Frances Malfa

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

For businesses operating websites in California, a pending appellate case may soon reshape the legal landscape. Variety Media, LLC v. Superior Court, now before California’s Second District Court of Appeal, could produce the first published California appellate decision addressing whether the California Invasion of Privacy Act (CIPA) applies to commonplace website technologies, including cookies, analytics tools, and advertising pixels. Why This Case Matters CIPA was enacted to address telephonic wiretapping, but plaintiffs across California have increasingly alleged that routine online tools (e.g., cookies, pixels, analytics platforms, advertising technologies, and fraud-prevention services) constitute unlawful pen registers or trap-and-trace devices under the statute. These claims have generated lawsuits, demand letters, arbitrations, and substantial settlement pressure attributable to CIPA’s statutory damages provisions. The irony is significant: the very technologies enabling privacy compliance, including preference management tools, consent mechanisms, and privacy notices, are themselves being challenged under CIPA. Unlike the California Consumer Privacy Act (CCPA), which includes detailed regulations addressing data sharing through website cookies, CIPA offers no roadmap for how businesses can deliver website functionality while avoiding liability. California trial courts have reached divergent conclusions, federal district court decisions also remain inconsistent, and businesses devote substantial resources to compliance efforts without a clear standard to guide them. The Court of Appeal’s decision to exercise original writ jurisdiction, rather than awaiting a traditional appeal following final judgment, underscores the case’s significance. At present, the appellate record contains 17 substantive briefs from the parties and amici, including business associations, technology companies, media organizations, privacy advocates, civil liberties groups, and academic institutions. The Legal Framework at Issue Under CIPA, a pen register is a device that records or decodes dialing, routing, addressing, or signaling information, while a trap-and-trace device captures the incoming equivalent. The central dispute in Variety Media is whether information exchanged between a user’s device and a website, such as IP addresses, device identifiers, URLs, and metadata, falls within these statutory definitions. The appeal raises interconnected questions: Does CIPA Section 638.51 reach routine software processes on commercial websites, or does it remain confined to law enforcement surveillance? Even if the statute can apply to internet activity, do the specific trackers at issue constitute “pen registers” under Section 638.50(b), or are they excluded as “tracking devices” under Section 629.51(a)(3)? What role should the federal Pen Register Act play in construing CIPA? And should CIPA be interpreted narrowly given California’s broader privacy regulatory landscape, including the CCPA? The Competing Arguments Appellant Variety contends that CIPA’s text, structure, and legislative history demonstrate the pen register provisions were designed to regulate telephonic surveillance rather than routine website communications. From Variety’s perspective, extending those provisions to common website technologies would expand CIPA beyond its intended scope and expose businesses to liability for ordinary internet operations. Sean Rose, the plaintiff below and the real party in interest on the appeal, advances the contrary position, arguing that CIPA is technology-neutral and applies whenever challenged technologies perform functions falling within its statutory definitions, irrespective of whether the Legislature contemplated internet communications. Under this reading, IP addresses, device identifiers, routing information, and metadata may qualify as CIPA-regulated information. The parties further disagree on the relevance of federal law. Variety maintains that Congress amended the federal Pen Register Act to address internet communications while California made no corresponding amendment to CIPA and that online privacy is governed by statutes, such as the CCPA. Rose counters that CIPA’s existing language already encompasses evolving technologies, that amendments to federal law do not constrain California’s interpretation of its own statute, and that the CCPA complements rather than supplants CIPA. Perspectives from Interested Parties The amicus briefs expand the scope of the appeal. Business organizations, including the U.S. Chamber of Commerce, Alliance for Legal Fairness, California Chamber of Commerce, California Retailers Association, Retail Litigation Center, and Association of Corporate Counsel, concentrate on the practical ramifications of applying CIPA to routine website operations. As the Association of Corporate Counsel observes, each new website tool that becomes a litigation target compels businesses to spend “countless hours and resources guessing at how best to avoid CIPA liability—while still maintaining CCPA compliance.” A separate brief filed jointly by Asana, Eventbrite, GoPro, ClickUp, Reddit, the Software & Information Industry Association, MasterClass, and Yelp supplies technical context on how IP addresses, cookies, pixels, and device data support website functionality, cybersecurity, fraud prevention, and analytics. Additional amici, including News/Media Alliance, Digital Content Next, the Movement for an Open Web, and the Southwestern Law School Amicus Project, address implications for digital publishers and CIPA’s statutory history. The amici supporting Rose (i.e., the ACLU of Northern California, ACLU of Southern California, and Oakland Privacy) argue that metadata and browsing information can reveal substantial details about individuals’ online activity, that the CCPA complements rather than supersedes CIPA, and that privacy protections should evolve alongside technology. The Court’s Supplemental Questions In May 2026, rather than proceeding directly to oral argument, the Court directed supplemental briefing on several questions. The Court inquired about the relationship between CIPA and the federal Pen Register Act; specifically, whether a California company could violate the federal statute by collecting internet metadata even if California’s pen register provisions were interpreted more narrowly, and whether CIPA should be construed to avoid conflict with federal law. The Court also asked whether the specific tracking technologies at issue (e.g., cookies that collect IP addresses, browser type, and similar device-level metadata) fall within CIPA’s definitions or are excluded as “tracking devices” under Penal Code Section 629.51. Finally, it questioned whether the pen register provisions apply only to communications containing “content,” and whether merely visiting a website constitutes a “communication” within the meaning of the statute. While the parties largely adhered to their original positions in supplemental briefing, Variety reiterated that Congress amended the federal Pen Register Act for internet communications while California made no comparable amendments to CIPA. Rose responded that CIPA’s existing language already reaches evolving technologies. The Court’s questions do not signal how it will ultimately decide, but they illuminate the issues likely to receive the most attention at oral argument. What Comes Next With briefing concluded, attention turns to the oral argument scheduled for August 25, 2026. Although the parties and amici disagree on CIPA’s application, they largely concur on how the underlying technologies function. The central questions have crystallized: whether CIPA reaches internet communications, whether the challenged tools fall within its definitions, and how CIPA should be interpreted alongside the CCPA. In summary, the disagreement transcends statutory interpretation. Variety and its supporters stress statutory limitations and potential business consequences, whereas Rose and his supporters emphasize consumer privacy and the imperative for CIPA’s protections to keep pace with technological change. The outcome could determine whether routine website data practices fall under CIPA’s surveillance provisions, California’s contemporary privacy framework, or both. Our next article will provide firsthand coverage from the courtroom, examining the panel’s questions, the parties’ responses, and what the argument reveals about how the Court may resolve this closely watched appeal.

In 2021, the New Jersey Supreme Court adopted the "ongoing storm rule" in Pareja v. Princeton International Properties, holding that commercial landowners have no duty to clear snow and ice until a reasonable time after a storm ends—unless "unusual circumstances" exist. Five years later, the Court has applied that exception for the first time in a published decision, and the result is more good news for commercial property owners. This case arose from a slip-and-fall at a Walmart parking lot in Union Township on January 3, 2015, during a storm of mixed snow, sleet, and rain that began around 11:30 a.m. At the time of the plaintiff's fall, roughly 1:30 p.m., there was only a "trace" to one-tenth of an inch of accumulation on the lot. Walmart's snow-removal contractor had spread salt on the lot from 12:35 to 1:15 p.m. but had not pretreated the surface before the storm began. A jury found Walmart negligent and awarded the plaintiff over $1.3 million, and the Appellate Division later ordered a new trial rather than dismissal.  On July 30, 2026, the Supreme Court reversed and directed judgment for Walmart. Under the "ongoing storm rule," a commercial landowner's duty to clear snow and ice arises within a reasonable time after a storm ends, not during the event. One of the exceptions to the ongoing storm rule, defined by the Court’s 2021 holding in Pareja v. Princeton Int’l, is where the landowner's conduct creates "unusual circumstances" that exacerbate the risk of injury. The Court in Gallardo held that ordinary, if imperfect, remediation efforts, such as salting a lot with only minimal accumulation, do not meet that "unusual circumstances" threshold, even when the plaintiff alleges that treatment made conditions worse. Commercial landowners are not obligated to clear snow or ice mid-storm, and undertaking reasonable, ordinary de-icing measures during a storm will not, by itself, create liability. Owners should document the timing of all remediation efforts and retain contractor service records, since the absence of "unusual circumstances" was central to the outcome in this decision.  This decision may further reduce exposure to ongoing-storm slip-and-fall claims against commercial insureds absent evidence the insured's actions were genuinely unusual or created a new hazard beyond the storm's natural effects. However, plaintiffs will likely continue to raise novel arguments regarding whether conduct exceeded ordinary snow-removal practice and how that can be subject to interpretation by different experts. 

Denise M. Motta (Of Counsel-Louisville, KY), a mediator and arbitrator with the American Arbitration Association and vice chair of the Kentucky Bar Association's Alternative Dispute Resolution (ADR) Section, will present "Back to the Future: Key Components for a Successful Mediation" at each stop of the Kentucky Bar Association's seven-part Kentucky Law Update CLE series. In her presentation, Denise will share insights on ten practical strategies for advocates and neutrals to foster productive settlement dialogue at mediation and achieve successful resolutions. She will also discuss the critical roles that preparation, negotiation strategy, and mediator selection play in maximizing the likelihood of a successful outcome. The complimentary CLE program for Kentucky attorneys begins in Owensboro, Kentucky, on August 27, 2026, and continues at locations across the state through December 3, 2026. Beyond her work with the Kentucky Bar Association, Denise serves as chair of DRI's ADR Committee and vice chair of the ABA's Tort & Insurance Practice Section ADR Committee.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Peter Espey (Of Counsel-Madison, NJ) authored “New Jersey's Charitable Immunity Act: The Expanding Definition of 'Hospital Purposes,'” appearing in Law.com’s New Jersey Law Journal on August 11, 2026. The article examines the evolution of New Jersey’s Charitable Immunity Act, which establishes a $250,000 cap on damages for nonprofits organized for “hospital purposes,” and grants complete immunity from negligence claims to charitable or educational nonprofit organizations. Peter explores how the New Jersey Supreme Court has expanded the definition of a “hospital,” bringing an increasing number of health care entities that traditionally would not have been considered hospitals within the Act’s damages cap rather than granting them complete immunity. He explains that recent case law suggests that nonprofit health care entities outside the traditional hospital model generally qualify for the $250,000 damages cap but face greater difficulty establishing entitlement to complete immunity. Looking ahead, Peter suggests that the continued evolution of the health care industry may further broaden the application of the Act, observing: “As hospital systems continue to consolidate and offer a broader range of health care services to their patients, the number of entities qualifying as organized for ‘hospital purposes’ will likely increase.”

Douglas Kemper (Of Counsel-Louisville, KY) and Estee Rose (Associate-Louisville, KY) secured dismissal in the Jefferson County Circuit Court on behalf of Wilson Elser’s client, a Missouri hotel management company, in a personal injury action. The plaintiff allegedly sustained injuries caused by bed bugs at a hotel managed by our client in Adel, Georgia. The plaintiff, a Kentucky resident, sought to establish jurisdiction in Jefferson County Circuit Court based on his allegation that he booked the room through Priceline.com while physically located in Kentucky. Doug and Estee moved to dismiss, and the court granted their motion, finding that a single internet transaction through a third-party booking platform did not constitute purposeful availment of Kentucky's jurisdiction, and that a Missouri corporation with no employees, property, marketing, or business operations in Kentucky lacked sufficient minimum contacts with the Commonwealth.

Kristen A. Carroll (Partner-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, New York County, on behalf of Wilson Elser’s client, a real estate investment company. In this premises liability case, the plaintiff allegedly fell from a riser step located on the first floor inside the defendant retailer’s unit. The plaintiff’s complaint alleged that our client and other defendants negligently maintained the unit. Kristen moved to dismiss the complaint, arguing that our client was an out-of-possession landlord with no duty to maintain the area where the plaintiff fell. She further demonstrated that the plaintiff’s expert engineer’s report submitted in opposition to the motion was unsworn, inadmissible hearsay, and insufficient to raise a triable issue of fact. The court concurred and, given its finding in our client’s favor on liability, did not need to reach the issue of indemnification against the defendant retailer. Accordingly, the court granted Kristen’s motion in full and dismissed the plaintiff’s complaint. Wilson Elser will file an order with notice of entry of this decision, allowing the plaintiff 30 days to file a notice of appeal.

Attorneys named among The Best Lawyers in America® Ones to Watch™ have demonstrated professional excellence and achieved impactful results in and out of the courtroom. Focused on lawyers who have been in private practice for 5 to 10 years, the honor is based on peer review and recognizes attorneys in a wide variety of practice areas throughout the nation. Wilson Elser attorneys included on the 2027 list: Albany, NY Kadeem Wolliaston - Associate Atlanta, GA Geoffrey F. Calderaro - Of Counsel Carrie B. Davis – Of Counsel Marvis L. Jenkins – Of Counsel  Jessica Johnson – Associate Jason S. Stewart – Partner Jordan E. Wilkinson – Associate Baltimore, MD Zachary Miller – Of Counsel  Birmingham, AL Lauren H. Crossman - Associate Kristin J. Goulart – Associate Boston, MA Jeb S. Penka – Of Counsel Charlotte, NC Michele L. Livingstone – Associate  Chicago, IL  Justin Dobek – Partner  Dallas, TX Joshua Hamm ‒ Of Counsel  Detroit, MI  Aleasha L. Taweel – Of Counsel  Houston, TX Lina Al-Salim ‒ Of Counsel Daniel O. Basham ‒ Associate Cameron J. Keener ‒ Associate Teylor Mark ‒ Of Counsel Randall L. Ordones – Associate Nadia F. Savo – Associate  Jackson, MS Ericson W. Enger – Associate  Las Vegas, NV Patrick O. Tarzi – Associate Los Angeles, CA Celeena B. Pompeo – Partner Sallia R. Wilkins – Associate Louisville, KY  Samuel E.T. Jones – Associate Kansas City, KS  Alexandra Speakar ‒ Associate McLean, VA Christina M. Heischmidt – Partner Miami, FL Dakeitha S. Haynes ‒ Associate Christopher W. Lee ‒ Of Counsel Maria Papasakelariou ‒ Of Counsel Milwaukee, WI Raven R. Jelinske – Associate Alan J. Mazzulla – Associate  New Orleans, LA Deandra N. De Napoli ‒ Associate Gabriel G. Silva ‒ Associate New York, NY  Robert W. Berbenich – Partner Evan B. Heckler ‒ Associate Meghan P. Murray – Partner Gene Novak – Of Counsel Angelique Sabia-Candero – Associate  John P. Sovich – Of Counsel James P. Terpak – Associate Orlando, FL Morgan W. Bates – Associate  Michelle Bedoya – Of Counsel Suzanne Kersh – Of Counsel  Tiffany M. Miles – Of Counsel Philadelphia, PA Jared M. Smith – Of Counsel  Portland, OR Elizabeth Elkington – Of Counsel  San Diego, CA Cynthia A. Arce – Of Counsel San Francisco, CA Robert L. Altomare – Associate Kendra L. Tietjen – Of Counsel Stamford, CT Casey C. Miller – Associate St. Louis, MO  Theodore G. Hughes IV – Associate Washington, DC  Ryan M. Duffy – Partner  West Palm Beach, FL Alexis Lezama – Associate White Plains, NY  Nicole Holland – Partner Valerie A. Ruocco ‒ Of Counsel Scott Wenzel – Of Counsel

Only the top 5.3 percent of all practicing lawyers in the nation are selected by their peers for inclusion on The Best Lawyers in America® list. This year, 123 Wilson Elser attorneys were so honored: Birmingham, AL David Hall – Partner David A. Lee ‒ Of Counsel William L. Waudby – Partner Phoenix, AZ Brian Cieniawski – Of Counsel  Los Angeles, CA E. Paul Dougherty Jr. – Partner David S. Eisen – Senior Counsel Diana M. Estrada – Partner William Tolin Gay – Of Counsel Linda Tai Hoshide – Partner Gregory K. Lee – Partner David M. Morrow – Partner Michelle R. Press – Partner David Simantob – Partner Tae S. Um – Partner San Diego, CA Carole J. Buckner – Partner Bruno W. Katz – Partner Patrick J. Kearns – Partner Michael P. McCloskey – Senior Counsel San Francisco, CA William M. Hake – Senior Counsel John H. Podesta – Partner Julie A. Torres – Partner Yakov P. Wiegmann – Partner Denver, CO Emily L. P. Aguero – Partner Jason D. Melichar – Partner Ryan A. Williams – Partner Jane E. Young – Partner  Christopher D. Yvars – Partner Stamford, CT Stephen P. Brown ‒ Partner Douglas M. Connors ‒ Partner Eric W.F. Niederer ‒ Partner Washington, D.C. Robert W. Goodson – Senior Counsel Catherine A. Hanrahan – Partner  Miami, FL  Alan Fiedel – Partner Tanya I. Suarez – Partner Gustavo A. Martinez Tristani – Partner Orlando, FL John Y. Benford – Partner Alicia M. Caridi – Of Counsel Jaime B. Eagan – Of Counsel Nicholas D. Freeman – Partner James M. Kloss – Partner  Leia Leitner – Of Counsel Sean M. McDonough – Partner  Noelle K. Sheehan – Partner  Tampa, FL Michelle Sabin – Of Counsel  Atlanta, GA Vonnetta L. Benjamin – Of Counsel  Allison M. Escott ‒ Of Counsel Matthew Foree – Of Counsel  Parks K. Stone – Partner Chicago, IL  Andrew J. Albright – Partner Michael J. Duffy – Partner Melissa A. Murphy-Petros – Of Counsel Indianapolis, IN Jarrod A. Malone – Partner Louisville, KY James M. Burd – Partner Scott A. Davidson – Of Counsel  Marcia L. Pearson – Partner  Christopher M. Piekarski – Of Counsel  Lynsie Gaddis Rust – Partner  New Orleans, LA Michael Harowski – Partner  H. Jake Rodriguez – Partner Boston, MA  Christopher P. Flanagan – Partner Christine A. Knipper – Partner George C. Rockas – Partner Baltimore, MD Angela W. Russell – Partner  Detroit, MI William S. Cook – Partner Kevin M. Mulvaney – Partner  St. Louis, MO Carolyn M. Husmann – Of Counsel  Daniel E. Tranen – Partner  Jackson, MS John S. Graham – Of Counsel William M. Vines – Of Counsel Charlotte, NC Gerald A. Stein II – Of Counsel  Madison, NJ Maxwell L. Billek – Partner Anne M. Dalena – Of Counsel  Andrew M. Epstein – Partner Peter Espey ‒ Of Counsel Roger R. Gottilla – Senior Counsel  Joseph T. Hanlon – Partner Barbara Hopkinson Kelly – Partner Kurt W. Krauss – Partner William D. Lipkind – Partner  Carolyn F. O’Conner – Partner Joanna Piorek – Partner Thomas F. Quinn – Senior Counsel  James B. Sharp – Of Counsel Katherine E. Tammaro – Partner Sheila Tarabour – Partner Michael P. Turner – Senior Counsel  Mark P. Vespole – Partner  Las Vegas, NV Karen L. Bashor – Partner Michael Lowry – Partner  Sheri Thome – Partner Albany, NY Peter A. Lauricella – Partner Christopher Martin – Partner  New York, NY Jeffrey B. Araten – Partner Eugene T. Boulé – Partner Joseph L. Francoeur – Partner Allison R. Graffeo – Partner Robin N. Gregory – Senior Counsel  Ellen Greiper – Partner  Ashley V. Humphries – Partner  Paul Karp – Partner  Guy J. Levasseur – Partner Frances Malfa – Partner  Stuart A. Miller – Partner  Richard Ng – Partner Lois K. Ottombrino – Senior Counsel Jay A. Potter – Partner  Ricki E. Roer – Senior Counsel  Dov G. Sternberg – Partner Scott H. Stopnik – Partner White Plains, NY  Alan B. Friedberg – Senior Counsel  Michael F. Grady – Partner Jacqueline Hattar – Partner Patricia Lacy – Partner Philip Quaranta – Partner Thomas W. Tobin – Senior Counsel  Portland, OR Michael T. Belisle – Partner  Lloyd Bernstein – Partner  Matthew C. Casey – Of Counsel George S. Pitcher – Partner  Peder A. Rigsby – Partner  Philadelphia, PA  Brian F. Breen – Partner  John T. Donovan – Partner  William F. McDevitt – Partner  Kathleen D. Wilkinson – Senior Counsel  Dallas, TX Craig Brinker – Of Counsel  J. Price Collins – Partner  Ashley F. Gilmore ‒ Partner Jennafer G. Groswith ‒ Partner Stephani R. Johnson – Partner Jarad L. Kent – Partner  James S. Kiser – Of Counsel Jennifer Martin – Partner R. Douglas Noah, Jr. – Partner  Kimberly A. Wilson – Partner  Houston, TX  Kent M. Adams – Senior Counsel Christina C. Huston – Of Counsel Lori D. Proctor – Partner  John R. Sheppard – Partner  Colin S. Sherrod – Of Counsel  Ronald L. White – Of Counsel  McLean, VA Kathryn Anne Grace – Partner  Matthew W. Lee – Partner Peter M. Moore – Partner Jason R. Waters – Partner  Seattle, WA Nicole Brodie Jackson – Partner Erin P. Fraser – Partner E. Penn Gheen – Of Counsel Lorianne Conklin Hanson – Partner Rachel Tallon Reynolds – Partner Evelyn E. Winters – Partner Milwaukee, WI Sarah Fry Bruch – Of Counsel William J. Katt – Senior Counsel  John P. Loringer – Partner 

In 2021, the New Jersey Supreme Court adopted the "ongoing storm rule" in Pareja v. Princeton International Properties, holding that commercial landowners have no duty to clear snow and ice until a reasonable time after a storm ends—unless "unusual circumstances" exist. Five years later, the Court has applied that exception for the first time in a published decision, and the result is more good news for commercial property owners. This case arose from a slip-and-fall at a Walmart parking lot in Union Township on January 3, 2015, during a storm of mixed snow, sleet, and rain that began around 11:30 a.m. At the time of the plaintiff's fall, roughly 1:30 p.m., there was only a "trace" to one-tenth of an inch of accumulation on the lot. Walmart's snow-removal contractor had spread salt on the lot from 12:35 to 1:15 p.m. but had not pretreated the surface before the storm began. A jury found Walmart negligent and awarded the plaintiff over $1.3 million, and the Appellate Division later ordered a new trial rather than dismissal.  On July 30, 2026, the Supreme Court reversed and directed judgment for Walmart. Under the "ongoing storm rule," a commercial landowner's duty to clear snow and ice arises within a reasonable time after a storm ends, not during the event. One of the exceptions to the ongoing storm rule, defined by the Court’s 2021 holding in Pareja v. Princeton Int’l, is where the landowner's conduct creates "unusual circumstances" that exacerbate the risk of injury. The Court in Gallardo held that ordinary, if imperfect, remediation efforts, such as salting a lot with only minimal accumulation, do not meet that "unusual circumstances" threshold, even when the plaintiff alleges that treatment made conditions worse. Commercial landowners are not obligated to clear snow or ice mid-storm, and undertaking reasonable, ordinary de-icing measures during a storm will not, by itself, create liability. Owners should document the timing of all remediation efforts and retain contractor service records, since the absence of "unusual circumstances" was central to the outcome in this decision.  This decision may further reduce exposure to ongoing-storm slip-and-fall claims against commercial insureds absent evidence the insured's actions were genuinely unusual or created a new hazard beyond the storm's natural effects. However, plaintiffs will likely continue to raise novel arguments regarding whether conduct exceeded ordinary snow-removal practice and how that can be subject to interpretation by different experts. 

For businesses operating websites in California, a pending appellate case may soon reshape the legal landscape. Variety Media, LLC v. Superior Court, now before California’s Second District Court of Appeal, could produce the first published California appellate decision addressing whether the California Invasion of Privacy Act (CIPA) applies to commonplace website technologies, including cookies, analytics tools, and advertising pixels. Why This Case Matters CIPA was enacted to address telephonic wiretapping, but plaintiffs across California have increasingly alleged that routine online tools (e.g., cookies, pixels, analytics platforms, advertising technologies, and fraud-prevention services) constitute unlawful pen registers or trap-and-trace devices under the statute. These claims have generated lawsuits, demand letters, arbitrations, and substantial settlement pressure attributable to CIPA’s statutory damages provisions. The irony is significant: the very technologies enabling privacy compliance, including preference management tools, consent mechanisms, and privacy notices, are themselves being challenged under CIPA. Unlike the California Consumer Privacy Act (CCPA), which includes detailed regulations addressing data sharing through website cookies, CIPA offers no roadmap for how businesses can deliver website functionality while avoiding liability. California trial courts have reached divergent conclusions, federal district court decisions also remain inconsistent, and businesses devote substantial resources to compliance efforts without a clear standard to guide them. The Court of Appeal’s decision to exercise original writ jurisdiction, rather than awaiting a traditional appeal following final judgment, underscores the case’s significance. At present, the appellate record contains 17 substantive briefs from the parties and amici, including business associations, technology companies, media organizations, privacy advocates, civil liberties groups, and academic institutions. The Legal Framework at Issue Under CIPA, a pen register is a device that records or decodes dialing, routing, addressing, or signaling information, while a trap-and-trace device captures the incoming equivalent. The central dispute in Variety Media is whether information exchanged between a user’s device and a website, such as IP addresses, device identifiers, URLs, and metadata, falls within these statutory definitions. The appeal raises interconnected questions: Does CIPA Section 638.51 reach routine software processes on commercial websites, or does it remain confined to law enforcement surveillance? Even if the statute can apply to internet activity, do the specific trackers at issue constitute “pen registers” under Section 638.50(b), or are they excluded as “tracking devices” under Section 629.51(a)(3)? What role should the federal Pen Register Act play in construing CIPA? And should CIPA be interpreted narrowly given California’s broader privacy regulatory landscape, including the CCPA? The Competing Arguments Appellant Variety contends that CIPA’s text, structure, and legislative history demonstrate the pen register provisions were designed to regulate telephonic surveillance rather than routine website communications. From Variety’s perspective, extending those provisions to common website technologies would expand CIPA beyond its intended scope and expose businesses to liability for ordinary internet operations. Sean Rose, the plaintiff below and the real party in interest on the appeal, advances the contrary position, arguing that CIPA is technology-neutral and applies whenever challenged technologies perform functions falling within its statutory definitions, irrespective of whether the Legislature contemplated internet communications. Under this reading, IP addresses, device identifiers, routing information, and metadata may qualify as CIPA-regulated information. The parties further disagree on the relevance of federal law. Variety maintains that Congress amended the federal Pen Register Act to address internet communications while California made no corresponding amendment to CIPA and that online privacy is governed by statutes, such as the CCPA. Rose counters that CIPA’s existing language already encompasses evolving technologies, that amendments to federal law do not constrain California’s interpretation of its own statute, and that the CCPA complements rather than supplants CIPA. Perspectives from Interested Parties The amicus briefs expand the scope of the appeal. Business organizations, including the U.S. Chamber of Commerce, Alliance for Legal Fairness, California Chamber of Commerce, California Retailers Association, Retail Litigation Center, and Association of Corporate Counsel, concentrate on the practical ramifications of applying CIPA to routine website operations. As the Association of Corporate Counsel observes, each new website tool that becomes a litigation target compels businesses to spend “countless hours and resources guessing at how best to avoid CIPA liability—while still maintaining CCPA compliance.” A separate brief filed jointly by Asana, Eventbrite, GoPro, ClickUp, Reddit, the Software & Information Industry Association, MasterClass, and Yelp supplies technical context on how IP addresses, cookies, pixels, and device data support website functionality, cybersecurity, fraud prevention, and analytics. Additional amici, including News/Media Alliance, Digital Content Next, the Movement for an Open Web, and the Southwestern Law School Amicus Project, address implications for digital publishers and CIPA’s statutory history. The amici supporting Rose (i.e., the ACLU of Northern California, ACLU of Southern California, and Oakland Privacy) argue that metadata and browsing information can reveal substantial details about individuals’ online activity, that the CCPA complements rather than supersedes CIPA, and that privacy protections should evolve alongside technology. The Court’s Supplemental Questions In May 2026, rather than proceeding directly to oral argument, the Court directed supplemental briefing on several questions. The Court inquired about the relationship between CIPA and the federal Pen Register Act; specifically, whether a California company could violate the federal statute by collecting internet metadata even if California’s pen register provisions were interpreted more narrowly, and whether CIPA should be construed to avoid conflict with federal law. The Court also asked whether the specific tracking technologies at issue (e.g., cookies that collect IP addresses, browser type, and similar device-level metadata) fall within CIPA’s definitions or are excluded as “tracking devices” under Penal Code Section 629.51. Finally, it questioned whether the pen register provisions apply only to communications containing “content,” and whether merely visiting a website constitutes a “communication” within the meaning of the statute. While the parties largely adhered to their original positions in supplemental briefing, Variety reiterated that Congress amended the federal Pen Register Act for internet communications while California made no comparable amendments to CIPA. Rose responded that CIPA’s existing language already reaches evolving technologies. The Court’s questions do not signal how it will ultimately decide, but they illuminate the issues likely to receive the most attention at oral argument. What Comes Next With briefing concluded, attention turns to the oral argument scheduled for August 25, 2026. Although the parties and amici disagree on CIPA’s application, they largely concur on how the underlying technologies function. The central questions have crystallized: whether CIPA reaches internet communications, whether the challenged tools fall within its definitions, and how CIPA should be interpreted alongside the CCPA. In summary, the disagreement transcends statutory interpretation. Variety and its supporters stress statutory limitations and potential business consequences, whereas Rose and his supporters emphasize consumer privacy and the imperative for CIPA’s protections to keep pace with technological change. The outcome could determine whether routine website data practices fall under CIPA’s surveillance provisions, California’s contemporary privacy framework, or both. Our next article will provide firsthand coverage from the courtroom, examining the panel’s questions, the parties’ responses, and what the argument reveals about how the Court may resolve this closely watched appeal.

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Denise M. Motta (Of Counsel-Louisville, KY), a mediator and arbitrator with the American Arbitration Association and vice chair of the Kentucky Bar Association's Alternative Dispute Resolution (ADR) Section, will present "Back to the Future: Key Components for a Successful Mediation" at each stop of the Kentucky Bar Association's seven-part Kentucky Law Update CLE series. In her presentation, Denise will share insights on ten practical strategies for advocates and neutrals to foster productive settlement dialogue at mediation and achieve successful resolutions. She will also discuss the critical roles that preparation, negotiation strategy, and mediator selection play in maximizing the likelihood of a successful outcome. The complimentary CLE program for Kentucky attorneys begins in Owensboro, Kentucky, on August 27, 2026, and continues at locations across the state through December 3, 2026. Beyond her work with the Kentucky Bar Association, Denise serves as chair of DRI's ADR Committee and vice chair of the ABA's Tort & Insurance Practice Section ADR Committee.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Peter Espey (Of Counsel-Madison, NJ) authored “New Jersey's Charitable Immunity Act: The Expanding Definition of 'Hospital Purposes,'” appearing in Law.com’s New Jersey Law Journal on August 11, 2026. The article examines the evolution of New Jersey’s Charitable Immunity Act, which establishes a $250,000 cap on damages for nonprofits organized for “hospital purposes,” and grants complete immunity from negligence claims to charitable or educational nonprofit organizations. Peter explores how the New Jersey Supreme Court has expanded the definition of a “hospital,” bringing an increasing number of health care entities that traditionally would not have been considered hospitals within the Act’s damages cap rather than granting them complete immunity. He explains that recent case law suggests that nonprofit health care entities outside the traditional hospital model generally qualify for the $250,000 damages cap but face greater difficulty establishing entitlement to complete immunity. Looking ahead, Peter suggests that the continued evolution of the health care industry may further broaden the application of the Act, observing: “As hospital systems continue to consolidate and offer a broader range of health care services to their patients, the number of entities qualifying as organized for ‘hospital purposes’ will likely increase.”

Douglas Kemper (Of Counsel-Louisville, KY) and Estee Rose (Associate-Louisville, KY) secured dismissal in the Jefferson County Circuit Court on behalf of Wilson Elser’s client, a Missouri hotel management company, in a personal injury action. The plaintiff allegedly sustained injuries caused by bed bugs at a hotel managed by our client in Adel, Georgia. The plaintiff, a Kentucky resident, sought to establish jurisdiction in Jefferson County Circuit Court based on his allegation that he booked the room through Priceline.com while physically located in Kentucky. Doug and Estee moved to dismiss, and the court granted their motion, finding that a single internet transaction through a third-party booking platform did not constitute purposeful availment of Kentucky's jurisdiction, and that a Missouri corporation with no employees, property, marketing, or business operations in Kentucky lacked sufficient minimum contacts with the Commonwealth.

Kristen A. Carroll (Partner-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, New York County, on behalf of Wilson Elser’s client, a real estate investment company. In this premises liability case, the plaintiff allegedly fell from a riser step located on the first floor inside the defendant retailer’s unit. The plaintiff’s complaint alleged that our client and other defendants negligently maintained the unit. Kristen moved to dismiss the complaint, arguing that our client was an out-of-possession landlord with no duty to maintain the area where the plaintiff fell. She further demonstrated that the plaintiff’s expert engineer’s report submitted in opposition to the motion was unsworn, inadmissible hearsay, and insufficient to raise a triable issue of fact. The court concurred and, given its finding in our client’s favor on liability, did not need to reach the issue of indemnification against the defendant retailer. Accordingly, the court granted Kristen’s motion in full and dismissed the plaintiff’s complaint. Wilson Elser will file an order with notice of entry of this decision, allowing the plaintiff 30 days to file a notice of appeal.

Attorneys named among The Best Lawyers in America® Ones to Watch™ have demonstrated professional excellence and achieved impactful results in and out of the courtroom. Focused on lawyers who have been in private practice for 5 to 10 years, the honor is based on peer review and recognizes attorneys in a wide variety of practice areas throughout the nation. Wilson Elser attorneys included on the 2027 list: Albany, NY Kadeem Wolliaston - Associate Atlanta, GA Geoffrey F. Calderaro - Of Counsel Carrie B. Davis – Of Counsel Marvis L. Jenkins – Of Counsel  Jessica Johnson – Associate Jason S. Stewart – Partner Jordan E. Wilkinson – Associate Baltimore, MD Zachary Miller – Of Counsel  Birmingham, AL Lauren H. Crossman - Associate Kristin J. Goulart – Associate Boston, MA Jeb S. Penka – Of Counsel Charlotte, NC Michele L. Livingstone – Associate  Chicago, IL  Justin Dobek – Partner  Dallas, TX Joshua Hamm ‒ Of Counsel  Detroit, MI  Aleasha L. Taweel – Of Counsel  Houston, TX Lina Al-Salim ‒ Of Counsel Daniel O. Basham ‒ Associate Cameron J. Keener ‒ Associate Teylor Mark ‒ Of Counsel Randall L. Ordones – Associate Nadia F. Savo – Associate  Jackson, MS Ericson W. Enger – Associate  Las Vegas, NV Patrick O. Tarzi – Associate Los Angeles, CA Celeena B. Pompeo – Partner Sallia R. Wilkins – Associate Louisville, KY  Samuel E.T. Jones – Associate Kansas City, KS  Alexandra Speakar ‒ Associate McLean, VA Christina M. Heischmidt – Partner Miami, FL Dakeitha S. Haynes ‒ Associate Christopher W. Lee ‒ Of Counsel Maria Papasakelariou ‒ Of Counsel Milwaukee, WI Raven R. Jelinske – Associate Alan J. Mazzulla – Associate  New Orleans, LA Deandra N. De Napoli ‒ Associate Gabriel G. Silva ‒ Associate New York, NY  Robert W. Berbenich – Partner Evan B. Heckler ‒ Associate Meghan P. Murray – Partner Gene Novak – Of Counsel Angelique Sabia-Candero – Associate  John P. Sovich – Of Counsel James P. Terpak – Associate Orlando, FL Morgan W. Bates – Associate  Michelle Bedoya – Of Counsel Suzanne Kersh – Of Counsel  Tiffany M. Miles – Of Counsel Philadelphia, PA Jared M. Smith – Of Counsel  Portland, OR Elizabeth Elkington – Of Counsel  San Diego, CA Cynthia A. Arce – Of Counsel San Francisco, CA Robert L. Altomare – Associate Kendra L. Tietjen – Of Counsel Stamford, CT Casey C. Miller – Associate St. Louis, MO  Theodore G. Hughes IV – Associate Washington, DC  Ryan M. Duffy – Partner  West Palm Beach, FL Alexis Lezama – Associate White Plains, NY  Nicole Holland – Partner Valerie A. Ruocco ‒ Of Counsel Scott Wenzel – Of Counsel

Only the top 5.3 percent of all practicing lawyers in the nation are selected by their peers for inclusion on The Best Lawyers in America® list. This year, 123 Wilson Elser attorneys were so honored: Birmingham, AL David Hall – Partner David A. Lee ‒ Of Counsel William L. Waudby – Partner Phoenix, AZ Brian Cieniawski – Of Counsel  Los Angeles, CA E. Paul Dougherty Jr. – Partner David S. Eisen – Senior Counsel Diana M. Estrada – Partner William Tolin Gay – Of Counsel Linda Tai Hoshide – Partner Gregory K. Lee – Partner David M. Morrow – Partner Michelle R. Press – Partner David Simantob – Partner Tae S. Um – Partner San Diego, CA Carole J. Buckner – Partner Bruno W. Katz – Partner Patrick J. Kearns – Partner Michael P. McCloskey – Senior Counsel San Francisco, CA William M. Hake – Senior Counsel John H. Podesta – Partner Julie A. Torres – Partner Yakov P. Wiegmann – Partner Denver, CO Emily L. P. Aguero – Partner Jason D. Melichar – Partner Ryan A. Williams – Partner Jane E. Young – Partner  Christopher D. Yvars – Partner Stamford, CT Stephen P. Brown ‒ Partner Douglas M. Connors ‒ Partner Eric W.F. Niederer ‒ Partner Washington, D.C. Robert W. Goodson – Senior Counsel Catherine A. Hanrahan – Partner  Miami, FL  Alan Fiedel – Partner Tanya I. Suarez – Partner Gustavo A. Martinez Tristani – Partner Orlando, FL John Y. Benford – Partner Alicia M. Caridi – Of Counsel Jaime B. Eagan – Of Counsel Nicholas D. Freeman – Partner James M. Kloss – Partner  Leia Leitner – Of Counsel Sean M. McDonough – Partner  Noelle K. Sheehan – Partner  Tampa, FL Michelle Sabin – Of Counsel  Atlanta, GA Vonnetta L. Benjamin – Of Counsel  Allison M. Escott ‒ Of Counsel Matthew Foree – Of Counsel  Parks K. Stone – Partner Chicago, IL  Andrew J. Albright – Partner Michael J. Duffy – Partner Melissa A. Murphy-Petros – Of Counsel Indianapolis, IN Jarrod A. Malone – Partner Louisville, KY James M. Burd – Partner Scott A. Davidson – Of Counsel  Marcia L. Pearson – Partner  Christopher M. Piekarski – Of Counsel  Lynsie Gaddis Rust – Partner  New Orleans, LA Michael Harowski – Partner  H. Jake Rodriguez – Partner Boston, MA  Christopher P. Flanagan – Partner Christine A. Knipper – Partner George C. Rockas – Partner Baltimore, MD Angela W. Russell – Partner  Detroit, MI William S. Cook – Partner Kevin M. Mulvaney – Partner  St. Louis, MO Carolyn M. Husmann – Of Counsel  Daniel E. Tranen – Partner  Jackson, MS John S. Graham – Of Counsel William M. Vines – Of Counsel Charlotte, NC Gerald A. Stein II – Of Counsel  Madison, NJ Maxwell L. Billek – Partner Anne M. Dalena – Of Counsel  Andrew M. Epstein – Partner Peter Espey ‒ Of Counsel Roger R. Gottilla – Senior Counsel  Joseph T. Hanlon – Partner Barbara Hopkinson Kelly – Partner Kurt W. Krauss – Partner William D. Lipkind – Partner  Carolyn F. O’Conner – Partner Joanna Piorek – Partner Thomas F. Quinn – Senior Counsel  James B. Sharp – Of Counsel Katherine E. Tammaro – Partner Sheila Tarabour – Partner Michael P. Turner – Senior Counsel  Mark P. Vespole – Partner  Las Vegas, NV Karen L. Bashor – Partner Michael Lowry – Partner  Sheri Thome – Partner Albany, NY Peter A. Lauricella – Partner Christopher Martin – Partner  New York, NY Jeffrey B. Araten – Partner Eugene T. Boulé – Partner Joseph L. Francoeur – Partner Allison R. Graffeo – Partner Robin N. Gregory – Senior Counsel  Ellen Greiper – Partner  Ashley V. Humphries – Partner  Paul Karp – Partner  Guy J. Levasseur – Partner Frances Malfa – Partner  Stuart A. Miller – Partner  Richard Ng – Partner Lois K. Ottombrino – Senior Counsel Jay A. Potter – Partner  Ricki E. Roer – Senior Counsel  Dov G. Sternberg – Partner Scott H. Stopnik – Partner White Plains, NY  Alan B. Friedberg – Senior Counsel  Michael F. Grady – Partner Jacqueline Hattar – Partner Patricia Lacy – Partner Philip Quaranta – Partner Thomas W. Tobin – Senior Counsel  Portland, OR Michael T. Belisle – Partner  Lloyd Bernstein – Partner  Matthew C. Casey – Of Counsel George S. Pitcher – Partner  Peder A. Rigsby – Partner  Philadelphia, PA  Brian F. Breen – Partner  John T. Donovan – Partner  William F. McDevitt – Partner  Kathleen D. Wilkinson – Senior Counsel  Dallas, TX Craig Brinker – Of Counsel  J. Price Collins – Partner  Ashley F. Gilmore ‒ Partner Jennafer G. Groswith ‒ Partner Stephani R. Johnson – Partner Jarad L. Kent – Partner  James S. Kiser – Of Counsel Jennifer Martin – Partner R. Douglas Noah, Jr. – Partner  Kimberly A. Wilson – Partner  Houston, TX  Kent M. Adams – Senior Counsel Christina C. Huston – Of Counsel Lori D. Proctor – Partner  John R. Sheppard – Partner  Colin S. Sherrod – Of Counsel  Ronald L. White – Of Counsel  McLean, VA Kathryn Anne Grace – Partner  Matthew W. Lee – Partner Peter M. Moore – Partner Jason R. Waters – Partner  Seattle, WA Nicole Brodie Jackson – Partner Erin P. Fraser – Partner E. Penn Gheen – Of Counsel Lorianne Conklin Hanson – Partner Rachel Tallon Reynolds – Partner Evelyn E. Winters – Partner Milwaukee, WI Sarah Fry Bruch – Of Counsel William J. Katt – Senior Counsel  John P. Loringer – Partner 

In 2021, the New Jersey Supreme Court adopted the "ongoing storm rule" in Pareja v. Princeton International Properties, holding that commercial landowners have no duty to clear snow and ice until a reasonable time after a storm ends—unless "unusual circumstances" exist. Five years later, the Court has applied that exception for the first time in a published decision, and the result is more good news for commercial property owners. This case arose from a slip-and-fall at a Walmart parking lot in Union Township on January 3, 2015, during a storm of mixed snow, sleet, and rain that began around 11:30 a.m. At the time of the plaintiff's fall, roughly 1:30 p.m., there was only a "trace" to one-tenth of an inch of accumulation on the lot. Walmart's snow-removal contractor had spread salt on the lot from 12:35 to 1:15 p.m. but had not pretreated the surface before the storm began. A jury found Walmart negligent and awarded the plaintiff over $1.3 million, and the Appellate Division later ordered a new trial rather than dismissal.  On July 30, 2026, the Supreme Court reversed and directed judgment for Walmart. Under the "ongoing storm rule," a commercial landowner's duty to clear snow and ice arises within a reasonable time after a storm ends, not during the event. One of the exceptions to the ongoing storm rule, defined by the Court’s 2021 holding in Pareja v. Princeton Int’l, is where the landowner's conduct creates "unusual circumstances" that exacerbate the risk of injury. The Court in Gallardo held that ordinary, if imperfect, remediation efforts, such as salting a lot with only minimal accumulation, do not meet that "unusual circumstances" threshold, even when the plaintiff alleges that treatment made conditions worse. Commercial landowners are not obligated to clear snow or ice mid-storm, and undertaking reasonable, ordinary de-icing measures during a storm will not, by itself, create liability. Owners should document the timing of all remediation efforts and retain contractor service records, since the absence of "unusual circumstances" was central to the outcome in this decision.  This decision may further reduce exposure to ongoing-storm slip-and-fall claims against commercial insureds absent evidence the insured's actions were genuinely unusual or created a new hazard beyond the storm's natural effects. However, plaintiffs will likely continue to raise novel arguments regarding whether conduct exceeded ordinary snow-removal practice and how that can be subject to interpretation by different experts. 

For businesses operating websites in California, a pending appellate case may soon reshape the legal landscape. Variety Media, LLC v. Superior Court, now before California’s Second District Court of Appeal, could produce the first published California appellate decision addressing whether the California Invasion of Privacy Act (CIPA) applies to commonplace website technologies, including cookies, analytics tools, and advertising pixels. Why This Case Matters CIPA was enacted to address telephonic wiretapping, but plaintiffs across California have increasingly alleged that routine online tools (e.g., cookies, pixels, analytics platforms, advertising technologies, and fraud-prevention services) constitute unlawful pen registers or trap-and-trace devices under the statute. These claims have generated lawsuits, demand letters, arbitrations, and substantial settlement pressure attributable to CIPA’s statutory damages provisions. The irony is significant: the very technologies enabling privacy compliance, including preference management tools, consent mechanisms, and privacy notices, are themselves being challenged under CIPA. Unlike the California Consumer Privacy Act (CCPA), which includes detailed regulations addressing data sharing through website cookies, CIPA offers no roadmap for how businesses can deliver website functionality while avoiding liability. California trial courts have reached divergent conclusions, federal district court decisions also remain inconsistent, and businesses devote substantial resources to compliance efforts without a clear standard to guide them. The Court of Appeal’s decision to exercise original writ jurisdiction, rather than awaiting a traditional appeal following final judgment, underscores the case’s significance. At present, the appellate record contains 17 substantive briefs from the parties and amici, including business associations, technology companies, media organizations, privacy advocates, civil liberties groups, and academic institutions. The Legal Framework at Issue Under CIPA, a pen register is a device that records or decodes dialing, routing, addressing, or signaling information, while a trap-and-trace device captures the incoming equivalent. The central dispute in Variety Media is whether information exchanged between a user’s device and a website, such as IP addresses, device identifiers, URLs, and metadata, falls within these statutory definitions. The appeal raises interconnected questions: Does CIPA Section 638.51 reach routine software processes on commercial websites, or does it remain confined to law enforcement surveillance? Even if the statute can apply to internet activity, do the specific trackers at issue constitute “pen registers” under Section 638.50(b), or are they excluded as “tracking devices” under Section 629.51(a)(3)? What role should the federal Pen Register Act play in construing CIPA? And should CIPA be interpreted narrowly given California’s broader privacy regulatory landscape, including the CCPA? The Competing Arguments Appellant Variety contends that CIPA’s text, structure, and legislative history demonstrate the pen register provisions were designed to regulate telephonic surveillance rather than routine website communications. From Variety’s perspective, extending those provisions to common website technologies would expand CIPA beyond its intended scope and expose businesses to liability for ordinary internet operations. Sean Rose, the plaintiff below and the real party in interest on the appeal, advances the contrary position, arguing that CIPA is technology-neutral and applies whenever challenged technologies perform functions falling within its statutory definitions, irrespective of whether the Legislature contemplated internet communications. Under this reading, IP addresses, device identifiers, routing information, and metadata may qualify as CIPA-regulated information. The parties further disagree on the relevance of federal law. Variety maintains that Congress amended the federal Pen Register Act to address internet communications while California made no corresponding amendment to CIPA and that online privacy is governed by statutes, such as the CCPA. Rose counters that CIPA’s existing language already encompasses evolving technologies, that amendments to federal law do not constrain California’s interpretation of its own statute, and that the CCPA complements rather than supplants CIPA. Perspectives from Interested Parties The amicus briefs expand the scope of the appeal. Business organizations, including the U.S. Chamber of Commerce, Alliance for Legal Fairness, California Chamber of Commerce, California Retailers Association, Retail Litigation Center, and Association of Corporate Counsel, concentrate on the practical ramifications of applying CIPA to routine website operations. As the Association of Corporate Counsel observes, each new website tool that becomes a litigation target compels businesses to spend “countless hours and resources guessing at how best to avoid CIPA liability—while still maintaining CCPA compliance.” A separate brief filed jointly by Asana, Eventbrite, GoPro, ClickUp, Reddit, the Software & Information Industry Association, MasterClass, and Yelp supplies technical context on how IP addresses, cookies, pixels, and device data support website functionality, cybersecurity, fraud prevention, and analytics. Additional amici, including News/Media Alliance, Digital Content Next, the Movement for an Open Web, and the Southwestern Law School Amicus Project, address implications for digital publishers and CIPA’s statutory history. The amici supporting Rose (i.e., the ACLU of Northern California, ACLU of Southern California, and Oakland Privacy) argue that metadata and browsing information can reveal substantial details about individuals’ online activity, that the CCPA complements rather than supersedes CIPA, and that privacy protections should evolve alongside technology. The Court’s Supplemental Questions In May 2026, rather than proceeding directly to oral argument, the Court directed supplemental briefing on several questions. The Court inquired about the relationship between CIPA and the federal Pen Register Act; specifically, whether a California company could violate the federal statute by collecting internet metadata even if California’s pen register provisions were interpreted more narrowly, and whether CIPA should be construed to avoid conflict with federal law. The Court also asked whether the specific tracking technologies at issue (e.g., cookies that collect IP addresses, browser type, and similar device-level metadata) fall within CIPA’s definitions or are excluded as “tracking devices” under Penal Code Section 629.51. Finally, it questioned whether the pen register provisions apply only to communications containing “content,” and whether merely visiting a website constitutes a “communication” within the meaning of the statute. While the parties largely adhered to their original positions in supplemental briefing, Variety reiterated that Congress amended the federal Pen Register Act for internet communications while California made no comparable amendments to CIPA. Rose responded that CIPA’s existing language already reaches evolving technologies. The Court’s questions do not signal how it will ultimately decide, but they illuminate the issues likely to receive the most attention at oral argument. What Comes Next With briefing concluded, attention turns to the oral argument scheduled for August 25, 2026. Although the parties and amici disagree on CIPA’s application, they largely concur on how the underlying technologies function. The central questions have crystallized: whether CIPA reaches internet communications, whether the challenged tools fall within its definitions, and how CIPA should be interpreted alongside the CCPA. In summary, the disagreement transcends statutory interpretation. Variety and its supporters stress statutory limitations and potential business consequences, whereas Rose and his supporters emphasize consumer privacy and the imperative for CIPA’s protections to keep pace with technological change. The outcome could determine whether routine website data practices fall under CIPA’s surveillance provisions, California’s contemporary privacy framework, or both. Our next article will provide firsthand coverage from the courtroom, examining the panel’s questions, the parties’ responses, and what the argument reveals about how the Court may resolve this closely watched appeal.

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Denise M. Motta (Of Counsel-Louisville, KY), a mediator and arbitrator with the American Arbitration Association and vice chair of the Kentucky Bar Association's Alternative Dispute Resolution (ADR) Section, will present "Back to the Future: Key Components for a Successful Mediation" at each stop of the Kentucky Bar Association's seven-part Kentucky Law Update CLE series. In her presentation, Denise will share insights on ten practical strategies for advocates and neutrals to foster productive settlement dialogue at mediation and achieve successful resolutions. She will also discuss the critical roles that preparation, negotiation strategy, and mediator selection play in maximizing the likelihood of a successful outcome. The complimentary CLE program for Kentucky attorneys begins in Owensboro, Kentucky, on August 27, 2026, and continues at locations across the state through December 3, 2026. Beyond her work with the Kentucky Bar Association, Denise serves as chair of DRI's ADR Committee and vice chair of the ABA's Tort & Insurance Practice Section ADR Committee.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Peter Espey (Of Counsel-Madison, NJ) authored “New Jersey's Charitable Immunity Act: The Expanding Definition of 'Hospital Purposes,'” appearing in Law.com’s New Jersey Law Journal on August 11, 2026. The article examines the evolution of New Jersey’s Charitable Immunity Act, which establishes a $250,000 cap on damages for nonprofits organized for “hospital purposes,” and grants complete immunity from negligence claims to charitable or educational nonprofit organizations. Peter explores how the New Jersey Supreme Court has expanded the definition of a “hospital,” bringing an increasing number of health care entities that traditionally would not have been considered hospitals within the Act’s damages cap rather than granting them complete immunity. He explains that recent case law suggests that nonprofit health care entities outside the traditional hospital model generally qualify for the $250,000 damages cap but face greater difficulty establishing entitlement to complete immunity. Looking ahead, Peter suggests that the continued evolution of the health care industry may further broaden the application of the Act, observing: “As hospital systems continue to consolidate and offer a broader range of health care services to their patients, the number of entities qualifying as organized for ‘hospital purposes’ will likely increase.”