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. 

While the second appeal was pending, the Third Circuit decided Cook v. GameStop, Inc., 148 F.4th 153 (3d Cir. 2025), which held that a plaintiff who interacted with a website—moving her mouse, clicking links, and adding items to a cart—but did not input any sensitive or personal information, had not suffered a sufficiently concrete injury-in-fact to establish Article III standing.  The Popa parties conceded that Ms. Popa had not suffered “a cognizable Article III harm[]” under GameStop, so the court determined it had no subject matter jurisdiction.  It thus vacated the district court’s judgment with instructions to remand the case to state court because “a determination that there is no standing does not extinguish a removed state court case.”  

One interesting wrinkle:  notwithstanding that the parties conceded that GameStop controlled, NaviStone requested that the Third Circuit reach the merits of the appeal anyways because the court had previously determined in the first appeal that it had jurisdiction.  The court refused to entertain this “law-of-the-case” theory, “declin[ing] the invitation to exercise subject matter jurisdiction we do not have.”

This decision is a useful reminder that Article III standing is not a static determination. Intervening precedent—here, GameStop—can strip federal courts of jurisdiction even deep into a case.