Cookie Wiretapping Lawsuits: Delaware Court Highlights Class Certification and Ascertainability Hurdles

The large wave of cookie wiretapping lawsuits does not seem to be subsiding, but a plaintiff-favorable outcome is far from assured. A new decision by the US District Court in Delaware dismisses a claim based on the plaintiff’s failure to prove that individuals in the proposed class could actually be identified as having received the cookies in question. Notably, the court’s analysis focused on whether class members could be identified through reliable evidence, rather than on whether the challenged cookie practices were lawful.