Last week, a judge in the Eastern District of Pennsylvania dismissed a putative class’s wiretapping claims against health insurer Cigna.  Adair v. Cigna Corporate Services, LLC, 2026 WL 295744 (E.D. Pa. Feb. 4, 2026).  Five plaintiffs alleged that Cigna traded insureds’ privacy for commercial gain by embedding third-party tracking tools throughout its website and member portals.  Id. at *1.  On their own behalf and on behalf of a proposed class, they brought claims under the Electronic Communications Privacy Act of 1986 (“ECPA”) and the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”), together with common law intrusion-upon-seclusion, breach of fiduciary duty, and unjust enrichment claims.  Id. at *2. 

Cigna moved to dismiss for lack of standing and for failure to state a claim.  The court granted Cigna’s motion in large part, dismissing the unjust enrichment claim for lack of standing and the ECPA, WESCA, and intrusion claims on the merits.  As to unjust enrichment, the court rejected the plaintiffs’ two theories of economic injury: “diminution in value” and “benefit of the bargain.”  The diminution-in-value theory failed because one person’s gain is not necessarily another’s loss:  “that Defendants and third parties profited from the collection and sale of Plaintiffs’ information is not sufficient, standing alone, to plead an injury to Plaintiffs.”  Id. at *11.  Though the plaintiffs sufficiently alleged that their health data were valuable, they failed to allege that Cigna had deprived them of the data’s value.  The benefit-of the-bargain theory failed because the complaint lacked any allegations that the plaintiffs had received services worth less than what they paid for.  The complaint included no allegations about what portion of their premiums the plaintiffs thought paid for data privacy, nor that they relied on any representations about such privacy when they selected the insurer.  Id. at *12.  The allegations’ insufficiency to show any economic injury meant plaintiffs lacked standing to assert unjust enrichment. 

The court dismissed the ECPA, WESCA, and intrusion claims on a single ground:  Cigna expressly disclosed its data collection and sharing practices in the privacy notices in Cigna’s Terms of Use, to which each plaintiff agreed.  That meant the plaintiffs had consented to have their data collected and shared as they alleged.  Though the plaintiffs argued that consent is a factual issue not to be resolved on a motion to dismiss, the court rejected that argument because the complaint expressly alleged they had agreed to the Terms of Use—i.e., that they had consented to the collection of data.  Id. at *16–17.  Nor did it matter whether the plaintiffs had actually read the privacy notices, because actual knowledge is not a prerequisite for assent.  As numerous courts have held, inquiry notice of contract terms is sufficient for assent.  Id. at *17 n.19.

The court dismissed the claims without prejudice, but the complaint’s admission that the plaintiffs each agreed to Cigna’s Terms of Use may leave little room for amended allegations that could get those claims past the pleading stage.  The decision serves as a useful reminder that website operators can wield consent arguments based on Terms of Use to defeat federal and state-law privacy claims.