Harris v. comScore

Citation
'''Harris v. Comscore. Inc.,''' 2011 WL 4738357 (N.D. Ill. Oct. 7, 2011) (full-text).

Factual Background
Comscore, Inc. (“comScore”) is an internet research company that induces customers to install its monitoring software by bundling the applications with free programs such as screensavers and casual games, and by offering free prizes for each download. comScore’s software then tracks internet usage and that data is sold for marketing research and behavioral analysis purposes. Plaintiffs brought this action as individuals and on behalf of a class of similarly situated individuals for violations of the Stored Communications Act (“SCA”), the Electronic Communications Privacy Act (“ECPA”), the Computer Fraud and Abuse Act (“CFAA”), and the Illinois Consumer Fraud and Deceptive Practices Act, and for unjust enrichment. Defendant responded by bringing a motion to dismiss for improper venue, and, in the alternative, to transfer venue.

Trial Court Proceedings
According to the Defendant, users of its software have to click a box acknowledging that they have “read [and] agree[d] to. . . the terms and conditions of the Privacy Statement and User License Agreement” before they can install comScore’s software. The User License Agreement includes a forum-selection clause stating that “for any non-arbitral action or proceeding arising out of or related to this program or this agreement, sole and exclusive jurisdiction shall reside with the appropriate state court located in Fairfax County, Virginia or federal court located in Alexandria, Virginia.” Plaintiff’s have alleged, however, that the agreements which they were acknowledging when downloading comScore’s software were not readily apparent. Their claim is that the terms were obscured “in such a way that the average, non-expert consumer would not notice the hyperlink” to them.

To resolve a venue motion, the court must take all facts in the complaint as true, unless contradicted by the defendant’s affidavits, and must resolve all factual conflicts and draw all reasonable inferences in the plaintiff’s favor. Electroplated Metal Solutions, Inc. v. Am. Servs., Inc., 500 F. Supp. 2d 874, 876 (N.D. Ill. 2007). In the present case, the Defendant did not contradict the Plaintiffs’ statements that the links to the relevant agreements were in some way obscured or not readily apparent to the average user of comScore’s services.

While comScore did cite to a number of cases in which “click-through” agreements – including some with forum-selection clauses – have been enforced, those cases did not address the issue of whether the agreement was not readily available to the user. To the contrary, Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002) involved a site where users were required to scroll down below the download button in order to access the cited terms. The court concluded that “in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.” Furthermore, “[w]hen products are ‘free’ and users are invited to download them in the absence of reasonably conspicuous notice that they are about to bind themselves to contract terms, the transactional circumstances cannot be fully analogized to those in the paper world of arm’s-length bargaining.”

Because comScore had failed to contradict the allegations of the Plaintiffs regarding the obstruction of its terms, the court denied comScore’s motion to dismiss for improper venue. While the court did acknowledge that a transfer to Virginia may be a more convenient forum for the Defendant, the motion to transfer was also denied. The Plaintiffs were Illinois residents during the relevant period of time, their acts of downloading and installing the software occurred in Illinois, and their choice of venue as plaintiffs is entitled to substantial weight under Section 1404(a).