Cookie Banner Litigation Alert: What the Smith & Wesson Case Teaches Us

The Smith & Wesson case shows broken banner liability: merely having a banner is not enough— it must technically stop tracking technologies. The company continued to deploy tracking technologies to third parties even after users pressed the “Reject All” button. The plaintiffs argued that the non-functional opt-out option violates California’s wiretap law, CIPA.

Smith & Wesson Inc., the gun manufacturer, is involved in a proposed class action alleging that online tracking tools collect consumers’ personal data even after they had opted out of the use of the tracking tools.

The plaintiffs alleged that Smith & Wesson Inc. continued to deploy tracking technologies to third parties like Google, X Corp. (formerly Twitter), and Listrak, even after users opted out.

The Cookie Banner lawsuit leverages California’s wiretap law, California Invasion of Privacy Act (CIPA), which can carry significant statutory damages ($5,000 per violation), making it highly attractive to class-action lawyers.

This case, alongside a consumer privacy lawsuit roundup in 2025 and 2026 in 2025 and 2026, teaches critical lessons about the intersection of privacy laws, website tracking tools, and Cookie Banner litigation issues.

Litigation Alert: The Smith & Wesson Cookie Banner Case Explained

In February 2026, the case of D’Antonio et al. v. Smith & Wesson Inc. serves as a major litigation alert for website operators regarding the functionality of their Cookie Consent banners. The lawsuit centered on a broken banner claim: plaintiffs alleged that although they clicked "Reject All" on the site’s Cookie Banner, Smith & Wesson’s tracking pixels and Third-Party Cookies still continued to fire, violating Cookie Banner legal compliance.

The broken banner was concluded to be violating California’s old wiretap law California Invasion of Privacy Act (CIPA), which provides penalties of $5,000 per violation.

This cookie banner litigation case is particularly notable because the judge initially granted a dismissal with leave to amend; the ruling didn't reject the theory that a faulty banner is a privacy violation. Instead, it required plaintiffs to prove they actually communicated with the site to trigger wiretapping protections. Furthermore, because the deceptive banner was the core of the complaint, the court applied Rule 9(b), requiring plaintiffs to provide exact "who, what, when, and where" evidence of the technical failure.

Merely having a banner is not enough: it must technically stop firing trackers. If a user clicks "Reject All," the site must truly block Third-Party Cookies, pixels, and tracking scripts. If tracking continues, the "Reject All" button is considered deceptive.

The case highlights that inconsistencies between privacy policies and actual behavior of tracking technologies can be framed as fraud, even if wiretapping claims are narrowed.

Privacy Litigation Alert: Why the Smith & Wesson Case Matters

The Smith & Wesson cookie banner case moved the legal focus from missing privacy banners to malfunctioning ones. For years, companies treated cookie pop-ups as a "set and forget" UI element. This case shows that even if your website contains a banner, but it doesn’t function properly, you are facing legal liability.

In early 2026, plaintiffs filed a class action alleging that Smith & Wesson’s website was deceiving its users.

In February 2026, the court issued a ruling that contains both good and bad news for website owners.

Cookie Consent litigation shows that, besides the fact that a malfunctioning cookie banner could lead your website to legal risks, there are several important requirements for plaintiffs to prove:

The heightened burden (Rule 9(b))
Because the lawsuit is based on a deceptive banner, the court ruled that Rule 9(b) applies. This means plaintiffs cannot just say that the site tracks people. They must provide exact proof of who, what, when, and where was deceived. This makes lawsuits much harder for plaintiffs to win.
The communication requirement
Another requirement is related to communication. To win a wiretapping claim, plaintiffs have to show that content (like a message or a search) was intercepted, not just the fact that you visited the site.

This Smith & Wesson case matters for your business for the following privacy litigation alerts:

You cannot rely on your CMP’s marketing promises
Implementing a banner is not enough to avoid a Cookie Consent lawsuit. You must audit the cookies, local storage, Tracking Cookies, and other tracking tools to ensure scripts are blocked until consent is granted.
Consent is a contract
The court viewed the cookie banner as a contract. If you tell a user that you will honor their preference, you must keep your promise. If your code doesn't do it, you aren't just violating a privacy law— you are also committing digital fraud.
The rise of the pen register defense
While the court didn’t take into account the usage of simple cookies as pen registers, it didn't exclude other trackers. If your site uses fingerprinting or deanonymization tools (tools that try to identify anonymous users by their IP), you are still at high risk.

Compliance Mistakes That Trigger Lawsuits

Most website privacy lawsuits do not arise from sophisticated technical failures. They come from basic compliance mistakes that companies either overlook or underestimate.

Here are the most common cookie banner compliance mistakes currently triggering high-dollar Cookie Consent lawsuits and regulatory fines in 2026:

Loading non-essential cookies before consent
This is the most common issue for California Invasion of Privacy Act (CIPA) lawsuits this year. Analytics tools, tracking pixels (Meta, TikTok, LinkedIn), heatmaps, and social media trackers often start collecting data the moment a page loads. If that happens before the user accepts trackers, the company may already be violating privacy laws. Plaintiffs argue that the interception of their data occurred without consent.
Deceptive banner design
Rejecting cookies should be as easy as accepting them or easier. If your website’s “Accept All” button is large and more colorful while the “Reject All” button is hidden behind extra clicks, small text, or less visible links, your banner may be considered as manipulative. Plaintiffs successfully argue that consent was not freely given.
The broken banner
The Smith & Wesson case of 2026 highlights this problem. If a user clicks "Reject All," but your CMP fails to communicate that choice to every tag, some cookies or server-side events continue to track the user. This is being litigated as digital fraud. The Smith & Wesson case shows that offering a choice for cookies is almost the same as signing a contract with the user over their data management. If your CMP doesn’t honor user choice, you have breached the contract.
Ignoring Global Privacy Control (GPC) signals
In 2026, honoring GPC is no longer a choice. In California or the EU, it is mandatory. If a user has "Do Not Track" or GPC enabled in their browser, your website must honor these signals. If your site displays a banner anyway or ignores the signal and tracks users, you will be violating privacy laws.
No consent logging could be an issue
Many organizations cannot prove what options their banner offered at the user interaction time, what scripts were running, or whether consent preferences were honored. When there is no evidence for banner design and behavior options, it could become a serious problem if a complaint turns into litigation.
Outdated Cookie Policy
Marketing teams often add new tracking tools without notifying compliance teams. As a result, websites may deploy scripts that collect user information but are not disclosed in the Cookie Policy or properly categorized in the banner.
Excessive verification for opt out
In 2026, CCPA enforcement actions has targeted companies that don’t allow users to opt out of tracking easily. If you are requiring a user to log in, verify their email, or confirm their identity just to opt out of data sharing, you may be violating CCPA. California’s law explicitly forbids unnecessary friction. Organizations must provide frictionless opt-out options.
privacy laws are everywhere
Some businesses still assume privacy laws only apply to companies based in Europe. However, it’s not the case. In US, there are many state privacy laws as well as federal laws, regulating privacy rights, including old wiretapping law CIPA or the Children's Online Privacy Protection Act (COPPA).

Scan your website for free to see all your website cookies, local storage, and tracking pixels in use.

What Makes a Cookie Banner Legally Risky?

A cookie banner becomes legally risky when it fails to give users a genuine and informed choice. In order to obtain valid consent, businesses must collect prior, voluntary, informed, and specific consent.

There are some common cookie banner compliance mistakes that make your cookie banner legally risky and could lead to website privacy lawsuits:

Consent timing
You must obtain user consent prior to setting any cookies on users’ devices or collecting any data. If cookies are placed before the user has any choice to accept or reject cookies, consent is not valid.
Clear cookie notice
Users need to understand what they are agreeing to, what cookies are set, and for what reasons. Vague statements like “We use cookies to improve your experience” do not explain which tracking tools are involved, what data they collect, and what third parties are involved.
Banner design
Regulators have repeatedly stated that users must be able to reject non-essential cookies as easily as they can accept them. If your website’s “Accept All” button is large and easy to find while the “Reject All” button is hidden behind extra clicks, small text, or less visible links, your banner may be considered as manipulative.
The broken banner
If a user clicks "Reject All," but your CMP fails to communicate that choice to third parties properly, and tracking continues regardless, it’s a direct compliance failure.

A legally valid cookie banner should:

Block non-essential cookies until consent is given.
Provide a clear cookie notice.
Offer clear “Accept” and “Reject” options.
Record consent decisions.
Respect user choices immediately.
Allow users to change preferences later.

If any of these elements are missing, the banner may not be legally valid.

How Tracking Technologies Create Legal Exposure

Tracking technologies such as Google Analytics, Meta Pixel, session replay tools, and chat widgets can collect personal data like IP addresses, browsing behavior, and form interactions. They may capture IP addresses, page views, clicks, device identifiers, purchase behavior, and form interactions. If these tools are deployed without valid consent or share data with third parties without proper disclosure, they can trigger lawsuits under privacy laws such as the GDPR, CCPA/CPRA, and state wiretapping statutes.

The real legal risk often comes from the modern tracking technologies used for marketing or analytics purposes. Third-party trackers introduce another layer of legal exposure.

This data can be considered Personal Information under laws such as the GDPR, the California Privacy Protection Agency (CPRA) regulations, and other state privacy laws.

In the United States, plaintiffs have also argued that session replay and similar technologies amount to unauthorized interception of communications. These claims often rely on old wiretapping laws, such as CIPA, which can lead to costly class-action lawsuits even when the company did not intend to violate privacy rules.

Third-party trackers add additional legal risk. When data is shared with third parties for advertising or analytics purposes, companies need to disclose data sharing: who receives the user data and for what reasons.

Legal exposure increases when businesses:

Deploy multiple tracking tools without disclosing them.
Fail to classify trackers correctly.
Share data with numerous third parties.
Continue collecting data after opt-out.
Do not disclose tracking practices clearly.

Lessons Businesses Should Take From the Smith & Wesson Lawsuit

The Smith & Wesson case shows that privacy litigation is no longer limited to technology companies. Any organization that uses website tracking tools can become subject to class action lawsuits and regulatory investigations.

The Smith & Wesson Lawsuit teaches companies some important lessons:

Pre-consent blocking is mandatory
The lawsuit emphasizes that analytics and marketing trackers must be paused before consent is given. If a site deploys trackers on load and only blocks them after a user opts out, such behavior is not compliant.
No industry is safe from regulatory investigations
CIPA and other privacy laws are relevant not only for the technological industry. Manufacturers, retailers, healthcare providers, fintechs, nonprofits, and service businesses in B2C and B2C sectors all rely on digital marketing tools, and all can be targeted by regulators or class action lawsuits if those tools are deployed improperly.
Implementation matters more than intent
Another important lesson is related to how tracking tools are actually implemented. A company may have a Privacy Policy and a cookie banner, but if trackers load before consent or opt-outs are not honored, the company will be violating privacy laws.
Compliance is not a one-time project
Websites change constantly. Marketing teams add new marketing tools, plugins, and integrations. If these tracking technologies are deployed without formal review, there could be compliance issues. Ongoing monitoring is essential.
Consent logging is necessary
Businesses need clear evidence that their banners are working properly. You must record all data related to the cookie banner and user consent: banner design and user options at the user interaction time, what scripts were running, and whether consent preferences were honored. When there is no evidence for loaded scripts, network requests, consent logs, and vendor behavior, it could become a serious problem if a complaint turns into litigation.

How a Consent Management Platform Helps Prevent Risk

A consent management platform (CMP) turns privacy compliance from a manual process into a controlled, auditable, and reliable system.

A well-configured CMP, such as CookieScript, should have many functionalities that automate compliance and help prevent compliance risk:

Automatic cookie scanning
A proper CMP must automatically scan your website, identify cookies and tracking technologies, and categorize them by purpose. This reduces the risk of undisclosed or misclassified cookies.
Real script blocking
A CMP must block scripts before consent automatically, by default. If it doesn’t block scripts automatically, skip it.
Granular consent controls
Choose a CMP that allows users to choose between different cookie types (e.g., strictly necessary, analytics, marketing, and security) rather than only allowing them to accept or reject all cookies. Cookie banner for fintech websites should have customization options.
Strong consent logging
Finance and fintech websites collect much sensitive personal data. Thus, you need to be able to prove you have right consent to collect it. Look for a CMP that allows track banner versions, export consent logs, and provides long retention times.
geo-targeting capabilities
A CMP must detect users’ location and support region-based banners and different legal frameworks.
Easy integration with your stack
Look for a CMP that is integrated with GTM, has many automatic integration options, and allows custom scripts.
Google Consent Mode v2 integration
If you want to use Google Ads or analytics, you need a CMP that is certified by Google and supports Google Consent Mode v2. Without it, you could not use Google products.
IAB TCF v2.2 integration
IAB TCF v2.2 integration is needed for full GDPR compliance.
Performance impact
Look for a lightweight CMP that does not delay core website functionality.

Choose a CookieScript CMP, one of the best CMPs, valued by users.

In 2025, CookieScript received its fourth consecutive badge in a row as the leader on G2, a peer review site, and became the best CMP on the market for a whole year!

CookieScript CMP offers the following cookie compliance solution needed for finance and fintech websites:

It also offers affordable pricing. You can get a fully compliant consent management tool for as little as €8 per month per domain for basic features, or €19 per month per domain for full compliance.

CookieScript also offers a 14-day free trial.

Frequently Asked Questions

How do tracking technologies create legal exposure?

The real legal risk often stems from modern tracking technologies used for marketing or analytics. Legal exposure increases when businesses deploy multiple tracking tools without disclosing them, fail to classify trackers correctly, share data with numerous third parties, continue collecting data after opt-out, and do not disclose tracking practices clearly. Use CookieScript CMP to manage cookie consent and avoid legal exposure.

What does the Smith & Wesson case teach about cookie banners?

The Smith & Wesson Lawsuit teaches companies some important lessons: no industry is safe from regulatory investigations, pre-consent blocking is mandatory, implementation matters more than intent, compliance is not a one-time project, and consent logging is necessary. Use CookieScript CMP to block cookies before consent, record cookie consent, scan your website for cookies and automatically update your Privacy Policy.

How to avoid cookie banner lawsuits?

To avoid cookie banner lawsuits, businesses should obtain user consent prior to setting any cookies, block non-essential cookies until consent is given, provide a clear cookie notice, offer clear “Accept” and “Reject” options, record consent decisions, respect user choices immediately, and allow users to change preferences later. Use CookieScript CMP to manage cookie consent and avoid cookie banner lawsuits.

What are cookie banner mistakes that trigger lawsuits?

The most common cookie banner compliance mistakes include loading non-essential cookies before consent, deceptive banner design, the broken banner (a user clicks "reject all," but some cookies continue to track the user), ignoring Global Privacy Control signals, no consent logging, outdated cookie policy, and excessive verification for opt-out. CookieScript CMP can help you to create a compliant cookie banner for affordable pricing.