In a significant win for the defense, a California federal judge denied class certification in a California Invasion of Privacy Act (CIPA) suit alleging that AddShoppers and Peet’s Coffee unlawfully tracked website visitors using pixel technology. Under the Federal Rules of Civil Procedure, a party seeking class certification must satisfy all four prerequisites: numerosity, commonality, typicality, and adequacy of representation.
Here, the court dismissed the proposed class action after finding that the named plaintiffs failed to meet the typicality and adequacy requirements. One plaintiff could not establish that he received any marketing emails - the very harm alleged - while the other deleted key browsing history after discovery began.
Because CIPA liability turns on whether tracking occurred without consent, the court emphasized that the plaintiffs’ credibility - particularly their testimony regarding cookie consent and typical browsing behavior - was central to the analysis. If a plaintiff’s account is unreliable, they are unlikely to satisfy the adequacy and typicality prongs required for class certification.
The bottom line:
This ruling provides a roadmap for companies to challenge class certification in privacy lawsuits involving tracking pixels and email targeting. Courts are scrutinizing plaintiffs' credibility, data preservation, and standing, and will reject certification where the named plaintiffs' claims are not representative of the class.
What you need to do:
- Companies facing CIPA or pixel tracking litigation should:
- Carefully examine the named plaintiffs’ standing and factual allegations early;
- Highlight inconsistencies or deficiencies in the plaintiffs’ data or testimony;
- Preserve documentation showing users’ consent mechanisms, data flows, and how marketing emails were generated;
- Be prepared to argue that the plaintiffs' experience is not typical of the proposed class.
Judge Chhabria's parting words were clear: “If the only named plaintiff you can find is someone whose presence threatens to weaken the claims of the absent class members, don’t bring the lawsuit. And if you’ve already brought the lawsuit, don’t just plow ahead hoping that it won’t become a big deal.”
