Smith & Wesson has secured a partial victory in a proposed class action accusing the firearm manufacturer of unlawfully tracking website visitors who rejected cookies, after a California federal judge dismissed several statutory claims while allowing core privacy and fraud allegations to move forward.
In an order issued Tuesday, U.S. District Judge P. Casey Pitts granted in part and denied in part the company’s motion to dismiss. The lawsuit alleges that Smith & Wesson’s website placed tracking cookies on users’ devices and enabled third parties — including Google LLC, X Corp., Listrak Inc. and Digioh LLC — to monitor visitors’ browsing activity even after they clicked “Reject All” on the site’s cookie consent banner.
The plaintiffs — Tony D’Antonio, Thomas Thayer and Reina Cuevas Garcia — argued that this conduct violated the wiretap and pen register provisions of the California Invasion of Privacy Act. Judge Pitts dismissed those claims with leave to amend, finding that the plaintiffs had not specifically alleged that their own communications were intercepted.
Although the court acknowledged that tracking technologies could potentially intercept “communications” under the statute, the judge emphasized that the complaint did not detail any specific communications by the named plaintiffs that were captured. Merely alleging that they visited the website and declined cookies was not enough.
The pen register claim met a similar fate. While Judge Pitts noted that the law is not limited to telephones and could apply to digital tracking tools, he concluded that the plaintiffs failed to allege they engaged in communications that generated trackable routing or signaling information.
However, the court allowed the plaintiffs’ invasion of privacy and intrusion upon seclusion claims to proceed. Smith & Wesson had argued it could not intrude upon its own website interactions, but the judge found that companies may still be liable if they knowingly facilitate third-party intrusions.
According to the complaint, Smith & Wesson allegedly chose and integrated third-party tracking tools under agreements that allowed real-time data collection. Judge Pitts said those allegations were sufficient at this stage to suggest the company may have facilitated privacy intrusions.
The court also rejected the company’s argument that any data collection was routine and not “highly offensive.” The plaintiffs claim Smith & Wesson explicitly promised not to collect or enable tracking if users rejected cookies, yet did so anyway. That alleged deception, the judge wrote, could satisfy the requirement that an intrusion be highly offensive.
Claims for unjust enrichment and certain fraud allegations also survived. The court found that D’Antonio and Thayer adequately detailed when and how they were allegedly misled — including visits to the site in November 2024 and February 2025, when they were presented with a cookie banner offering the option to decline tracking.
If the company tracked their data despite that representation, Judge Pitts found, the plaintiffs may have a viable misrepresentation claim. However, Garcia’s fraud claim was dismissed because her allegation that she visited the site “in or around 2024” was too vague to meet pleading standards.
Other claims — including trespass to chattels and breach of implied contract — were dismissed with leave to amend. The court determined that the plaintiffs had not plausibly alleged device damage or the formation of a binding contract based solely on cookie preferences. Access to the website, the judge noted, was not conditioned on accepting additional tracking.
The case, D’Antonio et al. v. Smith & Wesson Inc., remains pending in the U.S. District Court for the Northern District of California. While the ruling narrows the scope of the lawsuit, it preserves key privacy and fraud claims, ensuring that litigation over the company’s alleged tracking practices will continue.
