Recently, the legal industry has seen a spike in “cookie” and pixel tracking lawsuits. Shady lawyers are filing these claims by the dozens to shake down legitimate businesses for quick settlements. Readers should understand what these lawsuits are and how to protect yourself from becoming the next victim.
Cookie and pixel lawsuits stem claims asserted under either the California Invasion of Privacy Act (CIPA) or the Federal Electronic Communications Privacy Act (ECPA). Both CIPA and ECPA regulate electronic tracking and monitoring of people visiting your company’s website. In 2025, over 1,000 lawsuits were filed alleging violations of CIPA alone.
The legal claim is quite simple. Lawyers recruit plaintiffs to visit websites. The plaintiff is targeting websites in which cookies are enabled on the website platform, but there is no meaningful way for the website visitor to accept or reject the cookies. Occasionally, if the website user rejects the cookies. Their data may still be tracked.
These plaintiffs are looking for technical disconnects between the website and tracking mechanisms such that their website visit is recorded through the system. If they did not consent to cookies, or the option to elect “yes” or “no” is simply disabled, the lawsuit follows.
Unfortunately, CIPA provides strong incentives for the plaintiff’s lawyer. Each visit (violation) is a statutory $5,000 penalty and the claims carry an attorney’s fees provision. Therefore, it is easy for a plaintiff to find an offending website, make multiple visits to track claims and then pursue a lawsuit which will either yield a quick settlement or an expensive attorney’s fee award.
So, what can businesses do to protect themselves? Consult with your internet vendor or IT department to explore these technical best practices:
1. Implement Strict Prior Consent (Zero-Cookieless Load)
- Block scripts by default: Configure your Consent Management Platform (CMP) to block all non-essential marketing, analytics, and advertising scripts (e.g., Meta Pixel, Google Analytics, TikTok Pixel) until the user explicitly clicks “Accept”.
- Abandon passive banners: Avoid “browsewrap” mechanisms or banners that say “By using this site you accept cookies.” Courts have consistently ruled that passive scrolling does not equal valid legal consent.
- Implement native compliance tools: For platforms using the Meta pixel, activate tools like Meta Consent Mode v2 through Google Tag Manager. This automatically adjusts pixel behavior based on the visitor’s choice, transmitting anonymized or zero data if they opt out.
-
2. Audit Tracking Technologies Regularly
- Map your exposure: Conduct an exhaustive inventory of your website to identify every running cookie, pixel, chatbot, and session-replay software.
- Purge “ghost” trackers: Remove forgotten or legacy tracking scripts left over from old advertising campaigns that continue to run in the background.
- Scrub sensitive pages: Completely strip advertising pixels from high-risk, sensitive pages. Sharing consumer behavior data from checkout screens, video streaming pages, or portals containing health, employment, or financial information dramatically heightens your litigation risk.
-
3. Maintain An “Audit-Ready” Consent Trail
- Log user consent states: Use a reputable CMP to capture and preserve time-stamped logs of user decisions (acceptances or rejections).
- Keep records for at least two years: Retain these logs for a minimum of two years to provide definitive, verifiable evidence of compliance if your business receives a legal demand letter.
-
4. Align Privacy Policies with Technical Reality
- Match policy to practice: Ensure your Privacy Policy explicitly names the third-party providers receiving your website data and details the precise reasons for collection.
- Avoid generic templates: Do not use vague language or generic copy-paste policies. Claiming your site only uses “basic analytics” while actively deploying behavioral advertising pixels constitutes a major legal vulnerability that plaintiffs can exploit.
-
5. Update Terms of Use and Vendor Contracts
- Incorporate strong arbitration clauses: Update your domain’s Terms of Use with prominent mandatory arbitration clauses and class-action waivers. Use a “click-wrap” format requiring users to affirmatively check a box agreeing to these terms, which can stop automated class-action lawsuits before they reach a courtroom.
- Tighten vendor agreements: Review and modify contracts with ad-tech vendors. Restrict their ability to use your data for secondary purposes and demand indemnification clauses for privacy-related litigation.
For more information on digital lawsuits, please contact Emily C. Gifford, Esq.
