• by Wendy Davis  @wendyndavis, October 24, 2011

Consumers who are suing comScore for allegedly duping them into installing monitoring software will be allowed to proceed with the lawsuit in Illinois, rather than transfer it to Virginia, a federal judge has ruled.

U.S. District Court Judge James Holderman rejected comScore's argument that the license agreement accompanying the software required transferring the case to Virginia. Holderman said in a written opinion that consumers alleged that the link to the terms of service was “obscured during the installation process” so that average consumers wouldn't notice the link.

"It is not reasonable to expect a user casually downloading free software to search for such an agreement if it is not immediately available and obvious where to obtain it,” Holderman wrote.

The litigation dates to August, when Illinois resident Mike Harris and California resident Jeff Dunstan sued comScore for allegedly bundling its monitoring software with programs that offer products like free screensavers.

The Web users say they weren't adequately notified that downloading the free programs would also result in the installation of comScore's tracking software -- which goes by various names, including RelevantKnowledge and PermissionResearch.

Harris and Dunstan allege that many users aren't told about the monitoring software until after they have begun installing it. Once users download the software, comScore can access their Web activity and use that information in its market research reports. The lawsuit accuses comScore of violating the federal wiretap law and computer fraud law as well as Illinois state laws. Harris and Dunstan are seeking class-action status.

Holderman's decision not to enforce the license agreement and transfer the case to Virginia, where comScore is headquartered, is raising some eyebrows among lawyers. Legal expert Venkat Balasubramani calls the ruling a "double-take-worthy decision," noting that other judges have said that "check the box terms" are enforceable. "If there were no issues with the UI [user interface] implementation or the browser, then the court's decision is off base," he writes.