comScore says in new papers that its user agreement with panelists includes a “forum selection clause” that requires all disputes to be litigated in Virginia. The two panelists who brought the case, Jeff Dunstan of California and Illinois resident Mike Harris, filed it in 2011 in federal court in the Northern District of Illinois.
"The forum selection clause was presented to plaintiffs in all capital letters in a clickwrap agreement,” comScore says in its latest attempt to convince U.S. District Court Judge James Holderman to dismiss the lawsuit.
The company adds that the consumers theoretically can still proceed with the case in Virginia -- although doing so potentially would be inconvenient. “Any additional expense or inconvenience that may be incurred by proceeding in Virginia was foreseeable at the time that the parties agreed to the forum selection clause,” comScore says.
comScore made a similar argument earlier in the case, but Holderman ruled against the company. The measurement firm says in its new court papers that additional facts have emerged showing that “all members of the class did in fact agree to the contract.”
The panelists' lawyer, Jay Edelson, calls comScore's latest move a “Hail Mary pass.”
“They summarily rejected their arguments when they raised them two years ago and we don't foresee a different result this time,” he says.
Earlier this year, Holderman issued a key ruling against comScore, when he allowed the case to proceed as a class-action and certified a class of everyone since 2005 who downloaded comScore's software from a third party. 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.
Dunstan and Harris alleged in their complaint that they installed comScore's software after downloading a free product -- like a screensaver, game or program that creates greeting cards. They say 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.
They also contend that comScore's marketing partners -- who bundle comScore software with freeware -- often don't disclose information about comScore until after users have started downloading the free programs. Dunstan and Harris argue that comScore violated various federal privacy laws by capturing information from people's computers without their informed consent.
comScore unsuccessfully argued that the case didn't lend itself to class-action certification because questions about consent require case-by-case analysis. But Holderman ruled that the lawsuit presented many common questions, including whether the comScore's data collection practices went beyond what the company said in its terms of service.
The company attempted to appeal Holderman's ruling to the 7th Circuit Court of Appeals, but that court refused to hear the case.