Swarn v. Kohl’s

Background

Robin Swarn filed a proposed class action against Kohl’s, Inc. Swarn alleged that Kohl’s installs third-party trackers on people’s internet browsers when they visit www.kohls.com. The complaint asserted a claim under the Electronic Communications Privacy Act, 18 U.S.C. § 2511, and claims under various California laws.

Swarn initially filed the action in Alameda County Superior Court. Kohl’s removed it to federal court, relying on federal-question jurisdiction and the Class Action Fairness Act. Federal courts have limited authority and may hear only matters authorized by the Constitution and federal statutes.

The Court’s Standing Concern

The court raised concerns about Article III standing, which requires a plaintiff to show a concrete and personal injury, a connection between that injury and the defendant’s conduct, and a likelihood that a court order would remedy the injury. In a proposed class action, at least one named plaintiff must meet this requirement.

The complaint alleged that Swarn visited the Kohl’s website around December 2025 to browse Nike and Adidas sweatsuits for her grandsons. It alleged that the website’s code caused trackers to be installed on her browsers. The complaint generally stated that the trackers collected identifying information, website activity, internet-protocol addresses, and other user-behavior data.

The court found the allegations insufficient to show a concrete injury. The complaint did not identify what data was collected or shared, whether Swarn received targeted advertising because of the tracking, or how the alleged collection or use was highly offensive. The court also stated that the complaint did not allege enough facts to support an inference that any such information was collected about Swarn personally.

The court discussed a Ninth Circuit decision involving session-replay technology. In that decision, the court held that the alleged collection of browsing information did not establish a concrete injury because the information was not shown to be embarrassing, invasive, or otherwise private in a way resembling a highly offensive common-law privacy intrusion.

Order

The court ordered Kohl’s to show cause in writing by October 1, 2026, why the action should not be remanded to Alameda County Superior Court for lack of subject-matter jurisdiction, specifically because Swarn may lack Article III standing. The order was an order to show cause; it did not itself remand the action, dismiss the claims, or finally resolve the standing issue.