Editor’s Note: This is a cross-blog post with BakerHostetler’s Data Privacy Monitor blog. For the latest news and updates regarding privacy and data protection, visit www.DataPrivacyMonitor.com.
Sighs of relief by class actions defendants following the denial of class certification in Hannaford may give way to renewed uncertainty now that a massive class, estimated by the plaintiffs’ lawyer to be more than a million people, was certified by an Illinois federal district court last week in the case of Harris v. comScore.
According to its website, “comScore measures what people do as they navigate the digital world – and turns that information into insights and actions for our clients to maximize the value of their digital investments.” comScore has more than 2,100 clients worldwide, ranging from private corporations, major media outlets, to governments. comScore gathers data through a software program called OSSProxy, which, when installed on a computer, constantly collects data about activities on the computer. comScore works with so-called “bundlers,” who provide free digital products to internet users. While downloading the bundlers’ free software, consumers are given the opportunity to download OSSProxy. The named plaintiffs in Harris v. comScore both downloaded and installed OSSProxy after downloading a free digital program from one of comScore’s bundlers.
In their Complaint, the plaintiffs alleged that “comScore has developed highly intrusive and robust data collection software … to surreptitiously siphon exorbitant amounts of sensitive and personal data from consumers’ computers [and] uses deceitful tactics to disseminate its software and thereby gain constant monitoring access to millions of hapless consumers’ computers and networks.” They further alleged that “comScore’s sophisticated computer applications monitor every action conducted by users [and that the collected] data is sent to comScore’s servers, and then organized and sold to [comScore’s] clients.” comScore allegedly collects a “terrifying” amount of data from “unsuspecting customers,” including usernames and passwords, search engine queries, and credit card numbers.
The plaintiffs asserted claims for (1) violation of the federal Stored Communications Act (SCA), which, among other things, makes it unlawful to obtain access to stored communications on another person’s computer system without authorization; (2) violation of the federal Electronic Communications Privacy Act (ECPA), which prohibits unauthorized wiretapping and electronic eavesdropping; (3) violation of the federal Computer Fraud and Abuse Act (CFAA), which prohibits accessing computers in excess of authorization; and (4) common law unjust enrichment.
Two certifications were sought — Class certification of “All individuals who have had, at any time since 2005, downloaded and installed comScore’s tracking and software onto their computers via one of comScore’s third party bundling partners,” and Subclass certification of “All Class members not presented with a functional hyperlink to an end user license agreement before installing comScore’s software onto their computers.”
Unjust Enrichment Claim
The court first addressed the unjust enrichment claim, ruling that it could not be resolved on a class basis because of “insurmountable choice-of-law problems.” The court noted that the proposed Class and Subclass likely would include plaintiffs from all 50 states as well as some foreign countries, and that the plaintiffs “propose no solution to allow the court to manage the variety of laws that may be applicable to the Class, other than to suggest that the court certify two subclasses under California and Illinois law.” That proposal was rejected as being “plainly inadequate in light of the geographical diversity of the plaintiffs and the variations in applicable law.”
comScore did not fare as well with regard to class certification of the plaintiffs’ remaining claims. After confirming that each of the federal statutes at issue provides a private right of action, the court ruled that the plaintiffs satisfied the requirements for class certification under FRCP 23 for each statute.
comScore did not dispute that the numerosity requirement was met, noting that comScore’s program was installed on millions of computers between 2008 and 2011.
The court found that the plaintiffs raised a variety of common questions that could be resolved on a classwide basis. Most significant was the fact that each Class and Subclass member agreed to a form contract, and that “claims arising from interpretations of a form contract appear to present the classic case for treatment as a class action.” The court rejected comScore’s argument that each plaintiff’s subjective understanding of the agreement and his or her scope of consent rendered class treatment inappropriate, finding that “[t]hat rule has no place where a party manifested consent through the adoption of a form contract.”
The court held that this requirement was satisfied because both the Class and the Subclass representative plaintiffs “used a substantively identical process to download OSSProxy,” following which the Subclass representative was not presented with a functioning hyperlink to the end user agreement. The court dismissed what it called comScore’s “speculative” arguments that the named plaintiffs were atypical because of issues concerning whether they actually downloaded OSSProxy. comStar had presented no “actual evidence” that the named plaintiffs did not download the software, and therefore, the plaintiffs’ “unrefuted” testimony that they downloaded the software provided “ample evidence that their claims are typical.”
comScore did not dispute that the adequacy requirement was met. Further, there was no evidence of conflicting interests on the part of the named plaintiffs. They vigorously participated in the case thus far, and plaintiffs’ counsel were deemed to be qualified to represent the class.
Because comScore possesses contact information for some of the proposed Class and Subclass members, the court ruled that those portions of the proposed classes were identifiable in satisfaction of the ascertainability requirement. The court ruled that any remaining class members could claim membership by affidavit. Although rejecting comScore’s argument that the affidavit process would be unwieldy, the court acknowledged that the issue could be reconsidered if the portion of the class asserting membership by affidavit proved to be excessively large, in which case the class could be limited to members who downloaded OSSProxy as reflected in conScore’s records.
Predominance and Superiority
comScore argued that statutes of limitations raised individual issues that are not suited to class treatment. Because the limitation periods for SCA, ECPA and CFAA begin to run two years after a plaintiff discovers a potential violation, comScore asserted that a case-by-case determination would be required to determine when each plaintiff discovered the alleged violation. The court disagreed on the grounds that the issue arises only for class members who downloaded OSSProxy two years before the lawsuit was filed, some of those class members still have OSSProxy installed on their computers, and it is unlikely that any remaining class members had the requisite knowledge of OSSProxy’s operations to trigger the statute of limitations.
In addition, since SCA and ECPA provide for statutory damages, the court rejected comScore’s contention that there were issues concerning whether each individual plaintiff suffered damage or loss. And even though CFAA grants a civil action only to persons “who suffer damage or loss,” and further requires that each offense lead to a “loss to 1 or more persons during any 1-year period … aggregating at least $5,000 in value,” the court held that it would be more efficient to resolve all of the common issues in a single proceeding than to hold individual damages hearings.
If the estimate of the plaintiffs’ lawyer concerning class membership proves to be correct, Harris v. comScore is likely to be the largest privacy case ever certified on an adversarial basis.