Plaintiffs’ lawyers have continued to bring privacy claims targeting businesses that use vendors to help provide beneficial chat features on their website, as we last reported here.  Late last year, a Southern District of California judge dismissed another set of privacy claims challenging the routine use of these vendor services by Tonal, a popular smart home gym company named as the sole defendant in the lawsuit.  Jones v. Tonal Systems, Inc., 751 F. Supp. 3d 1025 (S.D. Cal. 2024).

Plaintiff Julie Jones, a California resident, claimed that she had visited Tonal’s website and used its chat feature to communicate with a Tonal customer service representative.  This chat feature allegedly incorporated an API run by another company to create and store transcripts of website visitors’ chats with Tonal’s customer service representatives.  According to the complaint, this alleged conduct constituted wiretapping, which Tonal purportedly aided and abetted in violation of Sections 631 and 632.7 of the California Invasion of Privacy Act (“CIPA”).  Plaintiff also asserted other privacy claims based on the same alleged conduct, including the California Unfair Competition Law (“UCL”) and the California Constitution’s right to privacy provision.

The Court granted Tonal’s motion to dismiss each of plaintiff’s claims on multiple grounds.Continue Reading Another California Court Rejects Privacy Claims Targeting Online Chat Feature

Early this month, a Northern District of California judge dismissed, with prejudice, a putative class action complaint asserting five privacy-related causes of action, concluding the “issue of consent defeat[ed] all of Plaintiffs’ claims.”  Lakes v. Ubisoft, Inc., –F. Supp. 3d–, 2025 WL 1036639 (N.D. Cal. Apr. 2, 2025).  Specifically, the Court dismissed plaintiffs’ claims under the (1) Video Privacy Protection Act (“VPPA”); (2) Federal Wiretap Act; (3) California Invasion of Privacy Act (“CIPA”) § 631; (4) common law invasion of privacy; and (5) Article I, Section 1 of the California Constitution. Continue Reading California Court Holds Plaintiffs’ Consent Defeats Claims Involving Use of Website Pixel

Many businesses use customer support software that may include call recording features to help ensure a better customer service experience.  A California federal court dismissed a wiretapping lawsuit filed against a software company offering this software tool (TalkDesk), holding that TalkDesk’s alleged recording of customers’ conversations with clothing retailers “is simply not private or personal enough to confer [Article III] standing.”  See Lien, et al., v. Talkdesk, Inc., No. 24-CV-06467-VC, 2025 WL 551664 (N.D. Cal. Feb. 19, 2025).Continue Reading Recording of Customer Service Call “Not Private or Personal Enough” to Confer Article III Standing

One March 20, 2025, the California Supreme Court ruled in Madrigal v. Hyundai Motor America that California Code of Civil Procedure Section 998 can bar plaintiffs from recovering litigation costs if they enter a pre-trial settlement that is less favorable than a prior defense offer. 

The general rule in California is that a “prevailing party” may recover all litigation costs as a matter of right. CCP Section 998 modifies this general rule in cases where the defense makes a qualifying settlement offer. Under Section 998, if a plaintiff rejects or fails to timely accept a qualifying settlement offer and then “fails to obtain a more favorable judgment or award,” the plaintiff may no longer recover post-offer litigation costs. This rule is designed to encourage reasonable pre-trial settlements. Parties often contract around this rule by providing for the allocation of costs and fees in settlement agreements.Continue Reading California Supreme Court Clarifies that CCP Section 998’s Cost-Shifting Rule Applies to Pre-Trial Settlements

An Illinois federal court recently rejected efforts to bring a consumer class action against the parent company of Fiji brand water over allegations that its plastic water bottles contained microplastics.  In doing so, the court added its voice to the growing body of case law about microplastics and offered a window into how to attack similar types of contamination allegations.

In Daly et al. v. The Wonderful Company, LLC, 2025 WL 672913 (N.D. Ill. Mar. 3, 2025) plaintiffs alleged that Fiji’s claim that its water is “natural artesian water” are deceptive because the product bottles contain microplastics.  Id. at *1.  Plaintiffs brought claims under five state consumer protection laws and sought to represent a class of consumers allegedly harmed by microplastics in the bottles.  Id.  The company moved to dismiss the complaint, arguing (among other things) that plaintiffs had not plausibly alleged that the Fiji Water bottles actually contained microplastics and that plaintiffs lacked standing to pursue injunctive relief.  Id. at *2, *6.  Because plaintiffs failed to allege that the water bottles contained microplastics, TWG argued that they could not identify any deceptive statement giving rise to their claims.  Id. at *6.    

On March 3, the court agreed and dismissed plaintiffs’ complaint for two reasons.Continue Reading Illinois Federal Court Rejects Fiji Water Microplastics Case

On Thursday March 13, 2025, New York Attorney General Letitia James announced proposed legislation to expand New York’s consumer protection law: the Fostering Affordability and Integrity through Reasonable (FAIR) Business Practices Act (“the Act”). The Act would update and expand New York’s current consumer protection law, Sections 349 and 350 of the New York General Business Law (“GBL”), to encompass a broader range of practices and claims.

The current versions of Sections 349 and 350 make unlawful certain deceptive business acts and practices and false advertising.  The Act would amend Section 349 to cover not only “deceptive” business acts and practices, but also conduct that may fall under vague definitions of “unfair” and “abusive” acts and practices.  The Act would further expand Section 349 by making it applicable “regardless of whether or not that act or practice is consumer-oriented [or] has a public impact or impact on consumers ….” The Act would also increase statutory damages to $1,000 and grant standing to organizations and third parties to the fullest extent otherwise permitted by law. However, the Act would also create affirmative defenses that limit plaintiffs to individuals and small entities, and excludes acts or practices that could be addressed by federal securities or intellectual property laws or that involve “high-value experienced commercial transaction[s]” directed exclusively to the parties to such transactions.Continue Reading New York Proposes New Consumer Protection Law

Court decisions addressing “pen register” claims brought under the California Invasion of Privacy Act (“CIPA”) have started trickling in after last year saw an uptick in these claims targeting businesses’ use of website tools.  Two more California courts recently joined a growing trend dismissing pen register claims, but they did so on new grounds: one confirmed that CIPA’s pen register provision was not intended to cover “internet communications,” and another held that a website tool that allegedly collected “identifying information about visitors’ devices, from visitors’ devices” does not constitute a “pen register” or “trap and trace device.”  See Aviles v. Liveramp, Inc., 2025 WL 487196 (Cal. Super. Jan. 28, 2025); Sanchez v. Cars.com Inc., 2025 WL 487194 (Cal. Super. Jan. 27, 2025).Continue Reading Courts Hold CIPA’s Pen Register Provision Does Not Apply to Internet Communications or to Alleged Data Collection “About Visitors’ Devices, From Visitors’ Devices”

The Ninth Circuit recently reversed an $800,000 attorney fee award in a data breach class action because the award accounted for too large a portion of the total value of the settlement. In re California Pizza Kitchen Data Breach Litig., — F.4th —, 2025 WL 583419 (9th Cir. Feb. 24, 2025).Continue Reading Ninth Circuit Shoots Down Fee Award in Data Breach Class Action

A fan of celebrity LL Cool J filed a wiretapping suit against Community.com (“Community”), claiming that Community accessed her text message to LL Cool J in violation of the federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”).  In an unpublished opinion highlighting that Section 632 of CIPA does not protect communications that are by nature a recorded medium, the Ninth Circuit affirmed dismissal of the plaintiff’s claims. See Boulton v. Community.com, Inc., No. 23-3145, 2025 WL 314813 (9th Cir. Jan. 28, 2025).Continue Reading Ninth Circuit Affirms Dismissal of CIPA and Wiretap Act Claims Against Celebrity Platform

In Lackey v. Stinnie, the Supreme Court has clarified who qualifies as a “prevailing party” eligible for attorneys’ fees under certain statutes.  The decision carries significant implications for the availability of attorneys’ fees in class action cases where defendants are able to moot claims before a court enters a final judgment.   

At issue in Lackey was whether plaintiffs could obtain attorneys’ fees under 42 U.S.C. §1988(b), which allows the “prevailing party” to recover attorneys’ fees in certain civil rights cases.  Plaintiffs secured a preliminary injunction but were not able to obtain any further relief (including a final judgment) because the government voluntarily ceased the challenged conduct.  In a 7-2 opinion authored by Chief Justice Roberts, the Supreme Court held that the plaintiff did not qualify as a “prevailing party.”Continue Reading No Final Judgment, No Attorneys’ Fees: The Supreme Court Clarifies the Meaning of “Prevailing Party” in Lackey v. Stinnie