Third Circuit

In 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 Developments 

A defendant can waive a right to compel arbitration if it intentionally relinquishes or abandons its known right. One way to waive a right to compel arbitration is by implied waiver: acting inconsistently with an intent to assert the right to arbitrate.  But what should a defendant do to preserve…

Continue Reading Third Circuit Holds Providing Clear Notice of Intent to Compel Arbitration Preserves Right to Compel Arbitration Once Right Becomes Enforceable

The Third Circuit recently rejected the so-called “reasonable indication” opt-out standard, which refers to whether a class member can opt out of a class action by merely providing a “reasonable indication” of their intent to do so, regardless of whether this indication adheres to the letter of the procedures established by the district court. See Perrigo Institutional Investor Group v. Papa, No. 24-2861, 2025 WL 2315977 (3rd Cir. Aug. 12, 2025).

Appellants inadvertently failed to opt out of class membership in a securities-related class action. This failure came to light on the eve of settlement in parallel litigation, which was premised on the erroneous assumption that Appellants had properly opted out. On appeal, Appellants urged the Third Circuit to adopt the “reasonable indication” standard and conclude the separate litigation was sufficient evidence of their intention to opt out of the class. The Third Circuit declined to do so, reasoning that it was contrary to the text of Rule 23 and that it would complicate administrability of class membership opt-outs.Continue Reading Third Circuit Rejects “Reasonable Indication” Opt-Out Standard

The Third Circuit recently reversed a district court’s decision to certify two classes against a defendant insurance company, holding that individualized issues predominated over common ones. See Drummond v. Progressive Specialty Ins. Co, 2025 WL 1860993 (3d Cir. July 7, 2025). The Drummond plaintiffs represented a class of drivers…

Continue Reading Third Circuit Overturns Class Certification in Auto Insurance Case Based on Predominance Issues

Does a plaintiff’s use of a website constitute consent to a privacy policy linked in the website’s footer?  A Pennsylvania federal court answered yes in Popa v. Harriet Carter Gifts, Inc., 2025 WL 896938 (W.D. Pa. Mar. 24, 2025), granting summary judgment in favor of an online retailer (Harriet Carter Gifts) and its marketing partner (NaviStone) accused of collecting data about plaintiff’s website visit in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”).Continue Reading Implied Consent to Privacy Policy in Webpage Footer Forecloses Website Wiretapping Claim

After removing a lawsuit brought against it in Pennsylvania state court under the Wiretapping and Electronic Surveillance Control Act (“WESCA”) to the United States District Court for the Eastern District of Pennsylvania, Prime Hydration LLC argued in its motion to dismiss that the plaintiff lacked Article III standing.  Judge Nitza I. Quiñones Alejandro agreed and remanded the case to state court.  Heaven v. Prime Hydration LLC, 2025 WL 42964, at *7 (E.D. Pa. Jan. 7, 2025).

Plaintiff Shantay Heaven filed a putative class action in the Philadelphia Court of Common Pleas asserting that Prime Hydration allowed third parties to track the activity of visitors to Prime Hydration’s website.  Id. at *1.  Plaintiff asserted that Prime Hydration integrated the third-party pixels into its website.  Id. at *2.  Those two pieces of code, Plaintiff alleged, allowed Prime Hydration to capture “her searches for drink flavors, . . . and that this information was transmitted to” the third-party servers.  Id. at *6.Continue Reading Pennsylvania District Court Judge Remands Case After Finding No Article III Standing to Bring Wiretapping Claim

The Third Circuit recently affirmed a district court’s ruling in a Telephone Consumer Protection Act (“TCPA”) case that rejected class certification because individualized questions about consent precluded predominance.  Conner v. Fox Rehabilitation Servs., P.C., 2025 WL 289230 (3d Cir. Jan. 24, 2025).

In Conner, a plaintiff brought a…

Continue Reading Third Circuit Affirms That Individual Inquiries Into Consent Preclude Class Certification

A Pennsylvania court recently dismissed a wiretapping complaint filed against a trio of defendants for lack of Article III standing, lack of personal jurisdiction, and failure to state a claim in Ingrao v. Addshoppers, Inc., 2024 WL 4892514 (E.D. Pa. Nov. 25, 2024).

The two plaintiffs in this case…

Continue Reading Pennsylvania Court Dismisses A Trio of Defendants in Website Wiretapping Suit Challenging Email Marketing Program

The Third Circuit recently clarified when court-ordered discovery is necessary to determine whether a dispute should be subject to arbitration.  In Young v. Experian Information Solutions Inc., — F.3rd —, 2024 WL 4509767, at *4 (3d Cir. Oct. 17, 2024), plaintiff sued the consumer reporting agency for violations of the Fair Credit Reporting Act after Experian issued an erroneous credit report.  Experian filed a motion to compel arbitration based on a later-signed agreement that plaintiff had with an Experian affiliate.  The district court denied Experian’s motion without prejudice, and granted leave for Experian to re-file a motion to compel arbitration after the parties engaged in limited discovery on the issue of arbitrability.  Experian appealed.Continue Reading A Closer Look:  Third Circuit Clarifies When Court-Ordered Discovery Into Issues of Arbitrability Is Necessary.

A recent New Jersey federal court decision dealt a major blow to class action litigation that seek economic damages associated with the sale of products withdrawn from the market. 

In Gibriano v. Eisai, Inc., et al., 2024 WL 1831546 (D.N.J. Mar. 31, 2024), the plaintiff sought to represent a nationwide class of consumers who purchased a weight-loss medication that was recently voluntarily withdrawn from the market based on FDA’s concerns about potential cancer risk.  The plaintiff did not claim that she had suffered personal injuries.  Rather, she sought money damages, alleging that she over-paid because the medication “did not meaningfully impact her weight” and because the price she paid was “based on the understanding that it was safe.”  She further alleged that, because of the medication’s potential risks, “no reasonable physician would have prescribed [it] and no reasonable consumer would choose to purchase [it].”  In support of her allegations, the plaintiff attached to her complaint a consumer survey suggesting that knowledge of cancer risk would reduce the amount consumers would pay for a medication. Continue Reading Class-action claims seeking economic damages for purchase of withdrawn medicine defeated on Article III standing grounds.