Privacy lawsuits related to missing or invalid cookie consent are now affecting organizations across virtually every industry. Tech companies, e-commerce platforms, SaaS providers, healthcare institutions, media organizations, and B2B service providers are increasingly being targeted—often through class actions or regulatory complaints—because of how their websites collect, store, and manage users’ personal data via cookies and tracking technologies.
What was once a niche issue for large businesses has become a mainstream risk for any company with a website.
This article explains what cookie consent actually is, why lawsuits are happening, and a step-by-step guide to defending a cookie consent lawsuit, followed by clear prevention strategies.
Disclaimer: This blog is for informational purposes only and does not constitute legal advice. EcomBack is not a law firm. Readers should consult a qualified attorney regarding legal obligations related to accessibility compliance.
What Is Cookie Consent and Why It Matters
Cookies are small data files placed on a user’s device to remember preferences (language, login), analyze site usage, track behavior for advertising or retargeting, and enable third-party integrations (chat tools, embedded video, pixels)
Legally, cookie consent means that under major privacy regulations, certain types of cookies—particularly those used for analytics, marketing, or cross-site tracking—cannot be placed on a user’s device until that user has provided informed, explicit consent. This requirement is meant to give users control over their personal data and ensure transparency around data collection practices.
Laws Driving Cookie Consent Lawsuits
In the United States, the California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA) require companies to transparently disclose how they use data, respect consumer privacy rights, and typically classify cookie-based tracking as a form of data “sharing.” These laws are enforced by state authorities and through private lawsuits, especially when companies fail to honor opt-out requests. A key requirement is the display of a “Do Not Sell or Share My Personal Information” link, giving users the ability to prevent the sale or sharing of their data for advertising purposes.
Additionally, states such as Virginia (VCDPA), Colorado (CPA), Utah (UCPA), and Texas (TDPSA) have implemented their own privacy laws. These generally follow California’s example, mandating that companies provide clear options for users to opt out of targeted advertising and the sale of their data.
Meanwhile, the General Data Protection Regulation (GDPR) is enforced in the European Union. It requires organizations to gain explicit, opt-in consent from users before placing any non-essential cookies. This law applies to any website that targets users in the EU.
Defending a Cookie Consent Lawsuit
Do Not Panic and Don’t Respond ImmediatelyAvoid issuing any immediate or unreviewed responses, as these can inadvertently admit liability or preserve unfavorable evidence. Consult with privacy counsel before making any external communications to ensure your response strategy is fully informed and legally sound.
Preserve EvidenceDocument and preserve key evidence relevant to the lawsuit, including website source code, detailed cookie and server logs, consent banner configurations, screenshots of user flows, and all versions of privacy policies in effect during the relevant period. Failure to do so can have negative consequences, as courts and regulators expect companies to maintain these records.
Conduct a Technical Cookie AuditConduct a thorough technical audit to determine which cookies or tracking technologies fired before consent was obtained, the exact timing and sequence of script execution, distinctions between first-party and third-party cookies, geographic variations in behavior (such as differences between EU and U.S. users), and whether detailed consent records exist. These facts often determine whether the claims have merit or can be successfully challenged.
Remediate ImmediatelyCourts and regulators look favorably on fast fixes. Common remediation includes blocking non-essential cookies before consent, updating banners to include “Reject All,” improving disclosures, and reducing third-party trackers. This can reduce damages and support early resolution.
Negotiate or Litigate StrategicallyMost cookie consent cases resolve through confidential settlements, compliance commitments, or dismissals based on standing or lack of harm.
How to Prevent Cookie Consent Lawsuits
1. Use a Proper Consent Management Platform (CMP)
A compliant CMP should:
- Block cookies until consent
- Offer Accept / Reject / Manage options
- Store consent records
- Support geo-based rules
- Update automatically as laws evolve
Avoid “banner-only” solutions that don’t actually control cookies.
2. Classify Cookies Correctly
Mislabeling cookies is a common enforcement trigger. Create and maintain a cookie inventory:
- Essential
- Analytics
- Marketing
- Functional
- Third-party
3. Avoid Dark Patterns
Regulators actively penalize pre-checked boxes, hidden reject buttons, confusing language, and consent fatigue tactics.
Limit Third-Party Trackers
Audit regularly and remove:
- Redundant pixels
- Unused analytics tools
- High-risk ad tech vendors
4. Update Privacy Policies Regularly
Your policy must match actual cookie behavior, name key third parties, explain purposes clearly, and describe user rights and opt-out methods. Outdated policies are easy targets.
Key Takeaways for Businesses
As cookie consent lawsuits continue to rise, businesses must recognize that privacy compliance is no longer optional. Swiftly addressing any identified issues can greatly reduce the risk of costly litigation, regulatory penalties, and reputational harm.
More importantly, prioritizing prevention through comprehensive consent management, ongoing technical audits, and regular updates to privacy policies is far more efficient and less expensive than defending against lawsuits after the fact. By embedding privacy best practices into your operations, you can not only protect your business from legal threats but also foster greater user trust and demonstrate your commitment to responsible data governance.
