We previously covered the Eleventh Circuit’s decision to deny rehearing in Johnson v. NPAS Solutions, LLC, 2022 WL 3083717 (11th Cir. Aug. 3, 2022), which had held that district courts may not approve incentive awards for class representatives in class action settlements.  Since that time, we have also covered decisions from other courts (including the Seventh Circuit) which declined to follow the Eleventh Circuit, leaving that court standing alone in barring incentive awards. The Federal Circuit has now also declined to follow the Eleventh Circuit’s minority view. 

Continue Reading Federal Circuit Agrees with Majority View on Class Representative Incentive Awards

Many California-based privacy claims have turned on the application of longstanding statutes to modern technologies, with courts frequently holding that certain online tracking technologies can qualify as impermissible trap-and-trace devices in violation of California Penal Code section 638.51, part of the California Invasion of Privacy Act (CIPA).  A recent decision from the Central District of California, however, signals that these arguments will not always succeed.

Continue Reading Federal Court Rejects Claim that Cookies Are Illegal Trap and Trace Devices

An Illinois federal court recently highlighted the critical role played by pre‑class‑certification discovery in testing the adequacy of a proposed class representative.  In Clark v. Blue Diamond Growers, 2026 WL 483275 (N.D. Ill. Feb. 20, 2026), the defendant’s arguably “unique defense” to the named plaintiff’s false advertising claims proved fatal to class certification.

Continue Reading Buyer Aware, Class Beware: Court Nixes Smoked Almonds Putative Class

The Washington Supreme Court’s decision in Brown v. Old Navy LLC, 4 Wash.3d 580 (2025) has sparked a wave of putative class actions under Washington’s Commercial Electronic Mail Act (“CEMA”), targeting allegedly misleading email subject lines used by national retailers. In the months since, defendants have increasingly turned to constitutional and federal preemption defenses in an effort to stem this growing tide of litigation. To date, however, those arguments have gained little traction. Several district court decisions have denied defendants’ motions to dismiss on these grounds.

Continue Reading District Courts Appear Skeptical of CAN‑SPAM Preemption and Constitutional Challenges to CEMA

Recently, a Pennsylvania federal judge dismissed a suit challenging the use of a third-party website analytics tool by defendant Highlands Healthcare, Inc., an integrated health system with eight hospitals in Pennsylvania.  The Court concluded plaintiffs had failed to plead the “specifics” of their interactions with defendant’s website, which were “essential to convert [the] case” from a “law-school hypothetical to an actionable dispute” under the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”), the state law analog to the Federal Wiretap Act.  Muraski v. Penn Highlands Healthcare, Inc., 2026 WL 353041 (W.D. Pa. Feb. 9, 2026).

Continue Reading Pennsylvania Court Dismisses WESCA Suit Alleging Use of Analytics Tools Against Health System, Requiring “Specifics” for an “Actionable Dispute”

Another recent federal court decision endorsed the “heightened intent requirement” for satisfying the crime-tort exception of the federal Wiretap Act.  Progin v. UMass Mem’l Health Care, Inc., 2026 WL 632770, at *4–5 (D. Mass. Mar. 6, 2026).

In Progin, the plaintiffs claimed that the defendants, healthcare and hospital…

Continue Reading Another Federal Court Dismisses Wiretapping Claims Premised on Crime-Tort Exception

A recent Washington federal court decision emphasizes two key federal Wiretap Act principles. First, the Act’s crime-tort exception only applies if there are plausible allegations that a party to the communication intercepted communications specifically to commit a separate wrongdoing. Second, the statute does not allow secondary liability for “procuring” an interception by a third party. Nichols v. PeaceHealth Networks on Demand LLC, 2026 WL 607763, at *3-4 (W.D. Wash. Mar. 4, 2026).

Continue Reading Court Dismisses Federal Wiretap Claim Premised on Crime-Tort Exception, Rejects Aiding-and-Abetting Liability

As businesses increasingly deploy AI-powered call centers to streamline customer service, plaintiffs have turned to decades-old wiretapping laws to challenge these tools. In a recent decision, however, an Illinois federal district court held that use of an AI call analysis platform without caller consent does not violate the federal Wiretap Act because it falls within the statute’s ordinary course of business exception. Lisota v. Heartland Dental, LLC, 2026 WL 91667, at *6 (N.D. Ill. Jan. 13, 2026).

Continue Reading Use of AI Call Center Without Consent Not a Federal Wiretap Violation, Court Holds

Are 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 Prompts