Hannaford vs. comScore—Up and Down Results for Privacy Class Action Defendants

by BakerHostetler
Contact

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 and 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 CLAIMS

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."

STATUTORY CLAIMS

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.

NUMEROSITY

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.

COMMONALITY

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."

TYPICALITY

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."

ADEQUACY

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.

ASCERTAINABILITY

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 comScore'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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!