Article III Standing

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 Popa

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 Grounds

In a win for businesses using third-party technologies to power their websites, a California federal court applied the Ninth Circuit’s recent decision in Popa v. Microsoft Corporation to dismiss a “pen register” claim brought under the California Invasion of Privacy Act (“CIPA”) for lack of Article III standing.  Khamooshi v. Politico LLC, No. 24-cv-07836-SK, 2025 WL 2822879 (N.D. Cal. Oct. 2, 2025).  “As in Popa,” the Khamooshi court held that the plaintiffs—who alleged the collection of their device type, browser type, and “device fingerprints”—“identifie[d] no embarrassing, invasive, or otherwise private information collected,” as required to establish an Article III injury. Continue Reading Court Applies Popa to Dismiss CIPA Pen Register Claim for Lack of Article III Standing

Courts continue to grapple with the type of “concrete harm” that is required to confer Article III standing under TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), particularly in data breach and privacy class actions.  On October 14, the Fourth Circuit contributed to this debate, holding that allegations that plaintiffs’ driver’s license data had been leaked and appeared on the dark web were sufficient to establish standing.

Holmes v. Elephant Ins. Co., — F.4th —, 2025 WL 2907615 (4th Cir. 2025), started with a 2022 data breach of Elephant Insurance Company’s networks.  Id. at *1.  Plaintiffs were Elephant customers whose driver’s license numbers were compromised in the breach.  Id.  They sued Elephant for alleged harms stemming from the breach.  Id. at *3.  Two plaintiffs specifically alleged that they had found their driver’s license numbers on the dark web; the others did not.  Id. at *2.  The district court dismissed plaintiffs’ claims, holding that none of the alleged injuries were sufficient to confer standing.  Id.  But the Fourth Circuit disagreed in part, reversing the lower court’s dismissal of the two plaintiffs who alleged that their driver’s license information appeared on the dark web, but affirming dismissal of the other two. Continue Reading Standing in the Dark:  Fourth Circuit Finds Standing for Driver’s License Information on the Dark Web

A federal court in North Carolina dismissed a putative data breach class action against Bojangles because the plaintiffs failed to show that there was an actual or imminent misuse of their personal information as a result of the breach.  Dougherty v. Bojangles’ Restaurants, Inc., 2025 WL 2810673 (W.D.N.C. Sept. 30, 2025).Continue Reading Federal Court Fries Data Breach Class Action for Lack of Standing

On July 17, 2025, the Fifth Circuit adopted a test for determining whether class plaintiffs meet the Article III injury-in-fact requirement for standing, resolving an open question in the Circuit.  Wilson v. Centene Mgmt. Co., L.L.C., No. 24-50044, 2025 WL 1981287 (5th Cir. July 17, 2025).Continue Reading Fifth Circuit Adopts a Test for Standing at Class Certification Stage

Capture of personal or private information is a prerequisite to Article III standing in wiretapping cases brought under the California Invasion of Privacy Act (“CIPA”).  As we reported on here, when a plaintiff fails to plead the capture of any such information, courts have dismissed the plaintiff’s complaint for…

Continue Reading Collection of Website Visit Time Stamp Not Enough to Confer Article III Standing

Whether the presence of uninjured class members can defeat class certification is a hot-button topic in class action litigation.  Just four days after the Supreme Court dismissed the appeal in Laboratory Corporation of America Holdings v. Davis regarding whether class certification is permissible under Rule 23(b)(3) when some members of the putative class are uninjured (we described this case here), the Sixth Circuit affirmed class certification in Pickett v. City of Cleveland, Ohio, despite defendant’s argument that up to twenty percent of the class did not suffer an economic injury.  — F. 4th —-, 2025 WL 1622110 (6th Cir. June 9, 2025).
Continue Reading Sixth Circuit Affirms Class Certification Despite Potential Presence of Class Members Who Did Not Suffer Economic Injury

Laboratory Corporation of America Holdings v. Davis presented a question central to modern class action litigation: whether class certification is permissible under Rule 23(b)(3) when some members of the putative class are uninjured. We previously highlighted the Supreme Court’s decision to hear argument in the case, which had the potential to resolve a widening circuit split on this issue—some courts have held that uninjured class members preclude certification entirely, others ask whether uninjured class members can be identified and excluded without requiring predominance-defeating “mini-trials,” and others (incorrectly, in our view) defer the inquiry until later stages of the case unless a “great many” of the class members are uninjured.  Despite its clear interest in resolving this split, the Supreme Court ultimately determined that Laboratory Corporation had too many procedural quirks to reach the question presented, holding in an 8-1 decision that certiorari was “improvidently granted” and dismissing the appeal.Continue Reading Supreme Court Delays Resolution of Uninjured Class Member Debate

Many businesses use customer support software that may include call recording features to help ensure a better customer service experience.  A California federal court dismissed a wiretapping lawsuit filed against a software company offering this software tool (TalkDesk), holding that TalkDesk’s alleged recording of customers’ conversations with clothing retailers “is simply not private or personal enough to confer [Article III] standing.”  See Lien, et al., v. Talkdesk, Inc., No. 24-CV-06467-VC, 2025 WL 551664 (N.D. Cal. Feb. 19, 2025).Continue Reading Recording of Customer Service Call “Not Private or Personal Enough” to Confer Article III Standing