Litigating to Dismiss: The Aggressive Defense Posture in Website-Tracking Privacy Class Actions

Baldassare Vinti, Partner | Proskauer Rose LLP

Baldassare (“Baldo”) Vinti is a partner in Proskauer’s New York office and head of the firm’s Intellectual Property Litigation Group. Proskauer lists Privacy & Cybersecurity among his practice areas, alongside Litigation, Intellectual Property, False Advertising & Trademark, Patent Law, and Restrictive Covenants, Trade Secrets & Unfair Competition. His litigation practice includes consumer class actions and false advertising matters for consumer products, diagnostics, digital media, mobile platform, and software companies, and he has obtained dismissals of class action and consumer complaints at the pleading stage. A first-chair trial lawyer with more than 25 years of experience, he has led trials, arbitrations, and appeals in bet-the-company disputes for global companies and universities in federal and state courts and before the International Trade Commission.

• Education & Credentials

Mr. Vinti earned his J.D., cum laude, from St. John’s University School of Law and his B.S. from St. John’s University, and he brings a background in pharmacy to his technical practice. He is admitted in New York and New Jersey and before the U.S. Patent and Trademark Office.

His court admissions include the U.S. Court of Appeals for the Federal Circuit, the U.S. Court of Appeals for the Second Circuit, and the Southern and Eastern Districts of New York. Earlier in his career he served as a judicial intern to the Hon. John E. Sprizzo of the U.S. District Court for the Southern District of New York and to the Hon. Charles A. LaTorella of the New York Supreme Court. He speaks Italian.

• Recognition & Leadership

Mr. Vinti heads Proskauer’s Intellectual Property Litigation Group. The Legal 500 United States has recognized him in Media, Technology & Telecoms: Marketing & Advertising for 2011–2012 and 2020–2026, naming him a Leading Lawyer in 2025 and a Leading Partner in 2026, and in Health Care/Life Sciences for 2025 and Trademarks: Litigation for 2021–2022.

He has also been named to Lawdragon 500 Leading Litigators in America for 2023–2025, Managing Intellectual Property IP STARS for 2023–2025, the IAM Patent 1000 for 2014–2021 and 2023–2025, New York Super Lawyers for 2015–2024, and JD Supra Readers’ Choice in Life Sciences for 2022.

• Professional Involvement

Mr. Vinti co-edits Proskauer on Advertising Law, the firm’s advertising law blog, with Brendan J. O’Rourke. He is a frequent author and commentator on intellectual property topics and has been quoted in the National Law Journal, Bloomberg BNA, Law360, Westlaw Journal, and Inside Counsel magazine, and he contributes regularly to Medical Product Outsourcing magazine on medical device industry issues.

His memberships include the American Intellectual Property Association, the Intellectual Property Owners Association, the New York Intellectual Property Association, the International Association for them Protection of Intellectual Property, the International Federation of Industrial Property Attorneys, the Association of Medical Diagnostics Manufacturers, the Italy America Chamber of Commerce, and the Japanese Chamber of Commerce and Industry of New York.

• Experience

Mr. Vinti’s pleading-stage work includes Vongslay v. Church & Dwight Co. (S.D. Ill.), where he obtaineddismissal of a class action complaint concerning Baby Orajel teething pain medicine, and Robert Gordon et al. v. Church & Dwight Co. (N.D. Cal.), where he obtained dismissal of a false advertising complaint over product labeling. In Medsquire, LLC v. Spring Medical Systems, Inc. (C.D. Cal.) he obtained dismissal on behalf of Henry Schein, Inc., and in Pfizer, Inc. v. Ajix, Inc. (D. Ct.) he obtained summary judgment of noninfringement that the Federal Circuit summarily affirmed per curiam.

He led the trial team for Church & Dwight Co. against Abbott Laboratories (D.N.J.) in a patent action over over-the-counter pregnancy tests, producing a jury verdict, a willfulness finding, and an award exceeding $38 million, and represented Church & Dwight in a series of false advertising actions against SPD Swiss Precision Diagnostics GmbH concerning consumer pregnancy, ovulation, and fertility tests. In a confidential arbitration he secured an award valued in the tens of millions of dollars for Tech Mahindra on trade secret misappropriation and breach of contract claims.

His patent practice has included representing British Telecommunications PLC against Google, Fortinet, and Palo Alto Networks (D. Del.) in matters spanning district court litigation, Federal Circuit appeal, inter partes review, and reexamination; representing Zenith Electronics, Panasonic, U.S. Philips, and the Trustees of Columbia University in digital television standard litigation; and representing Mitsubishi Electric, Koninklijke Philips, Thomson Licensing, GE Technology Development, Panasonic, and Sony in MPEG-2 compression litigation. He also works with university innovation and technology transfer offices on IP asset optimization, licensing, spin-out development, and enforcement, and counsels boards and executive teams on IP due diligence, structuring, patentability and freedom-to-operate analyses, and
infringement and validity opinions.

Jeff H. Warshafsky, Partner | Proskauer Rose LLP

Jeff Warshafsky is a partner in Proskauer’s Litigation Department in New York and co-head of the firm’s False Advertising & Trademark practice. He defends companies in consumer class actions involving advertising and privacy issues, and has handled dozens of class actions around the country for multinational companies across consumer products, retail, sports leagues, and entertainment. He also counsels clients on avoiding such actions, responds to demand letters from plaintiffs’ counsel, and negotiates resolutions. Class & Collective Actions and Mass Torts & Product Liability are among his listed practices, and he litigates competitor advertising disputes under the Lanham Act and before the National Advertising Division and National Advertising Review Board, including at the TRO and preliminary injunction stages.

• Education & Credentials

Mr. Warshafsky earned his J.D. from Harvard Law School and his B.S. from Queen’s University. He is admitted in New York and before the U.S. Court of Appeals for the Second Circuit and the Southern and Eastern Districts of New York.

• Recognition & Leadership

Mr. Warshafsky co-heads Proskauer’s False Advertising & Trademark practice. Chambers USA has ranked him Up and Coming in Nationwide Advertising: Litigation for 2024–2026, and Benchmark Litigation named him to its “40 and Under” list for 2024–2025.

The Legal 500 United States has recognized him in Advertising & Marketing: Litigation as a Rising Star for 2020–2023, a Next Generation Lawyer for 2024–2025, and a Next Generation Partner for 2026, and in Trademarks: Litigation for 2022. He has also been named to Best Lawyers: Ones to Watch in America for 2026–2027, Managing Intellectual Property Rising Stars for 2022–2025, and New York Super Lawyers “Rising Stars” for 2015–2025.

• Professional Involvement

Mr. Warshafsky is an editor of and contributor to the firm’s false advertising blog, Watch This Space:
Proskauer on Advertising Law. Beyond litigation he counsels companies on advertising substantiation, with an emphasis on complex scientific testing such as clinical trials and sensory testing, and advises major sports leagues, entertainers, and performance venues on complex business disputes.

He maintains a robust pro bono immigration practice, assisting clients with asylum and U-Visa applications and in removal proceedings.

• Experience

Mr. Warshafsky’s consumer class action defense work has repeatedly ended cases before discovery. In the Madonna concert litigation, ongoing since 2023, he represents Madonna, Live Nation, and various concert venues against consumer class actions in courts around the country alleging false advertising of concert start times and venue temperature; every case was dismissed prior to discovery, with one dismissal now on appeal to the Ninth Circuit. In La Rosa v. Church & Dwight (2d Cir. 2024) the district courtgranted his motion to dismiss all claims with prejudice and the Second Circuit affirmed.

He has also obtained dismissal on forum and contract grounds: in Maldonado v. NFL (S.D.N.Y. 2022) the court granted his motion to compel arbitration in a putative antitrust consumer class action brought against the NFL and all 32 clubs, and in Oyler v. NFL Enterprises (S.D.N.Y. 2022) the plaintiff voluntarily dismissed a putative class action over NFL+ recurring charges after his pre-motion letter set out the grounds for dismissal. Other pleading-stage outcomes include Yamasaki v. Zicam (N.D. Cal. 2021), dismissed in its entirety as an improper lack-of-substantiation claim; DiCicco v. PVH and Robey v. PVH (S.D.N.Y. 2020), both dismissed; Pridgen v. Church & Dwight (S.D. Cal. 2019), dismissed on reasonable consumer grounds; Jessani v. Monini North America (S.D.N.Y. 2017; 2d Cir. 2018), dismissed and affirmed on appeal, which he argued in the Second Circuit; Fifth Degree Tours v. Live Nation (C.D. Cal.), where he prevailed on a motion to dismiss the entire complaint; and Bank v. NFL (S.D.N.Y.), where he prevailed on a motion to dismiss now on appeal. Crosby v. Church & Dwight (N.D. Ill. 2023) and Pizzo v. Church & Dwight (E.D. Mo. 2023) were both voluntarily dismissed. He also represents SoClean in defense of more than 40 putative false advertising class actions consolidated in the Western District of Pennsylvania for pretrial proceedings, and the NFL and its clubs in putative antitrust class actions over trading cards and merchandise.

His false advertising practice includes Church & Dwight v. SPD Swiss Precision Diagnostics (S.D.N.Y. 2014; 2d Cir. 2016), where a two-week liability trial produced findings of intentional and egregious false advertising, a permanent injunction, a nationwide package recall, corrective advertising, an affirmance in the Second Circuit, and a lost profits award of nearly $10 million; SoClean v. Koninklijke Philips (W.D. Pa. 2022); Williams-Sonoma v. Quince (N.D. Cal.); and NAD and NARB matters for the NFL, T-Mobile, S. C. Johnson & Son, Church & Dwight, and Alcon. In USPTO v. Booking.com (U.S. Supreme Court 2020) he filed an amicus brief for academics and consumer perception consultants whose reasoning the Court’s decision
tracked in rejecting the USPTO’s proposed per se rule.

Aaron M. Francis, Associate | Proskauer Rose LLP

Aaron Francis is a litigation associate in Proskauer’s Los Angeles office and a member of the firm’s Data Privacy and Cybersecurity group, with a practice focused on privacy and cybersecurity alongside white collar and antitrust matters. He has represented a consumer goods company facing claims of privacy violations under the California Invasion of Privacy Act, and a telecommunications company navigating the aftermath of a major data incident affecting millions of consumers, including the shareholder derivative lawsuits and regulatory investigations that followed. Litigation and Privacy & Cybersecurity are his listed practice areas, and he contributes regularly to the Proskauer on Privacy blog.

• Education & Credentials

Mr. Francis earned his J.D. from Harvard Law School and his M.P.P. from Harvard Kennedy School, where he was a Center for Public Leadership Fellow, and his B.A., summa cum laude, from Morehouse College. He is admitted in California and New York and before the Central District of California and the Southern District of New York.

• Recognition & Leadership

Mr. Francis was named to New York Super Lawyers “Rising Stars” for 2022–2023.

• Professional Involvement

Mr. Francis is a member of Proskauer’s Data Privacy and Cybersecurity group and a regular contributor to the Proskauer on Privacy blog. He is also a member of the firm’s Black Lawyers Affinity Group.

He is deeply committed to pro bono service, having represented numerous clients in criminal appeals and secured reduced sentences and immediate release in each case. His other pro bono work includes representing a non-profit organization in a lawsuit against state officials advocating for incarcerated voters’ absentee voting rights, advising non-profits on an internal human resources investigation, and assisting civil rights non-profit organizations with amici briefs before various Circuit Courts and the Supreme Court of the United States.

• Experience

Mr. Francis’s privacy and cybersecurity representations include a consumer goods company defending claims of privacy violations under the California Invasion of Privacy Act, and a telecommunications company responding to a major data incident that affected millions of consumers, where the work extended to shareholder derivative lawsuits and regulatory investigations.

His broader complex litigation and regulatory experience includes defending a generic pharmaceutical manufacturer against price-fixing and market allocation antitrust claims brought by multiple states and civil plaintiffs; representing a generic pharmaceutical group purchasing organization in a contractual dispute with a wholesaler; representing healthcare entrepreneurs in a contractual dispute over hospital ownership; representing a financial institution against clawback claims by the Bernie L. Madoff Investment Securities Trustee; representing an auto manufacturer in criminal and regulatory proceedings concerning
executive compensation; and representing a financial institution in white collar and regulatory
investigations involving allegations of LIBOR/FX rate manipulation.

SESSION 1 – Triaging the Claim and Deciding to Commit to a Dismissal Posture | 12:00pm – 1:00pm

This session equips defense counsel to rapidly assess an incoming website-tracking privacy class action and decide whether to commit to an aggressive dismissal posture. Attorneys will learn to identify which statute is invoked, classify the data allegedly collected, evaluate standing vulnerabilities under circuit authority, analyze technical architecture for key defense arguments, and audit consent mechanisms — all before filing a single motion. Attendees will leave with a repeatable triage framework applicable to CIPA, VPPA, and ECPA claims, calibrated to a landscape that shifted materially in 2026.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Building the Dispositive Motion and Driving the Early Exit | 1:10pm – 2:10pm

This session teaches defense counsel how to construct and sequence dispositive motions in website tracking privacy class actions, from Rule 12(b)(1) standing attacks through summary judgment on statutory interpretation grounds. Attendees will learn specific doctrinal arguments that have produced dismissals: Article III injury-in-fact, the party exception, consent layering, and the CIPA ‘in transit’ rule. Attorneys will leave with a motion-drafting framework, a contemporary case toolkit, and a clear map of where courts are drawing the line between claims that survive and claims that do not.