The ruling, issued by the Seventh
Circuit Court of Appeals on Tuesday, means that the lawsuit against the Web measurement company can proceed to trial.
The case was brought in 2011 by two of comScore's panel members who say they installed comScore's software after downloading a free product -- like a screensaver, game or program that creates greeting cards.
The panelists, Jeff Dunstan of California and Illinois resident Mike Harris, allege that comScore's terms of service don't alert users about the “terrifying” amount of data the company collects -- including usernames and passwords, search queries, credit card numbers and retail transactions. comScore's terms also don't inform users that the software can change files on people's computers, as well as modify their security settings, according to Dunstan and Harris.
In April, U.S. District Court Judge James Holderman in the Northern District of Illinois certified the lawsuit as a class-action on behalf of everyone who downloaded comScore's software from a third party since 2005. That group could include as many as 10 million people.
Holderman also certified a smaller subgroup of people who weren't shown a hyperlink to comScore's end user license agreement before downloading the software.
comScore unsuccessfully asked the Seventh Circuit Court of Appeals for permission to appeal Holderman's order now, rather than waiting until after the case went to trial. If comScore loses the case after a trial, the company can still appeal the order at that time.
Jay Edelson, the consumers' lawyer, says he expects the case to go to trial by the end of the year. “We're really gratified,” he says, referring to the appellate court's decision. “comScore has been talking with a lot of bravado about how they think they can beat this case, and we're really looking forward to this trial,” he says.
comScore did not respond to Online Media Daily's request for comment.
The measurement company garnered support from a coalition of ad trade groups, including the Direct Marketing Association, Interactive Advertising Bureau, Association of National Advertisers, American Association of Advertising Agencies and the U.S. Chamber of Commerce.
They weighed in with friend-of-the-court papers arguing that the lawsuit could “implicate foundational internet communication and commerce technology.”
The ad groups said their members “face a groundswell of privacy class actions, such as this one, brought ... 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.”