Developments and Trends Affecting Class Actions
The Ninth Circuit recently confirmed that when a putative class alleges that a marketing representation is deceptive because it is inconsistent with industry standards, plaintiffs must offer common, class-wide proof of deception. See Rusoff v. The Happy Group, Inc., No. 24-7706 (9th Cir. Aug. 17, 2026).
In Rusoff…
Continue Reading Ninth Circuit Hatches New Opinion Confirming False Advertising Plaintiffs Must Offer Common Proof of DeceptionIn a recent decision challenging Google’s Gemini AI features, a California federal court held that allegations concerning an AI tool’s capabilities, without facts showing actual access or use of plaintiffs’ data, were insufficient to demonstrate the “concrete” harm required for Article III standing. Thele v. Google LLC, 2026 WL…
Continue Reading Gemini Tracking Allegations Fall Short of Article III StandingRecently, a California federal judge dismissed—for the second time—a suit asserting that Sojern, Inc., a travel marketing platform, violated the Federal Wiretap Act and California privacy laws by allegedly deploying “tracking technology” on two hotel websites. Crano v. Sojern, Inc., 2026 WL 1670136 (N.D. Cal. June 9, 2026).
Continue Reading California Court Dismisses Amended Complaint in Hotel Website Wiretapping Suit for Lack of Article III StandingIn Cisco Systems, Inc. v. Doe, the Supreme Court held that federal courts cannot create new causes of action under the Alien Tort Statute for violations of international law and that the Torture Victim Protection Act does not provide for aiding-and-abetting liability.
Continue Reading Supreme Court Curtails ATS and TVPA Class Action LawsuitsWe previously covered the Southern District of California’s dismissal of a plaintiff’s claim that defendant falsely advertised that its licorice candy was “naturally flavored” because testing allegedly showed that the product contained synthetic malic acid that functioned as a flavor. Last week, in Trammell v. KLN Enters., Inc., —…
Continue Reading Ninth Circuit Reverses Dismissal of False Advertising Suit Based on Malic AcidAre AI prompts, and their generative outputs, discoverable in litigation? A handful of recent district court cases suggest the answer depends on whether the AI prompts and outputs constitute attorney work product.
In Tremblay v. OpenAI, Inc., 2024 WL 3748003 (N.D. Cal. Aug. 8, 2024), the court held that AI prompts written by lawyers can constitute opinion work product when used for litigation-related purposes. The court explained that AI “prompts were queries crafted by counsel and contain counsel’s mental impressions and opinions about how to interrogate [an AI tool], in an effort to vindicate Plaintiffs’ copyrights against the alleged infringements.” In so doing, the court squarely rejected defendant’s argument that AI prompts and outputs only rise to the level of fact work product as opposed to opinion work product. That distinction is important, as opinion work product is offered near-absolute protection from disclosure whereas fact work product is discoverable upon a showing of substantial need for the materials and an inability to secure a substantial equivalent without undue hardship.
Continue Reading A Closer Look: The Discoverability of Artificial Intelligence PromptsThe 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”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‑LitigationIn 2025, courts continued to issue significant decisions concerning the application of wiretap and privacy laws to pixels, session replay, and other website technologies. Over the past year, we have featured posts discussing claims regarding website analytics and advertising tools brought under the federal Wiretap Act, the California Invasion of Privacy Act (“CIPA”), the Video Privacy Protection Act (“VPPA”), and other laws. A selection of posts highlighting important developments in this area is below.
Continue Reading Website Wiretapping Roundup: 2025 Decisions and DevelopmentsOn October 27, 2025, the Ninth Circuit affirmed in a memorandum opinion the dismissal of a proposed class action asserting that the owner of a cybersecurity browser extension violated the California Invasion of Privacy Act (“CIPA”) and the Electronic Communications Privacy Act (“ECPA”) by intercepting communications between extension-users and search engines. Karwowski v. Gen Digital, Inc., No. 24-7213, 2025 WL 3002610 (9th Cir. Oct. 27, 2025) (mem.). The Court held that the Plaintiffs failed to allege that the Defendant was not a party to the communications.
Continue Reading Ninth Circuit Affirms Dismissal of Wiretap Claims Based on Party Exception