Unreported / Non-Citable
Background
Plaintiff Daniel Pemberton brought a putative class action against Restaurant Brands International, Inc., alleging that it installs third-party trackers on visitors' internet browsers when they use the Burger King website, in violation of various California laws. Defendants earlier moved to dismiss for lack of Article III standing, and the court denied that motion. Because the motion had been briefed before the Ninth Circuit decided Popa v. Microsoft Corp., 153 F.4th 784 (9th Cir. 2025), the denial did not consider that decision.
Plaintiff has since sought leave to file a proposed Second Amended Complaint that would add two new named plaintiffs. Reviewing that pleading in light of Popa, the court became concerned that neither Plaintiff nor the proposed additions had alleged a concrete injury, which raised a question of subject matter jurisdiction. Because standing is jurisdictional, the court may raise it on its own. A plaintiff must show an injury in fact that is concrete, particularized, and actual or imminent, caused by the defendant and redressable by the court. In a putative class action at least one named plaintiff must have standing, and the party invoking federal jurisdiction bears the burden. Intangible harms such as disclosure of private information or intrusion upon seclusion can be concrete.
The Court’s Holding
This is a show-cause order, not a ruling that standing is lacking. The court expressed its view that, under Popa, neither the proposed pleading nor any earlier version plausibly alleges that tracking of the plaintiffs' website interactions caused harm remotely similar to the highly offensive interferences or disclosures actionable at common law. Popa affirmed dismissal where the information collected on a pet supply website was not embarrassing, invasive, or otherwise private, likening the monitoring to a store clerk watching shoppers to spot popular aisles. For Plaintiff and one proposed plaintiff, the only personal information allegedly tracked is that they visited from California, with nothing specific alleged about what they browsed. The other proposed plaintiff alleges visiting a few times a year to learn about products and locations, including a triple whopper, which the court found indistinguishable from the pet supplies in Popa.
The court also addressed the allegation that plaintiffs opted out of cookie tracking and were tracked anyway. Relying on a recent Northern District decision, Ortiz v. Foris Dax, Inc., 2026 WL 3002660 (N.D. Cal. Oct. 6, 2026), it explained that deceit can be a plus factor that makes borderline conduct highly offensive, but deceit alone does not turn routine information collection into such an invasion; the key is the sensitivity of the data. Drawing inferences for Plaintiff, the court viewed the tracked data as not even borderline sensitive and was not satisfied that the failure to honor cookie settings amounted to a concrete injury.
The court ordered Plaintiff to show cause in writing by November 2, 2026, why the court has subject matter jurisdiction, in particular how the proposed pleading plausibly alleges that at least one named plaintiff has standing. Defendants may respond by November 12, 2026. The motion to amend is held in abeyance until the jurisdictional question is resolved.
Key Takeaways
- The order is a show-cause directive; the court has not yet dismissed the case or decided that standing is absent.
- After Popa, a website-tracking plaintiff must allege facts tying the collected data to a concrete harm resembling a common-law privacy tort, and generic references to browsing may not suffice.
- What a plaintiff actually browsed matters; the court faulted allegations saying only that plaintiffs visited from California or looked up menu items and store locations.
- Ignoring a cookie opt-out can be a plus factor, but under the reasoning cited it does not by itself create standing when the data collected is not sensitive.
- If the court ultimately finds no standing, dismissal would be without prejudice to pursuing the claims in state court, which has no Article III requirement, and would not be a merits ruling.
Why It Matters
The order shows how a Northern District of California court is applying Popa to website-tracking class claims at the pleading stage, including in a case that had previously survived a standing challenge. It illustrates that an intervening appellate decision can lead a court to revisit standing on its own even after denying a motion to dismiss, and that a motion to amend may be held until jurisdiction is settled.
Its weight is limited. It is an unpublished district court order, not binding precedent, and it states only preliminary concerns while giving Plaintiff a chance to respond. Whether any named plaintiff can plausibly allege a concrete injury, and how the case is ultimately resolved, remain open.