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
Third Circuit
Pennsylvania District Court Judge Remands Case After Finding No Article III Standing to Bring 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
Third Circuit Affirms That Individual Inquiries Into Consent Preclude Class Certification
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 CertificationPennsylvania Court Dismisses A Trio of Defendants in Website Wiretapping Suit Challenging Email Marketing Program
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 ProgramA Closer Look: Third Circuit Clarifies When Court-Ordered Discovery Into Issues of Arbitrability Is Necessary.
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.
Class-action claims seeking economic damages for purchase of withdrawn medicine defeated on Article III standing grounds.
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.
Pennsylvania Multi-District Wiretapping Litigation Finds Website Users Lack Article III Standing
A Pennsylvania federal district court overseeing a multi-district litigation recently dismissed various privacy and wiretapping claims against two online retailers, finding that allegations of interception and disclosure of mere “browsing activity” on those retailers’ websites is not “sufficiently personal or private” to confer Article III standing.
In In re: BPS Direct, LLC, and Cabela’s, LLC, Wiretapping Litigation, 2:23-cv-04008-MAK (E.D. Pa. Dec. 5, 2023), the district court consolidated six proposed class actions involving eight plaintiffs, with each alleging that BPS Direct, LLC and Cabela’s, LLC, who operate retail stores known as Bass Pro Shops and Cabela’s, unlawfully intercepted and disclosed their private information through the use of session replay software on their websites. The district court dismissed most of the plaintiffs’ claims, holding that they failed to adequately allege a concrete harm sufficient to support Article III standing.Continue Reading Pennsylvania Multi-District Wiretapping Litigation Finds Website Users Lack Article III Standing
Choice of Law Issues Largely Defeat Certification of Broad Nationwide Class of Rental Car Customers
A recent decision from the U.S District Court for the District of New Jersey denied certification of a nationwide class of rental car customers, holding that common questions did not predominate within the class because of variations in the applicable law. In Dawn Valli v. Avis Budget Rental Car Group, LLC, No. 14-6072, 2023 WL 6579150 (D.N.J. Oct. 10, 2023), the court held that, where the laws of “all fifty states” could govern the claims of class members, the court could not properly instruct a jury on the applicable law, and as a result choice of law issues “swallowed” any common issues. Id. at *6.Continue Reading Choice of Law Issues Largely Defeat Certification of Broad Nationwide Class of Rental Car Customers
Third Circuit Flirts with Narrow View of Warranties Based on Third-Party Certification
False labeling class actions are often mired in debates about how a reasonable consumer would understand a product’s label. In many cases, the fight is centered on what third-party certification marks warrant to reasonable consumers. In Dzielak v. Whirlpool Corporation, — F.4th —, No. 20-2551, 2023 WL 6331102 (3rd Cir. Sept. 29, 2023), the Third Circuit articulated powerful arguments against finding that these marks create broad warranties.Continue Reading Third Circuit Flirts with Narrow View of Warranties Based on Third-Party Certification
Third Circuit Defends Ascertainability Requirement in Affirming Denial of Class Certification
The Third Circuit recently affirmed the denial of class certification to end-payor health plans that alleged that the defendant’s “pay-for-delay” settlement of patent infringement litigation inflated prices on a prescription drug. In doing so, the court reaffirmed that named plaintiffs must present an administratively feasible mechanism to ascertain whether putative class members fall within the proposed class definition and thus took sides in a growing circuit split on that issue. See In re Niaspan Antitrust Litig., — F.4th –, 2023 WL 3243532 (3d Cir. 2023).Continue Reading Third Circuit Defends Ascertainability Requirement in Affirming Denial of Class Certification