Last month, a California federal court highlighted one of the “serious problems that the class action plaintiffs’ bar desperately needs to rectify”: “the failure to properly vet named plaintiffs.”  Lineberry v. Addshoppers, Inc., 23-cv-01996-VC, 2025 WL 1533136 (N.D. Cal. May 29, 2025).

The stark language came in an order denying class certification in a website wiretapping class action brought against Defendants Addshoppers, Inc. and Peet’s Coffee under the California Invasion of Privacy Act (“CIPA”) § 631(a).  Addshoppers, a digital marketing company, allegedly collects data about consumers’ visits to its brand partners’ websites to later send targeted marketing emails.  Plaintiffs Miguel Cordero and Abby Lineberry claimed that Addshoppers tracked their data through third-party technology without their consent when they visited two websites—for Cordero, Peet’s Coffee and for Lineberry, Dia (a woman’s clothing website)—in violation of CIPA.  They sought to represent Rule 23(b)(3) classes of visitors to those sites who suffered the same alleged privacy injury.   

The problem:  Neither Plaintiff could show that they were members of the proposed classes.  Cordero premised his CIPA claim on Addshoppers and Peet’s Coffee collecting the fact that he put a chicken waffle sandwich in his virtual shopping cart.  But there was no documentary evidence that Cordero ever put a sandwich in his cart, and the Court found Cordero’s testimony that he had “not credible” and “inherent[ly] implausib[le].”  As for Lineberry, she deleted all the browsing data on her phone after Addshoppers had requested it during discovery.  Thus, the only evidence that she ever even visited Dia’s website was her in-court testimony, which the Court also found unpersuasive.  Because the Plaintiffs were not members of classes they sought to represent, neither Plaintiff could adequately represent class members, nor were their claims typical of those of absent class members.   

The Court also denied the Plaintiffs’ bid to certify a Rule 23(b)(2) class of visitors to any website on whom AddShoppers collected “detailed browsing activity.”  Although both Plaintiffs could show that they belonged to this broader class at the class certification stage, they could not satisfy Rule 23’s adequacy and typicality requirements for different reasons.  The Court reasoned that a jury could be preoccupied with Cordero’s credibility issues and Lineberry’s potential spoliation.  Because a jury could find against the named Plaintiffs on the basis of those unique defenses that may not apply to absent class members, Cordero and Lineberry were not adequate or typical class representatives. 

In denying Plaintiffs the opportunity “to take another crack at class certification,” the Court remarked that counsel’s decision to bring and maintain a class action with “atypical and inadequate” named plaintiffs was not a one-off.  Instead, it “highlight[ed] a common problem with proposed class actions: named plaintiffs are not being vetted carefully enough.”  The Court cautioned the plaintiffs’ bar: “If the only named plaintiff you can find is someone whose presence threatens to weaken the claims of the absent class members, don’t bring the lawsuit.  And if you’ve already brought the lawsuit, don’t just plow ahead hoping that it won’t become a big deal.”