Dunstan et al v. comScore, Inc.

Filing 363

MOTION by Plaintiffs Jeff Dunstan, Mike Harris for settlement Plaintiffs' Motion for Final Approval of Class Action Settlement (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,
Plaintiffs,
v.

Case No. 1:11-cv-5807
Hon. James F. Holderman
Magistrate Judge Young B. Kim

COMSCORE, INC., a Delaware corporation,
Defendant.
PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

TABLE OF CONTENTS
I.

NATURE OF THE LITIGATION ...................................................................................2
A.
B.

II.

The Facts, the Law, and the Litigation History ..................................................2
The Mediations and the Settlement Agreement ..................................................5

TERMS OF THE SETTLEMENT ...................................................................................7
A.

Class Definition. ......................................................................................................7

B.

Class Member Payments. ........................................................................................7

C.

Prospective Relief. ...................................................................................................7

D.

Additional Relief. ....................................................................................................8
1.
2.

Incentive Award For Class Representatives............................................8

3.
E.

Payment of Notice and Settlement Administration Expenses................8

Payment of Attorneys’ Fees and Expenses ..............................................8

The Release. ............................................................................................................8

III.

THE IMPLEMENTED NOTICE PLAN COMPORTS WITH DUE PROCESS .......9

IV.

THE SETTLEMENT WARRANTS FINAL APPROVAL .........................................10
A.

The Strength of the Plaintiffs’ Case Compared to Settlement Weighs in
Favor of Granting Approval. ..............................................................................11

B.

The Likelihood of an Increase in the Complexity, Length, and Expense
of Continued Litigation Validates Final Approval of the Settlement. ............15

C.

There Has Been No Opposition to the Settlement.............................................15

D.

The Opinion of Competent Counsel Favors Approval. ....................................16

E.

The Stage of the Proceedings and the Amount of Discovery Completed
Weigh in Favor of Final Approval. ....................................................................17

F.

The Settlement Is Not a Product of Collusion and There Are No
“Red Flags” Present in the Settlement. ..............................................................18

i

TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES:
BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ......................................................................13
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)........................................................................9
State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ...........................................13
UNITED STATES CIRCUIT COURT OF APPEALS CASES:
Armstrong v. Bd. of Sch. Dirs. of City of Milwaukee, 616 F.2d 305 (7th Cir.1980)......................17
Burns v. Elrod, 757 F.2d 151 (7th Cir. 1985) ..................................................................................9
Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014) ........................................................12, 19, 20
Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998)...........................................................................17
Isby v. Bayh, 75 F.3d 1191 (7th Cir. 1996) ..............................................................................11, 18
Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) ...................................................................14
Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004) .......................................................9
Parker v. Time Warner Entm’t Co., L.P., 331 F.3d 13 (2d Cir. 2003) ..........................................13
Safeco Ins. Co. of Am. v. Am. Int’l Group, 710 F.3d 754 (7th Cir. 2013) .....................................11
Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646 (7th Cir. 2006) .....................11, 12
Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978 (7th Cir. 2002)............................11
UNITED STATES DISTRICT COURT CASES:
Am. Int’l. Group, Inc. v. ACE INA Holdings, Inc.,
No. 07-cv-2898, 2011 WL 3290302 (N.D. Ill. July 26, 2011) ..........................................18
Am. Int’l Group, Inc. v. ACE INA Holdings, Inc.,
No. 07-cv-2898, 2012 WL 651727 (N.D. Ill. Feb. 28, 2012) ..........................11, 12, 15, 18
Blanco v. CEC Entm’t Concepts L.P.,
No. 07-cv-0559, 2008 WL 239658 (C.D. Cal. Jan. 10, 2008) ...........................................14
Fraley v. Facebook, Inc., 966 F. Supp. 2d 939 (N.D. Cal. 2013) ............................................14, 20

ii

Hispanics United v. Vill. of Addison, 988 F. Supp. 1130 (N.D. Ill. 1997) ........................16, 17, 18
In re AT&T Mobility Wireless Data Servs. Sales Tax Litig.,
789 F. Supp. 2d 935 (N.D. Ill. 2011) ...............................................................11, 12, 15, 16
In re Facebook Privacy Litig., No. 10-cv-2389, Dkt. 69 (N.D. Cal. Dec. 10, 2010) ....................17
In re Google Buzz Privacy Litig.,
No. 10-cv-672, 2011 WL 7460099 (N.D. Cal. June 2, 2011) ......................................14, 20
In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002 (N.D. Ill. 2000) ..........................15, 16
In re Netflix Privacy Litig.,
No. 11-cv-379, 2013 WL 1120801 (N.D. Cal. Mar. 18, 2013) ...................................14, 20
In re Netflix Privacy Litig., No. 11-cv-379, Dkt. 59 at 5 (N.D. Cal. Aug. 12, 2011) ....................17
In re Sw. Airlines Voucher Litig.,
No. 11-cv-8176, 2013 WL 4510197 (N.D. Ill. Aug. 26, 2013) .........................................12
Mangone v. First USA Bank, 206 F.R.D. 222 (S.D. Ill. 2001) ........................................................9
Redman v. RadioShack Corp.,
No. 11-cv-06741, 2014 WL 497438 (N.D. Ill. Feb 7, 2014) ...................................9, 11, 17
Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560 (N.D. Ill. 2011)..........................................11, 16
RULES AND STATUTES:
815 ILCS 505 ...................................................................................................................................3
18 U.S.C. § 2701 ..........................................................................................................................3, 4
18 U.S.C. § 2511 ..........................................................................................................................3, 4
18 U.S.C. § 1030 ..........................................................................................................................3, 4
28 U.S.C. § 1404 ..............................................................................................................................5
Fed. R. Civ. P. 12 .........................................................................................................................4, 5
Fed. R. Civ. P. 23 ................................................................................................................... passim

iii

MISCELLANEOUS:
comScore, Inc. (SCOR), Wall Street Journal, http://quotes.wsj.com/SCOR ........................14 n. 11
Federal Judicial Center, Judges’ Class Action Notice and Claims Process
Checklist and Plain Language Guide (2010).............................................................................9, 10
R. LeCours, Note, Steeering Clear of the “Road to Nowhere”: Why the BMW Guideposts Should
Not be Used to Review Statutory Penalty Awards, 63 Rutgers L. Rev. 327 (2010) .............13 n. 10

iv

In accordance with the Court’s June 6, 2014 Order granting preliminary approval to the
Settlement1 reached in this case, (Dkt. 353), the Settlement Administrator and comScore have
effectuated the broad multi-part Notice Plan2 set forth in the Settlement Agreement, and the
deadline for opt-outs and objections has now passed. The reaction of the Settlement Class can
only be characterized as overwhelmingly positive: nearly ten thousand claims have been filed,
not a single Class Member objected to the Settlement, and only one has opted-out. Likewise, in
response to the Parties’ CAFA notice, no state Attorney General voiced an objection to the
Settlement.3
The Class’s favorable reaction is of little surprise given the strength of the Settlement. To
recap the relief, comScore agreed to establish a $14 million non-reversionary Settlement Fund,
from which Class Members’ claims, notice and administrative expenses, Court-awarded
attorneys’ fees, and an incentive award to the named Class Representatives will be paid. With
respect to the individual relief to claiming Class Members, it couldn’t be more simple and
straightforward to obtain, and the amount is meaningful. Indeed, by completing and submitting a
one-page claim form (either online or in hard-copy form), each Class Member will receive a cash
payment expected to be between $500 and $700—a remarkable result that far surpasses the
settlements reached in other consumer privacy class actions. Further, comScore has agreed to
modify its privacy policy and implement certain protocols to ensure that its privacy practices
1

All capitalized terms not defined herein shall have the meaning ascribed them in the Class Action
Settlement Agreement.
2
Consisting of direct notice by mail, email, and “web pop” notice to Class members still running
comScore’s software on their computers, the creation of a Settlement Website (which allowed Class
Members to view, complete, and file claim forms and review all relevant court documents), publication
notice in People, Parade, and Rolling Stones magazines, an online media campaign designed to deliver
152,500,000 Adult 18+ impressions, and CAFA notice to the relevant governmental agencies.
3
To be clear, by pointing out that no Attorneys General, state or federal, have filed objections to
the Settlement, Plaintiffs do not mean to imply that that is an endorsement of the Settlement in any way.
All that is meant by the statement is that no objections have been filed by the relevant governmental
agencies either.

1

remain consistent with its disclosures to consumers.
Given the exceptional results achieved, coupled with the overwhelmingly positive
response from the Class, there is no question that the settlement should be viewed as fair,
reasonable, and adequate, and that the Court’s decision to grant preliminary approval was the
right one. Ultimately, if the Court grants final approval, thousands of claiming class members
will receive between $500 and $700, comScore will change its practices, and the Parties will be
able to call an end to more than three years of hard-fought, expensive, and risky litigation. For
these reasons, and as discussed further below, Plaintiffs respectfully request that the Court grant
final approval of the Parties’ Settlement and dismiss all Released Claims with prejudice.4
I.

NATURE OF THE LITIGATION5
A.

The Facts, the Law, and the Litigation History

comScore is a leading online analytics company that monitors over a trillion online
interactions per month to offer its clients analysis and data regarding consumer behavior and
purchasing habits. (Dkt. 345 at 7.) comScore primarily collects that data by distributing
proprietary software known as OSSProxy to individual consumers (known as “panelists”),
typically by “bundling” OSSProxy with free software—such as screensavers, music programs,
games, and more—such that during the download and installation process for the bundled
software, consumers install OSSProxy as well. (Dkt. 329 at ¶¶ 15, 22 – 33.) Once installed,
OSSProxy monitors essentially all online activity performed on a panelist’s computer, including
websites viewed, items purchased, and information entered on webpages (including credit card
numbers, addresses, telephone numbers, bank account numbers, and full names). After collecting
4

Pursuant to the Court’s standing order, Plaintiffs will submit a proposed Final Judgment Order to
the Court. The proposed order also accounts for the relief requested in Plaintiffs’ previously filed Motion
for Approval of Attorneys’ Fees, Expenses, and Incentive Award. (Dkt. 358.)
5
A more detailed analysis of the nature of the litigation is available in Plaintiffs’ Motion for
Preliminary Approval. (See Dkt. 345 at 2 – 10.)

2

that information, OSSProxy then obfuscates personally identifiable information and sends the
data to comScore’s servers, where comScore uses it as a basis for its research and analysis. (Dkt.
169 at ¶¶ 5, 7.)
Plaintiffs Harris and Dunstan had OSSProxy installed on their computers after
downloading and installing software from comScore’s bundling partners. (Dkt. 345 at 8.) Each
alleges that OSSProxy was installed on their computers without their informed consent, and each
maintains that upon discovering OSSProxy on their computers, they made efforts to uninstall it.
(Id.) Consequently, on August 23, 2011, Plaintiffs filed their class action complaint against
comScore, asserting claims for violation of the SCA; the ECPA; the CFAA; the Illinois
Consumer Fraud Act (“ICFA”), 815 ILCS 505; and for unjust enrichment.6
The SCA, ECPA, and CFAA were all enacted to protect the privacy of computers,
electronic communications, and data. In relevant parts, the SCA prohibits any person or entity
from intentionally accessing, without or in excess of authority, a facility through which an
electronic communications service is provided, and thereby obtaining, altering, or preventing
authorized access to a wire or electronic communication held in electronic storage. 18 U.S.C.
§ 2701. Likewise, the ECPA prohibits the intentional interception of any wire, oral, or electronic
communication. 18 U.S.C. § 2511. And the relevant provisions of the CFAA prohibit anyone
from intentionally accessing a protected computer without (or in excess of) authorization and
obtaining information from it, and from knowingly causing the transmission of a program or
code to a protected computer without authorization and thereby causing damage.
After Plaintiffs filed their complaint, protracted and highly contentious litigation
followed. Initially, comScore filed a Motion to Dismiss or in the Alternative to Transfer, (Dkt.
6

After further litigation, Plaintiffs voluntarily dismissed their ICFA claims and the Court denied
class certification as to the unjust enrichment claim. As such, only the statutes underlying the class
claims—the SCA, ECPA, and CFAA—are explained herein.

3

12), arguing that while downloading OSSProxy, Plaintiffs had agreed to a forum selection clause
compelling them to litigate in Virginia. (Id.) After the Court denied that motion on October 7,
2011, comScore moved to dismiss pursuant to Federal Rules 12(b)(1) and 12(b)(6). (Dkt. 39.) In
response, Plaintiffs moved to strike that motion, asserting that Rule 12(g) prohibited comScore
from filing successive pre-answer Rule 12 motions, (Dkt. 43), and on November 15, 2011, the
Court denied comScore’s Motion to Dismiss and granted Plaintiffs’ Motion to Strike. (Dkt. 49.)
From there, comScore answered the Complaint and the Parties engaged in substantial
discovery regarding class certification issues, including numerous sets of written discovery,
motions to compel, extensive document production and review, and numerous depositions. (Dkt.
358-1 at ¶ 6.) In January 2013, at the close of the class discovery period, Plaintiffs moved for
class certification, (Dkts. 152 – 158), and filed their Second Amended Complaint, asserting
claims for violations of the SCA, ECPA, and CFAA, and for unjust enrichment. (Dkt. 169.)
After full briefing, the Court granted Plaintiffs’ motion in part and denied it in part,
certifying a Class of all individuals since 2005 who had comScore’s software installed via one of
comScore’s bundling partners, and a Subclass of all Class members who were not presented with
a functional hyperlink to the user license agreement (”ULA”) when installing comScore’s
software. (Dkt. 186 (“the Certification Order”).)7 The Certification Order also appointed
Plaintiffs as class representatives, Harris as a representative of the Subclass, and Plaintiffs’
counsel as Class Counsel. (Id.) Following the Certification Order, comScore petitioned the
Seventh Circuit Court of Appeals for leave to appeal pursuant to Fed. R. Civ. P. 23(f), and was
joined in its efforts by six amici curiae. See Harris v. comScore, Inc., No. 13-8007, Dkts. 1, 4, 9,

7

In the Certification Order, the Court also denied certification as to Plaintiffs’ unjust enrichment
claims. (Dkt. 186.)

4

10 (7th Cir.) (hereinafter “App. Dkt.”).8 Following full briefing, the Seventh Circuit denied
comScore’s Rule 23(f) petition. (Dkt. 199.)
Thereafter, the Parties proceeded with substantial and voluminous merits discovery. (Dkt.
358-1 at ¶ 6.) As with class discovery, the Parties exchanged tens of thousands of documents,
took numerous depositions, and briefed several motions to compel. (Id.) Near the end of merits
discovery, comScore renewed its motion to dismiss for improper venue, contending that
Plaintiffs and the Class had assented to a forum clause compelling them to litigate in Virginia.
(Dkts. 242, 243.) After briefing on that motion was complete, comScore—citing intervening
Supreme Court authority—sought and received leave to file a Motion to Transfer Under 28
U.S.C. § 1404(a), relying on the same forum clause from its Rule 12(b)(3) motion. (Dkt. 302.)
Following full briefing on that motion, Plaintiffs moved for partial summary judgment on the
authorization elements of, and consent defenses to, their claims under the SCA, ECPA, and
CFAA. (Dkts. 321, 323.)
B.

The Mediations and the Settlement Agreement

Settlement discussions in this case began in earnest in August 2013—shortly after the
Seventh Circuit denied comScore’s Rule 23(f) petition. (Dkt. 358-1 at ¶ 7.) On August 22, 2013,
the Parties engaged in a full-day mediation presided over by Rodney A. Max of the Upchurch
Watson White and Max Mediation Group. (Id. ¶ 8.) Despite the best efforts of the Parties and
Mr. Max—both during the in-person mediation and over several months of follow-up
discussions—the Parties were unable to reach a settlement and instead continued with merits
discovery. (Id. ¶ 6.)
Near the end of merits discovery, the Parties agreed to proceed with a settlement
8

Those amici were the Direct Marketing Association, the American Association of Advertising
Agencies, the Association of National Advertisers, the Entertainment Software Association, the
Interactive Advertising Bureau, and the Chamber of Commerce of the United States of America.

5

conference before Magistrate Judge Kim, which took place on November 25, 2013. (Id. ¶ 9.)
Though that conference did not lead to settlement, the Parties did feel they had made significant
progress, and therefore agreed to a second settlement conference with Magistrate Judge Kim,
which took place on December 16, 2013. (Id. ¶ 10) While that settlement conference did not
result in a settlement either, after additional discussions in the months following, Magistrate
Judge Kim made a mediator’s proposal providing for a $14 million non-reversionary common
fund. (Id. ¶ 11.) However, the Parties did not accept Magistrate Judge Kim’s proposal before its
expiration date, and the Magistrate terminated the referral on January 13, 2014. (Dkt. 308.)
After Magistrate Judge Kim exhausted his settlement efforts, the Parties continued to
litigate, culminating with the aforementioned motions to dismiss, to transfer, and for summary
judgment. (Dkts. 242, 302, 321.) Notwithstanding, throughout this time, the Parties continued
their settlement negotiations, and on March 19, 2014, they agreed to the terms of Magistrate
Judge Kim’s original mediator’s proposal—a settlement creating a non-reversionary $14 million
common fund. (Dkt. 358-1 at ¶ 13.) Over the following two months, the Parties negotiated the
remaining settlement terms, including prospective relief, class notice, the claims process, and
various other issues, and on May 30, 2014, the Parties and their counsel agreed to execute the
Settlement Agreement. (Id.)
On June 6, 2014, this Court granted preliminary approval to the Settlement, (Dkt. 353),
holding that the Settlement appeared to be fair, reasonable, and adequate, that it was negotiated
in good faith at arms-length, and that the proposed Notice Plan to the Class was appropriate and
provided due process of law to absent Class Members. (Id.) Pursuant to the Court’s Order
granting preliminary approval, notice was effectuated shortly thereafter. (See Declaration of
Stefanie C. Gardella Re: Notice Procedures (“Gardella Dec.”), Ex. A; Declaration of Thomas S.

6

Cushing (“Cushing Dec.”), Ex. B.)9
II.

TERMS OF THE SETTLEMENT
The terms of the Settlement preliminarily approved by the Court are set forth in the

Settlement Agreement (Ex. C), and briefly summarized as follows:
A.

Class Definition. “All individuals who, at any time since 2005, had comScore’s

Data Collection Software downloaded and installed on their computers via a bundling partner,
and used their computer in interstate commerce and/or communication.” (Dkt. 353 at 2; Ex. C at
¶ 1.43.)
B.

Class Member Payments. The Settlement provides for the establishment of a

$14,000,000.00 Settlement Fund, from which each Class Member who submits a valid Claim
Form shall be entitled to a pro rata share of the money remaining in the Settlement Fund after
payment of all Settlement Administration Expenses, incentive awards to the Class
Representatives, and the Fee Award to Class Counsel. (Ex. C at §§ 2.1 – 2.2(a).) The pro rata
share shall not exceed the statutory damages available under the SCA ($1,000) and the ECPA
($10,000). (Id. § 2.2(a).) Based on the current claims rate and that which is to be expected before
expiration of the Claims Deadline, Plaintiffs estimate that each Class Member who submits a
valid Claim Form will receive between $500 and $700 (assuming full attorneys’ fees are
awarded by the Court). (Balabanian Decl. at ¶ 4.)
C.

Prospective Relief. comScore has also agreed to modify the terms of its

“Disclosure Statement” and “User License Agreement” to make them consistent with its data
collection practices, and to accurately disclose and identify (a) the categories of information
collected by OSSProxy and (b) each company collecting such information. (Ex. C at § 2.3(a).)
9

Throughout this motion, all references to exhibits (i.e., “Ex. A”) refer to the exhibits attached to
the Declaration of Rafey S. Balabanian, filed contemporaneously herewith.

7

Further, comScore has agreed to implement systems and procedures to ensure that its third-party
bundling partners include a functional and conspicuous hyperlink to the ULA in each Disclosure
Statement, and to establish a mechanism for individuals to receive easily understood instructions
for removing OSSProxy from their computers. (Id. §§ 2.3(b), (c).) Finally, comScore has agreed
to continue its practice of engaging an independent third party to perform semi-annual privacy
audits, and to expand the scope of those audits to ensure compliance with the Settlement’s
prospective relief provisions. (Id. § 2.3(d).) The costs of those audits, up to a total of
$100,000.00, are to be paid from the Settlement Fund. (Id.)
D.

Additional Relief. In addition to the individual monetary payments and the

prospective relief discussed above, comScore has also agreed to provide the following relief:
1.

Payment of Notice and Settlement Administration Expenses:

comScore has agreed to pay from the Settlement Fund the costs of effectuating the Courtapproved Notice Plan, as well as all expenses incurred by the Settlement Administrator in
processing and paying valid claims and otherwise administering the Settlement. (See id. at
§ 1.41.)
2.

Incentive Award for Class Representatives: comScore has agreed,

subject to Court approval, to pay Plaintiffs Harris and Dunstan an incentive award of $11,000
each, in addition to any money they will receive as claiming Class Members through the
Settlement Agreement. (Id. at § 8.3.)
3.

Payment of Attorneys’ Fees and Expenses: comScore has agreed,

subject to Court approval, to pay Class Counsel reasonable attorneys’ fees and to reimburse
expenses in this Action. On August 20, 2014, Plaintiffs submitted their Motion for Approval of
Attorneys’ Fees, Expenses, and Incentive Award, requesting attorneys’ fees in the amount of

8

$4,662,000 and reimbursement of expenses in the amount of $101,069.13. (Dkt. 358.)
E.

The Release. Should the Court grant final approval to the Settlement Agreement,

comScore and each of its affiliated and/or related entities will receive a full release of all claims
related to the alleged monitoring and collection of data from Class Members’ computers using
OSSProxy. (Ex. C at § 3.)
III.

THE IMPLEMENTED NOTICE PLAN COMPORTS WITH DUE PROCESS
Prior to granting final approval to this Settlement, the Court must first consider whether

the Notice to the Settlement Class is “the best notice that is practicable under the circumstances,
including individual notice to all members who can be identified through reasonable effort.” Fed.
R. Civ. P. 23(c)(2)(B); accord Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974); Redman
v. RadioShack Corp., No. 11-cv-06741, 2014 WL 497438, *2 (N.D. Ill. Feb 7, 2014). The “best
notice practicable” does not require receipt of actual notice by all class members in order to
comport with both Rule 23 and the requirements of due process however. Rather, “notice should
be mailed to the last known addresses of those who can be identified and publication used to
notify [the] others.” Mangone v. First USA Bank, 206 F.R.D. 222, 231 – 32 (S.D. Ill. 2001)
(internal citations omitted); see also Burns v. Elrod, 757 F.2d 151, 154 (7th Cir. 1985) (noting
that “Rule 23 does not require defendants to exhaust every conceivable method of
identification”). Publication notice is also not limited to print media—the “World Wide Web is
an increasingly important method of communication, and . . . an increasingly important
substitute for newspapers.” Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 786 (7th Cir. 2004).
The Federal Judicial Center has concluded that a notice plan that reaches at least 70% of the
class is reasonable. Federal Judicial Center, Judges’ Class Action Notice and Claims Process
Checklist and Plain Language Guide (2010), at 3.

9

The multipart Notice Plan approved by the Court has been fully carried out by
professional settlement administrator Kurtzman Carson Consultants, LLC (“KCC”) and
comScore, and consisted of direct mail and email notice; the use of direct “web pop”
notifications to provide some 510,737 Class Members currently running OSSProxy on their
computers with summary notice of the Settlement (including an active hyperlink to the
Settlement Website); an online media campaign including internet banner ads designed to deliver
152,500,000 Adult 18+ impressions; publication of half-page advertisements in People and
Rolling Stone magazines, and two-fifths page advertisements in Parade magazine; the
establishment of a Settlement Website that provided the Notice, important Court documents, and
the ability to download and file Claim Forms online; as well as notice to the U.S. and state
Attorneys General as required by the Class Action Fairness Act, 28 U.S.C. § 1715. (See Gardella
Dec. at ¶¶ 5 – 20; Cushing Dec. at ¶¶ 3 – 5.) Through the individual notices (i.e., mail, email, and
“web pop” notices) together with the online and print media campaigns, notice was disseminated
to more than 74.1% of the Class. (Gardella Dec. at ¶ 21; Cushing Dec. at ¶ 5.)
All of the notices directed Class Members to the Court-approved “long form” notice that
was posted on www.DataCollectionSettlement.net. (Gardella Dec. at ¶ 11.) Through this website,
Class Members were able to file claims online, print claim forms to be mailed to KCC, and
review documents filed with the Court in this case. (Id.) Since going “live,” there have been
487,295 visitors to the website. (Id.) As the Notice Plan reached over 74.1% of the Class, it fully
satisfies Rule 23 and due process. See Federal Judicial Center, Judges’ Class Action Notice and
Claims Process Checklist and Plain Language Guide (2010), at 3.
IV.

THE SETTLEMENT WARRANTS FINAL APPROVAL
Federal Rule of Civil Procedure 23(e) mandates that “claims, issues, or defenses of a

10

certified class may be settled . . . only with the court’s approval . . . after a hearing and finding
that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e); Am. Int’l Group, Inc. v. ACE INA
Holdings, Inc., 07 CV 2898, 2012 WL 651727, *1 (N.D. Ill. Feb. 28, 2012), appeal dismissed
Safeco Ins. Co. of Am. v. Am. Int’l Group, 710 F.3d 754 (7th Cir. 2013). Even still, “[f]ederal
courts naturally favor the settlement of class action litigation.” Schulte v. Fifth Third Bank, 805
F. Supp. 2d 560, 578 (N.D. Ill. 2011) (citing Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996)).
Given this predisposition towards favoring settlements, the Court’s inquiry as to whether to grant
approval “is limited to [the consideration of] whether the proposed settlement is lawful, fair,
reasonable and adequate,” Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 986
(7th Cir. 2002), and the “court should not substitute its own judgment as to the best outcomes for
the litigants and their counsel.” Redman, 2014 WL 497438, *3.
There is a five-factor analysis that must be employed by the district court to consider the
overall fairness of the settlement:
[1] the strength of plaintiffs’ case compared to the amount of defendants’
settlement offer, [2] an assessment of the likely complexity, length and expense of
the litigation, [3] an evaluation of the amount of opposition to settlement among
affected parties, [4] the opinion of competent counsel, and [5] the stage of the
proceedings and amount of discovery completed at the time of settlement.
Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006) (internal
citations omitted); accord In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F.
Supp. 2d 935, 958 (N.D. Ill. 2011). Each factor here militates in favor of final approval.
A.

The Strength of Plaintiffs’ Case Compared to Settlement Weighs in Favor of
Granting Approval.

“The most important factor relevant to the fairness of a class action settlement is the first
one listed: the strength of plaintiffs’ case on the merits balanced against the amount offered in
the settlement.” Synfuel, 463 F.3d at 653; Redman, 2014 WL 497438, *3. The strength of a

11

plaintiff’s case can be quantified by examining “the net expected value of continued litigation to
the class” and then estimating “the range of possible outcomes and ascrib[ing] a probability to
each point on the range.” Am. Int’l Group, Inc., 2012 WL 651727, *2 (quoting Synfuel, 463 F.3d
at 653); see also Eubank v. Pella Corp., 753 F.3d 718, 727 (7th Cir. 2014) (finding district court
should “estimate the likely outcome of a trial “in order to evaluate the adequacy of the
settlement”). However, “the Seventh Circuit recognizes that a high degree of precision cannot be
expected in these calculations” and “[i]nstead, courts are to provide a ballpark valuation of the
class’s claims.” Am. Int’l Group, Inc., 2012 WL 651727, *2. (internal quotations omitted). “In
considering the strength of plaintiffs’ case, legal uncertainties at the time of settlement favor
approval.” In re Sw. Airlines Voucher Litig., No. 11-cv-8176, 2013 WL 4510197, *7 (N.D. Ill.
Aug. 26, 2013). Finally, “[b]ecause the essence of settlement is compromise courts should not
reject a settlement solely because it does not provide a complete victory to the plaintiffs.” In re
AT&T Mobility, 270 F.R.D. at 347 (internal quotations omitted).
While Plaintiffs here are confident in their claims, they recognized that further litigation
would carry substantial risks. Not only is comScore represented by highly experienced attorneys
from one of the world’s pre-eminent law firms, it has made clear that in the absence of a
settlement, it would assert vigorous defenses on summary judgment and at trial, and would move
to de-certify the class. (Dkt. 345-1 at ¶ 11.) Among the defenses comScore would assert are
traditional merits defenses such as consent (which comScore has always maintained that each
Class Member provided), as well as more complex defenses such as whether Plaintiffs can
satisfy the “facility” and “electronic communication service” elements of their SCA claims, the
“interception” and “electronic communication” elements of their ECPA claims, and the
minimum damages requirement of their CFAA claims. (Id.). While some of these defenses could

12

be resolved on summary judgment, many (if not most) could only be resolved through a
complex, risky, and expensive trial. (See Dkt. 323 (seeking summary judgment solely on issues
of authorization and consent); Dkt. 345-1 at ¶ 12.) Although Plaintiffs are confident that they
would ultimately prevail at trial, these are issues of first impression, making the chances of doing
so something like a coin flip. (Balabanian Decl. at ¶¶ 5 – 6.) And assuming they prevailed at
trial, Plaintiffs recognize that comScore would certainly appeal the merits of any adverse
decision, and that in light of the massive aggregated statutory damages available to the Class,
any such recovery, beyond the impossibility of collection, would likely be reduced judicially.10
(Id.) The Supreme Court has yet to rule on the constitutionality of disproportionate federal
statutory damage awards, but appellate courts have observed that “the potential for a
devastatingly large damages award, out of all reasonable proportion to the actual harm suffered
by members of the plaintiff class, may raise due process issues.” Parker v. Time Warner Entm’t
Co., L.P., 331 F.3d 13, 22 (2d Cir. 2003). The Second Circuit explained that such issues arise:
from the effects of combining a statutory scheme that imposes minimum statutory
damages awards on a per-consumer basis … with the class action mechanism that
aggregates many claims-often because there would otherwise be no incentive to
bring an individual claim. Such a combination may expand the potential statutory
damages so far beyond the actual damages suffered that … the due process clause
might be invoked, not to prevent certification, but to nullify that effect and reduce
the aggregate damage award.
Id. (citing State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW, 517 U.S.
at 580)). Even more, concerns about disproportionately large statutory damage awards are
10

Though Plaintiffs maintain that the sheer size of a statutory damages award cannot render it
unconstitutional—see generally R. LeCours, Note, Steeering Clear of the “Road to Nowhere”: Why the
BMW Guideposts Should Not be Used to Review Statutory Penalty Awards, 63 Rutgers L. Rev. 327
(2010); see also Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 443 (2001) (“I
continue to believe that the Constitution does not constrain the size of punitive damages awards”)
(Thomas, J., concurring) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 599 (1996) (Scalia, J., joined
by Thomas, J., dissenting))—they acknowledge the likelihood that if they obtained a judgment on the
merits and the maximum statutory damage award of approximately $110 billion, in all reality, the Court
could reduce the award using remittitur or find the award unconstitutionally excessive.

13

heightened where a statutory award would be annihilative to the defendant. In Blanco v. CEC
Entm’t Concepts L.P., No. 07-cv-0559 GPS, 2008 WL 239658 (C.D. Cal. Jan. 10, 2008), for
example, the court pointed out that statutory damages ranging from $200 million to $2 billion
“would completely swallow [defendant’s] net income last year of $68,257,000 [and] would be
grossly disproportionate to the harm [alleged].” Id. at *2.
Here, in comparison, a theoretical $110 billion statutory damage award is more than fifty
times the highest potential award in Blanco, and is even further out of proportion relative to
comScore’s 2014 net loss of $2.3 million. (See comScore, Inc., Annual Report (Form 10-K)
(Feb. 18, 2014). Facing a massive statutory award of approximately $110 billion—more than
eighty times comScore’s current market capitalization11—the Court would, in all likelihood,
reduce the award to a more manageable number.
In light of these many issues still facing them, Plaintiffs view the $14 million nonreversionary Settlement Fund—with the $500 to $700 per claimant payment—as well as the
prospective relief offered by the Settlement, to be an extraordinary result for the Class, especially
when compared to other privacy class action settlements, which have typically resulted in cy pres
donations or, at most, de minimis recoveries for claimants. See, e.g., In re Netflix Privacy Litig.,
No. 11-cv-379, 2013 WL 1120801 (N.D. Cal. Mar. 18, 2013) (granting final approval to $9
million, cy pres-only settlement); Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012)
(affirming final approval of $9.5 million, cy pres-only settlement); In re Google Buzz Privacy
Litig., No. 10-cv-672, 2011 WL 7460099 (N.D. Cal. June 2, 2011) (granting final approval to
$8.5 million, cy pres-only settlement); Fraley v. Facebook, Inc., 966 F. Supp. 2d 939 (N.D. Cal.
2013) (granting final approval of $20 million settlement providing recovery of $15 per claimant).
11

See comScore, Inc. (SCOR), Wall Street Journal, http://quotes.wsj.com/SCOR (last accessed Sept.
16, 2014).

14

Thus, given the substantial risks, expense, and delay that would accompany further
litigation, and in comparison to other privacy class action settlements, the Settlement offers
substantial value relative to the strength of Plaintiffs’ case. The first—and most important—
Synfuel factor strongly supports final approval.
B.

The Likelihood of an Increase in the Complexity, Length, and Expense of
Continued Litigation Validates Final Approval of the Settlement.

Final approval of a settlement is favored in cases like this one, where “continued
litigation would require resolution of complex issues at considerable expense and would absorb
many days of trial time.” In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, 1019 (N.D.
Ill. 2000). There can be no doubt that continued litigation in this case would result in the Parties
incurring further, substantial expenses, including the costs of further expert discovery and
testimony, and further briefing. And should the case proceed to trial, evidence and witnesses
from across the country would have to be convened, adding additional expense to the litigation.
See In re AT&T, 789 F. Supp. 2d at 964 (recognizing that where a complex class action survives
the summary judgment stage, it leads to “lengthy and expensive” trial); (Balabanian Decl. at ¶ 5.)
Given the amount of potential statutory damages at issue and the lack of Seventh Circuit
guidance on several of the relevant issues in dispute, the defeated party would certainly appeal an
unfavorable judgment, resulting in greater expenses and a further delay of the final resolution of
this case. Therefore, this factor weighs in favor of finally approving the Settlement also.
C.

There Has Been No Opposition to the Settlement.

Where a settlement has garnered few or no objectors, courts should view this as further
proof that the settlement is fair and reasonable and that class members consider the settlement to
be in their best interest. Am. Int’l Group, 2012 WL 651727, at *1. In those cases where there
have been no objectors, or very few in comparison to the total number of class members, courts

15

have considered this to be “strong circumstantial evidence favoring settlement.” See In re Mexico
Money Transfer Litig., 164 F. Supp. 2d at 1020 – 21 (finding that a settlement where “99.9% of
class members have neither opted out nor filed objections . . . is strong circumstantial evidence in
favor of the settlements”); In re AT&T Mobility, 789 F. Supp. 2d at 964 – 65 (“[I]t is illuminative
that only a tiny fraction of the Class Members saw fit to opt out or to object.”).
Here, not a single one of the roughly 10 million Class Members objected, and only one
Class Member opted out of the Settlement. (Gardella Dec. at ¶¶ 23, 24.) Further, since the Court
granted preliminary approval to the Settlement, and in furtherance of their obligations to the
Class, attorneys and staff at Edelson PC spoke with hundreds of Class Members about the
Settlement in exercise of their obligation to the Class. (Balabanian Decl. at ¶ 8.) These Class
Members expressed nearly uniform approval of the Settlement, and not a single one (nor any of
the other 10 million Class Members) saw fit to object. (Id.) This complete absence of objections,
coupled with the positive responses to the Settlement and the presence of only a single exclusion
request demonstrates the soundness of the Court’s preliminary approval of the Settlement, and
that final approval should be granted as well.
D.

The Opinion of Competent Counsel Favors Approval.

“The opinion of competent counsel is relevant to the question whether a settlement is fair,
reasonable, and adequate under Rule 23.” Schulte, 805 F. Supp. 2d at 586. This is especially true
where Class Counsel are qualified, where discovery and settlement negotiations are extensive
and thorough, and where there is no indication of collusion. Id.; see also Hispanics United v.
Vill. of Addison, 988 F. Supp. 1130, 1150 n. 6 (N.D. Ill. 1997) (noting that a “strong initial
presumption of fairness attaches” where the settlement is “the result of arm’s length
negotiations,” and where plaintiff’s counsel are “experienced and have engaged in adequate
discovery”). Further, “the absence of collusion, as evidenced by the time spent in arms-length
16

negotiations under the supervision of this Court . . . weighs in favor of final approval.” Redman,
2014 WL 497438, *6; Hispanics United., 988 F. Supp. at 1169 (finding Court’s participation in
settlement conferences demonstrated an absence of collusion).
Here, Class Counsel are recognized as “pioneers in the electronic privacy class action
field, having litigated some of the largest consumer class actions in the country on the issue.” In
re Facebook Privacy Litig., No. 10-cv-2389, Dkt. 69 at 5 (N.D. Cal. Dec. 10, 2010); see also In
re Netflix Privacy Litig., No. 11-cv-379, Dkt. 59 at 5 (N.D. Cal. Aug. 12, 2011) (appointing firm
as sole lead counsel due, in part, to its “significant and particularly specialized expertise in
electronic privacy litigation and class actions[.]”).) That substantial and particularized experience
has allowed Class Counsel to accurately weigh the merits of the Class’s claims along with the
risks and potential rewards of further litigation as compared to settlement. Further, as this
settlement was reached only after multiple settlement conferences, including through private
mediation and then with Magistrate Judge Kim, and the Parties’ eventual acceptance of
Magistrate Judge Kim’s mediator’s proposal, there isn’t even a hint of collusion that could attach
to the process. In the end, Class Counsel believes that this substantial and landmark recovery for
the Class is preferable to further protracted litigation and the risk of obtaining nothing for the
Class should any one of comScore’s defenses succeed. Thus, the opinion of Class Counsel favors
final approval.
E.

The Stage of the Proceedings and the Amount of Discovery Completed
Weigh in Favor of Final Approval.

The fifth factor concerning the stage of the proceedings is relevant because it determines
“how fully the district court and counsel are able to evaluate the merits of plaintiffs’ claims.”
Armstrong v. Bd. of Sch. Dirs. of City of Milwaukee, 616 F.2d 305, 325 (7th Cir.1980), overruled
on other grounds by Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998). This factor is satisfied

17

where “discovery and investigation conducted by class counsel prior to entering into settlement
negotiations was extensive and thorough,” Isby, 75 F.3d at 1200, and is clearly satisfied in cases
such as this where there has been “massive discovery, various legal and evidentiary pretrial
rulings . . . briefing on a motion for partial summary judgment,” certification of an adversarial
class, and the case was headed for trial. See Hispanics United, 988 F. Supp. at 1171.
Here, the fact that discovery was substantially complete strongly supports final approval
of the Settlement. In fact, the only discovery left to complete prior to settlement was expert
discovery on the merits. (See Dkt. 215.) The Parties had completed fact and expert discovery
regarding class issues, as well as extensive fact discovery regarding the merits. (Dkt. 345-1 at
Decl. ¶¶ 2, 4.) Frankly, there was no more information for either Party to obtain; the Parties
simply were going to offer expert interpretations of existing information. As such, Plaintiffs were
fully informed of the relevant facts prior to the Settlement, and were able to negotiate a
Settlement that not only offered landmark relief for a privacy class action settlement, but also
compared favorably to the expected recovery going forward.
Ultimately, “extensive discovery has undisputedly been completed, and the court has
been presented with volumes of argument, declarations, and exhibits.” Am. Int’l. Group, Inc. v.
ACE INA Holdings, Inc., No. 07-cv-2898, 2011 WL 3290302, *8 (N.D. Ill. July 26, 2011). (See
also Dkt. 104, 104-1 – 104-9; Dkt. 156, 156-1 – 156-20; Dkt. 178, 178-1 – 178-23; Dkts. 245,
246, 246-1 – 246-23; Dkt. 323, 325, 325-1 – 325-32.) “Thus, it is impossible to say that the court
and the parties are unable to evaluate the merits of this case,” Am. Int’l. Group., Inc., 2011 WL
3290302, at *8, and the “extent of discovery” factor thus favors final approval. With this final
Synfuel factor satisfied, the result supports a finding that the Settlement is fair, reasonable, and
adequate, and deserving of this Court’s final approval.

18

F.

The Settlement Is Not a Product of Collusion and There Are No “Red Flags”
Present in the Settlement.

Finally, the Court should not hesitate to grant the Settlement final approval to the
Settlement because it raises none of the “red flags” identified by the Seventh Circuit and other
Courts in analyzing class settlements. In Eubank, the Seventh Circuit identified five potential
indicators of a flawed settlement, none of which are present here. These included (i) the failure to
properly establish the size of the fund and the total class recovery, (ii) the reversion of
unawarded attorneys’ fees to the defendant, (iii) substantial alterations to existing class
definitions, (iv) the use of coupons, rather than cash payments, for class compensation, and (v)
overly complicated claim forms. See Eubank, 753 F.3d at 723 – 29. Simply put, this Settlement
does not raise those red flags, demonstrating that final approval is entirely appropriate.
Unlike the Eubank settlement, the Court here knows exactly how much money will be
available to the Class under the Settlement: $14,000,000 minus payment of all Settlement
Administration Expenses, incentive awards to the Class Representatives, and the Fee Award to
Class Counsel. (Ex. C at § 1.45.) And while the exact pro rata recovery available to claiming
class members is not yet finally determined, based on the claims rates to date, Class Counsel
estimates that each claimant will recover between $500 and $700. (Balabanian Decl. at ¶ 4.)
Thus, unlike Eubank, the Court knows how much the Class will recover in the aggregate
($7,725,800), and approximately how much individual claimants will recover ($500 – $700).
The same goes for the remaining red flags identified in Eubank. Should the Court decide
not to award the full attorneys’ fees sought by Class Counsel, the remainder will not revert to
defendant (as it did in Eubank), but rather will remain in the Settlement Fund to be disbursed
among claiming Class Members. (Ex. C at § 1.45.) Nor does the change in class definition call
into question the propriety of certification as it did in Eubank. There, the Seventh Circuit

19

recognized adversity among the certified subclasses, thus rendering the settlement’s provision of
a single, unified class improper. Eubank, 753 F.3d at 821. Here, however, the Class Members’
claims are materially indistinguishable from each other. As a result, there are no competing
groups within the class, and none of the diametrically opposed interests that rendered the
certification of a single, undivided class inappropriate in Eubank. Id.
And finally, unlike the Eubank settlement, which sought to provide only coupon
payments to some class members through exceedingly long and difficult claim forms, Eubank,
753 F.3d at 725, the instant Settlement will provide each claiming Class Member with a
substantial recovery—between $500 and $700 cash—through submission of a simple, one-page
Claim Form either by mail or online through the Settlement Website. (Dkt. 345-2 at 41.)
Therefore, given the absence of any red flags or opposition to the Settlement, the Court should
grant final approval to the Settlement, and effectuate the relief to the Class Members.
————————————
As established above, each of the factors considered at this stage strongly supports final
approval, and the Settlement raises no “red flags” or evidence of collusion or self-dealing. And
beyond that, the Settlement offers relief far beyond that traditionally provided by privacy class
action settlements. See, e.g., In re Netflix Privacy Litig., 2013 WL 1120801 ($9 million, cy presonly settlement); Lane, 696 F.3d 811 ($9.5 million, cy pres-only settlement); In re Google Buzz
Privacy Litig., 2011 WL 7460099 ($8.5 million, cy pres-only settlement); Fraley, 966 F. Supp.
2d 939 ($20 million settlement providing recovery of $15 per claimant).
Accordingly, Plaintiffs respectfully request that the Court grant final approval to the
Settlement and dismiss all Released Claims with prejudice.

20

Dated: September 17, 2014

Respectfully submitted,
MIKE HARRIS and JEFF DUNSTAN,
individually and on behalf of a class of
similarly situated individuals,
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]
Attorneys for Plaintiffs and the Class

21

CERTIFICATE OF SERVICE
I, J. Dominick Larry, an attorney, hereby certify that on September 17, 2014, I served the
above and foregoing Plaintiffs’ Motion for Final Approval of Class Action Settlement, 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/ J. Dominick Larry

22