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Consent becoming a forceful defense at the motion to dismiss stage in privacy claims 

7/2/25

By: Justin J. Boron and Michael R. Brown

In data privacy litigation, consent has traditionally been a fact-heavy issue decided at later stages of litigation. But recent rulings from federal courts suggest that this may be changing. In a shift that may prove consequential for privacy defendants, consent is emerging as a surprisingly effective—and increasingly viable—defense at the motion to dismiss stage. 

Two recent decisions highlight this trend: 

In Popa v. Harriet Carter Gifts, Inc., No. 2:19-CV-450, 2025 WL 896938 (W.D. Pa. Mar. 24, 2025), the Western District of Pennsylvania granted summary judgment on Plaintiff’s data tracking claims based on a clickwrap agreement that required the user to affirmatively click to accept the site’s Terms and Conditions. 

In Lakes v. Ubisoft, Inc., No. 24-CV-06943, 2025 WL 1036639 (N.D. Cal. Apr. 2, 2025), the Northern District of California dismissed plaintiffs’ VPPA and CIPA claims on consent grounds by taking judicial notice of Ubisoft’s Cookies Banner, account creation screen and checkout screen, all of which required the user to affirmatively click on an acceptance of the site’s Terms and Conditions. 

Similarly, in Washington v. Flixbus, Inc., No. 3:25-CV-00212-H-MSB, 2025 WL 1592961 (S.D. Cal. June 5, 2025), the Southern District of California dismissed CIPA claims on the grounds that plaintiff had checked the box indicating he consented to Flixbus’s Terms and Conditions. 

These rulings reflect a growing judicial willingness to treat consent as a threshold issue. Part of this trend may stem from courts’ increasing comfort with treating app and website disclosures as incorporated by reference, which gives courts a clearer factual basis for resolving consent disputes earlier in the case. 

For more information, please contact Justin J. Boron at justin.boron@fmglaw.com, Michael R. Brown at michael.brown@fmglaw.com or your local FMG attorney.

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