However, just weeks later, Judge Cherol J. Nellon in Choice Hotels overruled a demurrer on similar claims, allowing the CIPA case to proceed. This ruling stated that deploying software to record user data could constitute a CIPA violation and rejected the argument that visiting a website implies consent to data capture.
These conflicting rulings create a dilemma for businesses. Defending against CIPA claims is risky, as different judges may rule differently on identical allegations, leading many to opt for early settlements. This inconsistency continues to fuel the wave of CIPA litigation, with no appellate court resolution in sight due to the procedural limitations of the cases so far.
Several more demurrers on this issue are scheduled in the coming months. The outcomes will determine whether courts align with the Hickory Farms or Choice Hotels ruling, potentially shaping the future of CIPA litigation involving web analytics tools.
