Dunstan et al v. comScore, Inc.

Filing 59

ANSWER to Complaint with Jury Demand by comScore, Inc.(Stack, Paul)

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.
comScore, INC., a Delaware corporation,

Defendant.

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No. 11 C 5807
Judge James F. Holderman
Magistrate Judge Nan Nolan

ANSWER AND JURY DEMAND
Now comes comScore, Inc., Defendant herein (“comScore”), by its attorneys MICHAEL
G. RHODES and PAUL F. STACK, and in answer to the Complaint herein, states as follows:
INTRODUCTION
1.

comScore designs, distributes, and deploys its data collection software in a

deceptive and calculated fashion to unlawfully monitor the most personal online movements of
millions of consumers without their knowledge.
ANSWER: comScore denies the allegations contained in paragraph 1 of the Complaint
and each of them. Answering further, comScore affirmatively states that it is a leading Internet
market research company that designs and distributes software to measure the online activity of
Internet users (“Panelists”) who volunteer to join a comScore market research panel in exchange
for various benefits. comScore specifically denies that its business practices are “deceptive” or
are implemented “without the[] knowledge” of its Panelists, for the reasons set forth in response
to Paragraph 12 of the Complaint, below.
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2.

comScore provides high profile clients such as the Wall Street Journal, the New York

Times, and Fox News with detailed data that it collects from millions of consumers online
(hereinafter referred to as "monitored consumers"). These clients pay enormous fees for access to
comScore's highly valuable and comprehensive store of information about consumers.
ANSWER: comScore admits that it measures certain online activity of its Panelists.
comScore further admits that its clients have included companies like the Wall Street Journal, the
New York Times, and Fox News, which use the information for their ordinary business
purposes. comScore denies that any client of comScore’s syndicated services, like the clients
called out in this paragraph, was provided with any detailed data that comScore had collected
from its Panelists, as those clients are only provided aggregated data (i.e., comScore would
disclose, for example, that in December, four million people went to www.anydomain.com, and
has never and would never disclose that on December 18, a specific Panelist went to
www.anydomain.com). Except as expressly admitted herein, comScore denies the remaining
allegations of paragraph 2 of the Complaint and each of them.
3.

comScore asserts that its data provides insight into the purchasing habits, market trends,

and other online behavior of consumers. In order to gather such extensive data, comScore relies
upon a large pool of consumers with comScore's software operating on their computers:
"[C]entral to most comScore services is the comScore panel, the largest continuously measured
consumer panel of its kind. With approximately 2 million worldwide consumers under
continuous measurement, the comScore panel utilizes a sophisticated methodology that is
designed to accurately measure people and their behavior in the digital environment."
ANSWER: comScore admits that its data provides insight into the purchasing habits,
market trends, and other online behavior of Panelists. comScore further admits that in order to
gather such data, comScore relies on a pool of Internet users who voluntarily install comScore’s
software on their computers and thereby become Panelists. comScore further admits that the
quoted text within the second sentence appeared on certain comScore web pages at certain times.
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Answering further, plaintiffs set forth various statements in footnotes to their Complaint contrary
to Rule 10(b) of the Federal Rules of Civil Procedure which requires that “all averments of claim
. . . shall be made in numbered paragraphs . . . .” (Emphasis added). Since the statements in the
footnotes do not appear in numbered paragraphs, they are mere surplusage and should be
stricken.
4.

As one of the biggest players in the Internet research industry, statistics gleaned from

comScore's consumer data are featured in major media outlets on a daily basis. However, what
lies beneath comScore's data gathering techniques is far more sinister and shocking to all but the
few who fully understand its business practices. Namely, comScore has developed highly
intrusive and robust data collection software known by such names as RelevantKnowledge,
OpinionSpy, Premier Opinion, OpinionSquare, PermissionResearch, and MarketScore
(hereinafter collectively referred to in the singular as "Surveillance Software") to surreptitiously
siphon exorbitant amounts of sensitive and personal data from consumers' computers. Through
subsidiaries bearing innocuous names, comScore uses deceitful tactics to disseminate its
software and thereby gain constant monitoring access to millions of hapless consumers'
computers and networks.
ANSWER: comScore admits that the media has featured some of its reports, which are
based on data gathered from Panelists that have been weighted and aggregated to form a
releasable product. comScore further admits that it has developed software which has been
branded with names including RelevantKnowledge, Premier Opinion, OpinionSquare,
PermissionResearch, and MarketScore (although not all of these brands currently exist), each of
which is designed to collect information about the online activity of Internet users who volunteer
to be Panelists. comScore denies that its software has been designed to collect sensitive or
personal data, as the current software has actually been designed to automatically filter out these
types of data (including credit card numbers, social security numbers, account numbers, User
IDs, and passwords), so that such information is not transmitted to comScore. comScore admits
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that it does have subsidiaries, but denies the use of deceitful tactics to disseminate its software.
Plaintiffs use the term “Surveillance Software” to describe comScore’s proprietary software.
comScore affirmatively states that this term is both pejorative and false and comScore denies the
accuracy of the term when it appears in passim in the Complaint. Except as expressly admitted
herein, comScore denies the allegations of paragraph 4 of the Complaint and each of them.
5.

comScore's sophisticated computer applications monitor every action conducted by users.

This data is sent to comScore's servers, and then organized and sold to Defendant's clients.
ANSWER: comScore denies the allegations of paragraph 5 of the Complaint and each
of them. comScore affirmatively states that its software measures certain limited information
regarding the online activity of its Panelists. comScore further acknowledges that some of this
limited information is sent to comScore’s servers and is then aggregated for analysis. comScore
admits that its syndicated clients pay for access to this aggregated data. comScore specifically
denies that it monitors “every action” conducted by its Panelists.
6.

To extract this data, comScore's Surveillance Software injects code into the user's web

browser to monitor everything viewed, clicked, or inputted online. In addition, the software
opens ports, modifies the consumer's firewall, and places "root certificates” on the affected
computer to ensure unimpeded access.
ANSWER: comScore admits that when a Panelist voluntarily installs the comScore
software, it works with the Panelist’s web browser (e.g., Internet Explorer, Firefox) to measure
certain of the Panelist’s online activity. comScore admits that certain versions of its software can
make modifications to the Windows Firewall that was introduced with XP Service Pack 2, and
further states that any such modifications are done in accordance with publically available
Windows documentation and, to comScore’s knowledge, comply with the purpose of, or are
consistent with, this feature as provided by the Windows operating system. comScore admits
that its software, like any other Internet enabled software, connects to a port on a web server.
comScore specifically denies that its software monitors “everything viewed, clicked, or inputted
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online.” comScore also specifically denies that its software currently installs “root certificates.”
Except as expressly admitted herein, comScore denies the allegations of paragraph 6 of the
Complaint and each of them.
7.

The scope and breadth of data that comScore collects from unsuspecting consumers is

terrifying. By way of illustration, comScore's Surveillance Software constantly collects and
transmits the following data, among others, from a consumer's computer to comScore's servers:
a) the monitored consumer's usernames and passwords;
b) queries on search engines like Google;
c) the website(s) the monitored consumer is currently viewing;
d) credit card numbers and any financial or otherwise sensitive information inputted into
any website the monitored views;
e) the goods purchased online by the monitored consumer, the price paid by the
monitored consumer for the goods, and amount of time the monitored consumer views
the goods before purchase;
f) specific advertisements clicked by the monitored consumer.
ANSWER: Except as expressly stated herein, comScore denies the allegations of
paragraph 7 of the Complaint and each of them. comScore affirmatively states that its software
collects certain data from Panelists, including queries on search engines; what websites are
viewed by Panelists; what goods are purchased by Panelists; what advertisements are clicked by
Panelists; the length of time a Panelist is online; and how much a Panelists pays for items in
online transactions. comScore specifically denies that its software “constantly collects and
transmits” items like credit card numbers, social security numbers, account numbers, user IDs, or
passwords; instead, comScore affirmatively states that its software is designed to identify these
types of data so that it can irreversibly mask that information or otherwise prevent its
transmission to comScore.

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8.

After the Surveillance Software is installed on a monitored consumer’s computer, all

Internet traffic from the consumer's computer is re-routed through comScore servers before
reaching a destination website.
ANSWER: comScore denies the allegations of paragraph 8 of the Complaint and each
of them. comScore specifically denies that any Internet traffic from a panelist’s computer is
rerouted through comScore servers.
9.

Furthermore, comScore's Surveillance Software seeks out and scans every file on the

monitored consumer's computer (including word processing documents, emails, PDFs, image
files, spreadsheets, etc.), and sends information resulting from examination of those files to
comScore's servers.
ANSWER: Except as expressly stated herein, comScore denies the allegations of
paragraph 9 of the Complaint and each of them. comScore affirmatively states that its software
collects statistics on the number of files installed on a Panelist’s computer (such as the number of
PDF or Microsoft Word files). comScore further admits that its software collects statistics on the
versions and types of installed software on a Panelist’s machine (e.g., whether a Panelist’s
machine has Microsoft Word installed). comScore denies that it scans every file on a Panelist’s
computer.
10.

Although comScore claims that its software only mines data from the individual

consumer's computer, it designed its Surveillance Software to scan files located on any network
the host computer is connected to, and sends data about those files back to comScore's servers. In
this way, every available file housed on the monitored consumer's local network is accessed by
comScore without authorization.
ANSWER: Except as expressly stated herein, comScore denies the allegations of
paragraph 10 of the Complaint and each of them. comScore affirmatively states that, for a
limited period of time, it experimented with establishing a panel for Macintosh users (“Mac
Panel”), and developed Macintosh-compatible software specifically for that purpose. comScore
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admits that the Mac Panel software was publically available as a limited release beginning on
September 29, 2009. comScore further admits that a bug in the Macintosh version of its software
potentially allowed the software to count the number of specific types of files located on
networks to which Panelists’ Macintosh computers were connected, and that this bug was
corrected in June 2010. comScore terminated the Mac Panel on or around September 25, 2010.
None of the data collected through the Mac Panel was ever shared with, or sold to, a third party.
11.

In addition, comScore designed its software to intercept packets traversing local wireless

networks. Consequently, any monitored consumer running the Surveillance Software
inadvertently exposes every nearby user on his or her network to comScore's interception of
private data.
ANSWER: comScore denies that any non-Panelist user of a local network was ever
exposed to the collection of private data as any packets monitored by comScore would only have
contained network address information. comScore denies the remaining allegations of paragraph
11 of the Complaint and each of them.
12.

Because of Defendant's covert methods for deploying its software, millions of monitored

consumers remain wholly unaware that their every movement online is under constant
surveillance by comScore.
ANSWER: comScore denies the allegations of paragraph 12 of the Complaint and each
of them. comScore denies that it employs “covert methods for deploying its software.” To the
contrary, comScore’s software is designed so that comScore’s Terms of Service (“TOS”) are
presented directly to prospective Panelists prior to completion of the installation process. The
TOS disclose the types of information that comScore collects and the methods by which it is
collected. Prospective Panelists must click to indicate they have read and agreed to the TOS or
comScore’s software will not install. Moreover, in Fall 2007, comScore implemented its
“Watchdog” or “RK Verify” program, a computer program that ensures the TOS is shown to
users during the installation process. comScore’s software will not install unless the “Watchdog”
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or “RK Verify” program verifies that the TOS was shown to, and accepted by, the user.
comScore further notes that, in early 2008, it introduced an icon that appears on a Panelist’s
“system tray” any time that comScore software is running, which conspicuously discloses the
presence of the software to Panelists. The icon is also displayed in Windows’ “All Programs”
menu. In addition, comScore continually delivers messages to Panelists after they join. These
messages include a Welcome message sent after installation that thanks Panelists for joining the
Panel and provides a link to comScore’s Privacy Policy and to an FAQ that discusses, among
other things, how to uninstall comScore’s software. These messages also include invitations to
participate in surveys, clearly branded with the name of the panel of which the user is a member.
Panelists may also receive benefits that remind them of their participation, including rewards
programs that allow them to collect points for doing things like participating in surveys - the
collected points can then be redeemed for a variety of items including gift cards or household
items. Finally, comScore’s privacy policy and practices have been vetted by a number of third
party auditors including TRUSTe, Grant Thornton, and Ernst and Young,. comScore has
received certificates of approval for its privacy policy and practices (including for the manner in
which it discloses its software) from WebTrust, Better Business Bureau, VeriSign Trusted, Trust
Guard, and Network Solutions (among others).
13.

To induce individuals to download and install its software, comScore "bundles" its

Surveillance Software with software developed by third parties. The third-party software is
generally offered at no cost, and includes popular items such as free screens avers and games,
and functional applications such as music-copying programs, or greeting-card templates.
comScore pays the third-party every time a consumer downloads the bundled software.
ANSWER: comScore admits that it recruits Panelists through a variety of online
methods, including through third-parties that offer comScore’s software during the installation
process of their own software applications. comScore further admits that third parties may offer
this third-party software at no cost to prospective Panelists. comScore further admits that it
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compensates its third party partners that offer the comScore software during the installation
process of their own software. Except as expressly admitted herein, comScore denies the
allegations of paragraph 13 of the Complaint and each of them.
14.

In many cases, comScore provides no method for the monitored consumer to uninstall its

software, and often deceives the consumer into thinking that all of comScore's nefarious software
has been removed. Moreover, comScore designed its computer applications to resist attempts to
uninstall the Surveillance Software. For example, when a consumer uninstalls the third-party
freeware program, comScore's Surveillance Software will not be removed.
ANSWER: comScore denies the allegations of paragraph 14 of the Complaint and each
of them. comScore’s software is designed so that it can be permanently and easily uninstalled
using the standard Windows “Add or Remove Programs” utility. Moreover, when the software
has been installed, an icon appears in the Panelist’s system tray to conspicuously disclose the
software’s presence, thereby signaling to the user whether the software is currently installed.
The icon disappears when the software has been uninstalled. comScore affirmatively states that
it is inaccurate to refer to the relationship between comScore and its third party distribution
partners as involving a “bundle.” In fact, once installed, the comScore software is independent
of the software provided by the third party, precisely so that an individual may remove the
comScore software at any time and independent of the other software installed on this
individuals’ computer. comScore admits that to remove comScore’s software, a Panelist must
uninstall the comScore software, but the converse is also true: the removal of comScore’s
software does not also remove the third party software. In this instance, the comScore software
is simply a separate offer made as part of the third party provider’s installation process; it is not a
“bundle.”
15.

comScore designed its Surveillance Software to be highly persistent. User attempts to

disable comScore's applications are wholly ineffectual, as the software automatically re-starts
itself when deactivated. As a result, it is impossible to "tum off' comScore's 24/7 monitoring.
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ANSWER: comScore denies the allegations of paragraph 15 of the Complaint and each
of them. comScore affirmatively states that its software can be permanently uninstalled using
the Windows “Add or Remove Programs” utility. After a Panelist properly uninstalls the
comScore software, the software does not automatically restart itself.
16.

Even if a monitored consumer can manage to manually uninstall the Surveillance

Software, Defendant programmed its applications to secretly leave behind a comScore root
certificate. As discussed in more detail in Section VII infra, leaving an untrusted root certificate
on a user's computer exposes that individual to attacks by hackers, and allows comScore to
remonitor the consumer's computer in the future.
ANSWER: comScore denies that it “programmed its applications to secretly leave
behind a comScore root certificate.” comScore made use of root certificates with an early
version of its software, but no current version of its software has employed root certificates since
April 2005. comScore further denies that the installation of a root certificate exposes users to
harm from hacking or that it allows comScore to “re-monitor the consumer’s computer.”
comScore believes that installation of a root certificate in and of itself does not expose users to
harm from hacking, as no alternative use may be made of this certificate without possession of a
master certificate, to comScore’s knowledge. comScore has strictly limited internal access to the
certificate authority and is not aware of any instances in which third parties have had access to
the certificate authority. A root certificate does not create “back door” access to a consumer’s
computer, so comScore is incapable of “re-monitoring the consumer’s computer” with the
existence of a root certificate by itself. Except as expressly admitted herein, comScore denies
the allegations of paragraph 16 of the Complaint and each of them.
17.

Defendant's Terms of Service ("TOS") do not reveal the extensive and highly intrusive

amount of data collected by comScore from consumers' computers.

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ANSWER: comScore denies the allegations of paragraph 17 of the Complaint and each
of them. comScore’s TOS discloses to all prospective Panelists what types of information
comScore collects and how the information is collected.
18.

On information and belief, comScore has intentionally designed its Surveillance Software

and business practices to surreptitiously maximize both the number of consumers monitored by
Defendant, as well as the breadth of information collected.
ANSWER: comScore denies the allegations of paragraph 18 of the Complaint and each
of them.
19.

comScore's nefarious tactics drive Defendant's bottom line by enabling the company to

sell valuable consumer information to clients for enormous fees. While highly lucrative to the
company, comScore's methods demonstrate a wholesale disregard for consumer privacy rights
and violate numerous state and federal laws.
ANSWER: comScore denies the allegations of paragraph 19 of the Complaint and each
of them.
PARTIES
20. Plaintiff Mike Harris is a natural person and citizen of the State of Illinois.
ANSWER: comScore lacks knowledge or information sufficient to form a belief as to
the truth of the allegations in paragraph 20, and on that basis, denies them.
21.

Plaintiff Jeff Dunstan is a natural person and citizen of the State of California.
ANSWER: comScore lacks knowledge or information sufficient to form a belief as to

the truth of the allegations in paragraph 21, and on that basis, denies them.
22.

Defendant comScore, Inc. is a Delaware corporation with its headquarters located at

11950 Democracy Drive, Suite 600, Reston, Virginia 20190. Defendant does business
throughout the State of Illinois and the United States.
ANSWER: comScore admits the allegations set forth in paragraph 22 of the Complaint.

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JURISDICTION AND VENUE
23.

This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §

1331. This Court has jurisdiction over Defendant because it conducts business in Illinois and/or
because the improper conduct alleged in the Complaint occurred in, was directed from, and/or
emanated or exported from Illinois. Personal jurisdiction is additionally proper because Plaintiff
Mike Harris is a resident of Illinois.
ANSWER: The allegations of paragraph 23 are legal conclusions to which no response
is required. To the extent a response is required, comScore denies that subject matter jurisdiction
exists.
24.

Venue is proper in this District under 28 U.S.C. § 1391(a) because the injury arose in this

District. Venue is additionally proper because Defendant transacts significant business in this
District, including entering into consumer transactions.
ANSWER: The allegations of paragraph 24 are legal conclusions to which no response
is required. To the extent a response is required, comScore admits that it transacts business in
this District.
FACTUAL BACKGROUND
Section I.
25.

comScore is an Internet research corporation that provides marketing data to a wide

variety of clients, generally in the form of aggregated reports about online consumer behavior.
To collect the data necessary for its reports, comScore monitors consumers' actions using
proprietary software ("Surveillance Software") operating on users' computers.
ANSWER: comScore admits that it measures the online activity of Internet users who
volunteer to become Panelists, using proprietary software that Panelists voluntarily install on
their computers, and that it provides market research data to its clients. Except as expressly
admitted herein, comScore denies the allegations of paragraph 25 of the Complaint and each of
them.
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26.

The data collected about monitored consumers by the Surveillance Software is

transmitted, often in real-time, to comScore’s servers. This information is aggregated and
organized for Defendant's marketing reports, which are then sold to its clients. comScore
currently monitors at least two million computers worldwide.
ANSWER: comScore admits that the data collected from Panelists through comScore’s
software is transmitted to comScore’s servers. comScore further admits that it provides certain
syndicated clients with access to reports after the information is aggregated (e.g., comScore
would disclose, for example, that in December, four million people went to
www.anydomain.com, and has never and would never disclose that on December 18, a specific
panelist went to www.anydomain.com). comScore admits that there are currently over two
million people under measurement worldwide. Except as expressly admitted herein, comScore
denies the allegations of paragraph 26 of the Complaint and each of them.
27.

comScore's clients vary widely by industry and size, and include high-profile companies

such as the New York Times, the Wall Street Journal, Proctor and Gamble, and Eli Lilly and
Company. These companies use comScore's reports for, among other things, statistics for news
articles and gauging consumer interest in products and services.
ANSWER: comScore admits that its clients vary by industry and size, and include
companies such as the New York Times, the Wall Street Journal, Proctor and Gamble, and Eli
Lilly and Company, who use comScore’s data as part of their ordinary business practices.
Except as expressly admitted herein, comScore lacks information sufficient to form a belief as to
the truth of the remaining allegations in paragraph 27 of the Complaint, and on that basis, denies
them.
28.

comScore is capable of parsing enormous amounts of information and extrapolating

narrowly defined trends and statistics, as evidenced by the following quote from the New York
Times: "ComScore found a decline of 10 percent in time spent on Web-based email among 18to 24-year-olds, about the same as it found for people up to the age of 54.”
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ANSWER: comScore admits that its data can be used to identify certain trends and
statistics. Except as expressly admitted herein, comScore lacks information sufficient to form a
belief as to the truth of the remaining allegations in paragraph 28of the Complaint, and on that
basis, denies them.
29.

To provide the highly targeted research data noted above, comScore-through its

Surveillance Software-constantly collects, monitors, and analyzes every online move, no matter
how private, of over two million persons.
ANSWER: comScore admits that its software obtains limited information about the
online activity of Internet users who volunteer to become Panelists. comScore denies that it
“collects, monitors, and analyzes every online move” of its Panelists, and offers as an example
that comScore’s software is specifically designed not to collect text messages or the text of
emails, and that this is just one example of the many areas not monitored by comScore’s
software. comScore denies the remaining allegations of paragraph 29 of the Complaint and each
of them.
30.

Unfortunately, most, if not all monitored consumers are not aware of the depth of data

comScore mines from their computers everyday. In many cases, consumers are not even aware
of the Surveillance Software's very existence.
ANSWER: comScore incorporates its response to paragraph 12. Except as expressly
admitted therein, comScore denies the allegations of paragraph 30 of the Complaint and each of
them.
Section II.
31.

As stated in Section I supra, comScore tracks the online behavior of over two million

(2,000,000) consumers worldwide. To accomplish this, comScore has developed proprietary
software that monitors every action conducted on an individual's computer. comScore deploys
this software primarily by two methods: 1) online respondent acquisition and 2) a third-party
application provider program.
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ANSWER: comScore admits that its worldwide Panel consists of around two million
Internet users. comScore further admits that it has developed proprietary software that Panelists
voluntarily download and install, which measures the Panelists’ online activity. comScore
further admits that its software is distributed through multiple methods. comScore denies that its
software monitors every action conducted on an individual’s computer. comScore denies the
remaining allegations of paragraph 31 of the Complaint and each of them.
32.

Online respondent acquisition simply refers to comScore's method of paying affiliate

partners to post comScore's advertisements on their websites in an effort to solicit consumers to
download comScore's Surveillance Software. To entice consumers to download the Surveillance
Software, comScore offers sweepstakes enrollments and prizes in exchange for membership in
its "program." Potential members are also offered software, such as computer games, for free.
ANSWER: comScore admits that it recruits Panelists through a variety of online
methods, which include the use of banner advertisements on third party websites. comScore
admits that it pays third parties to post comScore’s advertisements on their websites. comScore
further admits that in exchange for volunteering to become a member of a panel, Panelists may
be offered various benefits including planting of trees in their name, sweepstakes enrollments,
prizes, points, or free software. Except as expressly admitted herein, comScore denies the
allegations of paragraph 32 of the Complaint and each of them.
33.

The second and more devious method that comScore uses to induce consumers to install

its Surveillance Software is through its third-party application provider program. This method
involves comScore paying developers to bundle the Surveillance Software with the third-party
application provider's software. The third-party computer application included in the bundled
software may be a free screensaver, game, CD burning software, greeting card template, or any
other type of "freeware." In many cases, the existence of the Surveillance Software bundled with
the freeware is only disclosed, in an inconspicuous fashion, after the installation process has
already begun.
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ANSWER: comScore admits that it recruits Panelists through a variety of online
methods, which include partnering with third party software developers that offer comScore’s
software during the installation of their own software. comScore further admits that the thirdparty software may consist of free screensavers, games, CD burning software, greeting card
templates, or other types of “freeware.” comScore denies that the incorporation of its software
with the third-party software is done “in an inconspicuous fashion” and incorporates by reference
its response to paragraph 12 regarding comScore’s various methods of disclosure. Except as
expressly admitted herein, comScore denies the allegations of paragraph 33 of the Complaint and
each of them.
34.

For example, if a consumer downloads a free screensaver bundled with comScore's

Surveillance Software, the third-party developer of the screensaver is then paid by comScore for
the download of the bundled software.
ANSWER: comScore admits that it compensates the third-parties who provide an offer
for comScore’s software as part of the third parties’ software applications. Except as expressly
admitted herein, comScore denies the allegations of paragraph 34 of the Complaint and each of
them.
35.

comScore's monitoring software is marketed through subsidiaries bearing names such as

TMRG, Inc. and VoiceFive, Inc., with varying names for its Surveillance Software, such as
RelevantKnowledge, OpinionSpy, Premier Opinion, OpinionS quare, PermissionResearch, and
MarketScore.
ANSWER: comScore admits that its software is marketed through subsidiaries,
including but not limited to, TMRG, Inc. and VoiceFive, Inc. comScore further admits that its
subsidiaries have used varying names for comScore’s software over time, such as
RelevantKnowledge, Premier Opinion, OpinionSquare, PermissionResearch, and MarketScore.
Except as expressly admitted herein, comScore denies the allegations of paragraph 35 of the
Complaint and each of them.
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Section III.
36.

As discussed herein, comScore's intrusive methods for collecting highly sensitive

information from consumers' computers are staggering. However, comScore's Terms of Service
(“TOS”) presented (or not presented) to the user paint a far different picture than reality.
ANSWER: comScore denies the allegations of paragraph 36 of the Complaint and each
of them.
37.

comScore's full Privacy Policy and Terms of Service fail to disclose the following facts

regarding Surveillance Software operations performed on a consumer's computer:
(a) the Surveillance Software scans files on both local and network volumes;
(b) the Surveillance Software has full rights to access and change any file on the
consumer's computer;
(c) the Surveillance Software opens an HTTP "backdoor" to transmit data;
(d) the Surveillance Software analyzes packets of data as they enter and leave a
consumer's computer over a local network, and data as they are transferred to and from
other computers on the consumer's network;
(e) the Surveillance Software has no user interface from which a consumer can turn off
the software, modify the settings, or otherwise determine what information the
software is collecting;
(f) the Surveillance Software implants a "root certificate" that modifies the consumer's
computer security settings, and the "root certificate" remains on a consumer's system
even after the Surveillance Software is removed;
(g) the Surveillance Software modifies a computer's firewall settings;
(h) the Surveillance Software redirects all internet traffic through comScore's servers
before routing it to the consumer's intended website;
(i) the Surveillance Software injects code without user intervention into various web
browsers and instant messaging applications;
(j) the Surveillance Software can be upgraded, modified, and controlled remotely,
without consumer intervention or permission;
(k) the Surveillance Software will not be deleted if a consumer deletes the free
application (e.g. free screensaver) with which the Surveillance Software was bundled;
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(1) the Surveillance Software will interact with, scan, and monitor networked
computers beyond simply the original user's computer.
ANSWER: comScore denies the allegations of paragraph 37 of the Complaint and each
of them, as well as Plaintiffs’ characterization of the TOS, which is a document that speaks for
itself. comScore affirmatively states that its proprietary software operates in a manner consistent
with its Privacy Policy and Terms of Service. comScore also affirmatively states that it has
already denied many of the so called “facts” upon which Paragraph 37 of the Complaint
expressly relies.
38.

Often, comScore's TOS do not display any actual reference to Defendant's full license

agreement whatsoever. (See Exhibit A, attached hereto as a true and accurate copy of comScore's
Premier Opinion Surveillance Software Terms of Service bundled with a screensaver.) Most
ANSWER: Except as expressly set forth herein, comScore denies the allegations of
paragraph 38 of the Complaint and each of them. comScore affirmatively states that for a
limited period one third party partner failed to include a link to comScore’s full Privacy Policy
and User License Agreement, however, in these cases, the consumer was presented with
comScore’s TOS and was required to accept the terms of this TOS. However, this situation was
quickly corrected and affected a very small portion of Mac Panel users only. These Mac Panel
users’data was never used in any comScore reports, and thus was never provided, even in
aggregate form, to anyone outside of comScore. Moreover, the full terms of the Privacy Policy
and User License Agreement were available at all times to those Panelists through links installed
in the Windows Start Menu, or through an icon on a Mac. In the vast majority of cases,
comScore’s TOS is presented directly to prospective Panelists within a dialog box that pops up
during the installation process. This dialog box contains a link to comScore’s full User License
Agreement and Privacy Policy (“ULA”), as reflected in Exhibit A of the Complaint. comScore
denies the remaining allegations of paragraph 38 of the Complaint, and each of them.

18

39.

In many instances, when a consumer installs third-party applications bundled with

comScore's Surveillance Software, the graphical display shown to the user makes it appear that
only one piece of software is being installed. For example, if a person installs a free screensaver
bundled with Defendant's RelevantKnowledge Surveillance Software, a screen will appear
during, and not before, the installation process displaying a brief description of comScore's
product. Importantly, however, the screen is resented seamlessly with the rest of the installation.
ANSWER: comScore admits that, when a prospective Panelist installs a free
screensaver that includes an offer for comScore’s RelevantKnowledge software, a dialog box
appears during the installation process containing comScore’s TOS, which discloses what type of
information will be collected and references comScore’s full ULA. Except as expressly admitted
herein, comScore denies the allegations of paragraph 39 of the Complaint and each of them.
40.

Other comScore TOS display screens are presented to the user during the bundled

software installation process in such a way that the average, non-expert consumer would not
notice the hyperlink to Defendant's full agreement. Examples of these inadequacies include
comScore designing its TOS without a functioning link to the full terms, or wedging the link
within a sentence, only offset by color.
ANSWER: comScore denies the allegations of paragraph 40 of the Complaint and each
of them.
Section IV.
41.

Once installed, comScore's Surveillance Software continuously transmits the monitored

consumer's online actions back to its servers. In fact, all Internet traffic from the consumer's
computer is sent through comScore servers before reaching a destination website.
ANSWER: comScore admits that, once installed, its software collects and transmits
certain aspects of a Panelist’s online activity back to comScore’s servers. comScore denies that
any Internet traffic from a Panelist’s computer is sent through comScore’s servers before

19

reaching a destination website. Except as expressly admitted herein, comScore denies the
allegations of paragraph 41 of the Complaint and each of them.
42.

In order to collect information about a monitored consumer, comScore designed its

Surveillance Software to scan and examine a wide variety of items on the consumer's computer.
Through its Surveillance Software, comScore injects code into the monitored consumer's web
browser, i.e. Internet Explorer, Safari, Firefox, to monitor everything viewed, clicked, or typed
into the browser.
ANSWER: comScore admits that when a Panelist downloads the comScore software,
computer code is installed that works with the Panelist’s web browser (e.g., Internet Explorer,
Chrome, Firefox) to measure the Panelist’s online activity. Except as expressly admitted herein,
comScore denies the allegations of paragraph 42 of the Complaint and each of them.
43.

Additionally, to facilitate its monitoring, comScore's Surveillance Software adds an

exception to a the computer's firewall, allowing it unfettered access. Because certain consumers'
firewalls are stricter than others, such an attempt to modify the firewall settings, or the
subsequent redirection of Internet traffic resulting from the firewall modification, often causes
the firewall to lockdown or "freeze" the computer to prevent further harm.
ANSWER: comScore admits that certain versions of its software make modifications to
the Windows Firewall that was introduced with XP Service Pack 2, and incorporates its response
to paragraph 6 of the Answer, as though fully set forth herein. comScore lacks knowledge and
information sufficient to form a belief as to the truth of the remaining allegations in paragraph 43
of the Complaint, and on that basis, denies them.
44.

In addition to identifying the specific webpage that the monitored consumer is viewing,

the Surveillance Software also transmits information to comScore revealing how much the
individual pays for items in online transactions, how long the individual views items before
purchase, and much more. For example, comScore's Surveillance Software observes and reports

20

where the monitored individual's mouse is moving, such as whether or not the monitored
consumer is hovering over an advertisement.
ANSWER: comScore admits that its software is able to identify the web pages that a
Panelist is viewing, and the length of time a Panelist is online. comScore denies that it has ever
measured the location or movement of the mouse. Except as expressly admitted herein,
comScore denies the remaining allegations of paragraph 44 of the Complaint.
45.

Perhaps more striking, the Surveillance Software is indiscriminate about the information

gathered and sent to comScore's servers. Therefore, names, addresses, credit card numbers,
Social Security Numbers, and search terms on search engines are all siphoned and transmitted to
comScore.
ANSWER: comScore denies the allegations of paragraph 45 of the Complaint and each
of them, and incorporates its response to paragraphs 4 and 7 of the Answer, as though fully set
forth herein.
46.

Because comScore requires precise demographic information to create its marketing

reports, the Surveillance Software must distinguish which user is currently using the computer at
what time. In other words, comScore must know whether or not a father (male, age 45) or his
daughter (female, age 14) is using the computer, as that information is necessary to produce
accurate demographic marketing reports. To that end, comScore has developed a patented
procedure known as "User Demographic Reporting" for creating biometric signatures of
consumers by tracking mouse movements and keystrokes. In this way, each time an individual
uses the computer, comScore's Surveillance Software tracks his or her keystrokes and mouse
movements until it identifies the user as the 14-year-old daughter or 45-year-old father in the
household.
ANSWER: comScore admits that it developed “User Demographic Reporting”
(“UDR”), a proprietary technology designed to identify a particular Panelist in a household.

21

Except as expressly admitted herein, comScore denies the allegations of paragraph 46 of the
Complaint and each of them.
47.

comScore's software is highly persistent and constantly runs in the background during all

computer activities, yet provides no mechanism to turn it off. If, for any reason, the software
stops running (including manual user attempts to stop it), it automatically restarts. Accordingly,
it is nearly impossible for a consumer to disable the Surveillance Software to avoid spying on
certain users of the computer system.
ANSWER: comScore denies the allegations of paragraph 47 of Complaint and each of
them. comScore’s software is designed so that it can be permanently uninstalled using the
standard Windows “Add or Remove Programs” utility and so it is not “impossible” to “turn off”
the software. For those Panelists who do not uninstall the software, comScore admits that its
software runs in the background during a Panelist’s computer activities.
48.

By definition, comScore's Surveillance Software is “spyware,” meaning it is designed to

gather data from a consumer's computer without consent and transfer it to a third party. Because
of this characterization, scores of anti-virus and anti-spyware websites identify comScore
applications as "severe" or "high risk" spyware or adware. For example, Microsoft's Malware
Protection Center has singled out several comScore applications as problematic. In the same
vein, numerous U.S. colleges and universities warn students of the dangers of running
ComScore's software and ban Internet traffic to Defendant's servers.
ANSWER: comScore denies that its software constitutes “spyware,” or that it is
designed to gather data from a consumer’s computer without consent. comScore affirmatively
states that anti-virus offerings from companies including Microsoft, AVG and McAfee
categorize comScore’s software as clean, and do not classify it as spyware. comScore lacks
knowledge and information sufficient to form a belief as to the truth of the remaining allegations
in paragraph 48 of the Complaint, and on that basis, denies each of them.

22

Section V.
49.

comScore's TOS indicate that the application will only monitor and collect data about the

computer on which it is installed. (See Exhibit A & B and supra Section III).
ANSWER: comScore denies the characterization in Paragraph 49 of the Complaint of
comScore’s TOS, which speaks for itself. Moreover, Paragraph 49 references, and relies on, an
exhibit to the Complaint (“Exhibit B”) that does not exist. On that basis, comScore lacks
knowledge and information sufficient to form a belief as to the truth of the remaining allegations
in paragraph 49 of the Complaint, and on that basis, denies them.
50.

Defendant's TOS are devoid of any mention that all files on that individual's computer

will be scanned-and that information about those files will be sent to comScore's servers.
ANSWER: comScore denies the characterization in Paragraph 50 of comScore’s Terms
of Service, which is a document that speaks for itself. comScore notes that its TOS informs
users that its software monitors and collects “certain hardware, software, computer configuration
and application usage information,” as depicted in Exhibit A to the Complaint. Further,
comScore denies the premise upon which paragraph 50 is based – that comScore’s software
causes “all files on that individual’s computer [to] be scanned.”
51.

In clear contrast to comScore's TOS, its Surveillance Software additionally scans and

sends information about available files located on the local network-not just the individual
consumer's computer-to Defendant's servers.
ANSWER: comScore incorporates its response to paragraph 10 of the Answer. Except
as expressly admitted herein, comScore denies the allegations of paragraph 51 of the Complaint.
52.

Put another way, if a monitored consumer uses a local network to store and access files-a

nearly ubiquitous practice among modem organizations-then the Surveillance Software also
scans all accessible files on the network and sends information about the data to comScore's
servers. Depending on the network, these files may include confidential business files, financial
documents, trade secrets, or classified government documents.
23

ANSWER: comScore incorporates its response to paragraph 51 of the Complaint.
Except as expressly admitted therein, comScore denies the allegations of paragraph 52 of
Complaint and each of them.
53.

comScore's Surveillance Software also monitors and analyzes "packets" of information

entering and leaving the monitored consumer's computer.
ANSWER: comScore admits that its software measures certain types of packets. Except
as expressly admitted herein, comScore denies the allegations of paragraph 53 of the Complaint
and each of them.
54.

Worse still, comScore's Surveillance Software intercepts wireless packets traversing the

local network. Accordingly, a monitored consumer using a computer on a local wireless network
also subjects other nearby computers on the network to data collection by the Surveillance
Software.
ANSWER: comScore admits that its software measures certain types of packets, but
because these packets can only be used to identify the type of other devices on a network,
comScore denies that any non-Panelist computer is subject to data collection. Except as
expressly admitted therein, comScore denies the allegations of paragraph 54 of the Complaint
and each of them.
Section VI.
55.

comScore's Surveillance Software has no user interface from which a consumer can turn

off or uninstall the software, modify the settings, or otherwise control what information the
software is collecting.
ANSWER: comScore denies the allegations of paragraph 55 of the Complaint and each
of them. comScore’s software is designed so that it can be uninstalled using a Windows user’s
“Add or Remove Programs” utility.
56.

As discussed in Section II supra, comScore pays third-party developers to bundle

Surveillance Software with their applications.
24

ANSWER: comScore admits that it pays third-party developers to offer comScore’s
software with their applications. Except as expressly admitted herein, comScore denies the
allegations of paragraph 56 of Complaint and each of them.
57.

Even assuming that an individual recognizes the implications of installing comScore's

Surveillance Software in tandem with software such as a free screensaver, or later determines
that the free screensaver was the source of the comScore software, a reasonable consumer would
believe that once the screensaver was uninstalled, comScore's software would be uninstalled as
well. That is not the case.
ANSWER: comScore denies Plaintiffs’ characterizations regarding what a “reasonable
consumer would believe,” and on that basis denies the allegations of paragraph 57 of the
Complaint and each of them. comScore’s software is designed so that it can be permanently
uninstalled using the standard Windows “Add or Remove Programs” utility. Any time comScore
software is running, an icon appears in the Panelists’ system tray to conspicuously disclose the
software’s presence, thereby signaling to the user whether or not the software has been
uninstalled. Moreover, the presence of comScore’s software is made known to Panelists in
numerous other ways, as described in comScore’s response in paragraph 12 of the Answer.
58.

When a monitored consumer uninstalls bundled software, comScore's Surveillance

Software remains active on that monitored consumer's computer. As a result, comScore
continues to collect information about the monitored consumer, even though the individual
believes comScore's Surveillance Software was uninstalled. Indeed, the only way to remove
comScore's Surveillance Software is by manually locating and removing it from the system.
ANSWER: comScore admits that, to remove comScore’s software, a Panelist must
uninstall comScore’s software and not the separate third-party freeware program, and
incorporates its response in paragraph 14 of the Answer as if fully set forth herein. comScore
lacks knowledge and information sufficient to form a belief as to the truth of the remaining
allegations in paragraph 58 regarding the purported beliefs of consumers as characterized by
25

Plaintiffs, and on that basis, denies them. comScore notes, however, that its software can be
uninstalled using a Windows user’s “Add or Remove Programs” utility. Moreover, any time
comScore software is running, an icon appears in the Panelists’ system tray to conspicuously
disclose the software’s presence, thereby signaling to the user whether or not the software has
been uninstalled.
59.

Because many consumers lack the requisite technical expertise to manually remove

comScore's software, these users remain unwitting members of Defendant's monitoring program.
In many cases, consumers are forced to purchase automated spyware removal software to fully
eliminate any traces of Defendant's software.
ANSWER: comScore lacks knowledge and information sufficient to form a belief as to
the truth of the allegations in paragraph 59 of the Complaint and each of them, which reflects
Plaintiffs’ characterizations of the “technical expertise” of consumers, and on that basis, denies
them.
Section VII.
60.

If a monitored consumer manages to manually uninstall comScore's Surveillance

Software, Defendant sti11leaves its own "root certificate" on the user's computer.
ANSWER: comScore denies the allegations of paragraph 60 of Complaint and each of
them. comScore’s software stopped installing “root certificates” in April 2005.
A. What is a Root Certificate?
61.

In very basic terms, a root certificate is part of an intricate system that helps ensure that

websites on the Internet are secure. Web browsers, such as Microsoft's Internet Explorer, come
pre-packaged with a store of root certificates issued by trustworthy Certificate Authorities such
as VeriSign. A Certificate Authority, such as VeriSign, distributes certificates to trustworthy
companies like Amazon.com. When an individual browses Amazon.com, the user's web browser
identifies a certificate that was "signed" by VeriSign, and the individual is given assurance that
the website is secure. Without this system, it would be extremely difficult, if not impossible, for

26

users to verify which websites were secure and thus safe to transmit sensitive information to, i.e.
credit card numbers and Social Security Numbers.
ANSWER: Paragraph 61 reflects Plaintiffs’ characterizations of general industry
information and does not require a response. To the extent a response is required, comScore
lacks information sufficient to form a belief as to the truth of the allegations in paragraph 61 of
the Complaint, and on that basis, denies them.
62.

A Certificate Authority, such as VeriSign, must follow stringent regulations in order to

have its root certificate included in a popular web browser. For example, Microsoft requires
entities applying for root certificates to comply with rigorous guidelines delineated by the
WebTrust for Certification Authorities program sponsored by the American Institute for
Certified Public Accountants (AICPA).
ANSWER: Paragraph 62 reflects Plaintiffs’ characterizations of general industry
information and does not require a response. To the extent a response is required, comScore
lacks information sufficient to form a belief as to the truth of the allegations in paragraph 62 of
the Complaint, and on that basis, denies them. comScore notes, however, its Panels are certified
by WebTrust, the very “certification authority” identified in this paragraph of the Complaint.
comScore’s Panels are also certified by, among others, the Better Business Bureau, VeriSign
Trusted, Trust Guard, and Network Solutions.
63.

To average users, the significance of a root certificate is most readily manifested by the

small lock in the top left of a web browser that appears when conducting secure transactions over
the Internet. This image provides the individual with peace of mind that sensitive information
can be transmitted to the website without interception by nefarious actors.
ANSWER: Paragraph 63 reflects Plaintiffs’ characterizations of the expectations of
“average users” and does not require a response. To the extent a response is required, comScore
lacks information sufficient to form a belief as to the truth of the allegations in paragraph 63 of
the Complaint, and on that basis, denies them.
27

B. comScore Installs its Own Root Certificate Through its Surveillance Software
64.

Included in the installation of the Surveillance Software is a comScore root certificate.

This root certificate allows comScore to collect information transmitted through the user's
browser, regardless of whether or not the transaction is secure. In other words, because
comScore has installed its own root certificate, when a monitored consumer is viewing a
website-such as Amazon.com-and thinks that the transaction is free from interception by thirdparties because of the image of a small lock in the top left of the browser, that information is still
captured by Defendant.
ANSWER: comScore denies the allegations of paragraph 64 of the Complaint and each
of them. comScore’s software stopped installing “root certificates” in April 2005. comScore
further denies Plaintiffs’ characterizations of what “a monitored consumer” might believe with
respect to the monitoring of online activity.
65.

If a monitored consumer uninstalls the Surveillance Software, comScore has designed its

software to leave behind the root certificate.
ANSWER: comScore denies the allegations of paragraph 65 of the Complaint and each
of them. comScore’s software stopped installing “root certificates” in April 2005.
66.

The risks caused by untrusted root certificates are well documented and Defendant's

actions pose serious risks to monitored consumers' computer systems.
ANSWER: comScore is not aware of any instances in which any consumers have been
harmed by the presence of a root certificate installed by the comScore software and, on that
basis, denies the allegations of paragraph 66 of the Complaint. Moreover, comScore stopped
installing “root certificates” in April 2005.

28

FACTS RELATING TO PLAINTIFFS
67.

In or around March of 2010, Plaintiff Mike Harris downloaded and installed a free

screensaver secretly bundled with comScore's Surveillance Software onto his Macintosh
computer. The computer Plaintiff used was connected to a local wireless network.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 67 of the Complaint, and on that basis, denies them.
68.

After discovering that he had inadvertently installed this software, he searched the World

Wide Web to determine how to get rid of the application. Harris attempted to uninstall the
screensaver, however the Surveillance Software continued operating. Plaintiff Harris has a high
level knowledge of information technology, and was still only able to uninstall the software after
conducting hours of diligent research.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 68 of the Complaint, and on that basis, denies them.
69.

Plaintiff Harris did not agree to comScore's Terms of Service and did not know that he

was installing Surveillance Software when he installed the free software.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 69 of the Complaint, and on that basis, denies them. comScore notes,
however, that Plaintiff Harris would not have been able to install comScore’s software unless he
affirmatively clicked to agree to comScore’s Terms of Service, which expressly informs users of
the presence of comScore’s software. Assuming Plaintiff Harris installed comScore’s software,
he would have also been presented with a “welcome” pop up, after installation, thanking him for
joining the Panel and providing a link to comScore’s Privacy Policy and to an FAQ that
discusses, among other things, how to uninstall comScore’s software.
70.

In or around September of 2010, Plaintiff Jeff Dunstan downloaded and installed free

greeting card template software secretly bundled with comScore's Surveillance Software onto his
personal computer running the Microsoft Windows operating system.
29

ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 70 of the Complaint, and on that basis, denies them.
71.

After installation, Dunstan's firewall detected the re-routing of his Internet traffic to

comScore servers, and in response, effectively disabled his computer from accessing the Internet.
In fact, Plaintiff Dunstan's computer became entirely debilitated in reaction to the Surveillance
Software operating on his computer.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 71 of the Complaint, and on that basis, denies them.
72.

Plaintiff Dunstan spent approximately ten hours investigating and researching how

comScore's software became installed on his computer and how to remove it.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 72 of the Complaint, and on that basis, denies them.
73.

Eventually, Plaintiff Dunstan had to pay forty dollars ($40) for third-party anti-virus

software to entirely remove the software from his computer and restore it to a functioning state.
Plaintiff Dunstan did not agree to comScore's Terms of Service and did not know that he was
installing Surveillance Software when he installed the free software.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 73 of the Complaint, and on that basis, denies them. comScore notes,
however, that Plaintiff Dunstan would not have been able to install comScore’s software unless
he affirmatively clicked to agree to comScore’s Terms of Service, which expressly informs users
of the presence of comScore’s software. Assuming Plaintiff Dunstan installed comScore’s
software, he would have also been presented with a “welcome” pop up, after installation,
thanking him for joining the Panel and providing a link to comScore’s Privacy Policy and to an
FAQ that discusses, among other things, how to uninstall comScore’s software. comScore
further denies that Dunstan “had to” purchase third-party anti-virus software to remove the
comScore software, since the software can be removed using a standard Windows utility.
30

CLASS ALLEGATIONS
74.

Plaintiffs Mike Harris and Jeff Dunstan bring this action pursuant to Fed. R. Civ. P.

23(b)(2) and (3) on behalf of themselves and the following two classes:
The Surveillance Software Class: All individuals and entities in the United States
that have had comScore's Surveillance Software installed on their computer(s).
The Dunstan Subclass: All individuals and entities in the United States that have
incurred costs in removing the Surveillance Software.
The Surveillance Software and the Dunstan Subclass are collectively referred to
throughout this Complaint as "the Classes."
ANSWER: Paragraph 74 of the Complaint reflects Plaintiffs’ characterization of their
own complaint and proposed classes and does not require a response. To the extent a response is
required, this allegation is denied.
75.

Excluded from the Classes are Defendant, its legal representatives, assigns and

successors, and any entity in which Defendant has a controlling interest. Also excluded is the
judge to whom this case is assigned and the judge's immediate family, as well as any individual
who contributed to the design and deployment of Defendant's software products.
ANSWER: Paragraph 75 of the Complaint reflects Plaintiffs’ characterization of their
own complaint and proposed classes and does not require a response, and denies that this action
can be maintained as a class action. To the extent a response is required, this allegation is
denied.
76.

The Classes consist of hundreds of thousands, if not millions, of individuals and other

entities, making joinder impractical. On information and belief, Defendant has deceived millions
of consumers who fall into the definition set forth in the Classes.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 76 of the Complaint, and on that basis, denies them. comScore denies

31

that it has “deceived millions of consumers,” and denies that this action can be maintained as a
class action.
77.

Plaintiffs' claims are typical of the claims of all other members of the Classes, as

Plaintiffs and other members sustained damages arising out of the wrongful conduct of
Defendant, based upon the same actions of the software products which were made uniformly to
Plaintiffs and the Classes.
ANSWER: The allegations set forth in paragraph 77 of the Complaint assert
conclusions of law to which no response is required. To the extent paragraph 77 may purport to
assert allegations of fact to which a response may be required, comScore denies each and every
allegation contained in this paragraph, and denies that this action can be maintained as a class
action.
78.

Plaintiffs will fairly and adequately represent and protect the interests of the other

members of the Classes. Plaintiffs have retained counsel with substantial experience in
prosecuting complex litigation and class actions. Plaintiffs and their counsel are committed to
vigorously prosecuting this action on behalf of the members of the Classes, and have the
financial resources to do so. Neither Plaintiffs nor their counsel have any interest adverse to
those of the other members of the Classes.
ANSWER: The allegations set forth in paragraph 78 of the Complaint assert
conclusions of law to which no response is required. To the extent paragraph 78 may purport to
assert allegations of fact to which a response may be required, comScore denies those allegations
and denies that this action can be maintained as a class action. comScore lacks knowledge or
information sufficient to form a belief as to the truth of the allegations in paragraph 78 regarding
the motivations of Plaintiffs and their counsel, or their financial wherewithal, and on that basis,
denies them.
79.

Absent a class action, most members of the Classes would find the cost of litigating their

claims to be prohibitive and will have no effective remedy. The class treatment of common
32

questions of law and fact is also superior to multiple individual actions or piecemeal litigation in
that it conserves the resources of the courts and the litigants, and promotes consistency and
efficiency of adjudication.
ANSWER: The allegations set forth in paragraph 79 of the Complaint assert
conclusions of law to which no response is required. To the extent paragraph 79 may purport to
assert allegations of fact to which a response may be required, comScore denies those
allegations, and denies that this action can be maintained as a class action.
80.

Defendant has acted and failed to act on grounds generally applicable to Plaintiffs and the

other members of the Classes, requiring the Court's imposition of uniform relief to ensure
compatible standards of conduct toward the members of the Classes.
ANSWER: The allegations set forth in paragraph 80 of the Complaint assert
conclusions of law to which no response is required. To the extent paragraph 80 may purport to
assert allegations of fact to which a response may be required, comScore denies those
allegations, and denies that this action can be maintained as a class action.
81.

The factual and legal bases of comScore' s liability to Plaintiffs and to the other members

of the Classes are the same, and resulted in injury to Plaintiffs and all of the other members of
the Classes. Plaintiffs and the other members of the Classes have all suffered harm as a result of
comScore's wrongful conduct.
ANSWER: The allegations set forth in paragraph 81 of the Complaint assert
conclusions of law to which no response is required. To the extent paragraph 81 may purport to
assert allegations of fact to which a response may be required, comScore denies those
allegations, and denies that this action can be maintained as a class action
82.

There are many questions of law and fact common to the claims of Plaintiffs and the

other members of the Classes, and those questions predominate over any questions that may
affect individual members of the Classes. Common questions for the Classes include but are not
limited to the following:
33

(a) whether comScore's intentionally designed its software to scan files located on a
monitored consumer's local network;
(b) whether comScore intentionally designed its software to intercept packets on
wireless networks;
(c) whether comScore intentionally designed its software and/or business model with
third-party application providers to avoid uninstallation when the third-party
application was uninstalled, thus thwarting user attempts to remove the software;
(d) whether comScore intentionally designed its Terms of Service to exclude the true
functionality of its Surveillance Software;
(e) whether comScore's conduct described herein violated the Stored Communications
Act (18 U.S.C. §§ 2701, et seq.);
(f) whether comScore's conduct described herein violated the Electronic
Communications Privacy Act (18 U.S.C. §§ 2510, et seq.);
(g) whether comScore's conduct described herein violated the Computer Fraud &
Abuse Act (18 U.S.C. §§ 1030, et seq.);
(h) whether comScore's conduct described herein violated the Illinois Consumer Fraud
and Deceptive Practices Act (815 ILCS 505/1 et seq.);
(i) whether comScore has been unjustly enriched by Plaintiffs and the Classes.
ANSWER: The allegations set forth in paragraph 82 of the Complaint assert
conclusions of law to which no response is required. To the extent paragraph 82 may purport to
assert allegations of fact to which a response may be required, comScore denies those
allegations, and denies that this action can be maintained as a class action.
83.

Plaintiffs reserve the right to revise these definitions based on facts learned in discovery.
ANSWER: Paragraph 83 of the Complaint reflects Plaintiffs effort to reserve certain

rights and does not require a response.

34

FIRST CAUSE OF ACTION
Violations of the Stored Communications Act
(18 U.S.C. §§ 2701, et seq.)
(On Behalf of Plaintiffs and the Classes)
84.

Plaintiffs incorporate the foregoing allegations as if fully set forth herein.
ANSWER: comScore hereby incorporates as though fully set forth herein its answers to

paragraphs 1 through 83.
85.

The Electronic Communications Privacy Act, 18 U.S.C. §§ 2510 et seq. (the "ECPA")

broadly defines an "electronic communication" as "any transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that affects interstate or foreign
commerce ... " 18 U.S.C. § 2510(12). The Stored Communications Act incorporates this
definition.
ANSWER: The allegations set forth in paragraph 85 assert conclusions of law to which
no response is required. To the extent paragraph 85 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
86.

Pursuant to the ECPA and Stored Communications Act ("SCA"), "electronic storage"

means any "temporary storage of a wire or electronic communication incidental to the electronic
transmission thereof." 18 U .S.C. § 2510( 17)(A). This type of electronic storage includes
communications in intermediate electronic storage that have not yet been delivered to their
intended recipient.
ANSWER: The allegations set forth in paragraph 86 assert conclusions of law to which
no response is required. To the extent paragraph 86 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
35

inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
87.

The SCA mandates, among other things, that it is unlawful for a person to obtain access

to stored communications on another's computer system without authorization. 18 U.S.C. § 2701.
ANSWER: The allegations set forth in paragraph 87 assert conclusions of law to which
no response is required. To the extent paragraph 87 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
88.

Congress expressly included provisions in the SCA to address this issue so as to prevent

''unauthorized persons deliberately gaining access to, and sometimes tampering with, electronic
or wire communications that are not intended to be available to the public." Senate Report No.
99-541, S. REP. 99-541, 35, 1986 U.S.C.C.A.N. 3555, 3589.
ANSWER: The allegations set forth in paragraph 88 assert conclusions of law to which
no response is required. To the extent paragraph 88 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
89.

comScore has violated 18 U.S.C. § 270 1 (a)(1) because it intentionally accessed

consumers' communications without authorization and obtained, altered, or prevented authorized
access to a wire or electronic communication while in electronic storage by continuing to operate
after the user uninstalled bundled software. Defendant had actual knowledge of, and benefited
from, this practice.

36

ANSWER: The allegations set forth in paragraph 89 assert conclusions of law to which
no response is required. To the extent paragraph 89 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
90.

Additionally, Defendant has violated 18 U.S.C. § 2701(a)(2) because it intentionally

exceeded authorization to access consumers' communications and obtained, altered, or prevented
authorized access to a wire or electronic communication while in electronic storage by
continuing to operate after the user uninstalled bundled software. Defendant had actual
knowledge of, and benefited from, this practice.
ANSWER: The allegations set forth in paragraph 90 assert conclusions of law to which
no response is required. To the extent paragraph 90 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
91.

comScore has also violated 18 U.S.C. § 2701 (a)(2) because it intentionally exceeded

authorization to access consumers' communications and obtained, altered, or prevented
authorized access to a wire or electronic communication while in electronic storage by accessing
files on the Plaintiffs' and the Classes' local networks without permission.
ANSWER: The allegations set forth in paragraph 91 assert conclusions of law to which
no response is required. To the extent paragraph 91 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is

37

inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
92.

As a result of Defendant's conduct described herein and its violation of § 2701, Plaintiffs

and the Classes have suffered injuries. Plaintiffs, on their own behalves and on behalf of the
Classes, seeks an order enjoining Defendant's conduct described herein and awarding themselves
and the Classes the maximum statutory and punitive damages available under 18 U.S.C. § 2707.
ANSWER: comScore admits that Plaintiffs purport seek the relief requested in
paragraph 92. Except as otherwise expressly admitted herein, comScore denies the allegations of
paragraph 92.
SECOND CAUSE OF ACTION
Violations of the Electronic Communications Privacy Act
(18 U.S.C. §§ 2510, et seq.)
(On Behalf of Plaintiffs and the Classes)
93.

Plaintiffs incorporate the forgoing allegations as if fully set forth herein.
ANSWER: comScore hereby incorporates as though fully set forth herein its answers to

paragraphs 1 through 92.
94.

The Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. (the

"ECPA") broadly defines an "electronic communication" as "any transfer of signs,
signals,writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part
by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or
foreign commerce ... " 18 U.S.C. § 2510(12).
ANSWER: The allegations set forth in paragraph 94 assert conclusions of law to which
no response is required. To the extent paragraph 94 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
38

95.

The ECPA defines "electronic communications system" as any wire, radio,

electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or
electronic communications, and any computer facilities or related electronic equipment for the
electronic storage of such communications. 18 U.S.C. § 2510(14).
ANSWER: The allegations set forth in paragraph 95 assert conclusions of law to which
no response is required. To the extent paragraph 95 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
96.

The ECPA broadly defines the contents of a communication. Pursuant to the ECPA,

"contents" of a communication, when used with respect to any wire, oral, or electronic
communications, include any information concerning the substance, purport, or meaning of that
communication. 18 U.S.C. § 2510(8). "Contents," when used with respect to any wire or oral
communication, includes any information concerning the identity of the parties to such
communication or the existence, substance, purport, or meaning of that communication. The
definition thus includes all aspects of the communication itself. No aspect, including the identity
of the parties, the substance of the communication between them, or the fact of the
communication itself, is excluded. The privacy of the communication to be protected is intended
to be comprehensive.
ANSWER: The allegations set forth in paragraph 96 assert conclusions of law to which
no response is required. To the extent paragraph 96 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
39

97.

Plaintiffs' and Classes Members' personal computers and computer networks constitute

"electronic computer systems." Plaintiffs and Classes members transmit "electronic
communications" by and through their computers and computer networks in the form of, among
others, emails, sending requests to visit websites, online chats, file transfers, file uploads, and file
downloads.
ANSWER: The allegations set forth in paragraph 97 assert conclusions of law to which
no response is required. To the extent paragraph 97 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
98.

Defendant's conduct violated 18 U.S.C. § 2511(1)(a) because Defendant intentionally

intercepted and endeavored to intercept Plaintiffs' and Classes Members' electronic
communications to, from, and within their computers and computer networks.
ANSWER: The allegations set forth in paragraph 98 assert conclusions of law to which
no response is required. To the extent paragraph 98 may purport to assert allegations of fact to
which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
99.

Defendant's conduct violated 18 U.S.C. § 2511(1)(d) because Defendant used and

endeavored to use the contents of Plaintiffs' and Classes Members' electronic communications to
profit from its unauthorized collection and sale, knowing and having reason to know that the
information was obtained through interception in violation of 18 U.S.C. § 2511(1).
ANSWER: The allegations set forth in paragraph 99 assert conclusions of law to which
no response is required. To the extent paragraph 99 may purport to assert allegations of fact to
40

which a response may be required, comScore states that the statutes cited by Plaintiffs speak for
themselves, and comScore denies any characterization of the laws applicable to this case that is
inconsistent with their language. Except as specifically admitted, comScore denies each and
every allegation contained in this paragraph.
100.

Defendant intentionally obtained and/or intercepted, by device or otherwise, these

electronic communications, without the knowledge, consent or authorization of Plaintiffs or the
Classes.
ANSWER: The allegations set forth in paragraph 100 assert conclusions of law to
which no response is required. To the extent paragraph 100 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
101.

Plaintiffs and the Classes suffered harm as a result of Defendant's violations of the

ECPA, and therefore seek (a) preliminary, equitable and declaratory relief as may be appropriate,
(b) the sum of the actual damages suffered and the profits obtained by Defendant as a result of
their unlawful conduct, or statutory damages as authorized by 18 U.S.C. § 2520(2)(B),
whichever is greater, (c) punitive damages, and (d) reasonable costs and attorneys' fees.
ANSWER: comScore admits that Plaintiffs purport seek the relief requested in
paragraph 101. Except as otherwise expressly admitted herein, comScore denies the allegations
of paragraph 101.
THIRD CAUSE OF ACTION
Violation of the Computer Fraud and Abuse Act (“CFAA”)
(18 U.S.C. §§ 1030, et seq.)
(On Behalf of Plaintiffs and the Classes)
102.

Plaintiffs incorporate the foregoing allegations as if fully set forth herein.

41

ANSWER: comScore hereby incorporates as though fully set forth herein its answers to
paragraphs 1 through 101.
103.

Defendant intentionally accessed a computer without authorization and/or exceeded any

authorized access and in so doing intentionally breached its own Terms of Service and Privacy
Policy.
ANSWER: The allegations set forth in paragraph 103 assert conclusions of law to
which no response is required. To the extent paragraph 103 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
104.

Defendant illegally obtained this information from a protected computer involved in

interstate or foreign communication.
ANSWER: The allegations set forth in paragraph 104 assert conclusions of law to
which no response is required. To the extent paragraph 104 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
105.

By scanning and removing information from local and network files, monitoring internet

behavior, including keystroke logging consumer input, and injecting code and data onto
Plaintiffs' computers, Defendant accessed Plaintiffs' computers, in the course of interstate
commerce and/or communication, in excess of the authorization provided by Plaintiffs as
descried in 18 U.S.C. § 1030(a)(2)(C).
ANSWER: The allegations set forth in paragraph 105 assert conclusions of law to
which no response is required. To the extent paragraph 105 may purport to assert allegations of
42

fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
106.

Defendant violated 18 U.S.C. § 1030(a)(2)(C) by intentionally accessing Plaintiffs' and

Classes Members' computers and computer networks without authorization and/or by exceeding
the scope of that authorization.
ANSWER: The allegations set forth in paragraph 106 assert conclusions of law to
which no response is required. To the extent paragraph 106 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
107.

Plaintiffs' computer, and those belonging to Class Members, are protected computers

pursuant to 18 U.S.C. § 1030(e)(2)(B) because they are used in interstate commerce and/or
communication. Specifically, Plaintiff Dunstan spent $40 to purchase a spyware removal
program to fully remove the program and restore his computer to a functioning state.
ANSWER: The allegations set forth in paragraph 107 assert conclusions of law to
which no response is required. To the extent paragraph 107 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
108.

By accessing, collecting, and transmitting Plaintiffs and Classes Members' computer data

without authorization, Defendant intentionally caused damage to those computers by impairing
the integrity of information and/or data.
43

ANSWER: The allegations set forth in paragraph 108 assert conclusions of law to
which no response is required. To the extent paragraph 108 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
109.

Through the conduct described herein, Defendant has violated 18 U.S.C.§

1030(a)(5)(A)(iii).
ANSWER: The allegations set forth in paragraph 109 assert conclusions of law to
which no response is required. To the extent paragraph 109 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
110.

As a result, Defendant's conduct has caused a loss to one or more persons during any one-

year period aggregating at least $5,000 in value in real economic damages.
ANSWER: The allegations set forth in paragraph 110 assert conclusions of law to
which no response is required. To the extent paragraph 110 may purport to assert allegations of
fact to which a response may be required, comScore states that it lacks knowledge or information
sufficient to form a belief as to the truth of the allegations of paragraph 110, and on that basis,
denies them.
111.

Plaintiffs and the Classes expended time, money and resources to investigate and remove

comScore's tracking software from his computer.
ANSWER: comScore lacks information sufficient to form a belief as to the truth of the
allegations in paragraph 111, and on that basis, denies them.

44

112.

Plaintiffs and Classes members have additionally suffered loss by reason of these

violations, including, without limitation, violation of the right of privacy.
ANSWER: The allegations set forth in paragraph 112 assert conclusions of law to
which no response is required. To the extent paragraph 112 may purport to assert allegations of
fact to which a response may be required, comScore states that it lacks knowledge or information
sufficient to form a belief as to the truth of the allegations of paragraph 112, and on that basis,
denies them.
113.

Defendant's actions were knowing and/or reckless and caused harm to Plaintiffs and

members of the Classes.
ANSWER: The allegations set forth in paragraph 113 assert conclusions of law to
which no response is required. To the extent paragraph 113 may purport to assert allegations of
fact to which a response may be required, comScore denies those allegations.
FOURTH CAUSE OF ACTION
Violation of the Illinois Consumer Fraud and Deceptive Practices Act
(815 ILCS 505/1 et seq.)
(On Behalf of Plaintiff Dunstan and the Dunstan Subclass)
114.

Plaintiff incorporates the foregoing allegations as if fully set forth herein.
ANSWER: comScore hereby incorporates as though fully set forth herein its answers to

paragraphs 1 through 113.
115.

The Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/1 et seq.

("ICFA"), protects both consumers and competitors by promoting fair competition in commercial
markets for goods and services.
ANSWER: The allegations set forth in paragraph 115 assert conclusions of law to
which no response is required. To the extent paragraph 115 may purport to assert allegations of
fact to which a response may be required, comScore states that it lacks knowledge or information
sufficient to form a belief as to the truth of the allegations of paragraph 115, and on that basis,
denies them.
45

116.

The ICFA prohibits any unlawful, unfair or fraudulent business acts or practices

including the employment of any deception, fraud, false pretense, false promise,
misrepresentation, or the concealment, suppression, or omission of any material fact. 815 ILCS
505/2.
ANSWER: The allegations set forth in paragraph 116 assert conclusions of law to
which no response is required. To the extent paragraph 116 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
117.

Defendant has engaged in deceptive and fraudulent business practices, as defined by the

ICFA, by intentionally concealing the fact that its software was included in supposed "freeware."
comScore has further violated the ICFA by fraudulently designing its software to be highly
resistant to uninstallation by the user. In addition, comScore has omitted material facts about the
true nature of its software products in its Terms of Service. Defendant's practice of profiting
from information deceptively gathered from unwitting consumers also constitutes a violation of
the ICFA.
ANSWER: The allegations set forth in paragraph 117 assert conclusions of law to
which no response is required. To the extent paragraph 117 may purport to assert allegations of
fact to which a response may be required, comScore states that the statutes cited by Plaintiffs
speak for themselves, and comScore denies any characterization of the laws applicable to this
case that is inconsistent with their language. Except as specifically admitted, comScore denies
each and every allegation contained in this paragraph.
118.

Plaintiff Dunstan and the Subclass have suffered harm as a proximate result of the

violations of law and wrongful conduct of Defendant in the form of actual monetary damages
and violations of their privacy rights. Specifically, Plaintiffs computer was debilitated by the
46

surreptitiously installed Surveillance Software and he was forced to spend $40 on third party
software to remove comScore' s Surveillance Software.
ANSWER: The allegations set forth in paragraph 118 assert conclusions of law to
which no response is required. To the extent paragraph 118 may purport to assert allegations of
fact to which a response may be required, comScore states that it lacks knowledge or information
sufficient to form a belief as to the truth of the allegations of paragraph 118, and on that basis,
denies them
119.

Plaintiff seeks an order (1) permanently enjoining Defendants from continuing to engage

in unfair and unlawful conduct; (2) requiring Defendants to pay actual and compensatory
damages; (3) requiring Defendants to make full restitution of all funds wrongfully obtained; and
(4) requiring Defendants to pay interest, attorneys' fees, and costs pursuant to 815 ILCS
505/10a(c).
ANSWER: comScore admits that Plaintiffs purport seek the relief requested in
paragraph 119. Except as otherwise expressly admitted herein, comScore denies the allegations
of paragraph 119.
FIFTH CAUSE OF ACTION
Unjust Enrichment
(On Behalf of Plaintiffs and the Classes)
120.

Plaintiffs incorporate the foregoing allegations as if fully set forth herein.
ANSWER: comScore hereby incorporates as though fully set forth herein its answers to

paragraphs 1 through 119.
121.

Plaintiffs and members of the Classes conferred a monetary benefit on Defendant.

Defendant received and retained money by selling data to its clients that was collected about
Plaintiffs and the Classes through its Surveillance Software. Much of this information was
collected from Plaintiffs and the Classes without authorization and through deceptive business
practices.
ANSWER: comScore denies the allegations of paragraph 121.
47

122.

Defendant appreciates or has knowledge of such benefit
ANSWER: comScore denies the allegations of paragraph 122.

123.

Under principles of equity and good conscience, Defendant should not be permitted to

retain the money obtained by selling information about Plaintiffs and members of the Classes,
which Defendant has unjustly received as a result of its unlawful actions.
ANSWER: The allegations set forth in paragraph 123 assert conclusions of law to
which no response is required. To the extent paragraph 123 may purport to assert allegations of
fact to which a response may be required, comScore states that the legal principles cited by
Plaintiffs speak for themselves, and comScore denies any characterization of the laws applicable
to this case that is inconsistent with those principles. Except as specifically admitted, comScore
denies each and every allegation contained in this paragraph.
124.

Accordingly, Plaintiffs and the Classes seek full disgorgement and restitution of any

amounts comScore has retained as a result of the unlawful and/or wrongful conduct alleged
herein.
ANSWER: comScore admits that Plaintiffs purport to seek the relief requested in
paragraph 124. Except as otherwise expressly admitted herein, comScore denies the allegations
of paragraph 124.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of the Classes, pray for the
following relief:
A. Certify this case as a class action on behalf of the Classes defined above, appoint Mike
Harris and Jeff Dunstan as class representatives, and appoint their counsel as class
counsel;
B. Declare that comScore's actions, as described herein, violate the Stored Communications
Act (18 U.S.C. §§ 2701, et seq.), the Electronic Communications Privacy Act (18 U.S.C.
§§ 2510, et seq.), the Computer Fraud and Abuse Act (18 U.S.C. §§ 2510, et seq.),and
Illinois Consumer Fraud and Deceptive Practices Act (815 ILCS 505/1 et seq.);

48

C. Award injunctive and other equitable relief as is necessary to protect the interests of the
Plaintiffs and the Classes, including, inter alia: (i) an order prohibiting comScore from
engaging in the wrongful and unlawful acts described herein; and (ii) requiring comScore
to refrain from accessing files attached to consumers' local networks; and (iii) requiring
comScore to delete its root certificate when the Surveillance Software is removed; and
(iv) requiring comScore to conspicuously and truthfully display the manner in which it
collects data about monitored consumers in its Terms of Service; and (v) requiring
comScore to uninstall its Surveillance Software when bundled software is uninstalled;
and (vi) requiring comScore to refrain from intercepting wireless network traffic without
authorization.
D. Award damages, including statutory damages of $1,000 per violation under the Stored
Communications Act, 18 U.S.C. § 2707(c), and the Electronic Communications Privacy
Act, 18 U.S.C. § 2520, and punitive damages where applicable, to Plaintiffs and the
Classes in an amount to be determined at trial;
E. Award Plaintiffs and the Classes their reasonable litigation expenses and attorneys' fees;
F. Award Plaintiffs and the Classes pre- and post-judgment interest, to the extent
allowable; and
G. Award such other and further relief as equity and justice may require.
ANSWER: comScore denies that Plaintiffs are entitled to a judgment or to any other relief
as requested in their “PRAYER FOR RELIEF.”

SEPARATE AND ADDITIONAL DEFENSES
comScore asserts the following separate and additional defenses to Plaintiffs’ Complaint,
without assuming the burden of proof on such defenses that would otherwise fall on Plaintiffs.
comScore reserves the right to supplement or amend these defenses as discovery is conducted,
and does not knowingly or intentionally waive any applicable separate and additional defense.
comScore reserves all other affirmative defenses pursuant to Rule 8(c) of the Federal Rules of
Civil Procedure, the Patent Laws of the United States, and any other defenses, at law or in
equity, that now exist or in the future may be available based on discovery and further factual
investigation in this case.

49

First Separate and Additional Defense
(Venue)
1.

Plaintiff entered into an agreement with comScore that contains a binding forum selection

clause providing for exclusive venue in Virginia state court or the Eastern District of Virginia.

Second Separate and Additional Defense
(Waiver)
2.

The Complaint and the claims asserted therein are barred by the doctrine of waiver.

Third Separate and Additional Defense
(Failure to Mitigate Damages)
3.

Plaintiffs failed to properly mitigate their alleged damages by, among other things: (1)

failing to remove comScore’s software through the Windows Add/Remove programs utility,
which is the industry standard, rather than purchasing unnecessary antivirus software; (2) failing
to review comScore’s FAQ and Privacy Policy, which would have quickly and expressly
informed them how to remove comScore’s software; and (3) objectively manifesting their assent
to the installation of comScore’s software, and to comScore’s TOS and Privacy Policy, when that
was apparently not their intention.
Fourth Separate and Additional Defense
(Statute of Limitations and Laches)
4.

Plaintiffs define the putative class to include individuals that fall outside the applicable

statute of limitations and/or whose claims are barred by the doctrine of laches
PRAYER FOR RELIEF
Wherefore, comScore prays for relief and judgment as follows:
1.

That the Court deny Plaintiffs’ prayer for relief in its entirety and that the Court

dismiss the Complaint with prejudice and enter judgment in comScore’s favor and against
Plaintiffs;
2.

That the Court award comScore its costs and expenses that it incurs in this action
50

and attorneys’ fees as permitted by law; and
3.

That the Court award comScore such other and further relief that it deems

appropriate.
Jury Demand
Defendant demands a jury trial of all issues so triable.

Dated: December 13, 2011
Respectfully submitted,

By: /s/ Whitty Somvichian
Michael G. Rhodes (admitted pro hac vice)
Whitty Somvichian (admitted pro hac vice)
Ray Sardo (admitted pro hac vice)
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
By: /s/ Paul F. Stack
Paul F. Stack
Mark W. Wallin
STACK & O’CONNOR CHARTERED
140 South Dearborn Street, Suite 411
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant comScore, Inc.

51

Certificate of Service
I hereby certify that on December 13, 2011, I electronically filed the foregoing document
with the Clerk of Court using the CM/ECF system, which will send notifications of such filings
to the following:
Attorneys for Plaintiffs
Jay Edelson
William Charles Gray
Steven W. Teppler
Ari Jonathan Scharg
EDELSON McGUIRE, LLC
350 North LaSalle, Suite 1300
Chicago, Illinois 60654
Telephone : [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Respectfully submitted,
By: /s/ Whitty Somvichian
Michael G. Rhodes,(admitted pro hac vice)
Whitty Somvichian, (admitted pro hac vice)
Ray Sardo,(admitted pro hac vice)
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]
By: /s/ Paul F. Stack
Paul F. Stack
Mark W. Wallin
STACK & O’CONNOR CHARTERED
140 South Dearborn Street, Suite 411
Chicago, IL 60603
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant comScore, Inc.