Pemberton v. Restaurant Brands International, Inc. et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DANIEL PEMBERTON,
Plaintiff,
v.
RESTAURANT BRANDS
INTERNATIONAL, INC., et al.,
Defendants.
Case No. 25-cv-03647-JSC
ORDER TO PLAINTIFF SHOW
CAUSE RE: ARTICLE III STANDING
Plaintiff filed this putative class action against Restaurant Brands International, Inc.
alleging it installs third-party trackers on individuals’ internet browsers when they visit the Burger
King website in violation of various California laws. Defendants previously moved to dismiss the
action on the grounds Plaintiff had not alleged facts sufficient to satisfy Article III standing. The
Court denied the motion. (Dkt. No. 46.) After the motion was briefed, the Ninth Circuit decided
Popa v. Microsoft Corp., 153 F.4th 784 (9th Cir. 2025); so, the Court’s denial did not consider that
decision. In light of Popa, the Court’s review of Plaintiff’s proposed Second Amended Complaint
raises concerns regarding Plaintiff’s, and the proposed new plaintiffs’, standing and thus subject
matter jurisdiction.
DISCUSSION
Federal courts are courts of “limited jurisdiction” which “possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994). Article III of the United States Constitution “confines the federal judicial power to
the resolution of ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez, 594 U.S. 413, 423
(2021). “For there to be a case or controversy under Article III, the plaintiff must have a ‘personal
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stake’ in the case—in other words, standing.” Id. (citations omitted). “A suit brought by a plaintiff
without Article III standing is not a ‘case or controversy,’ and an Article III federal court therefore
lacks subject matter jurisdiction over the suit.” Braunstein v. Arizona Dep’t of Transp., 683 F.3d
1177, 1184 (9th Cir. 2012) (cleaned up). Because Article III standing is an issue of subject matter
jurisdiction, it can be raised any time, including sua sponte by the court. City of Los Angeles v.
Cnty. of Kern, 581 F.3d 841, 845 (9th Cir. 2009). Indeed, courts “have an independent obligation
‘to examine jurisdictional issues such as standing [sua sponte].’” Wilson v. Lynch, 835 F.3d 1083,
1090 n.2 (9th Cir. 2016).
To establish standing sufficient to satisfy constitutional requirements, “a plaintiff must
show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent;
(ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be
redressed by judicial relief.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561
(1992)). In a putative class action, at least one named plaintiff must have Article III standing. See
Healy v. Milliman, Inc., 164 F.4th 701, 706 (9th Cir. 2026). Plaintiff, as the party invoking federal
jurisdiction, bears the burden of establishing he, as the sole named plaintiff, has standing. See
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
A “concrete” injury can include “intangible harms,” such as “reputational harms,
disclosure of private information, and intrusion upon seclusion.” TransUnion, 594 U.S. at 425. In
Popa, the Ninth Circuit addressed Article III standing in a privacy case similar to this action.
Popa v. Microsoft Corp., 153 F.4th 784 (9th Cir. 2025). There, the plaintiff alleged the
defendant’s session-replay technology captured her information while she browsed for pet
supplies on a pet supply website. The Ninth Circuit affirmed the district court’s dismissal for lack
of Article III standing because the nature of the collected information was not “embarrassing,
invasive, or otherwise private.” Id. at 786-87, 791. The court held the plaintiff had not
established “how the tracking of her interactions ... caused her to experience any kind of harm that
is remotely similar to the ‘highly offensive’ interferences or disclosures that were actionable at
common law.” Id. at 791. The court explained further “the kind of harm and not the degree” is
relevant for determining whether an alleged injury-in-fact is concrete enough relative “to a
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specific common-law tort” and that the injury must be one “that has traditionally been actionable
in our nation’s legal system.” Id. The common law analysis must be particularized to the
plaintiff’s circumstances and benchmarked to a specific tort.” Id.
Neither the Proposed Second Amended Complaint (“SAC”), nor any of its earlier versions,
plausibly alleges how the tracking of Plaintiff’s interactions with the Burger King website caused
him “to experience any kind of harm that is remotely similar to the ‘highly offensive’ interferences
or disclosures that were actionable at common law.” Id. at 791. As for both Plaintiff and
proposed new plaintiff Dean Flowers, the only personal information allegedly tracked is that they
were visiting the website from California. (Dkt. No. 78-2 at ¶¶ 121, 125.) While they allege they
“browsed” the Burger King website, nothing specific about what they browsed is alleged. For
proposed new plaintiff Nicole Giudotti, the SAC alleges she visited the Burger King website three
to four times a year “to browse information about Burger King products and locations. For
example, in 2024, [she] visited the Website to learn more information about the triple whopper.”
(Id. ¶ 137.) But this information, assuming it was tracked, is indistinguishable from the pet
supplies the plaintiff browsed in Popa. See Popa, 153 F.4th at 791 (observing “the monitoring of
Popa’s interactions with PSP’s website seems most similar to a store clerk’s observing shoppers in
order to identify aisles that are particularly popular or to spot problems that disrupt potential
sales”).
Plaintiff and proposed new plaintiffs’ allegations that they opted out of cookie tracking but
Defendants allowed the tracking anyway does not necessarily mean they have suffered a
sufficiently concrete injury. In Ortiz v. Foris Dax, Inc., No. 25-CV-08950-EMC, 2026 WL
3002660 (N.D. Cal. Oct. 6, 2026), for example, the plaintiffs alleged the www.crypto.com website
used cookies to track their website activity, and did so even though the plaintiffs had expressly
“disabled” cookies, similar to what Plaintiff alleges here. The Ortiz plaintiffs used the crypto
website to research specific cryptocurrencies; so, they alleged the third-party cookies were able to
collect information about their “financial interests, financial needs, and investment-related
research.” Id. at *2. Applying Popa, the district court held they had not plausibly alleged a
concrete injury sufficient to support Article III standing. First, the information allegedly collected
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was no more sensitive than that collected in Popa. Second, as for the crypto website tracking the
plaintiffs after representing it would not do so, the Ortiz court explained:
It is also true that visitors to a site have “a reasonable expectation of privacy as to
online activity that a website affirmatively represents that it will not track.” The use
of deceit can be a “‘plus’ factor” elevating otherwise borderline conduct to a
“highly offensive” intrusion. However, deceit alone does not convert every instance
of routine information collection into a ‘highly offensive’ invasion. “The key is the
sensitivity of the information collected.”
Id. at *4 (internal citations omitted). Given the lack of sensitivity of the data allegedly collected,
the district court dismissed the case for lack of Article III standing. Id.
Drawing reasonable inferences from the factual allegations in Plaintiff’s favor, the data
allegedly tracked here is not even borderline sensitive. The only identified Burger King website
activity is proposed new plaintiff Ms. Guidotti browsing Burger King’s website for store locations
and to look up a whopper triple. So, based on Plaintiff’s allegations in the SAC, and under current
Ninth Circuit law, the Court is not satisfied that Defendants’ failure to disable cookies as promised
means Plaintiff suffered a concrete injury sufficient to support federal court jurisdiction.
CONCLUSION
Accordingly, by November 2, 2026, Plaintiff shall show cause in writing as to the Court’s
subject matter jurisdiction over this action; and, in particular, how the proposed SAC plausibly
alleges at least one named plaintiff has Article III standing. If Defendants wish to respond to
Plaintiff’s submission, they may do so by November 12, 2026. A ruling there is no Article III
standing is not a ruling on the merits; rather, it just means the action will be dismissed without
prejudice to Plaintiff pursuing his claim in state court where there is no Article III standing
requirement. Missouri ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017). Plaintiff’s
motion to amend shall be held in abeyance until the Court resolves the subject matter jurisdiction
issue.
IT IS SO ORDERED.
Dated: October 16, 2026
JACQUELINE SCOTT CORLEY
United States District Judge
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