In a new post on the Inside Privacy blog, our colleagues discuss the Seventh Circuit’s recent Clay v. Union Pacific Railroad Company holding that a 2024 amendment to the Illinois Biometric Information Privacy Act (BIPA) limiting damages to a per-person basis applies retroactively to cases pending when the amendment…

Continue Reading Seventh Circuit Holds that BIPA Amendment Applies Retroactively

We have routinely highlighted the proliferation of wiretapping class actions, and the variety of approaches courts have taken to address them.  One common pitfall for plaintiffs in these types of cases is standing, an issue highlighted in a recent Third Circuit case throwing out a proposed federal class action against Harriet Carter Gifts and NaviStone Inc., and remanding it to state court.  

The case, Popa v. Harriet Carter Gifts, Inc., No. 25-1760 (3d. Cir. 2026), involved plaintiff’s allegations that Harriet Carter Gifts and NaviStone tracked her browsing activity on Harriet Carter’s website while she shopped for pet stairs, purportedly in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act.  After removal, the district court twice granted summary judgment for the defendants, and both decisions were appealed to the Third Circuit. Continue Reading Stand Aside:  Third Circuit Throws Out Harriet Carter Gifts Federal Wiretapping Case On Standing Grounds

We previously covered the Eleventh Circuit’s decision to deny rehearing in Johnson v. NPAS Solutions, LLC, 2022 WL 3083717 (11th Cir. Aug. 3, 2022), which had held that district courts may not approve incentive awards for class representatives in class action settlements.  Since that time, we have also covered decisions from other courts (including the Seventh Circuit) which declined to follow the Eleventh Circuit, leaving that court standing alone in barring incentive awards. The Federal Circuit has now also declined to follow the Eleventh Circuit’s minority view. Continue Reading Federal Circuit Agrees with Majority View on Class Representative Incentive Awards

Many California-based privacy claims have turned on the application of longstanding statutes to modern technologies, with courts frequently holding that certain online tracking technologies can qualify as impermissible trap-and-trace devices in violation of California Penal Code section 638.51, part of the California Invasion of Privacy Act (CIPA).  A recent decision from the Central District of California, however, signals that these arguments will not always succeed.Continue Reading Federal Court Rejects Claim that Cookies Are Illegal Trap and Trace Devices

An Illinois federal court recently highlighted the critical role played by pre‑class‑certification discovery in testing the adequacy of a proposed class representative.  In Clark v. Blue Diamond Growers, 2026 WL 483275 (N.D. Ill. Feb. 20, 2026), the defendant’s arguably “unique defense” to the named plaintiff’s false advertising claims proved fatal to class certification.Continue Reading Buyer Aware, Class Beware: Court Nixes Smoked Almonds Putative Class

The Washington Supreme Court’s decision in Brown v. Old Navy LLC, 4 Wash.3d 580 (2025) has sparked a wave of putative class actions under Washington’s Commercial Electronic Mail Act (“CEMA”), targeting allegedly misleading email subject lines used by national retailers. In the months since, defendants have increasingly turned to constitutional and federal preemption defenses in an effort to stem this growing tide of litigation. To date, however, those arguments have gained little traction. Several district court decisions have denied defendants’ motions to dismiss on these grounds.Continue Reading District Courts Appear Skeptical of CAN‑SPAM Preemption and Constitutional Challenges to CEMA

Recently, a Pennsylvania federal judge dismissed a suit challenging the use of a third-party website analytics tool by defendant Highlands Healthcare, Inc., an integrated health system with eight hospitals in Pennsylvania.  The Court concluded plaintiffs had failed to plead the “specifics” of their interactions with defendant’s website, which were “essential to convert [the] case” from a “law-school hypothetical to an actionable dispute” under the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”), the state law analog to the Federal Wiretap Act.  Muraski v. Penn Highlands Healthcare, Inc., 2026 WL 353041 (W.D. Pa. Feb. 9, 2026).Continue Reading Pennsylvania Court Dismisses WESCA Suit Alleging Use of Analytics Tools Against Health System, Requiring “Specifics” for an “Actionable Dispute”

Another recent federal court decision endorsed the “heightened intent requirement” for satisfying the crime-tort exception of the federal Wiretap Act.  Progin v. UMass Mem’l Health Care, Inc., 2026 WL 632770, at *4–5 (D. Mass. Mar. 6, 2026).

In Progin, the plaintiffs claimed that the defendants, healthcare and hospital…

Continue Reading Another Federal Court Dismisses Wiretapping Claims Premised on Crime-Tort Exception

A recent Washington federal court decision emphasizes two key federal Wiretap Act principles. First, the Act’s crime-tort exception only applies if there are plausible allegations that a party to the communication intercepted communications specifically to commit a separate wrongdoing. Second, the statute does not allow secondary liability for “procuring” an interception by a third party. Nichols v. PeaceHealth Networks on Demand LLC, 2026 WL 607763, at *3-4 (W.D. Wash. Mar. 4, 2026).Continue Reading Court Dismisses Federal Wiretap Claim Premised on Crime-Tort Exception, Rejects Aiding-and-Abetting Liability