On February 6, 2026, Judge Noel Wise in the Northern District of California, issued an order granting in part and denying in part Politico motion to dismiss a putative class action challenging its cookie and tracking practices.
The Allegations: Opt-Out Banner, But Tracking Continues
Plaintiff, a California resident, visited Politico’s website in the first half of 2023. Upon arrival, he was presented with a cookie consent pop-up that:
- Allowed users to “choose not to allow certain types of cookies”
- Included toggles for “Performance Cookies” and “Online Behavioural Advertising” cookies
- Offered a “Confirm my Choices” button after toggling
Plaintiff alleges:
- He toggled off the non-essential cookies and clicked “Confirm my Choices,” believing this would opt him out of all non-essential cookies and tracking technologies.
- Despite this, Politico continued to place and/or transmit first- and third-party cookies and to share data with third parties, enabling them to track a wide array of information, including:
- Browsing and visit history
- Website interactions (links, buttons, ads clicked)
- User input (searches, form fields, potentially including personal and payment information)
- Demographic inferences, interests, shopping behavior
- Device, session, and geolocation data
- Unique user identifiers and referring URLs
Plaintiff claims he would not have used the site had he known the opt-out representation was untrue and that he now wishes to return to the site but will not do so until Politico honors opt-out requests.
The complaint asserts nine causes of action:
- Invasion of privacy
- Intrusion upon seclusion
- California Invasion of Privacy Act (CIPA) – wiretapping (§ 631)
- CIPA – pen register (§ 638.51)
- Fraud, deceit, and/or misrepresentation
- Unjust enrichment
- Breach of contract
- Breach of the implied covenant of good faith and fair dealing
- Trespass to chattels
Standing: Detailed Data Allegations and Expectation of Privacy Matter
Politico argued plaintiff lacked Article III standing because he had not identified specific personal information implicating a protectable privacy interest. The court rejected that argument, emphasizing two points that will be important for other online platforms:
- Specificity of Data Collected: Unlike cases where plaintiffs vaguely alleged collection of “data” or just IP addresses, the plaintiff here detailed the categories of information allegedly collected and described the specific cookies and their functions. This level of specificity supported a concrete privacy injury.
- Expectation of Privacy Created by the Website: The court distinguished prior cases where no opt-out was offered:
- Here, Politico’s consent banner allowed the user to toggle off certain cookies, creating a reasonable expectation that those cookies would not be deployed.
- Politico allegedly “set an expectation that user data would not be collected, but then collected it anyway,” which was sufficient to allege an invasion of a legally protected interest.
Claims That Survived the Motion to Dismiss
1–2. Invasion of Privacy and Intrusion Upon Seclusion
- Reasonable Expectation of Privacy: The opt-out mechanism and Politico’s representations, coupled with the breadth and sensitivity of the alleged data collection, plausibly created a reasonable expectation of privacy.
- Highly Offensive Intrusion: Courts are generally reluctant to dismiss such claims at the pleading stage, as the “offensiveness” inquiry is highly fact-dependent (degree of intrusion, context, motives, etc.). The court found the allegations sufficient to proceed to discovery.
5. Fraud, Deceit, and Misrepresentation
- Rule 9(b) Particularity: Plaintiff adequately alleged:
- Who: Politico (through its website)
- What: Representation that users could opt out of performance and behavioral advertising cookies
- Where: The cookie consent banner on the website
- When: The first half of 2023
- How: Despite the opt-out selection, Politico allegedly continued to transmit cookies and share data with third parties
- Justifiable Reliance: The complaint expressly alleges that plaintiff continued browsing “in reliance on” Politico’s representations about the ability to opt out.
- Duty to Disclose: Even if no general duty to disclose existed, a duty can arise when a party speaks but omits material qualifying facts, thereby rendering its statements misleading. By offering an opt-out and simultaneously not honoring it, Politico could have created such a duty.
- Damages: Plaintiff alleged that:
- His personal information has value, as demonstrated by the commercial use and sale of browsing data.
- Politico allegedly gained financially from the misrepresentation while diminishing his control and the value of his data.
The court deemed these allegations sufficient at the pleading stage.
Claims Dismissed (With Leave to Amend)
3–4. CIPA Wiretapping and Pen Register – Time-Barred
The court dismissed the CIPA claims as untimely under the one-year statute of limitations.
Key timing events:
- August 2023: Plaintiff took a screenshot and sent a demand letter.
- December 2023: Filed an arbitration complaint.
- July 2024: Arbitrator found claims non-arbitrable.
- February 2025: Plaintiff filed a petition to confirm the arbitration “award.”
- June 2025: Plaintiff filed this federal action.
Even assuming equitable tolling from filing of arbitration through the arbitrator’s non-arbitrability decision, the court found:
- More than 452 days of untolled time had elapsed between injury and filing this suit.
- The plaintiff’s nearly 11-month delay after the arbitrator’s ruling was unreasonable as a matter of law for equitable tolling purposes, absent further explanation.
The court allowed amendment solely to allege additional facts that might justify the delay and support equitable tolling.
6. Unjust Enrichment – Barred by Express Contract Theory
The unjust enrichment claim was dismissed.
- The complaint expressly alleged that Politico’s privacy policy contained “enforceable promises” and constituted a binding contract.
- Under California law, a quasi-contract/unjust enrichment theory is unavailable where an express, enforceable contract governs the subject matter, unless the plaintiff pleads facts suggesting the contract may be invalid or unenforceable.
- Because the plaintiff did not plead such facts, the unjust enrichment claim could not proceed.
Leave to amend was granted to allow the plaintiff to add facts suggesting the contract might be unenforceable or invalid, if such facts exist.
7–8. Breach of Contract and Breach of Implied Covenant – No Economic Damages
Under California law, both breach of contract and breach of implied covenant require a showing of actual damage.
- The plaintiff alleged only a generalized “difference in value” between what was promised and what was provided, without:
- Alleging he paid any money for Politico’s services.
- Articulating a concrete economic loss linked to the alleged breach.
Courts in similar data/privacy cases have rejected contract damages theories based solely on the asserted loss of the “inherent value” of personal data where plaintiffs did not pay for access to the service.
Leave to amend was granted so the plaintiff can attempt to plead a viable theory of economic harm.
9. Trespass to Chattels – No Device Impairment Alleged
- To state a claim based on digital activity (like cookies), a plaintiff must plead:
- Intentional, unauthorized interference with a device, and
- Resulting damage, such as impairment of the device’s condition, quality, or value.
- The plaintiff alleged nominal damages, reduced storage capacity, and loss of value of his devices.
- The court found these allegations insufficient because:
- It is generally understood that cookies are “minute in size” and do not noticeably affect modern device performance.
- The complaint lacked any specific allegation of measurable impact, performance degradation, or quantifiable impairment of storage or function.
By contrast, the court noted other cases where plaintiffs alleged a “measurable impact on the functioning of the systems’ memory,” which can be sufficient.
Leave to amend was granted to allege more concrete facts (if any) demonstrating actual impairment.
VISHAL SHAH, v. Politico LLC, No. 25-CV-05213-NW, 2026 WL 323269 (N.D. Cal. Feb. 6, 2026).
