The Ninth Circuit sent a strong message to companies considering relying on arbitration agreements introduced mid-litigation to defeat class-action litigation.  Avery v. TEKsystems, Inc., __ F.4th __, 2026 WL 218992 (9th Cir. Jan. 28, 2026)—in which the court described the defendant’s communications as “misleading,” “harmful,” “contradictory,” “disparaging,” and “inaccurate”—confirms the authority of district courts to refuse to enforce arbitration agreements that undermine Rule 23 procedures.Continue Reading Ninth Circuit Declines to Enforce “Misleading,” “Disparaging,” and “Confusing” Arbitration Agreement Mid‑Litigation

Last week, a judge in the Eastern District of Pennsylvania dismissed a putative class’s wiretapping claims against health insurer Cigna.  Adair v. Cigna Corporate Services, LLC, 2026 WL 295744 (E.D. Pa. Feb. 4, 2026).  Five plaintiffs alleged that Cigna traded insureds’ privacy for commercial gain by embedding third-party tracking tools throughout its website and member portals.  Id. at *1.  On their own behalf and on behalf of a proposed class, they brought claims under the Electronic Communications Privacy Act of 1986 (“ECPA”) and the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“WESCA”), together with common law intrusion-upon-seclusion, breach of fiduciary duty, and unjust enrichment claims.  Id. at *2. Continue Reading Pennsylvania Federal Court Dismisses Wiretapping Claims Against Health Insurer

In a recent decision from the Superior Court of California for Los Angeles County, Judge Carolyn B. Kuhl granted summary judgment and dismissed a putative class action alleging that an online retailer, I Am Beyond d/b/a Beyond Yoga, had aided and abetted violations of the California Invasion of Privacy Act…

Continue Reading California Court Dismisses Wiretapping Claims Regarding Retailer’s Website Chat Feature on Summary Judgment

In 2025, courts continued to issue significant decisions concerning the application of wiretap and privacy laws to pixels, session replay, and other website technologies. Over the past year, we have featured posts discussing claims regarding website analytics and advertising tools brought under the federal Wiretap Act, the California Invasion of Privacy Act (“CIPA”), the Video Privacy Protection Act (“VPPA”), and other laws.  A selection of posts highlighting important developments in this area is below. Continue Reading Website Wiretapping Roundup: 2025 Decisions and Developments 

In a recently published award, an arbitrator rejected claims that Dick’s Sporting Goods, Inc. (“Dick’s”) violated the Federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”) by purportedly installing website analytics and marketing technologies on its website after an evidentiary hearing.  Asad v. Dick’s Sporting Goods, Inc., JAMS Ref. No. 5220005532 (Dec. 8, 2025).Continue Reading Arbitrator Rejects Website Wiretapping Claims After Hearing

In many privacy and other technology-related class actions, the question of whether consumers consent to the practice at issue is central.  In these cases, class action defendants have defeated motions for class certification by successfully arguing that consent is an individualized issue that is not susceptible to common proof.  And though class action plaintiffs may try and avoid this problem by excluding consenting individuals from their class definition, that solution can create new problems, including impermissible “fail-safe” classes—i.e., classes that cannot be defined until a case is resolved on the merits.Continue Reading Sixth Circuit Denies Permission to Appeal Class Certification Order Raising Questions of Consent and Fail-Safe Classes

The Eighth Circuit recently affirmed dismissal of a putative class action asserting that defendant Cinema Entertainment Corporation, a regional movie theater chain, violated the Video Privacy Protection Act (“VPPA”) by disclosing website visitors’ information through a third-party pixel.  See Christopherson v. Cinema Ent. Corp., No. 24-3042, 2025 WL 3512393 (8th Cir. Dec. 8, 2025). Continue Reading Eighth Circuit Affirms Dismissal of VPPA Claim

A defendant can waive a right to compel arbitration if it intentionally relinquishes or abandons its known right. One way to waive a right to compel arbitration is by implied waiver: acting inconsistently with an intent to assert the right to arbitrate.  But what should a defendant do to preserve…

Continue Reading Third Circuit Holds Providing Clear Notice of Intent to Compel Arbitration Preserves Right to Compel Arbitration Once Right Becomes Enforceable

On December 19, 2025, Governor Kathy Hochul signed the Fostering Affordability and Integrity through Reasonable (FAIR) Business Practices Act (“the Act”) into law. We previously wrote a blog post about the Act, which was introduced to update and expand New York’s current consumer protection law, Sections 349 and 350 of the New York General Business Law (“GBL”), to encompass a broader range of practices and claims.  The proposed legislation was previously announced by New York Attorney General Letitia James on March 13, 2025, and was passed through the New York State Senate and State Assembly on June 18, 2025.

Between its announcement in March and its passage into law, the Act underwent significant changes.  Among other notable changes:Continue Reading New York Passes the FAIR Business Practices Act

The first Federal Rule focused specifically on multidistrict litigation—which has long been a staple of complex, high-stakes litigation—took effect on December 1, 2025, as part of the 2025 amendments to the Federal Rules of Civil Procedure. Continue Reading New Federal Rule of Civil Procedure Provides Guidance for Early MDL Case Management