Seventh Circuit Denies 26(f) Relief Allowing A Potentially Massive Privacy Class to Proceed to Trial in Harris v. comScore

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As reported here in April, an Illinois federal district court certified a privacy class that could number tens of millions of plaintiffs in the case of Harris v. comScore. The plaintiffs claimed that comScore, an online data research company, violated the Stored Communications Act, the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act. The plaintiffs also asserted a claim for unjust enrichment. The district court certified the class based on the plaintiffs’ statutory claims only, and not surprisingly, comScore petitioned the Seventh Circuit under Rule 23(f) for an interlocutory appeal of that ruling.

On appeal, comScore noted that the court “certified a worldwide class—tens of millions of people—consisting of everyone who has downloaded…. comScore’s software through a third party since 2005,” and stated, “No privacy case of anything approaching this size has ever been certified, for the simple reason that the individualized issues inherent in case of this type make them particularly unsuited to class treatment.” comScore argued that the district court failed to engage in a “rigorous analysis” before ruling on the class certification issue, and that the decision could “change the course of class action practice in data privacy cases.”

comScore’s appeal was supported by an amicus brief filed by industry groups, including the Direct Marketing Association, the American Association of Advertising Agencies and the US Chamber of Commerce. The amici argued that the district court “created what appears to be the largest class ever certified in a contested internet privacy case, and there is good cause to conclude that it does so erroneously by avoiding Supreme Court precedent and deferring mandatory Rule 23 determinations until trial.” The amici further contended that they “face a groundswell of privacy class actions, such as this one, brought under ill-fitting statutes by uninjured named plaintiffs presenting uncorroborated (and often untestable) allegations that their privacy rights, and those of a massive class of allegedly ‘similarly situated’ individuals, have been violated.”

Yesterday, in summary fashion, the Seventh Circuit issued an Order denying comScore’s petition. The court did not articulate the basis for its decision. The ruling allows the case to proceed to trial, which reportedly will begin before the end of the year. Going forward, class action defendants can expect plaintiffs’ attorneys to rely heavily on the comScore decision to argue for class certification of statutory-based claims in privacy and other cases.