On January 31, 2025, in Campos v. TJX Companies, Inc., No. 24-cv-11067, the District of Massachusetts granted a motion to dismiss a class action due to the plaintiff’s lack of standing. The court concluded that the named plaintiff’s claims regarding the intrusion of her privacy by “spy pixels” could not be successful because there was no injury in fact.

TJX Pixel Software and Campos’ Privacy Claims

Arlette Campos filed a putative class action against defendant TJX Companies (“TJX”) alleging that it intruded upon her privacy through promotional emails it sent to her.

Campos claimed that TJX had embedded pixel software in its promotional emails, which collect information about the email recipient, including when the email is opened and read, the recipient’s location, how long the recipient spends reading the email, and the email server the recipient uses.

Although Campos had provided TJX with her email and subscribed to their email list, she claimed that TJX collected her private information without her consent.

TJX Challenges Whether Campos Met Article III Standing Requirements

TJX filed a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, claiming that Campos lacked standing.

Article III of the Constitution requires that litigants have standing to sue. Whether a litigant has standing to sue is an inquiry of three elements: injury in fact, traceability, and redressability.

TJX challenged Campos’ standing on the basis that she did not suffer an injury in fact.

To sufficiently plead an injury in fact, a plaintiff must allege a concrete harm. Quoting from TransUnion LLC v. Ramirez, the court highlighted that “traditional tangible harms, such as physical and monetary harms, are obvious[ly] concrete.” However, based on the holding in TransUnion, the court made clear that “[i]ntangible harms can also be concrete . . . such as reputational harms, disclosure of private information, and intrusion upon seclusion.”

Thus, even though Campos did not have a traditional, tangible harm, this did not necessarily preclude a finding of concrete harm.

Court Rejects Campos’ Intrusion Upon Seclusion Claim for Her Injury

Campos pointed to the tort of intrusion upon seclusion to argue that she was injured. The Restatement Second of Torts defines intrusion upon seclusion as the intentional intrusion “upon the solitude or seclusion of another or his private affairs or concerns.”

For this claim to be actionable, the intrusion must be “highly offensive to a reasonable person,” and the matter intruded upon must be deeply private, personal, and confidential.

Based on this, the court rejected the argument that the emails would fall within the ambit of deeply personal and private information contemplated by the tort because Campos provided her email address to TJX (which the court observed as “certainly not private”), she had consented to receive promotional emails, there was “nothing particularly private about the email’s subject or other content,” and TJX authored the contents of the emails, meaning they would have been known “with or without the pixels.”

Additionally, although the court noted that opening private mail is an example of an intrusion mentioned in the Restatement, because TJX did not peer into Campos’ inbox beyond the emails it authored, there was no intrusion here.

Even for other sensitive information that the pixels collected, such as whether, when, where, and for how long Campos read the emails, the court rejected Campos’ argument that this was private and personal information meant to be protected by the tort. The court found no precedent that “reading habits” for content authored by the defendant are “the type of private, personal information that the tort was aimed at protecting under the common law.”

The court was troubled by allegations that the pixel software tracked whether the email was forwarded, which it deemed “closest to tracking ‘unrelated personal messages,’” but faulted the absence of any allegation that “pixels could track to whom the email was forwarded or the content of that forwarded message.”

Therefore, the court held that Campos failed to adequately plead this claim, and thus, failed to establish that she was injured.

Court Rejects Campos’ Analogy to Other Privacy Harms for Her Injury

Campos also argued that use of pixel technology is similar to cases arising under the Telephone Consumer Protection Act (“TCPA”), which prohibits unsolicited marketing calls and faxes, and the Video Privacy Protection Act (“VPPA”), which prohibits the sharing of video rental records. The court, however, rejected these analogies.

In TCPA cases, standing has been found where recipients did not consent to being contacted. In this case, Campos willingly subscribed to receive emails from TJX, opened and read them, and took no steps to unsubscribe. Based on this, the court held that the TCPA was inapplicable, and Campos could not meet the standing requirement by relying upon it.

Similarly, the VPPA solely contemplates the disclosure of video rental and sale records, and because Campos did not allege any such disclosure, the court held that no harm occurred that could justify applying the VPPA and it thereby could not confer standing, either.

Based on Campos’ inability to establish standing, the court granted the motion to dismiss.

Fast Forward: Article III Standing and Class Certification

In this latest class action, the named plaintiff was unable to meet Article III’s standing requirement. However, even if Campos had, she would have had to overcome another hurdle: establishing whether the vast majority of absent class members also had standing.

The Supreme Court’s holding in TransUnion stands for the proposition that every member of a class, including absent members, must establish a concrete injury under Article III to be awarded individual damages. The Supreme Court did not, however, address the issue of class certification where the class contains absent members who lack Article III standing.

The Supreme Court is poised to answer this question in Laboratory Corporation of America Holdings v. Davis, which it granted certiorari for in January 2025. Courts that have answered this question have done so differently, leading to a three-way split between circuits.

The D.C. Circuit and First Circuit permit certification of a class only if the number of uninjured members is de minimis. The Ninth Circuit permits certification even if the class includes more than a de minimis number of uninjured class members. The Eighth and Second Circuits have taken the strictest approach, rejecting certification if any members are uninjured.

Given that venue may be outcome determinative in this regard, until the Supreme Court addresses this question, defendants should scrutinize potential standing deficiencies for both class representatives and absent class members as well. The Supreme Court heard argument in Lab Corp on April 29, 2025, and should soon issue a decision that may provide important clarity to class action litigants on this question of standing.