In Smith v. Rack Room Shoes, Inc., No. 24-cv-06709-RFL (N.D. Cal. Sept. 21, 2026), Plaintiffs sought class certification on claims under the California Invasion of Privacy Act, Cal. Penal Code §§ 631 and 632, and the Federal Wiretap Act, 18 U.S.C. § 2511(1)(a).  Plaintiffs asserted that Defendant Rack Room, an online shoe retailer, helped third-party pixel-tracking services intercept private communications containing personally identifiable information.  The Court found that Plaintiffs had no Article III standing, rejecting harm theories based on both actual and attempted interception of private information, and dismissed those claims without prejudice while denying class certification.

The Court first reasoned that “Plaintiffs have not introduced evidence that the . . . [tracking] [p]ixel actually captured their browsing activity on rackroomshoes.com,” (emphasis added) and that “no reasonable factfinder could find . . . evidence sufficient to demonstrate that Plaintiffs’ own data was, in fact, collected by any tracker in a personally identifiable manner.”  One named Plaintiff, for instance, testified that he had visited the website only once, in 2024, and that the records from 2021 reflected his wife’s browsing activity.  The other named Plaintiff indicated that her first visit to the website occurred in 2024, after documentary evidence showed purchases had already been made on it (purchases she could not recall in her deposition), and that her son browsed the internet from her devices.  The Court also emphasized undisputed expert testimony that pixel tracking did not automatically result in collection of PII and that collection is instead affected by “many factors, including the browser being used, whether the browser and device are signed in to a social media account, and what cookie blocking features are enabled.”  The evidence of infrequent use of Defendant’s website by the named Plaintiffs, combined with the fact that each infrequent use might not have even resulted in any privacy intrusion, was sufficient for the Court to reject this theory of harm.

The Court likewise rejected Plaintiffs’ contention that the mere attempt to track purportedly private information could support their claims.  Relying on Popa v. Microsoft Corp., 153 F.4th 784 (9th Cir. 2025), the Court concluded that “[t]here is no evidence here that the trackers attempted to collect ‘embarrassing, invasive, or otherwise private information’ from Plaintiffs as they visited Rack Room’s website, which sells shoes.”  (emphasis added).  The Court also found no evidence of a “widespread compilation of either Plaintiff’s online activities into profiles so comprehensive that they became sensitive and highly personal.”  Plaintiffs countered that the California Supreme Court, in Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009), permitted intrusion claims even absent actual collection.  But the Court distinguished Hernandez, which involved a secret camera monitoring a shared office space, noting that here the record reflected only “[t]he mere presence” of pixel tracking involving “objectively non-sensitive information” with no indication of actual collection.  The Court also noted that Plaintiffs admittedly never read the Privacy Policy, undermining any claimed privacy expectation.