Capital One must face social media creators' lawsuit alleging stolen commissions
In a Monday night decision, U.S. District Judge Anthony Trenga in Alexandria, Virginia said creators plausibly alleged that Capital One knew or should have known that it diverted their commissions by overriding tracking codes that showed consumers had seen their content.
The proposed class action involves affiliate marketing, where creators promote content through links that appear on their platforms and social media channels, and are provided by online merchants and third-party marketers.
Creators said the Capital One Shopping browser extension, used by more than 10 million people to find discounts, made it appear at checkout as though consumers made purchases from merchants' sites after clicking referral links from the bank.
They said this let McLean, Virginia-based Capital One collect millions of dollars of commissions that bloggers, influencers, YouTubers and other creators had "rightfully earned".
Trenga said creators can pursue claims that Capital One was unjustly enriched, interfered with their contracts and ability to make money, and violated the federal Computer Fraud and Abuse Act. He dismissed a conversion claim and four state law claims.
Capital One did not immediately respond to requests for comment on Tuesday.
In seeking a dismissal, the bank said it was up to merchants to decide how to allocate commissions.
It also said the lawsuit reflected creators' frustration that merchants "do not always share their view that they did all the work."
Norman Siegel, a lawyer for the creators, said they looked forward to continuing to prosecute their case.
Microsoft (MSFT.O), opens new tab and PayPal (PYPL.O), opens new tab face similar litigation over their Microsoft Shopping and PayPal Honey extensions.
Capital One is the sixth-largest U.S. commercial bank by assets, after buying Discover Financial Services in May.
It acquired its browser extension when it bought online shopping startup Wikibuy in 2018.
The case is In re Capital One Financial Corp, Affiliate Marketing Litigation, U.S. District Court, Eastern District of Virginia, No. 25-00023.
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