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Creators said Capital One overrode tracking codes

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Judge allows unjust enrichment, interference claims

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Capital One not immediately available for comment

By Jonathan Stempel

June 3 (Reuters) - Capital One must face a

lawsuit by social media creators who said the bank's free

browser extension stole their sales commissions when consumers

bought their products and services.

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 ) and PayPal ( PYPL ) 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 ( COF ), Affiliate

Marketing Litigation, U.S. District Court, Eastern District of

Virginia, No. 25-00023.