Ninth Circuit

In a decision with implications for classwide settlement of privacy lawsuits, Magistrate Judge Joseph C. Spero of the Northern District of California held that claims under the Video Privacy Protection Act (VPPA) are personal to individual class members and therefore not assignable to third parties.  The decision, Stark v. Patreon, Inc., No. 22-cv-03131-JCS (N.D. Cal. June 5, 2025), invalidated a mass opt-out effort orchestrated by Lexclaim Recovery Group US LLC (“Lexclaim”), a third-party entity that claimed it was founded to “help people recover a greater share of the money to which they would be entitled in class action cases.”Continue Reading California Federal Court Holds VPPA Claims Are Not Assignable, Rejecting Third-Party Opt-Out Scheme

In what the court described as “a shoe shrinking croc-nundrum,” a court in the Northern District of California recently granted summary judgment to Crocs Inc in a false advertising claim, where class certification had already been denied. Martha Valentine et al., v. Crocs, Inc., 3:22-cv-07463-TLT (May 19, 2025). 

The…

Continue Reading Summary Judgment Granted on a Shoe Shrinking Croc-Nundrum

Plaintiffs’ lawyers have continued to bring privacy claims targeting businesses that use vendors to help provide beneficial chat features on their website, as we last reported here.  Late last year, a Southern District of California judge dismissed another set of privacy claims challenging the routine use of these vendor services by Tonal, a popular smart home gym company named as the sole defendant in the lawsuit.  Jones v. Tonal Systems, Inc., 751 F. Supp. 3d 1025 (S.D. Cal. 2024).

Plaintiff Julie Jones, a California resident, claimed that she had visited Tonal’s website and used its chat feature to communicate with a Tonal customer service representative.  This chat feature allegedly incorporated an API run by another company to create and store transcripts of website visitors’ chats with Tonal’s customer service representatives.  According to the complaint, this alleged conduct constituted wiretapping, which Tonal purportedly aided and abetted in violation of Sections 631 and 632.7 of the California Invasion of Privacy Act (“CIPA”).  Plaintiff also asserted other privacy claims based on the same alleged conduct, including the California Unfair Competition Law (“UCL”) and the California Constitution’s right to privacy provision.

The Court granted Tonal’s motion to dismiss each of plaintiff’s claims on multiple grounds.Continue Reading Another California Court Rejects Privacy Claims Targeting Online Chat Feature

The Ninth Circuit recently reversed an $800,000 attorney fee award in a data breach class action because the award accounted for too large a portion of the total value of the settlement. In re California Pizza Kitchen Data Breach Litig., — F.4th —, 2025 WL 583419 (9th Cir. Feb. 24, 2025).Continue Reading Ninth Circuit Shoots Down Fee Award in Data Breach Class Action

A fan of celebrity LL Cool J filed a wiretapping suit against Community.com (“Community”), claiming that Community accessed her text message to LL Cool J in violation of the federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”).  In an unpublished opinion highlighting that Section 632 of CIPA does not protect communications that are by nature a recorded medium, the Ninth Circuit affirmed dismissal of the plaintiff’s claims. See Boulton v. Community.com, Inc., No. 23-3145, 2025 WL 314813 (9th Cir. Jan. 28, 2025).Continue Reading Ninth Circuit Affirms Dismissal of CIPA and Wiretap Act Claims Against Celebrity Platform

A court in the Northern District of California recently denied Google’s request to prevent more than 69,000 putative class members from opting out of a certified class in favor of pursuing individual arbitration of their claims against Google.  See In re Google Assistant Privacy Litig., 2025 WL 510435, at *1 (N.D. Cal. Feb. 14, 2025)Continue Reading California Federal Court Permits Thousands of Arbitration Opt-Outs from Certified Class

On January 24, the Supreme Court granted certiorari in Laboratory Corporation of America Holdings v. Davis to address a long-unsettled issue central to class-action litigation: “Whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.”Continue Reading Supreme Court to Decide If Presence of Uninjured Class Members Defeats Class Certification

A court in the Northern District of California recently granted summary judgment to DDR Media LLC and Jornaya in a website wiretapping lawsuit under the California Invasion of Privacy Act (“CIPA”).  See Williams v. DDR Media, LLC, 2024 WL 4859078 (N.D. Cal. Nov. 20, 2024).  This decision represents a meaningful victory for defendants facing similar wiretapping claims.Continue Reading California Federal Court Grants Summary Judgment to CIPA Defendants

Plaintiffs sometimes try to sidestep an arbitration agreement with one company by suing only a second company for interrelated conduct.  Last month, a California federal court applied principles of fairness under the doctrine of “equitable estoppel” to reject this tactic, holding that a software vendor (Twilio) could enforce a plaintiff’s arbitration agreement with a website operator (Keeps) that was not named as a defendant.  Perry-Hudson v. Twilio, Inc., 2024 WL 493333 (N.D. Cal. Dec. 2, 2024).Continue Reading California Federal Court Allows Software Vendor to Enforce Website Operator’s Arbitration Agreement in Privacy Lawsuit

In a recent decision, the Ninth Circuit offered a useful reminder that the need for individualized proof of causation can affect multiple elements of the Rule 23 test for class certification.

In Small v. Allianz Life Ins. Co. of N. Am., No. 23-55821, — F.4th —-, 2024 WL 5051192 (9th Cir. Dec. 10, 2024), resolving a District Court split, the Ninth Circuit adopted a “causation” theory of harm for claims asserting that an insurance company had violated the California Insurance Code, holding that plaintiffs must show not only that an insurance company violated the Code (violation-only theory), but also that the violation of the Code caused a plaintiff harm (causation theory).Continue Reading Ninth Circuit Denies Class Certification because Causation Theory Requires Individual Analysis of Claims