A California federal court recently held that a “tester” plaintiff lacks standing to file lawsuits for invasion of privacy under California’s wiretapping law (CIPA). See Rodriguez v. Autotrader.com, 2025 WL 1085787 (C.D. Cal. Apr. 4, 2025). A “tester” is a serial plaintiff that seeks out legal violations and files lawsuits to ensure legal compliance. The Autotrader plaintiff is a “tester” that seeks out CIPA violations. She alleged that she visited the Autotrader website, which installed third-party tracking software on her browser without her consent that captured and sent identifying information (e.g., IP address, operating system information, browser information, geolocation data, and email address) to third parties like Google and Facebook. 

This case took a few procedural twists and turns, but the court ultimately held (in two separate decisions) that the plaintiff lacked standing to file lawsuits for invasions of privacy, because she is a “tester” that “seeks out invasions of privacy.” According to the court, “It was no accident that she visited the Website and allegedly had her privacy violated. Rather, she visited the Website fully expecting it to violate her privacy so that she could file this action.” Rodriguez v. Autotrader.com, 2025 WL 1122387, at *2 (C.D. Cal. Mar. 14, 2025) (cleaned up). According to the court, “[A]s a tester that visited and entered information into Defendant’s website expecting the information to be accessed, recorded, and disclosed, she cannot claim an injury when her expectations were ultimately met.” 2025 WL 1085787, at *1.

The court acknowledged that other courts have held that “tester” plaintiffs may have standing even if they fully expected or sought out an injury. The court distinguished these decisions, however, because they involved claims that were not dependent on the plaintiffs’ expectations. For example, in an ADA website accessibility case, the plaintiff suffered injury (i.e., the inability to access the website) regardless of their expectations or intentions. Id.

This ruling is particularly significant in light of the case’s procedural history. The court’s earlier January 2025 decision was heralded as a significant win for CIPA plaintiffs. (See our blog post.)  The court held that website tracking technologies may violate Section 631, and may also constitute illegal pen registers. Although the court ruled (on that earlier motion) that plaintiff lacked standing to assert a claim under Section 631, this was because of a pleading deficiency, not because she was a “tester.” Thus, the court afforded plaintiff leave to amend the complaint. It was only after plaintiff amended the complaint, and Autotrader moved to dismiss the amended complaint, that the court addressed the “tester” issue. 

It’s notable that this court—which previously seemed receptive to these CIPA claims, both in Autotrader and other cases—put the kibosh on using serial “tester” plaintiffs to assert CIPA violations.  If plaintiff firms cannot rely on using tester plaintiffs, that will pose a significant hurdle to their volume business model.