ComScore, Inc. v. Jeff Dunstan et al., No. 13-8007 (7th Cir., June 11, 2013)

U.S. Circuit Judges Richard A. Posner, Joel M. Flaum, and Ilana Diamond Rovner. Denying petition for leave to appeal class certification.

Last week the Seventh Circuit denied comScore Inc.’s petition for leave to appeal the certification of a 10 million member Internet privacy class. The class, which may be the largest-ever of its kind, alleged that comScore violated numerous privacy acts by gathering and selling confidential personal data from computers without the knowledge or consent of users.

According to court filings, comScore – an online data research company – collects data about tens of millions of consumers’ Internet activity and uses that information to determine website audience ratings. This ratings information is then sold to media outlets which, in turn, use the ratings to establish advertising rates.

The lawsuit was filed in August 2011 by two Illinois residents claiming that their computers downloaded comScore’s surveillance software without their knowledge or consent. The tracking software was allegedly downloaded in connection with other software applications actively downloaded by consumers, such as free applications for screensavers.

An Illinois federal judge certified the class last April for purposes of the plaintiffs’ claims under the Stored Communications Act, the Electronic Communications Privacy Act, and the Computer Fraud and Abuse Act. The court, however, declined to grant certification on the claim for common-law unjust enrichment because the variations in state law precluded class treatment.

On Tuesday, June 11, 2013, the Seventh Circuit denied comScore’s petition for leave to appeal class certification without releasing an opinion.