Judge Chen's Crypto.com ruling makes cookie plaintiffs prove the data was sensitive
Judge Edward Chen dismissed a cookie-tracking class action against Crypto.com operator Foris DAX, finding the users lacked Article III standing. Under the circuit law he applied, plaintiffs have to show trackers took sensitive data before an ignored cookie banner counts as harm.
The Investor · Invest desk

Timeline: Oct. 17, 2025, Ortiz and Hernandez sue Crypto.com over trackers left running after Disable All. May 22, 2026, an interim ruling dismisses most claims. Oct. 6, 2026, Judge Chen dismisses for lack of standing. Nov. 5, 2026, deadline to file an updated complaint.
- 2025Ortiz and Hernandez sue over trackers left running after "Disable All", claim 3
- 2026Interim ruling dismisses most claims; one CIPA pen-register claim survives, claim 8
- 2026Chen dismisses amended complaint for lack of Article III standing, claim 1
- 2026Deadline for plaintiffs to file an updated complaint, claim 5
| Date | Event | Claim |
|---|---|---|
| October 17, 2025 | Ortiz and Hernandez sue over trackers left running after "Disable All" | 3 |
| May 22, 2026 | Interim ruling dismisses most claims; one CIPA pen-register claim survives | 8 |
| October 6, 2026 | Chen dismisses amended complaint for lack of Article III standing | 1 |
| November 5, 2026 | Deadline for plaintiffs to file an updated complaint | 5 |
What happened
- Jose Ortiz and Javier Hernandez sued in October 2025, alleging Crypto.com kept third-party trackers running after visitors clicked "Disable All" on its cookie banner.
- A May 22, 2026 interim ruling had already dismissed most of their claims, leaving a single California Invasion of Privacy Act pen-register claim pending amendment.
- Chen accepted that "cradle-to-grave" tracking can confer standing, but found no allegation that third parties took data "materially more sensitive" than general site activity.
- News.bitcoin.com reported the dismissal came with leave to amend, giving the plaintiffs until Nov. 5, 2026 to file a new complaint.
Why it matters
- What doesn't add up contradiction If Cryptobriefing's account of a closed case is right, Crypto.com's exposure to this suit is gone; if news.bitcoin.com's is right, it stays open until the amendment deadline.
- What it limits constraint Cookie-banner plaintiffs in the circuit have to identify the sensitive data a tracker took in the complaint itself, because deceit about tracking adds weight only once that is shown.
- What it sets up precedent Defendants elsewhere in the Ninth Circuit can cite the order against suits built on ignored consent clicks and statutory violations alone.
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The two reports disagree on whether any case is left. News.bitcoin.com dates the order Oct. 6, 2026 [1]. Cryptobriefing dates it Oct. 7 and says the ruling "closed the case entirely" [2]. The leave-to-amend version is internally consistent, since Oct. 6 plus 30 days is Nov. 5 [14]. News.bitcoin.com also gives the reason for leave: Chen could not conclude that a further amendment would be futile [5].
Chen's test is short. "The key is the sensitivity of the information collected," he wrote [11]. The alleged broken promise was weighed separately. According to news.bitcoin.com's account, deceptive tracking can be a "plus factor" that lifts conduct toward a "highly offensive" intrusion, but deceit alone does not turn routine web tracking into an injury [10]. That leaves the complaint's strongest fact, a consent choice the site allegedly overrode, counting only as a broken promise [3][10].
News.bitcoin.com's summary says the ruling enforces a high hurdle for Ninth Circuit tracking suits without sensitive-data exposure [6]. Enforces is the accurate verb. Chen is a U.S. district judge in the Northern District of California, applying circuit precedent such as In re Facebook, Inc. Internet Tracking Litigation [1][2][9]. Cryptobriefing ties the result to the Ninth Circuit's 2025 decision in Popa v. Microsoft, after which alleging a violated privacy statute has not been enough on its own [7]. The bar was set by the circuit, and this order shows where a cookie-banner case lands against it. Cryptobriefing also pointed out that a standing dismissal decides whether these plaintiffs can sue in federal court, not whether the tracking was acceptable [12].
Follow the spending. Cryptobriefing reported that Crypto.com avoided a fight on the merits of its cookie practices [13], and the order came 354 days after the suit was filed [15]. The next round of legal cost falls on the plaintiffs. It has to pay for a fact they did not plead the first time: what specific, sensitive information a third party collected from Crypto.com's site [9]. Their profiling theory, that trackers built consumer profiles of preferences and behavioral trends, did not supply it [4][9].
The plaintiffs can file by Nov. 5 with specific sensitive-data allegations and restart the case, let the deadline pass and leave the dismissal standing, or find that Cryptobriefing's reading was right and there was never anything to amend [5][2]. I'd expect the second outcome for this complaint. Its theory rests on the overridden banner click, and Chen held that deceit cannot carry standing by itself [10].
The case against that view is the defendant's business. Crypto.com is an exchange [1], and if the plaintiffs can show trackers picked up account or transaction details, the "materially more sensitive" test looks reachable [9]. Neither report says what data the trackers touched. An amended complaint that survived on that ground would show the hurdle is high but passable for financial sites, and the order would then be less useful to the next company sued over a cookie banner.
What to watch
- An amended complaint in case 3:25-cv-08950 by Nov. 5, 2026, and whether it names account or transaction data that third-party trackers collected.
- Any appeal to the Ninth Circuit testing whether deceit about a cookie banner can be a concrete injury without sensitive data.
- Tracking suits elsewhere in the Northern District of California that survive dismissal on profiling or deceit alone, which would show the hurdle is lower than this order suggests.
Information, not investment advice. This story is general information about companies and markets, drawn from cited reporting. It is not a recommendation to buy, sell or hold any security; check the cited sources before acting.
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- [1]
U.S. District Judge Edward M. Chen granted the motion by Foris DAX, operator of the exchange Crypto.com, to dismiss the plaintiffs' First Amended Complaint in an order issued Oct. 6, 2026, ruling that allegations of online profiling and broken privacy promises do not establish Article III standing.
- [2]
On Oct. 7, 2026, a federal court in the Northern District of California dismissed the proposed class action against Foris DAX, Inc., operator of Crypto.com, finding the plaintiffs lacked the concrete injury required for Article III standing, which Cryptobriefing said closed the case entirely.
- [3]
Jose Ortiz and Javier Hernandez filed the suit on Oct. 17, 2025, case number 3:25-cv-08950, alleging Crypto.com kept third-party tracking running after visitors selected "Disable All" on the site's cookie consent banner.
- [4]
Plaintiffs alleged the defendant used third-party tracking cookies to monitor user behavior, share data and create comprehensive consumer profiles reflecting user preferences and behavioral trends, violating a reasonable expectation of privacy given alleged assurances that such tracking would not occur.
- [5]
Because the court could not determine that further amendment would be futile, the dismissal was granted with leave to amend; plaintiffs have 30 days, until Nov. 5, 2026, to file an updated complaint.
- [6]
The ruling enforces a high hurdle for Ninth Circuit web-tracking suits without sensitive data exposure.
- [7]
The outcome reflects a broader shift in how California has approached website-tracking cases since the Ninth Circuit's 2025 decision in Popa v. Microsoft; alleging that a privacy statute was violated is not, on its own, enough.
- [8]
On May 22, 2026, Judge Chen dismissed most of the claims in an interim ruling but allowed a California Invasion of Privacy Act pen-register claim to move forward pending an amendment; the October ruling cut that claim.
- [9]
The court acknowledged that data disclosures enabling "cradle-to-grave" tracking can establish standing under Ninth Circuit precedent such as In re Facebook, Inc. Internet Tracking Litigation, but found the plaintiffs failed to allege that third parties actually collected or deanonymized data "materially more sensitive" than general, non-sensitive site activity.
- [10]
Judge Chen held that while deceptive tracking can serve as a "plus factor" elevating conduct to a "highly offensive" privacy intrusion, deceit alone does not transform routine web tracking into an actionable injury.
- [11]
"The key is the sensitivity of the information collected," Judge Chen wrote.
- [12]
A standing dismissal is about whether these plaintiffs could bring this claim in federal court, not about whether the tracking described in the complaint was acceptable.
- [13]
The proposed class action had been hanging over Crypto.com for close to a year, and the exchange avoided a fight on the merits of its cookie practices.
- [14]
An order dated Oct. 6, 2026 plus a 30-day amendment window ends on Nov. 5, 2026, matching news.bitcoin.com's stated deadline.
- [15]
The suit ran 354 days from its Oct. 17, 2025 filing to the Oct. 6, 2026 dismissal order.
Sources
3 independent publishers whose own reporting we read for this story.
- cryptobriefing.comFederal judge dismisses privacy lawsuit against Crypto.com over cookie tracking
1 article · October 7, 2026
- cryptopolitan.comCrypto.com operator Foris Dax wins dismissal of cookie privacy suit as plaintiffs get 30 days to refile
1 article · October 9, 2026
- news.bitcoin.comCrypto.com Privacy Case Dismissed, Plaintiffs Get Second Chance
1 article · October 9, 2026
Topics and entities
Topics
- Article III Standing Doctrine
- Web tracking privacy litigation
- Cookie consent banners
Entities
- Crypto.com
- Popa v. Microsoft
- California Invasion of Privacy Act
- In re Facebook, Inc. Internet Tracking Litigation