An amicus (“friend of the court”) brief filed by the Direct Marketing Association (DMA) and several other organizations, notably the U.S. Chamber of Commerce, in Harris v. comScore Inc. was accepted by the U.S. Court of Appeals for the Seventh Circuit. Harris v. comScore, a class-action lawsuit with more than 10 million plaintiffs, is still pending in federal court. The case was originally brought before courts by Mike Harris and Jeff Dunstan, who allege that comScore’s software failed to disclose to users the extent to which the latter’s personal information would be mined and used. The claimants downloaded comScore’s software along with third-party freeware, such as screensavers, and were not alerted to the fact that comScore would then have access to their personal information, such as usernames, passwords, credit card information, retail transactions, etc. The case is currently under review to be certified as a class-action lawsuit. If certified, the case will proceed to the Appellate court for immediate review.
Jerry Cerasale, DMA Senior Vice President of Government Affairs, commented that “DMA was and is concerned Federal District Court incorrectly granted class status to the plaintiff and that incorrect action could become a dangerous precedent. DMA is asking the Circuit Court to overturn the certification of the class in this case.”
Thomas E. Gilbertsen of Venable LLC, who served as Litigation Center’s co-counsel for the amicus brief, articulated his concern regarding ways in which the comScore certification decision and other privacy-related class-action lawsuits will affect the long-standing guidelines and regulations of the Internet commerce industry. He refrained from making any predictions about the potential impact of the ruling in Harris’ favor on the standard industry practices. The purpose of the amicus brief was to communicate to the court “the standard-setting function that comScore plays in the Internet advertising industry, and therefore the larger importance and public interest in the district court’s certification decision.” If the court rules in the plaintiffs’ favor, Gilbertsen expects the industry leaders to appeal and work to limit the impact of the ruling.
A DMA press release called the lawsuit “frivolous,” an adjective that the claimants’ representative Jay Edelson of Edelson McGuire LLC, found “over the top.” Edelson also voiced his displeasure at the DMA’s news release referring to his firm as “self-appointed class-action lawyers.” He pointed out that Edelson McGuire LLC was appointed by the court to serve as the class counsel, following a host of procedures, including a verification of the firm’s credentials. Moreover, Edelson highlighted that “comScore did not argue that we weren’t the appropriate class counsel, so that claim is unjustified.”
The amicus brief is, in Edelson opinion, an attempt on behalf of “comScore and its allies” to prevent the Harris v. comScore Inc. to become a certified class-action lawsuit. If the class-action suit does not proceed to be heard in court, it is unlikely that the majority of the plaintiffs will have sufficient resources to litigate on an individual basis. “DMA…makes it seem like we’re attacking how Internet works,” says Edelman. “It couldn’t be further from the truth.” The suit aims to get businesses like comScore to request consent to access their users’ information, something comScore failed to do.
Venable’s Gilbertsen counters by emphasizing that “[the amicus brief] is not intended in any way to formally intervene in the litigation.”
The amicus brief is the first action on behalf the recently-formed DMA Litigation Center (DMALC), created to serve as the advocacy body of the DMA with the aim of defending the interests of data-driven marketers.
