Dunstan et al v. comScore, Inc.

Filing 317

REPLY by comScore, Inc. to response in opposition to motion, 311 to transfer (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 MOTION TO TRANSFER UNDER 28 U.S.C. § 1404(a)

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
ARGUMENT...................................................................................................................................1
I.

comScore May Enforce Its Agreement With Plaintiffs As A Party Thereto.......................1

II.

Alternatively, comScore May Enforce The Forum Selection Clause As A Parent
Corporation Or Third Party Beneficiary ..............................................................................2

III.

The Subclass Should Be Transferred To Virginia ...............................................................6

IV.

Supreme Court Precedent Compels The Transfer Of This Litigation To Virginia..............7

CONCLUSION................................................................................................................................9

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TABLE OF AUTHORITIES
Page
Cases
Adams v. Raintree Vacation Exch., LLC,
702 F.3d 436 (7th Cir. 2012) .....................................................................................................2
Am. United Logistics, Inc. v. Catellus Dev. Corp.,
319 F.3d 921 (7th Cir. 2003) .........................................................................................2, 3, 4, 5
Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for W. Dist. of Texas,
134 S. Ct. 568 (2013).............................................................................................................1, 7
comScore, Inc. v. Dunstan, et al.,
No. 13-8007, Dkt. No. 1 (7th Cir. April 16, 2013) ....................................................................8
Hill v. Gateway 2000, Inc.,
105 F.3d 1147 (7th Cir. 1997) ...................................................................................................6
Hugel v. Corp. of Lloyd's,
999 F.2d 206 (7th Cir. 1993) .....................................................................................................3
ProCD, Inc. v. Zeidenberg,
86 F.3d 1447 (7th Cir. 1996) .....................................................................................................6
Productive People, LLC v. Ives Design,
No. CV-09-1080, 2009 WL 1749751 (D. Ariz. June 18, 2009) ........................................2, 3, 4
Statutes
28 U.S.C. § 1404(a) .........................................................................................................................9

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INTRODUCTION
Plaintiffs’ response to comScore’s motion to transfer this litigation fails to address one
very important point—Plaintiffs agreed to the Terms of Service, which require them to litigate
this case in Virginia.1 (Pl. Br.) Given the United States Supreme Court’s recent holding that “a
valid forum-selection clause should be given controlling weight in all but the most exceptional
cases,” comScore’s motion to transfer should be granted. Atl. Marine Constr. Co., Inc. v. U.S.
Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 581 (2013) (emphasis added) (internal citations
omitted). The issue for resolution before the Court is straightforward—Plaintiffs have agreed to
the forum selection clause, and comScore is entitled to enforce that agreement as a party to the
agreement, as a parent corporation to a subsidiary’s agreement, and as a third party beneficiary
of the agreement. Because comScore is entitled enforce the forum selection clause, and because
Plaintiffs have made no showing that this case is “exceptional” within the meaning of Atl.
Marine, this litigation must proceed in Virginia.
ARGUMENT
I.

comScore May Enforce Its Agreement With Plaintiffs As A Party Thereto
Plaintiffs’ argument that comScore is not a party to the Agreement has no merit.

Plaintiffs themselves allege in their Second Amended Complaint (as well as their Complaint and
First Amended Complaint) that comScore is in fact a party to the agreement, referring to the
Terms of Service as “comScore’s” or “Defendant’s” throughout. (Dkt. No. 169 at ¶¶ 16,

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Although Plaintiffs’ Second Amended Complaint inexplicably continues to allege that Harris
and Dunstan did not agree to the Terms of Service, (Dkt. 169 at ¶¶ 66, 70), Plaintiffs obtained
class certification by insisting that “each Class member . . . was presented with a form ULA,
[and] each accepted the ULA through the same online process . . .” (Dkt. No. 184 at pp. 1-2 ).
See also Dkt. No. 280 at p. 17 (conceding that all plaintiffs clicked “Accept” when presented
with the Downloading Statement, which states that they have read and agree to the Terms of
Service.) Indeed, if that were not the case, then—as Plaintiffs appear to recognize—class
certification would need to be reconsidered.
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35-37, 39, 48-50, 79(c), 100.) Plaintiffs have to do so, because their case (both on the merits and
as to class certification) rests in large part on the claim that comScore went beyond its agreement
with the plaintiffs. Having affirmatively alleged that comScore is a party to the Agreement,
plaintiffs cannot now turn around and argue otherwise simply to avoid transfer.
In any event, as we noted in our opening brief and as the plaintiffs barely acknowledge,
the very first sentence of the Downloading Statement identifies the Sponsor of the agreement as
“a comScore, Inc. company.” (Dkt. No. 176-4 at pp. 45-73 (emphasis added).) And the Terms
of Service state that the information provided will be used “by comScore, Inc.” (Dkt. No. 281-2
at p. 2 (emphasis added).) comScore has every right to enforce the forum selection clause
against the Plaintiffs as a contracting party thereto.
II.

Alternatively, comScore May Enforce The Forum Selection Clause As A Parent
Corporation Or Third Party Beneficiary
The analysis should end with the conclusion that comScore is a party to the Agreement,

but even if the Court disagrees, comScore may still enforce the forum selection clause. Plaintiffs
admit (as they must) that pursuant to Seventh Circuit precedent—see Adams v. Raintree
Vacation Exch., LLC, 702 F.3d 436, 442 (7th Cir. 2012) and Am. United Logistics, Inc. v.
Catellus Dev. Corp., 319 F.3d 921, 930 (7th Cir. 2003)—non-parties are entitled to enforce
forum selection clauses. (Pl. Br. at p. 8.) However, Plaintiffs contend that comScore is
precluded from asserting its rights as a parent corporation because of the third party rights clause
in the Terms of Service. (Pl. Br. at p. 8.) That argument is specious. Plaintiffs cite no authority
(from the Seventh Circuit or otherwise) in which a non-party was disallowed from enforcing a
forum selection clause on the basis of a third party rights clause. (Pl. Br. at pp. 8-12.) And
Plaintiffs’ attempts to distinguish Productive People, LLC v. Ives Design, No. CV-09-1080, 2009

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WL 1749751 (D. Ariz. June 18, 2009) and Am. United Logistics, two cases cited by comScore
that address third party rights clauses, are not persuasive.
In Productive People, the defendants had entered into an agreement with
GoDaddy.com—not a party to the litigation—that contained a forum selection clause. 2009 WL
1749751, at *1. The clause provided that “[f]or the adjudication of disputes concerning the use
of any domain name registered with Go Daddy, You agree to submit to jurisdiction and venue in
the U.S. District Court for the District of Arizona located in Phoenix, Arizona.” (Id. at *2.) A
separate clause in the contract identified the parties thereto as GoDaddy.com and the defendants.
Id. The plaintiff, a non-party to the contract, sought to enforce the forum selection clause over
the defendants’ objections. (Id. at *1.) The court held that “being bound parties, the []
Defendants cannot escape the forum selection clause. Nor does the fact that Plaintiff is not a
signatory to the contract render the forum selection clause unenforceable . . . Non-parties may
enforce forum selection clauses. As a party with a dispute concerning the use of a domain name
registered on GoDaddy.com . . . Plaintiffs may enforce the clause against the [] Defendants.” (Id.
at *3 (internal citations omitted).) The court further held, pursuant to the Seventh Circuit’s
decision in Hugel v. Corp. of Lloyd’s, 999 F.2d 206 (7th Cir. 1993), that the third party rights
clause did not preclude the plaintiff from enforcing the forum selection clause. (Id. at *4, n.4.)
The third party rights clause stated 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.” (Id.) The court reasoned that it “need not determine whether the [] forum selection
clause was intended to fall under the exception of [the third party rights clause], however,
because ‘third-party beneficiary status is not required’ for non-parties to benefit from or be
bound by forum selection clauses.” (Id. (quoting Hugel, 999 F.2d 206, 210 n.7).)

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The forum selection clause and third party rights clause in Productive People are on all
fours with the clauses to which the class Plaintiffs agreed. But Plaintiffs attempt to distinguish
Productive People on two grounds. First, Plaintiffs argue that there is no exception in the third
party rights clause in this case, as there was in Productive People, precluding third party rights
“unless otherwise provided for in the agreement.” (Pl. Br. at p. 9.) But as Plaintiffs are aware,
the “exception” language in Productive People was not relevant to the court’s reasoning. In fact,
the court explicitly stated that it “need not determine whether the forum selection clause was
intended to fall under the exception of [the third party rights clause].” Productive People, LLC,
2009 WL 1749751, at *4, n.4. Second, Plaintiffs argue that the forum selection clause in
Productive People “[did] not apply to only disputes between the parties over rights and
obligations in the Agreement.” (Pl. Br. at p. 9.) But neither does the forum selection clause in
this case. Plaintiffs agreed to litigate “any non-arbitral action or proceeding arising out of or
related to this program or this agreement” in Virginia. (Dkt. No. 281-2 at pp. 6-7 (emphasis
added).) Even if Plaintiffs argue that their suit does not arise from the Agreement because
comScore is not a party, it is plainly related to the “program.” Plaintiffs concede this fact.
“Plaintiff sued comScore because it was comScore that designed 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.” (Pl. Br. at p. 8, n.3
(emphasis in original).)
In addition to being able to enforce the forum selection clause as a non-party, comScore
is also entitled to enforce the forum selection clause as a third party beneficiary pursuant to Am.
United Logistics. In that case, a third party asserted its rights as a beneficiary of a contract in
which the third party’s name appeared in the contract alongside an intended benefit—as the

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operator of the warehouse space leased in the agreement. Am. United Logistics, Inc., 319 F.3d at
931. The Seventh Circuit held that the third party was a direct beneficiary under the contract,
despite language in the contract stating that “nothing herein is intended to create any third party
benefit.” (Id.) Like the third party in Am. United Logistics, comScore is identified by name as a
beneficiary to the Agreement in both the Downloading Statement and the ULA. (Dkt. No. 176-4
at pp. 45-73; Dkt. No. 281-2 at p. 2.) Further, the Agreement grants comScore an intended
benefit—the use of class members’ information. (Dkt. No. 281-2 at p. 2.)
Plaintiffs make a weak attempt to distinguish Am. United Logistics by arguing that the
third party rights clause in the Agreement in this case is “clearer” than the third party rights
clause in Am. United Logistics. (Pl. Br. at pp. 10-11.) But the clauses are virtually identical.2
Plaintiffs also argue that the benefit conferred on comScore does not count because it appears in
a preamble. (Pl. Br. at p. 11.) In support of its argument, Plaintiffs state that “comScore is
mentioned only in the preamble to the ULA.” (Pl. Br. at p. 11, n.4 (emphasis in original).) This
is incorrect—comScore is also mentioned in the Downloading Statement, which this Court has
held to be part of the contractual agreement. (Dkt. No. 186 at p. 9 (“[m]ost obviously, each
Class member agreed to a form contract (made up of the ULA and the Downloading Statement),
as has each Subclass member (the Downloading Statement only)”).) But further, the Seventh
Circuit held in Am. United Logistics that “[t]o decide whether a party is a . . . beneficiary, we
must determine the intent of the parties based on the contract as a whole.” 319 F.3d at 930
(emphasis added). Notice to Plaintiffs in the “preamble” that “[t]he information that you
contribute is used by comScore, Inc.” demonstrates the parties’ intent, regardless of where it

2

Compare Am. United Logistics, Inc., 319 F.3d at 931 (“[N]othing herein is intended to create
any third party benefit”) with dkt. No. 281-2 at p. 7 (“[N]o person shall assert any rights as a
third party beneficiary under this agreement.”).
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appears. (Dkt. No. 281-2 at p. 2.) Because the clear intent of the Agreement was to provide
comScore with the benefit of the use of the information provided, comScore is entitled to enforce
the forum selection clause as a third party beneficiary.
III.

The Subclass Should Be Transferred To Virginia
comScore is also entitled to enforce the forum selection clause against the members of

the Subclass. Plaintiffs’ argument that the Subclass could not have assented to the forum
selection clause “[w]ithout an opportunity to view and accept the ULA” is without merit. (Pl. Br.
at p. 7 (emphasis added).). The Seventh Circuit has rejected the idea that a party to a contract
must have the opportunity to view the contract prior to acceptance where the party is on notice it
is subject to a contractual agreement. Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1150 (7th Cir.
1997) (enforcing a contract contained in a box shipped to customers’ home when the customers
purchased by telephone because the customers “knew before they ordered the computer that the
carton would include some important terms, and they did not seek to discover these in advance.”)
(emphasis in original); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1450-51 (7th Cir. 1996)
(holding that a contract contained inside of a retail software box that the consumer did not have
an opportunity to view prior to purchase was enforceable because there was notice of the
contract on the outside of the box). The members of the Subclass had notice that comScore’s
software was subject to a contractual agreement. Each member of the Subclass clicked “Accept”
to comScore’s Downloading Statement, affirmatively stating that he had “read [and] agree[d] to .
. . the terms and conditions of the Privacy Statement and User License Agreement.” (Dkt. No.
14 at ¶ 4.) Plaintiffs provide no authority for their position that the contract is not enforceable
because the Subclass was not presented with a functioning hyperlink. (Pl. Br. at p. 7.) The
Downloading Statement clearly identified the software as “PremierOpinion software” and the
full text of the contract was available at all times on the PremierOpinion website. (Dkt. No. 14 at
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¶ 6.) Thus, members of the Subclass had an opportunity to view the ULA prior to clicking
“Accept,” and every member of the Subclass affirmatively confirmed that he or she had in fact
read and agreed to the terms. And if there is any doubt as to whether every Subclass member did
in fact do so, then class certification must be reconsidered.
Even if the forum selection clause were not independently enforceable against the
Subclass, the Court should nonetheless transfer the Subclass to Virginia. Plaintiffs argue that “if
the Subclass isn’t transferred, the larger Class shouldn’t be either” because transferring one class
and not the other is a waste of judicial resources. (Pl. Br. at p. 7.) But the Class must be
transferred to Virginia as a matter of law pursuant to Atl. Marine. Therefore the Subclass should
be transferred as well. It would be an improper exercise of discretion for the court to keep
millions of class members in the Northern District of Illinois, despite the fact that each class
member agreed to litigate in Virginia, simply to allow trial of the claims of a small subset of the
Class in this district. Because the Class must be transferred to Virginia, the Subclass should be
transferred as well.
IV.

Supreme Court Precedent Compels The Transfer Of This Litigation To Virginia
Plaintiffs have not met their burden of showing that this litigation should not be

transferred to the forum previously agreed to by the Plaintiffs—Virginia. Atl. Marine Constr.
Co., Inc., 134 S. Ct. at 581 (“[P]laintiff bears the burden of establishing that transfer to the forum
for which the parties bargained is unwarranted.”) Plaintiffs argue that because neither the
conservation of “judicial time and resources” or the “likely speed to trial in the present versus the
transferee forum” favors transfer, the case should remain in the Northern District of Illinois. (Pl.
Br. at pp. 12-13.) But Plaintiffs apply the wrong standard. The public interest factors are not
required to “favor[] transfer”—rather, “a district court should transfer the case unless
extraordinary circumstances . . . clearly disfavor a transfer.” Atl. Marine Constr. Co., Inc., 134
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S. Ct. at 575 (emphasis added). Because the enforcement of a forum selection clause “protects
[the parties’] legitimate expectations and furthers vital interests of the justice system,” publicinterest factors “will rarely defeat a transfer motion.” (Id. at 582-83.)
Plaintiffs’ public interest argument amounts to nothing more than an unfounded
accusation that comScore has employed a “wait and see” approach to this litigation. (Pl. Br. at p.
14.) Plaintiffs filed their Complaint on August 23, 2011. (Dkt. No. 1.) Barely one month into
the litigation, on September 28, 2011, comScore filed a 12(b)(3) motion to dismiss for improper
venue and asserted its right to litigate in Virginia—hardly a “wait and see” approach. (Dkt. No.
12.) comScore’s motion was denied because Plaintiffs’ alleged in their Complaint that they did
not agree to the forum selection clause. (Dkt. No. 31 at p. 5 (“At this stage, however, the court
must take plaintiffs’ word for it.”).) Even after its 12(b)(3) motion to dismiss was denied,
comScore repeatedly asserted its right to proceed in Virginia. comScore asserted the forum
selection clause in its Answer to the Complaint filed on December 13, 2011, in its Answer to the
Amended Complaint filed on November 15, 2012, in its Answer to the Second Amended
Complaint filed on February 28, 2013, in its appeal of the class certification order to the Seventh
Circuit on May 8, 2013, in its renewed motion to dismiss on October 30, 2013, and in its present
motion to transfer. (Dkt. No. 59 at p. 50; Dkt. No. 140 at p. 45; Dkt. No. 180 at p. 45; comScore,
Inc. v. Dunstan, et al., No. 13-8007, Dkt. No. 1 at 7 (7th Cir. April 16, 2013); Dkt. No. 242.) To
suggest that comScore slept on its rights in this regard is absurd.
To the extent that there has been any delay or waste of resources, it is entirely attributable
to the Plaintiffs, who have made their agreement or non-agreement to the Terms of Service a
wildly moving target. They alleged in their Complaint and First Amended Complaint—and
continue to assert in their Second Amended Complaint—that they did not agree to the Terms of

8

Service. (Dkt. No. 1 at ¶¶ 69, 73; Dkt. No. 136 at ¶¶ 66, 70; Dkt. No. 169 at ¶¶ 66, 70.) And yet
they have represented to the Court—contrary to the allegations in their Complaint—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. No.
184 at pp. 1-2 (emphasis added).) The Court accepted those representations. (See, e.g., Dkt. No.
186 at p. 9 (“[m]ost obviously, each Class member agreed to a form contract (made up of the
ULA and the Downloading Statement), as has each Subclass member (the Downloading
Statement only)”).) Plaintiffs have subsequently refused to amend their Second Amended
Complaint to reflect their representations to the Court, and to bring their allegations into accord
with the Court’s certification order. Again, the Second Amended Complaint still alleges that
Plaintiffs’ did not agree to the ULA despite the fact that Plaintiffs have abandoned that position.
(Dkt. No. 169 at ¶¶ 66, 70.) comScore cannot be deemed to have lost its right to transfer where
the Plaintiffs have refused to take a consistent position about whether they agreed to the Terms
that include the transfer provision. Plaintiffs may not cite the very delay that they have thereby
caused as a public interest reason clearly disfavoring transfer to Virginia. If the law were
otherwise, then every party attempting to avoid a forum selection clause would simply waver on
whether they agreed to the forum selection clause at all, as Plaintiffs have here—thereby wasting
the court’s and opposing party’s time. The public interest is not served by depriving comScore
of its contractual rights under the forum selection clause agreed to by Plaintiffs.
CONCLUSION
comScore respectfully requests that this action be transferred to Virginia pursuant to 28
U.S.C. § 1404(a).

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DATED: February 4, 2014

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
/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
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 COMSCORE, INC.’S
REPLY IN SUPPORT OF ITS MOTION TO TRANSFER UNDER 28 U.S.C. § 1404(a) has
been caused to be served on February 4, 2014 to all counsel of record via the Court’s ECF filing
system.
/s/ Robyn Bowland
Robyn Bowland

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