CIPA Claim Itself Survives—Barely
Despite the setbacks, plaintiffs won a partial victory. Judge Sabraw refused to toss their statutory CIPA claim altogether. Lowe’s had argued the TikTok and Microsoft trackers could not qualify as pen registers or trap-and-trace devices; that their use was lawful because Lowe’s consented; that the company did not act knowingly or intentionally; and that plaintiffs had not shown harm sufficient for statutory standing.
Sabraw rejected each argument, emphasizing that Article III standing differs from statutory standing: “Defendants’ Article III standing argument was not that plaintiffs failed to allege an injury,” he said. “Rather, they argued plaintiffs failed to allege a concrete injury, which is not required for statutory standing.”
Attorneys for both sides could not be reached for comment Friday.
Bradshaw and Lopez are represented by Avi Josefson, Michael Blatchley, Timothy Fleming, Jonathan D. Uslaner of Bernstein Litowitz Berger & Grossmann LLP, and Don Bivens and Teresita T. Mercado of Don Bivens PLLC.
Lowe’s is represented by Bethany G. Lukitsch, Michael A. Kushner, and Andrew C. Burnquist of BakerHostetler.
