Hon. Beth Labson Freeman, of the Northern District of California, dismissed a putative class action and held that neither plaintiff alleged a concrete privacy or economic injury sufficient for Article III standing.
Plaintiffs in this putative class action alleged that defendant enabled third-party tracking cookies (including Google and Flipp) on its website even after they clicked “Reject All” in the cookie banner, and asserted invasion of privacy, intrusion upon seclusion, CIPA wiretapping and pen-register, fraud, and unjust enrichment claims under California law.
The court granted defendant’s motion to dismiss under Rule 12(b)(1) based on lack of Article III standing. Applying the Ninth Circuit’s decision in Popa v. Microsoft Corp., the court found that tracking a user who viewed a weekly ad and entered a zip code into a store locator on a grocery website was innocuous and not comparable to a highly offensive intrusion actionable at common law.
“Tracking this information on a grocery website is, as alleged, no more offensive than Popa because the information at issue is similarly innocuous.”
The court also rejected the argument that a CIPA violation alone confers standing, noting that the authority relied upon predated TransUnion, and held that clicking “Reject All” could not convert innocuous information into private information.
“The Court thus does not read the Ninth Circuit to have endorsed the view that any information can be made private by a defendant’s conduct.
Allegations that data has value generally were insufficient without facts showing the named plaintiffs’ own data was collected. The court declined to resolve traceability at the pleading stage, did not reach the Rule 12(b)(6) arguments, and granted leave to amend within 21 days.
Fons v. Grocery Outlet, Inc., No. 26-cv-00964-BLF, 2026 WL 2876369 (N.D. Cal. Sept. 24, 2026).
