Harris v. Comscore, Inc.
292 F.R.D. 579
N.D. Ill.2013Background
- Plaintiffs allege comScore improperly collected and used personal information from computers via OSSProxy installed through bundlers since 2005.
- OSSProxy collects extensive data, including file names, browser input, and contents of PDFs, and has been used in its current form since 2005.
- Downloading statements and end-user license agreement (ULA) are presented during installation; users must Accept or Decline, with installation proceeding if Accept is chosen.
- The ULA identifies consents and third-party sponsor relationships; plaintiffs claim scope of consent is exceeded by data collection and sale of data.
- Named plaintiffs Dunstan and Harris downloaded OSSProxy after using a bundler’s free product; Harris allegedly did not receive a working hyperlink to the ULA.
- Plaintiffs seek class certification for three federal statutory claims (SCA, ECPA, CFAA) and a state-law unjust enrichment claim, with a proposed class and subclass.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unjust enrichment class certification | Unjust enrichment is common to all members and manageable via subclasses. | Choice-of-law variation defeats nationwide class treatment; no feasible superior method. | Denied for the unjust enrichment claims. |
| Certification of SCA, ECPA, CFAA claims | Common questions predominate; consent and scope issues are classwide. | Some individualized questions may defeat predominance; geography and notice issues. | Granted in part; class certified for SCA, ECPA, CFAA claims. |
| Numerosity, commonality, typicality, adequacy, ascertainability | Large potential class; common contract-based questions; identical download process. | Some individualized issues in consent and data collection. | All five Rule 23(a) requirements satisfied for federal claims; ascertainability addressed with records and affidavit plan. |
| Predominance and superiority under Rule 23(b)(3) | Common questions predominate; class action superior for resolving common issues. | Damage calculations and limitations periods could require individualized proof. | Predominance and superiority satisfied for federal claims; class treatment approved. |
Key Cases Cited
- Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) (claims from form contracts suitable for class treatment)
- Nat’l Prod. Workers Union Ins. Trust v. Cigna Corp., 665 F.3d 897 (7th Cir. 2011) (mutual assent governs contract terms; objective conduct controls)
- Shvartsman v. Apfel, 138 F.3d 1196 (7th Cir. 1998) (standard for class actions; ascertainability considerations)
- Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) (ascertainability and class membership via objective criteria)
- In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) (limitations and damages considerations in class actions)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (U.S. 2013) (damages methodology and class certification standards)
- Williams v. Poulos, 11 F.3d 271 (1st Cir. 1993) (implicit consent can be inferred from surrounding circumstances)