A recent decision from the Southern District of California underscores a point courts have made increasingly clear after the Ninth Circuit’s precedential decision in Popa v. Microsoft: alleging the disclosure of online activity—even activity touching on sensitive health topics—is not enough, by itself to establish Article III standing. As the Court put it, the mere allegation that a defendant disclosed “sensitive health related” search terms, without any indication in the search terms that they “were tied to his personal medical history,” cannot establish a concrete injury. Maghoney v. Dotdash Meredith, Inc., 2026 WL 497402 (S.D. Cal. Feb. 23, 2026) (emphasis added).
Continue Reading Sensitive Search Terms Not Enough To Establish Article III Standing Under PopaStand Aside: Third Circuit Throws Out Harriet Carter Gifts Federal Wiretapping Case On Standing Grounds
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.
Continue Reading Stand Aside: Third Circuit Throws Out Harriet Carter Gifts Federal Wiretapping Case On Standing GroundsFederal Circuit Agrees with Majority View on Class Representative Incentive Awards
We previously covered the Eleventh Circuit’s decision to deny rehearing in Johnson v. NPAS Solutions, LLC, 2022 WL 3083717 (11th Cir. Aug. 3, 2022), which had held that district courts may not approve incentive awards for class representatives in class action settlements. Since that time, we have also covered decisions from other courts (including the Seventh Circuit) which declined to follow the Eleventh Circuit, leaving that court standing alone in barring incentive awards. The Federal Circuit has now also declined to follow the Eleventh Circuit’s minority view.
Continue Reading Federal Circuit Agrees with Majority View on Class Representative Incentive AwardsBuyer Aware, Class Beware: Court Nixes Smoked Almonds Putative Class
An Illinois federal court recently highlighted the critical role played by pre‑class‑certification discovery in testing the adequacy of a proposed class representative. In Clark v. Blue Diamond Growers, 2026 WL 483275 (N.D. Ill. Feb. 20, 2026), the defendant’s arguably “unique defense” to the named plaintiff’s false advertising claims proved fatal to class certification.
Continue Reading Buyer Aware, Class Beware: Court Nixes Smoked Almonds Putative ClassNinth Circuit Partially Reverses Certification of Classes Challenging Ford Trucks’ Alleged Steering “Shimmy”
The Ninth Circuit partially reversed an order certifying multiple state‑law classes in litigation alleging that certain Ford Super Duty trucks suffer from a steering defect. See Lessin et al. v. Ford Motor Co., No. 25‑2211 (9th Cir. Feb. 11, 2026). While the Ninth Circuit affirmed parts of the class certification order, it held that the district court abused its discretion by certifying several classes without adequately evaluating whether plaintiffs could demonstrate the alleged defect with common evidence.
Continue Reading Ninth Circuit Partially Reverses Certification of Classes Challenging Ford Trucks’ Alleged Steering “Shimmy”Fourth Circuit Announces Legal Framework for Pre-Discovery Motions to Deny Class Certification
Although an uncommon step, defendants in putative class actions in some jurisdictions may move to deny class certification before discovery begins if the complaint’s proposed class is facially deficient. A successful motion forces plaintiffs to proceed individually, reducing a defendant’s exposure and eliminating costly discovery into issues of class certification. But district courts have yet to apply a consistent legal framework to those motions.
In Oliver v. Navy Fed. Credit Union, — F.4th —-, 2026 WL 346144 (4th Cir. Feb. 9, 2026), the Fourth Circuit provided such a framework, holding that “‘the appropriate procedure for a defendant to challenge class certification’—at the pleading stage or any other time—is to make ‘a motion to deny class certification under 23(c)(1)(A), coupled with a motion to strike under 23(d)(1)(D) should the motion to deny class certification be granted.’”.
Continue Reading Fourth Circuit Announces Legal Framework for Pre-Discovery Motions to Deny Class CertificationNinth Circuit Declines to Enforce “Misleading,” “Disparaging,” and “Confusing” Arbitration Agreement Mid‑Litigation
The Ninth Circuit sent a strong message to companies considering relying on arbitration agreements introduced mid-litigation to defeat class-action litigation. Avery v. TEKsystems, Inc., __ F.4th __, 2026 WL 218992 (9th Cir. Jan. 28, 2026)—in which the court described the defendant’s communications as “misleading,” “harmful,” “contradictory,” “disparaging,” and “inaccurate”—confirms the authority of district courts to refuse to enforce arbitration agreements that undermine Rule 23 procedures.
Continue Reading Ninth Circuit Declines to Enforce “Misleading,” “Disparaging,” and “Confusing” Arbitration Agreement Mid‑Litigation
California Court Dismisses Wiretapping Claims Regarding Retailer’s Website Chat Feature on Summary Judgment
In a recent decision from the Superior Court of California for Los Angeles County, Judge Carolyn B. Kuhl granted summary judgment and dismissed a putative class action alleging that an online retailer, I Am Beyond d/b/a Beyond Yoga, had aided and abetted violations of the California Invasion of Privacy Act
Continue Reading California Court Dismisses Wiretapping Claims Regarding Retailer’s Website Chat Feature on Summary JudgmentSixth Circuit Denies Permission to Appeal Class Certification Order Raising Questions of Consent and Fail-Safe Classes
In many privacy and other technology-related class actions, the question of whether consumers consent to the practice at issue is central. In these cases, class action defendants have defeated motions for class certification by successfully arguing that consent is an individualized issue that is not susceptible to common proof. And though class action plaintiffs may try and avoid this problem by excluding consenting individuals from their class definition, that solution can create new problems, including impermissible “fail-safe” classes—i.e., classes that cannot be defined until a case is resolved on the merits.
Continue Reading Sixth Circuit Denies Permission to Appeal Class Certification Order Raising Questions of Consent and Fail-Safe ClassesNew Federal Rule of Civil Procedure Provides Guidance for Early MDL Case Management
The first Federal Rule focused specifically on multidistrict litigation—which has long been a staple of complex, high-stakes litigation—took effect on December 1, 2025, as part of the 2025 amendments to the Federal Rules of Civil Procedure.
Continue Reading New Federal Rule of Civil Procedure Provides Guidance for Early MDL Case Management