Computer fraud
In re: Capital One Financial Corporation, Affiliate Marketing Litigation
Date: June 2, 2025
Issue: Whether Capital One’s coupon-search browser extension stole from content creators.
Case Summary: A Virginia federal court partially granted a motion to dismiss filed by a class of social media influencers alleging Capital One’s coupon-search browser extension stole from content creators.
A class of content creators (plaintiffs) alleged Capital One’s shopping browser extension, which helps consumers find coupon codes, compare prices, and earn rewards, interferes with affiliate link clicks to steal their commissions. These creators promote products and earn commissions on resulting sales, which are tracked through cookies, tracking codes or similar technologies. When a shopper clicks a creator’s affiliate link, they are directed to a product page on the merchant’s site, allowing the creator to receive credit for the sale. However, plaintiffs claimed that if the shopper used Capital One’s extension, the tool refreshed the checkout page and overwrote the tracking code, blocking the commission payment to the creator.
Plaintiffs alleged the bank intentionally designed its browser extension to divert their rightfully earned commissions, and thus unjustly enriched itself, interfered with their prospective economic advantage, and intentionally disrupted their contractual relationships. Plaintiffs also alleged Capital One committed computer abuse and violated the New York General Business Law and California’s Unfair Competition Law. In response, Capital One moved to dismiss, arguing plaintiffs lacked standing, their common law and computer fraud claims had no merit, and their state consumer protection claims failed because they did not allege any harm to consumers.
The court denied Capital One’s motion to dismiss plaintiffs’ claims for unjust enrichment, interference with prospective economic advantage, and interference with contractual relations. On unjust enrichment, the court determined that plaintiffs plausibly alleged they conferred a benefit on Capital One, Capital One knew of the benefit and should have expected to repay it, and Capital One retained the benefit without compensation. The court also found that plaintiffs plausibly alleged the elements of interference: an existing business relationship or expectancy, Capital One’s knowledge of it, a reasonable likelihood the relationship would have continued but for Capital One’s misconduct, intentional and improper interference, and resulting damages.
The court also allowed plaintiffs’ statutory claim for computer abuse under the Federal Computer Fraud and Abuse Act to proceed. According to the court, plaintiffs plausibly alleged that Capital One intentionally exceeded its authorized access and caused a qualifying loss of at least $5,000.
However, the court dismissed plaintiffs’ common law conversion claim, holding that tracking codes do not qualify as property under Virginia law. Plaintiffs argued they had a right to possess tracking codes provided by merchants or affiliate networks, and Capital One intentionally replaced those codes with its own to deprive them of credit for purchases. But the court held that tracking codes do not constitute property that can support a conversion claim.
The court also dismissed plaintiff’s statutory claims for computer abuse under the California Comprehensive Computer Data Access and Fraud Act (CDAFA). Plaintiffs claimed Capital One violated CDAFA by interfering with tracking codes without permission. The court found that a member of the class, Tech Source, plausibly alleged unauthorized access. At the same time, the court held that plaintiffs’ complaint failed to establish that TechSource owned or leased the data at issue — a requirement under the statute.
Finally, the court dismissed plaintiffs’ consumer protection claims under both New York and California law. Storm Productions, a member of plaintiffs’ class, alleged Capital One’s browser extension misled consumers by diverting affiliate commissions. But the court determined the alleged harm targeted influencers, not consumers, and dismissed the claim for failing to allege consumer-oriented conduct or public harm.
Bottom Line: Capital One must still face plaintiffs’ claims for unjust enrichment, interference with prospective economic advantage, intentional interference with contractual relations, and computer abuse under the Federal Computer Fraud and Abuse Act.
Documents: Order
