Dunstan et al v. comScore, Inc.

Filing 329

RULE 56 L.R. 56.1(a) Statement by Jeff Dunstan, Mike Harris regarding motion for partial summary judgment 321 (Balabanian, Rafey)

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-5807

Plaintiffs,

Hon. James F. Holderman

v.

Magistrate Judge Young B. Kim

COMSCORE, INC., a Delaware corporation,
Defendant.
PLAINTIFFS JEFF DUNSTAN’S AND MIKE HARRIS’S
LOCAL RULE 56.1 STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to Rule 56.1(a) of the Local Rules of the Northern District of Illinois and in
support of their Motion for Partial Summary Judgment, Plaintiffs Jeff Dunstan and Mike Harris
(“Plaintiffs”) submit this statement of undisputed material facts:
Parties, Jurisdiction, and Venue
1.

comScore, Inc. (“comScore”) is a Delaware corporation with its headquarters

located in Reston, Virginia. (Dkt. 180 at ¶ 21.)
2.

Plaintiff Jeff Dunstan is a citizen of California. (Dkt. 169 at ¶ 20.)

3.

Plaintiff Mike Harris is a citizen of Illinois. (Dkt. 169 at ¶ 19.)

4.

Through their Second Amended Complaint, Plaintiffs allege violations of three

federal statutes: the Stored Communications Act, 18 U.S.C. §§ 2701, et seq., the Electronic
Communications Privacy Act, 18 U.S.C. § 2510–22, and the Computer Fraud and Abuse Act,
18 U.S.C. § 1030. (Dkt. 169 at ¶¶ 81–110.)

1

5.

comScore transacts business in the Northern District of Illinois and throughout the

United States. (Dkt. 180 at ¶¶ 21, 23.)
comScore and its Panelist Software, OSSProxy
6.

comScore is an Internet market research company that designs and distributes

software to measure the online activity of Internet users. comScore refers to Internet users that
have its software installed on their computers as “panelists,” who together comprise comScore’s
“panel.” (Dkt. 180 at ¶ 1; Dkt. 14 at ¶ 3; Transcript of November 21, 2013 Deposition of John
O’Toole (“O’Toole Nov. 21, 2013 Dep. Tr.”), Ex. 12 at 7:14–17; Transcript of November 20,
2013 Deposition of Yvonne Bigbee (“Bigbee Nov. 20, 2013 Dep. Tr.”), Ex. 2 at 9:11–16.)
7.

comScore refers to its panelist software as “OSSProxy,” but publicly distributes it

using “brand” names, including RelevantKnowledge and PremierOpinion. (Transcript of August
15, 2012 Rule 30(b)(6) Deposition of Michael Brown (“Brown Aug. 15, 2012 R. 30(b)(6) Dep.
Tr.”), Ex. 3 at 9:8–15; Dkt. 180 at ¶¶ 4, 34.)
8.

All “brands” of OSSProxy are functionally identical. (Brown Aug. 15, 2012 R.

30(b)(6) Dep. Tr. at 91:3–92:8.)
9.

TMRG, Inc. (“TMRG”) is a Delaware corporation with its “Privacy Office”

located in Reston, Virginia. TMRG is the “program sponsor” for the RelevantKnowledge brand
of OSSProxy. (Ex. 4 at 7–8.).
10.

VoiceFive Networks, Inc. (“VoiceFive”) is a Delaware corporation with its

“Privacy Office” located in Reston, Virginia. VoiceFive is the “program sponsor” for the
PremierOpinion brand of OSSProxy. (Ex. 5 at 8.)

2

All references to Exhibits (“Ex.”) refer to Exhibits attached to the Declaration of Benjamin S.
Thomassen, filed concurrently with the filing of this Statement of Facts.

2

11.

comScore generates revenue by selling different product lines—such as Media

Metrix, Plan Metrix, and QSearch—that utilize panelist data collected through OSSProxy.
(Transcript of January 24, 2012 Rule 30(b)(6) Deposition of Scott Mitchell (“Mitchell R.
30(b)(6) Dep. Tr.”), Ex. 6 at 22:6–25:5, 26:19–27:12, 40:14–42:15; Dkt. 180 at ¶¶ 2–3, 5; Brown
Aug. 15, 2012 R. 30(b)(6) Dep. Tr. at 63:22–66:7.)
12.

comScore currently measures the online behavior of over two million people

worldwide and, through its website, claims to capture “well over 1.5 trillion interactions” on a
monthly basis, equal to almost forty percent of the monthly page views of the entire Internet.
(Dkt. 176-1 at 2; accord Dkt. 180 at ¶¶ 25, 30.)
comScore’s Online Recruitment of Panelists
13.

comScore recruits panelists using two different methods: (i) its “affiliate program,”

where users can download OSSProxy directly through a comScore-controlled website (e.g.,
PermissionResearch.com or OpinionSquare.com) and (ii) its “Third-Party Application Provider
Program” (the “TAP Program”), where users can download OSSProxy from a third party
application provider (a “TAP partner”) as a part of a software “bundle.” (Transcript of January
24, 2014 Rule 30(b)(6) Deposition of John O’Toole (“O’Toole Jan. 24, 2014 R. 30(b)(6) Dep.
Tr.”), Ex. 7 at 9:8–10:10; Dkt. 14 at ¶ 4; CS0081903_Confidential--Attorney’s Eyes Only.pptx,
Ex. 8 at 15.)
14.

Through the affiliate program, comScore recruits panelists by partnering with a

network of “small-audience web entities” to host banner advertisements that, once clicked on,
direct users to a comScore-controlled website (e.g., www.permissionresearch.com) where
OSSProxy can be installed after a user (i) agrees to a ULA; (ii) creates a membership profile by
entering certain information into website text fields (first and last name, address, email, gender,

3

birthdate, etc.); (iii) sets up a household profile (providing information about household members’
gender, “head of household” status, employment, along with the user’s household’s race and
annual income, etc.); and (iv) downloads the installer package for OSSProxy. (O’Toole Jan. 24,
2014 R. 30(b)(6) Dep. Tr. at 10:15–11:1, 25:4–27:13; CS0081903_Confidential – Attorney’s
Eyes Only.pptx at 15; Thomassen Decl. at ¶¶ 11-15.)
15.

Panelists recruited through the TAP program, on the other hand, are recruited

exclusively through third party software developers that “bundle” OSSProxy with their own
freeware’s installer package, such that the installation process for the downloaded freeware will
also prompt the user to install OSSProxy. (Dkt. 180 at ¶¶ 12, 32; CS0081903_Confidential –
Attorney’s Eyes Only.pptx at 15.)
16.

comScore pays third party application developers to offer OSSProxy with their

applications

(Dkt. 180 at ¶ 53; O’Toole Nov. 21, 2013
Dep. Tr. at 77:11–19; O’Toole Jan. 24, 2014 R. 30(b)(6) Dep. Tr. at 71:5–72:16; (Transcript of
December 13, 2013 Deposition of Joshua Chasin (“Chasin Dep. Tr.”), Ex. 9 at 87:6–13.)
17.
. (Chasin Dep. Tr. at 39:7–13; O’Toole Jan. 24,
2014 R. 30(b)(6) Dep. Tr. at 12:2–13:13.)
18.

4

(O’Toole Jan. 24, 2014 R.
30(b)(6) Dep. Tr. at 49:9–16.)
19.

. (O’Toole Jan. 24, 2014 R. 30(b)(6) Dep. Tr. at 44:9–16; Chasin Dep. Tr. at 51:6–
17.)
The TAP Installation Process
20.

RelevantKnowledge and PremierOpinion
(Transcript of September 12, 2012 Deposition of Yvonne

Bigbee (“Bigbee Sept. 12, 2012 Dep. Tr.”), Ex. 10 at 50:14–51:20.)
21.

The installation process for OSSProxy is materially identical for every Panelist

recruited through comScore’s TAP program. (See Dkt. 40 at ¶ 14; Expert Witness Report of
Colin O’Malley (“O’Malley Rpt.”), Ex. 11 at 6.)
22.

The TAP installation process for OSSProxy begins when an Internet user finds a

website that offers a TAP partner’s bundled freeware (a free software application such as a
screensaver, game, CD copying software, greeting card template, etc., that has been bundled with
OSSProxy) and elects to download the bundled installer package. (See O’Malley Rpt. at 6; Dkt.
180 at ¶ 32; Dkt. 158 at ¶ 2.)
23.

TAP partners are not required to disclose that the bundled freeware they offer has

been bundled with OSSProxy—i.e., in most instances, before downloading the freeware, a user
would be unaware that by downloading the freeware installer package, they are also
downloading the installation files for OSSProxy. comScore’s own expert, Colin O’Malley,

5

testified that he would be “surprised to see” a reference to OSSProxy on the third party
application developer websites that offer bundled freeware. (See O’Malley Rpt. at 6; Transcript
of December 13, 2012 Deposition of Colin O’Malley (“O’Malley Dep. Tr.”), Ex. 12 at 125:10–
126:1.)
24.

For those TAP panelists that downloaded and installed OSSProxy, each was

presented with a “Downloading Statement”—a dialog window displaying an abbreviated
statement relating to a particular “brand” of OSSProxy. (Dkt. 14 at ¶¶ 4, 6; O’Malley Rpt. at 9–
10; Transcript of December 3, 2013 Deposition of Richard Weaver (“Weaver Dep. Tr.”), Ex. 13
at 14:7–15:7; Dkt. 156-5.) Over the course of the bundled freeware’s installation process, the
Downloading Statement is the first explicit indication that OSSProxy may be installed along with
the TAP partner’s freeware. (See O’Malley Rpt. at 6–9.)
25.

For a user to successfully install OSSProxy through the TAP method, the user

must initialize the bundled freeware’s installation process and then click past the installation
windows until OSSProxy’s Downloading Statement is displayed. (O’Malley Rpt. at 9–10; Dkt.
40 at ¶ 6, 14(b); Dkt. 14 at ¶ 4.)
26.

Unlike the affiliate program, which requires that users provide personal and other

demographic information before downloading OSSProxy, see supra ¶ 14, Panelists recruited
through the TAP program are not required to provide any personal or demographic information
to either comScore, the sponsor, or the TAP partner before or following the installation of
OSSProxy. (O’Toole Jan. 24, 2014 R. 30(b)(6) Dep. Tr. at 45:8–22, 67:10–20.)
27.

Each of the Downloading Statements identified the brand of OSSProxy being

offered for installation (e.g., RelevantKnowledge), explained that the branded OSSProxy was
included in the software package “in order to provide this free download,” and represented that

6

OSSProxy was “provided by” a named program sponsor (i.e., either TMRG or VoiceFive). (Dkt.
156-5; Dkt. 156-7 at 7; O’Malley Rpt. at 9–10.)
28.

The Downloading Statement does not explain that most users were not required to

install OSSProxy in order to install and use the freeware provided by the TAP partner. (See Dkt.
156-5; O’Malley Rpt. at 10 (“If the consumer elects to decline, RelevantKnowledge will not be
installed, and MP3 Cutter will remain on their machine. They are not forced to agree to
RelevantKnowledge terms to obtain MP3 Cutter.”); CS0081903_Confidential--Attorney’s Eyes
Only.pptx at 15; Weaver Dep Tr. at 213:4–19, 217:2–218:17

29.

Each Downloading Statement asked users to acknowledge that they have “read,

agreed to, and have obtained the consent of all . . . users to the terms and conditions of the
Privacy Statement and User License Agreement,” and then provided most users (with the
exception of Subclass members) with a functional hyperlink to the relevant sponsor’s User
License Agreement and Privacy Statement (“ULA”). (Dkt. 14 at ¶¶ 4, 6; O’Malley Rpt. at 10;
Dkt. 40 at 3 n.1; Weaver Dep. Tr. at 17:7–12, 19:14–20.)
30.

When clicked on, the hyperlink presented in the Downloading Statement directs

users to a comScore-controlled website that contains the ULA in its entirety. (Dkt. 14 at ¶ 6, Dkt.
40 at 3 n.1.)
31.

Before clicking past the Downloading Statement, users are required to

acknowledge—by filling in a radio button or some equivalent activity—that they had “read [and]

7

installing our application, you must review and agree to the terms and conditions below and
provide and obtain consent to this agreement from anyone who will be using the computers on
which you install this application.” (Ex. 4 at 2.) The ULA does not reference “terms and
conditions” before this sentence, or before the “PRIVACY POLICY & USER LICENSE
AGREEMENT” header.
38.

In the short portion of the ULA appearing before the “terms and conditions below”

language, the ULA references entities other than the program sponsor:
[T]he data collected is used as part of anonymous market research reports that
help shape the future of the Internet. The information you contribute is used by
comScore, Inc., a U.S.-based market research company that is a nationallyrecognized authority on Internet and general economic trends, whose data are
routinely cited by major media outlets such as the New York Times, the Wall
Street Journal, and CNBC, and is extensively used by the largest Internet
service companies and scores of Fortune 500 companies.
None of these entities are mentioned after the “terms and conditions below” language, and none
are referenced by the ULA using a personal pronoun (i.e., each is identified either by name or
group). (Ex. 4 at 2 (emphasis added).)
39.

In a section labeled “What information is collected?” the ULA outlines the types

of information OSSProxy collects, and states that:
[W]e make commercially viable efforts to automatically filter confidential
personally identifiable information such as UserID, password, credit card
numbers, and account numbers. Inadvertently, we may collect such information
about our panelists; and when this happens, we make commercially viable efforts
to purge our database of such information.
(Ex. 4 at 2–3.) The terms “confidential personally identifiable information” and “automatically
filter” are not otherwise defined by the ULA, but do appear one additional time under the header
“How is the collected information used?” after the ULA explains that “[f]or certain commercial
customers, we may provide individual-level information.” (Ex. 4 at 4.)

9

40.

Under other headings, the ULA generally discusses (i) what information is

collected by “our application,” (ii) how the information is collected, (iii) how the collected
information is used, (iv) how the collected information is secured, (v) the participants (i.e.,
panelists’) obligations, (vi) the program sponsor’s commitment to participants, (vii) other legal
terms and conditions, and (viii) who to contact with additional questions. (Ex. 4.)
41.

Nowhere in the ULA is the “software” or “application” referred to or identified as

belonging to or being operated by comScore. Instead, throughout the ULA, the software or
application is referred to as “our software,” “the software,” “our application,” or “the application.”
(Ex. 4.)
42.

The only point of contact provided for users and/or panelists (i.e., “[i]f [they had]

any questions about the above Privacy Statement & User License Agreement, our practices,
[their] interactions with this site and this program,” or “support issues”) is the program sponsor’s
“Privacy Office,” for which the ULA provides mailing and email addresses (e.g., “Privacy Office,
11950 Democracy Drive, Suite 600, Reston, VA 20910;” and “[e-mail]” /
“[e-mail]”). (Ex. 4.)
43.

The ULA’s terms and conditions provide that “[the] Agreement constitutes the

entire agreement between sponsor and you with respect to the subject matter contained in the
Agreement,” and explains 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.” (Ex. 4 at 7.)
Panelist Data Collected by OSSProxy

10

44.

OSSProxy collects data from panelists’ computers and transmits the data to

comScore’s servers. (Dkt. 180 at ¶¶ 5, 25; Brown Aug. 15, 2012 R. 30(b)(6) Dep. Tr. at 153:10–
14, 195:3–14.)
45.

The data collected from panelists’ computers by OSSProxy includes, but is not

limited to: POST data (i.e., information typed into an input form by a panelist on a website);
PAGE data (i.e., information displayed on a website viewed by a panelist, especially during
“secure” sessions); other aspects of a panelist’s online activity, such as what advertisements they
click on and how long they are online; data concerning the files stored on, software installed on,
and the configuration of panelists’ computers. (Dkt. 180 at ¶¶ 7, 9, 43; Bigbee Nov. 20, 2013
Dep. Tr. at 53:5–14, 64:18–65:17; Transcript of November 14, 2013 Deposition of Glenn
Marchione (“Marchione Dep. Tr.”), Ex. 14 at 28:1–24.)
46.

comScore established a panel in order to collect behavior data about Macintosh

users (the “Mac Panel”), and developed Macintosh-compatible software specifically for that
purpose. The Mac Panel software was publicly available beginning on September 29, 2009. (Dkt.
180 at ¶ 10.)
Filtering versus Fuzzification
47.

comScore programmed OSSProxy with the ability to (i) collect data in raw,

plaintext form; (ii) filter data from OSSProxy’s collection, and (iii) obfuscate (i.e., “fuzzify”)
data collected by OSSProxy. (See infra, ¶¶ 48-62.)
48.

By using technology comScore refers to as

11

(See Marchione Dep Tr. at 74:11–75:12;
CS0035637_Confidential--Attorney’s Eyes Only.htm, Ex. 15.)
49.

Using similar technology, comScore programmed OSSProxy to exclude certain

categories of websites from OSSProxy’s collection. (Bigbee Sept. 12, 2012 Dep. Tr. at 44:4–
46:17 (“Q: Give me an example of HTML information that OSSProxy would not capture. A:
Information from dot-edu sites, university sites; information from a personal Google mail contact,
we don’t collect that.”).)
50.

comScore also utilizes “fuzzification”—a proprietary method of (i) identifying

certain panelist-inputted data, (ii) “obfuscating”/“fuzzifying” it, and then (iii) delivering the
obfuscated/fuzzified value to comScore’s servers. (Brown Aug. 15, 2012 R. 30(b)(6) Dep. Tr. at
147:16–148:2; Bigbee Sept. 12, 2012 Dep. Tr. at 40:20–41:3 (“[Fuzzification is] a system that
we have in place to look for patterns in the data, to make sure that we either X out or hash any
data that we deem to be sensitive to the user.”); Transcript of December 14, 2012 Deposition of
Roberto Tamassia (“Tamassia Dep Tr.”), Ex. 16 at 51:14–52:4 (“Q: When you write in your
report that sensitive data is transformed through the obfuscation process, what do you mean by
transformed? A: What I mean is that there is a matter that takes as input data and could use as
output some other data; that is the transformation process . . . The software tries to identify the
presence of various types of sensitive data including Social Security numbers and credit card
numbers. And once they are discovered, the software either removes completely the data or
transforms it so that the new output data cannot be used to reconstruct the original data.”).)
51.

comScore considers OSSProxy’s “filtering” and “fuzzification” as separate and

distinct processes, and uses each to accomplish different goals. (Brown Aug. 15, 2012 R.

12

30(b)(6) Dep. Tr. at 219:13–16 (“Q: Filtering and fuzzifying are two different things? A: In my
opinion, filtering and fuzzifying are two different things.”), 214:9–19

Bigbee Nov. 20, 2013
Dep. Tr. at 54:5–21

.”); 66:12–23

) (emphasis added).)
52.

comScore uses OSSProxy’s “filtering” programming to identify and then exclude

data from OSSProxy’s collection that it doesn’t want to collect, such as in cases where the
filtered data is not a part of comScore’s business model. (Bigbee Sept. 12, 2012 Dep Tr. at 44:4–
14 (“Q: . . . Why would comScore not collect HTML page data information from dot-edu sites?
A: It’s not part of our business model to collect activities from universities . . . .”)

13

53.

comScore uses OSSProxy’s “fuzzification” programming to identify, obfuscate,

and then include data in OSSProxy’s collection that it does want to collect, such as in cases
where the identified data is part of comScore’ business model. (Brown Aug. 15, 2012 Dep. Tr. at
218:22–219:12 (“A: We collect fuzzified data because we don’t want to collect data that would
be harmful or identify who that panelist is, you know. The last thing we want to have is a list of
credit card numbers from panelists. That’s an exposure for the panelist and exposure for us. Q:
It’s important to filter the information? A: In this case, we’re not talking about filtering the
information, we’re talking about changing the information. . . we’re changing the information in
a one-way manner that’s not reversible; that is the goal of fuzzification.”); Tamassia Dep Tr. at
52:24–53:14 (“Q: My understanding of the way the comScore software works is that it uses
regular expressions to detect some certain information like a credit card or Social Security
number? A: Yes. Q: Then it collects that information and transforms it; those are your words? A:
Yes.), 53:5–54:3 (“. . . My understanding of the comScore business is that they’re the one to
provide aggregate statistical data to their customers about, for example, the use of certain credit
cards for transactions. So that’s one of the reasons that they will track credit card usage across
the economy, across the users of the software.”).) Transcript of October 25, 2012 Deposition of
Don Waldhalm (“Waldhalm Dep. Tr.”), Ex. 17 at 92:23–93:12

)

54.

14

Marchione Dep. Tr. at 30:24–31:19

”); Bigbee Nov. 20, 2013 Dep. Tr. at 118:24–
119:10

55.

(Bigbee Nov. 20, 2013 Dep. Tr. at 121:3–122:1;
CS0017688_Confidential--Attorney’s Eyes Only.pdf, Ex. 18; CS0076561_Confidential-Attorney’s Eyes Only.htm, Ex. 19.)
56.

). (Marchione Dep Tr. at 43:14–48:23

); Bigbee Sept. 12, 2012 Dep. Tr. at 110:12–111:18

15

”).)
57.

(Bigbee Nov. 20, 2013 Dep. Tr. at
121:3–122:1

.”).)
58.

(CS0081698_Confidential.htm, Ex. 20; CS0081713_Confidential.htm, Ex. 21.)
59.

16

(CS0081698_Confidential.htm.)
60.
.
(CS0081698_Confidential.htm.)
61.

(See CS0081698 Confidential.htm; Thomassen Decl. at ¶¶ 3-9.)
62.

(CS0081698_Confidential.htm; Thomassen Decl. at ¶¶ 7-9.)
Deleting/Modifying Personally Identifiable Profile Information
63.

Transcript of November 22, 2013 Deposition of Latoya Peterson-Renfrow

17

(“Renfrow Dep. Tr.”), Ex. 22 at 101:3–17; O’Toole Jan. 24, 2014 R. 30(b)(6) Dep. Tr. 123:21–
124:9

).)
Adherence to comScore’s Disclosed PII Practices
64.

comScore’s Director of Software Engineering, Steven Chase testified that,
Transcript of November 13, 2013 Deposition of

Steven Chase (“Chase Dep. Tr.”), Ex. 23 at 90:18–20
96:18–23

).)
65.

Michael Brown, comScore’s Chief Technology Officer, responsible for the source

code and technology that allows for fuzzification and testifying for comScore pursuant to Rule
30(b)(6),
. (Transcript of January 23, 2014 Rule 30(b)(6) Deposition of Michael Brown
(“Brown Jan. 23, 2014 R. 30(b)(6) Dep. Tr.”), Ex. 24 at 80:5–81:5.)
66.

Regarding the promise to “purge our database of [inadvertently collected

personally identifiable information],” see supra ¶ 39, comScore’s Deputy Privacy Officer
testified that

,”

(Weaver Dep. Tr. at 273:17–24), and several of comScore’s employees, including its Vice
President of Panel Operations, its Chief Research Officer, and its Senior Vice President of
Technology, testified that

18

. (O’Toole Nov. 21, 2013 Dep. Tr. at 118:12–23

.”); Chasin Dep. Tr. at 70:11–16, 86:4–9
(“Q: . . .
.”); Bigbee Nov. 20,
2013 Dep. Tr. at 27:22–28:1 (“Q
.”).)
comScore Alone Designed, Deployed, Maintained, and Operated OSSProxy
67.

comScore alone designed OSSProxy—neither TMRG, nor VoiceFive, nor any of

comScore’s subsidiaries, had any involvement in OSSProxy’s design or development. (Brown
Aug. 15, 2012 R. (30)(b)(6) Dep. Tr. at 71:21–74:22.)
68.

comScore’s subsidiaries have no ability to modify OSSProxy in any way, nor do

they have the ability to update OSSProxy. All updates of OSSProxy are designed and deployed
by comScore. (Id. at 112:9–114:12.)
69.

comScore alone deploys OSSProxy directly to panelists, regulates the

downloading of OSSProxy, validates that the terms of service have been accepted (i.e., after
users click past the Downloading Statement over the course of a bundle’s installation), installs
the software onto panelists’ computers, configures the software to operate properly on panelists’
computers, and maintains OSSProxy. (Id. at 77:13–79:10.)
70.

comScore directly monitors and collects information from its panelists—

information about panelists’ web browsing history and other Internet behavior is transmitted to
comScore’s servers, not to comScore’s subsidiaries. (Id. at 152:25–153:14.)

19

71.

Neither TMRG nor VoiceFive receive any panelist data from OSSProxy. (Id. at

75:25–76:12.)
72.
. (Id. at 157:8–12; Weaver Dep. Tr. 41:17–
23, 44:16–47:18.)
Panelists’ Relationship with Sponsors
73.

Emails sent to the email addresses presented in the ULA (i.e.

[e-mail] or [e-mail]),
. (Weaver
Dep. Tr. 247:7–17 (“

249:11–15
O’Toole Nov. 21, 2013 Dep. Tr. 104:10 – 106:3.)
74.

comScore has

(O’Toole Nov. 21,
2013 Dep. Tr. at 104:6–106:4

.”); O’Toole Jan. 24, 2014
R. 30(b)(6) Dep. Tr. at 60:13–61:3

20

CS0042536_Confidential--Attorney's Eyes Only.htm, Ex. 25
emphasis in original).)
75.

(CS0071631_Confidential--Attorney’s Eyes Only.htm, Ex. 26

Plaintiffs’ Experience with OSSProxy
76.

Plaintiff Mike Harris downloaded and installed a free software application that

was bundled with OSSProxy (branded as “PremierOpinion”) onto his Macintosh computer in
March of 2010. (Dkt. 169 at ¶ 64; Transcript of July 13, 2012 Deposition of Mike Harris (“Harris
July 13, 2012 Dep. Tr.”), Ex. 27 at 35:6–8, 41:9–14, 43:7–11.)
77.

Plaintiff Jeff Dunstan downloaded and installed freeware that was bundled with

OSSProxy (branded as “RelevantKnowledge”) in September of 2010, and paid $39.99 for a
program called PC Doctor to remove RelevantKnowledge from his computer. (Dkt. 169 at ¶ 67;
Transcript of November 19, 2013 Deposition of Jeff Dunstan (“Dunstan Nov. 19, 2013 Dep.
Tr.”), Ex. 28 at 14:21–25, 20:17–21:10.)

21

CERTIFICATE OF SERVICE
I, Rafey S. Balabanian, an attorney, hereby certify that on February 21, 2014, I served the
above and foregoing Plaintiffs Jeff Dunstan’s and Mike Harris’s Local Rule 56.1 Statement of
Undisputed Material Facts in Support of their Motion for Partial Summary Judgment 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.
s/ Rafey S. Balabanian

23