Dunstan et al v. comScore, Inc.

Filing 319

SUR-REPLY by Plaintiffs Jeff Dunstan, Mike Harris to reply to response to motion 317 (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–05807

Plaintiffs,

Hon. James F. Holderman

v.

Magistrate Judge Young B. Kim

COMSCORE, INC., a Delaware corporation,
Defendant.
PLAINTIFFS’ SURREPLY IN OPPOSITION TO
DEFEDANT’S MOTION TO TRANSFER UNDER 28 U.S.C. § 1404(a)
Pursuant to the Court’s Order dated February 6, 2014 (Dkt. 318), Plaintiffs respectfully
offer the instant Surreply to address factual inaccuracies contained in comScore’s Reply in
Support of its Motion to Transfer Under 28 U.S.C. § 1404(a) (Dkt. 317) (“Reply”).
comScore’s Reply references and relies on an inaccurate statement of fact—that the
“Downloading Statement” presented to Subclass members mentioned comScore by name. (Reply
at 5.) That isn’t true. The Downloading Statement viewed by Subclass members only referenced
one entity—VoiceFive, Inc., the “Sponsor” for the PremierOpinion tracking software—and
makes no mention of comScore at all. (Dkt. 169, Ex. A.) That fact weighs heavily against
comScore’s Subclass-specific contention that “members of the Subclass had notice that
comScore’s software was subject to a contractual agreement . . . [or that e]ach member of the
Subclass clicked “Accept” to comScore’s Downloading Statement . . . .” (Reply at 6 (emphasis
added, original emphasis omitted).) Because comScore was not mentioned in the Downloading
Statement presented to Subclass members, there is no way they could have been “on notice” that
the PremierOpinion software was operated and maintained by comScore.

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This factual misstatement is central to comScore’s position. In its Reply, comScore states
that:
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)”).)”
(Reply at 5.) In light of that fact—i.e., that “comScore is also mentioned in the Downloading
Statement”—comScore contends that:
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.)
(Reply at 6 (emphasis added, original emphasis omitted).) And according to its Reply, this
identification of comScore—in either the Downloading Statement or ULA—is particularly
central to its ability to enforce the subject forum selection clause against the Subclass as a
supposed third party beneficiary. (Reply at 4-5.)
Plaintiffs do not dispute that comScore is mentioned in the Downloading Statement
viewed by non-Subclass members.1 But as Plaintiffs previously noted (and comScore’s own
expert witness, Dr. Tamassia, corroborated through his submitted report) in “most—if not all—
of the VoiceFive, Inc. ULAs and [Downloading Statements] presented to users, comScore does
not appear at all in either document.” (Dkt. 154 at 11 n. 15 (citing Dkt. 156-10; 156-8 at 70, 72)
(emphasis in original).)
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That mere mention of comScore has no legal force, however, because according to the
plain language of the ULA itself, nothing in the Downloading Statement is binding on the Class.
(See Pls. Opp. Br. at 11 n. 4 (Dkt. 311) (noting that, for non-Subclass members, the linked-to
ULA explicitly identifies the specific “terms and conditions” to which users were instructed to
“review and agree”).)
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As comScore knows, members of the Subclass were only presented with a “Downloading
Statement” (as opposed to non-Subclass members, who were also presented with a hyperlink to
the full ULA). (Reply at 6; Dkt. 14 at ¶ 6.) And that Downloading Statement did not mention
comScore at all. Instead, the only entity referenced was “VoiceFive, Inc.,” the PremierOpinion
“Sponsor.” (See Dkt. 169, Ex. A (Downloading Statement viewed by Subclass members missing
hyperlink and explaining that the “PremierOpinion software [was] provided by VoiceFive, Inc.,”
the so-called “program sponsor” for the PremierOpinion tracking software).)
For this same reason, comScore’s assertion that Plaintiffs’ Complaint concedes
comScore’s status as a party misses the mark. (See Reply at 1-2.) Plaintiffs’ use in the Complaint
of the phrase “comScore’s Terms of Service” refers not to its status as a party—which is
apparent from the lack of any reference to comScore in the ULA’s legally binding “terms and
conditions,” (see Pls. Opp. Br. at 11 n. 4)—but rather, simply to the fact that those terms
accompanied the download and installation of comScore’s monitoring software. (See Dkt. 169 at
¶ 37, Ex. A.) That comScore tries to rely on Plaintiffs’ allegations to claim that it’s a party to the
ULAs—rather than on the actual terms of the agreements themselves—speaks volumes about the
weakness of its overall argument.
For these and all other reasons identified in Plaintiffs’ Opposition (Dkt. 311), comScore’s
Motion to Transfer Under 28 U.S.C. § 1404(a) should be denied.

Respectfully submitted,
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals,
Dated: February 6, 2014

By: s/ Rafey S. Balabanian
One of Plaintiffs’ Attorneys

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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 February 6, 2014, I served
the above and foregoing Plaintiffs’ Surreply 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 6th
day of February, 2014.
s/ Benjamin S. Thomassen

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