Opinion
No. 11 C 5807.
2011-10-7
Mike HARRIS and Jeff Dunstan, Plaintiffs, v. COMSCORE, INC., Defendant.
Jay Edelson, William Charles Gray, Edelson McGuire, LLC, Steven W. Teppler, Ari Jonathan Scharg, Edelson McGuire, LLC, Chicago, IL, for Plaintiffs. Michael G. Rhodes, Ray A. Sardo, Whitty Somvichian, Cooley Godward Kronish LLP, San Francisco, CA, David Zev Smith, Leonard Ernest Hudson, Reed Smith LLP, Chicago, IL, for Defendant.
Jay Edelson, William Charles Gray, Edelson McGuire, LLC, Steven W. Teppler, Ari Jonathan Scharg, Edelson McGuire, LLC, Chicago, IL, for Plaintiffs. Michael G. Rhodes, Ray A. Sardo, Whitty Somvichian, Cooley Godward Kronish LLP, San Francisco, CA, David Zev Smith, Leonard Ernest Hudson, Reed Smith LLP, Chicago, IL, for Defendant.
MEMORANDUM OPINION AND ORDER
JAMES F. HOLDERMAN, Chief Judge:
Plaintiffs Mike Harris and Jeff Dunstan allege, as individuals and on behalf of a class of similarly situated individuals, that comScore, Inc. (“comScore”) improperly obtained and used personal information from their computers after they downloaded and installed comScore's software. They assert claims for violation of the Stored Communications Act, 18 U.S.C. § 2701(a)(1) & (2) (Count I), violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2511(1)(a) & (d) (Count II), violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C) (Count III), violation of the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/2 (Count IV), and for unjust enrichment (Count V). Before the court is ComScore's “Motion to Dismiss Under Rule 12(b)(3) or, in the Alternative, to Transfer Venue under 28 U.S.C. § 1404(A)” (Dkt. No. 12).
BACKGROUND
ComScore is an internet research company that monitors the computer usage of consumers who install comScore's software. (Compl. ¶ 4.) To induce consumers to install its software, comScore bundles the software with free programs such as screensavers and games and offers free prizes for each download. ( Id. ¶¶ 32–34.) After installation, comScore's software continually monitors the host computer and sends information about its activity to comScore's servers. ( Id. ¶ 26.) ComScore then sells the data to its clients, who use the data for marketing research and analysis of online behavior. ( Id. ¶¶ 26–27).
According to the declaration of comScore's Vice President for Panel Operations, John O'Toole, before a user can install comScore's software, the consumer must click a box acknowledging that he or she has “read [and] agree[d] to ... the terms and conditions of the Privacy Statement and User License Agreement.” (Dkt. No. 14 (“Declaration of John O'Toole”) ¶ 4.) The User Licence 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.” ( Id. at Ex. A.) ComScore through its pending motion seeks to enforce that forum-selection clause.
DISCUSSION
The plaintiff bears the burden of demonstrating that the venue it has chosen is proper. Electroplated Metal Solutions, Inc. v. Am. Servs., Inc., 500 F.Supp.2d 974, 976 (N.D.Ill.2007) (citing M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). 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. Id.; see also 5B Charles Alan Wright, et al., Federal Practice and Procedure § 1352 (3d ed. rev. 2011). A forum-selection clause is “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen, 407 U.S. at 10, 92 S.Ct. 1907. That reasonableness standard means, among other things, that a forum-selection clause is enforceable only if its existence “ ‘was reasonably communicated to the plaintiff.’ ” Electroplated Metal Solutions, 500 F.Supp.2d at 976 (quoting Effron v. Sun Line Cruises, Inc., 67 F.3d 7, 9 (2d Cir.1995)).
Here, plaintiffs Harris and Dunstan have plainly alleged that the forum-selection clause was not apparent when they downloaded the software.
CONCLUSION
For the reasons explained above, ComScore's “Motion to Dismiss Under Rule 12(b)(3) or, in the Alternative, to Transfer Venue under 28 U.S.C. § 1404(A)” is denied.
1. See Compl. ¶ 69 (“Plaintiff Harris did not agree to comScore's Terms of Service and did not know that he was installing Surveillance Software when he installed the free software.”); ¶ 73 (“Plaintiff Dunstan did not agree to comScore's Terms of Service and did not know that he was installing Surveillance Software when he installed the free software.”).