivocation comScore can manufacture from the
preamble.5 (Dkt. 281-2 at 7); see Yellow Cab Affiliation, Inc. v. New Hampshire Ins. Co., 10-CV-

4

To be clear, comScore is mentioned only in the preamble to the the ULA, which appears before
the “PRIVACY POLICY [AND] USER LICENSE AGREEMENT” header, and before language advising
users to “review and agree to the terms and conditions below[.]” (Dkt. 281-2 at 2 (emphasis added).)
There is, in contrast, no requirement that users were required to “review and agree” to the preamble (or
any language contained therein) found above the “PRIVACY POLICY [AND] USER LICENSE
AGREEMENT” section header—thus writing comScore out of the ULA’s binding terms.
5

In any event, that entities other than the Sponsor (and not just comScore) are identified in the
preamble as companies that “use” the data collected and anonymized pursuant to the ULA’s terms (i.e.,
from the Class by TMRG, Inc.) is no reason to dole out enforceable third party rights—especially given
the ULA’s unequivocal “Third Party Rights” provision. Cf. Corrugated Paper Products, Inc. v. Longview
Fibre Co., 868 F.2d 908, 911 – 13 (7th Cir. 1989) (explaining that even “the fact that a third party is
named in the contract, or that performance is to run directly to the third party, is not conclusive.”) Indeed,
the ULA’s preamble lists comScore amongst many other “downstream” users of the same data. (Dkt. 2812 (“The information that you contribute is used by comScore . . . and is extensively used by the largest

11

6896, 2011 WL 307617, at *6 (N.D. Ill. Jan. 28, 2011) (“Generally, the recognized rule is that
the obligations and promises of the parties in the operative portion of a contract prevail over a
preliminary recital or preamble.”) (internal citation ommitted). Thus, there is no ambiguity in the
“Third Party Rights” clause—it controls, and comScore has no third party rights under the
contract. See A.E.I. Music Network, 290 F.3d at 955; see also Business Sys. Engineering v. Int’l
Business Machines Corp., 520 F. Supp. 2d 1012, 1015 (N.D. Ill. 2007) (explaining that where
“no third party rights” clause is unambiguous, it controls). And although comScore claims it
needn’t be a third party beneficiary to enforce the forum clause, (Def. Br. at 8), its other
arguments in favor of enforcement—status as either a party or a corporate parent—fail as well.
comScore’s motion to transfer should be denied.
B.

Even if comScore had a right to enforce the forum clause, it cannot be enforced now.
Even if comScore could have enforced the ULA’s forum clause at some point, allowing it

to do so now would only harm the public interest and reward comScore for its “wait and see”
approach to this case. Per Atlantic Marine, a District Court deciding a Section 1404(a) transfer
motion in light of an enforceable forum selection clause must “weigh the relevant [public
interest] factors and decide whether, on balance, a transfer would serve the convenience of
parties and witnesses and otherwise promote the interest of justice.” Atl. Marine Constr, 134 S.
Ct. at 581 – 82 (internal quotation marks omitted). Such factors include, inter alia, the waste of
judicial time and resources, as well as the likely speed to trial in the present versus potential
transferee forum. See Jarmillo v. DineEquity, Inc., 664 F.Supp.2d 908, 915 (N.D. Ill. 2009)
(quoting Coffey v. Von Dorn Iron Works, 796 F.2d 217, 220 – 21 (7th Cir. 1986)) (when
Internet services companies and scores of Fortune 500 companies.”).) That “[o]thers may benefit if the
[ULA] is performed . . . [does not mean that] they [can] sue to enforce it just by virtue of benefiting from
it.” See A.E.I. Music Network, 290 F.3d at 955 (contrasting direct third party beneficiaries, who can
“enforce a contract if and only if the parties made clear in the contract an intention that they be permitted
to do so,” with indirect beneficiaries, “who have no rights”) (emphasis added) (citing collected cases).

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considering the interests of justice, courts should look to “the public’s interest in conserving
scarce judicial resources”); see also Chicago, Rock Island & P. R.R. Co. v. Igo, 220 F.2d 299,
303 (7th Cir. 1955) (explaining that courts have considered “the congested state of their
calendars” in considering a motion to transfer). Here, because neither factor favors transfer, this
case should stay with this Court, where it has been actively litigated since August 23, 2011. And
given comScore’s extreme delay in asserting its supposed right to transfer, granting its motion
would only encourage similar dilatory tactics. The motion should be denied.
1.

Transferring this case to Virginia would waste judicial time and resources,
and result in a delayed road to trial.

Over the course of more than two years, both the Northern District of Illinois and the
Seventh Circuit have dedicated valuable judicial time and resources to this case. The Parties have
filed and this Court has decided three motions to dismiss along with other fact-intensive motions,
including Plaintiffs’ motion for class certification, comScore’s PLA under Rule 23(f), and
numerous discovery disputes. (See, e.g., Dkt. 12, 39,152, 224, 226, 242, 293.) On top of that, the
Court has ordered, overseen, and directed extensive settlement efforts (including two in-person
conferences) between the Parties. (See, e.g., Dkts. 286, 292.) At the same time, if transferred, the
Eastern District of Virginia would need substantial time to familiarize itself with the facts of this
case—and given that the Parties will soon be prepared to file summary judgment motions, the
requisite time will almost certainly result in the (unnecessary) delay of trial. See Research
Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 978 (7th Cir. 2010). As an
exercise in waste, therefore, comScore’s proposed transfer is inappropriate.

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2.

Granting comScore’s motion would only encourage litigants to sit on a
purported right to seek transfer as a litigation tool, which would result in
increased delays and inefficiencies.

As Plaintiffs explained in their Opposition to comScore’s second Rule 12(b)(3) motion,
comScore’s desire to move this case to Virginia is a result of unnecessary delay—a true “wait
and see” approach to litigation. (See Dkt. 280 at 9 – 15.) Granting its motion now would only
encourage other litigants to sit on forum clauses, try out a particular forum, and then move to
enforce (even after years of litigation) only when it seems advantageous. Encouraging and
rewarding such unnecessary delay is not in the public interest and necessarily would lead to
increased delays and wasting of judicial resources. See F.T.C. v. American Tax Relief LLC, No.
10-cv-6123, 2011 WL 2893059, at *7 (N.D. Ill. July 20, 2011) (explaining that public interests
factors include practical considerations such as preventing waste of judicial time and money).
comScore’s first challenge to venue was made on September 28, 2011, when it argued (as
it does here) that the forum selection clause compelled transfer. (See Dkt. 15 at 1.) Since then,
and even though the Court encouraged comScore to adduce the facts necessary to support a
renewed venue challenge, (Dkt. 31), comScore sat on its supposed right to transfer for over two
years—only moving again under Rule 12(b)(3) on October 30, 2013, (Dkt. 242). And regardless
of whether or not comScore actively sought to elicit a factual basis to support its transfer
position, comScore has explained its right to seek transfer was made clear via Plaintiffs’ class
certification briefing, where “Plaintiffs declared that ‘Rule 23 commonality and typicality exist
because Plaintiffs and each Class member . . . was presented with a form ULA, [and] each
accepted the ULA through the same online process . . .’” (Dkt. 243 at 3 (quoting Dkt. 184 at 1 –
2).) But even though Plaintiffs made that purported admission on March 19, 2013,6 comScore
6

More accurately, this “admission” was first made at least as early as January 15, 2013, where,
through their opening supplemental class certification briefing, Plaintiffs detailed how the common ULA

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waited until October 30th to do anything about it.
In the meantime, comScore continued to litigate, even representing to the Court that
merits discovery should proceed, (Dkt. 209 at § 3),7 and then engaging in further discovery. And
given the information then-available to comScore (i.e., that Plaintiffs argued that they agreed to
the Sponsors’ ULA), its conduct was done with tacit approval of this forum and should not be
rewarded by having its last-minute motion granted. By continuing to litigate (instead of
transferring and then litigating in its preferred venue) comScore demonstrated that its strategy
has been to wait and “see how the case was going in [this] federal district court before” looking
for a new venue. Cabinetree of Wisc., Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 391 (7th
Cir. 1995).8 Such game-playing wastes the Court’s—and, by extension, the public’s—time and
resources, while only benefitting comScore. Thus, transfer should not be allowed at this point.
Ultimately, because comScore cannot enforce the forum clause, and would not be entitled
to transfer even if it could, the Court should deny the motion and retain control over this case.
III.

CONCLUSION
For the foregoing reasons, Plaintiffs Mike Harris and Jeff Dunstan respectfully request

that the Court deny comScore’s motion to transfer and award such other and further relief as it
deems equitable and just.

gave rise to common questions affecting the Class. (See Dkt. 154 at 23 – 24.)
7

Indeed, comScore should have raised its venue challenge during the Parties’ June 19th Rule 26(f)
planning conference, where comScore agreed without limitation “to commence merits-based discovery on
[Plaintiffs’] claims immediately, pending the Court’s lifting of the stay [that was] in place in the case.”
(Dkt. 209 at §§ 3, 3(b)), and omitted its intention to, once it was ready, challenge venue again when
reporting “Other Matters” relevant to discovery, motion, and trial schedule. (Id. at § 4(k).)
8

Although Cabinetree analyzed waiver of the right to compel arbitration, it applies here because
an arbitration clause is simply “a species of forum selection clause.” Armstrong v. LaSalle Bank Nat’l
Ass’n, 552 F.3d 613, 616 (7th Cir. 2009).

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Respectfully submitted,
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals,
Dated: January 28, 2014

By: s/ Rafey S. Balabanian
One of Plaintiffs’ Attorneys
Jay Edelson
[e-mail]
Rafey S. Balabanian
[e-mail]
Chandler R. Givens
[e-mail]
Benjamin S. Thomassen
[e-mail]
EDELSON PC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]
Counsel for Plaintiffs, the Class, and
the Subclass

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CERTIFICATE OF SERVICE
I, Benjamin S. Thomassen, an attorney, hereby certify that on January 28, 2014, I served
the above and foregoing Plaintiffs’ Response in Opposition to Defendant’s Motion to Transfer
Under 28 U.S.C. §1404(a) 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, the
28th day of January, 2014.
s/ Benjamin S. Thomassen

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