People who used the Five Below iPhone or Android app may be covered by a proposed class action alleging Five Below secretly sent their searches, carts, purchases and full app sessions to Meta, TikTok and session-replay company LogRocket without consent. No class has been certified and there is nothing to file yet.
Allegations Only · No Settlement Yet
This article describes a class action complaint. The statements below are unproven allegations. Five Below, Inc. has not been found liable, there is no certified class, and nothing to claim at this time. This page is informational and is not legal advice.
What Is the Five Below App Lawsuit?
A proposed class action filed on September 30, 2026, in the U.S. District Court for the Eastern District of Pennsylvania accuses discount retailer Five Below of letting third parties watch what customers do in its mobile apps. The case is Rubio v. Five Below, Inc., No. 2:26-cv-07553. Five Below, Inc., which the complaint says is incorporated in Pennsylvania, is the only defendant.The complaint alleges that the Five Below iOS and Android apps contain the Facebook Pixel, the Facebook software development kit, the TikTok Pixel and LogRocket’s session-replay software, and that these tools send users’ shopping activity to Meta, TikTok and LogRocket without notice or consent. None of those three companies is a defendant. The plaintiff, a Los Angeles County resident, says she downloaded the app around 2024 and used it regularly through July 2026, including to buy items for her child. No court has ruled on any of the allegations.
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What the Complaint Says the Apps Shared
The complaint alleges that the tracking tools sent users’ product views, searches, cart additions, checkout steps, payment-information events and completed purchases to Meta and TikTok, tied to identifiers those companies can link to a person. It names standard tracking events such as “ViewContent,” “Search,” “AddToCart,” “InitiateCheckout” and “AddPaymentInfo” as examples of what was transmitted.The plaintiff argues that, taken together, this information can reveal a detailed picture of each user: what they shop for, what they buy and pay, where they live and their purchase history over time. The complaint says none of these uses is disclosed in Five Below’s privacy policy.
The Session Replay Allegations
The complaint gives particular attention to LogRocket, a company that sells session-replay software. According to the filing, from the moment a user opens a Five Below app, LogRocket’s software records every screen viewed and every tap, swipe, scroll and entry — what the complaint calls the functional equivalent of a video recording of the shopping session — and sends it to LogRocket’s servers, where it can be searched and replayed.The plaintiff alleges the app never tells users that a session-replay tool is running, never names LogRocket and offers no way to decline. The complaint further alleges that LogRocket stores and indexes the recordings and uses data from them to improve its own products, which the plaintiff argues makes it more than a passive service provider. None of these allegations has been tested in court.
The Privacy Policy and Terms Questions
Five Below maintains a written privacy policy, but the complaint alleges that someone who downloads the app from the Apple App Store or Google Play and uses it to shop is never shown that policy: not on the store listing, not when the app first launches, and never as a condition of using it.The complaint also takes on Five Below’s terms of use, which it says are referenced on the app’s download and first-launch screen and again at checkout. It alleges those terms were never presented in a way users could open, review and accept, and asks the court to declare the arbitration provision, class-action waiver, liability limits and any consent-to-data-sharing language unenforceable. That issue is often decided early in app privacy cases, because an enforceable arbitration clause can move claims out of court.
Who Is in the Proposed Class?
The complaint proposes three groups:- Nationwide Class: all persons in the United States who used the apps during the applicable statutory period and whose data was intercepted and transmitted to third parties by the tracking tools embedded in the apps.
- California Subclass: all persons in California who did the same.
- Purchaser Subclass: members of the California Subclass who made a purchase on the apps.
Five Below, its affiliates and employees, the judges and their families and staff, and anyone already compensated for the same claims are excluded. These are proposals only; a judge would have to certify a class before anyone is formally part of the case.
Legal Claims and What the Lawsuit Seeks
The complaint brings eight claims:- Violation of the federal Electronic Communications Privacy Act (nationwide class)
- Violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (nationwide class)
- Violation of the California Invasion of Privacy Act, Penal Code § 631 (California Subclass)
- Violation of the California Invasion of Privacy Act, Penal Code § 632 (California Subclass)
- Violation of California’s Unfair Competition Law (Purchaser Subclass)
- Intrusion upon seclusion (nationwide class, or alternatively the California Subclass)
- Invasion of privacy (nationwide class, or alternatively the California Subclass)
- Unjust enrichment (nationwide class, or alternatively the California Subclass)
The lawsuit seeks, among other things, statutory damages under the federal wiretap law of the greater of $100 per day of violation or $10,000 per class member; liquidated damages under Pennsylvania’s wiretap law of at least $100 per day or $1,000; $5,000 per violation under the California Invasion of Privacy Act; restitution; punitive damages; and an order requiring Five Below to remove the tracking tools and stop recording app sessions. Those are the plaintiff’s requests, not amounts anyone has been awarded.
What Happens Next
Five Below will respond to the complaint. In app tracking cases, defendants often move to compel arbitration or to dismiss, and courts have reached different results on whether pixels and session-replay tools amount to wiretapping. If the case survives, the parties exchange evidence and the plaintiff can ask the court to certify the classes. The case could also settle at any stage.App users do not need to do anything now. There is no claim form, and nothing is required to stay within a proposed class. If the case settles or a class is certified, class members are normally notified and told how to file a claim or opt out. Similar tracking claims are pending against Brilliant Earth’s website and Crocs’ website.
Questions
Can I get money from the Five Below app lawsuit right now?
No. The case was filed on September 30, 2026 and is at the complaint stage. No class has been certified, there is no settlement or judgment, and there is no claim form. Five Below has not been found liable. Money would only become available if the case settles or the plaintiff wins.
Does the Five Below lawsuit cover the website or only the apps?
The complaint is about the Five Below iOS and Android shopping apps. Its proposed classes are defined as people who used the apps and whose data was transmitted to third parties by the tracking tools embedded in them. It does not make claims about the Five Below website.
What is session replay software?
Session replay tools record how a person uses an app or website so the session can be played back later. The complaint alleges that LogRocket’s software in the Five Below apps captured every screen viewed and every tap, swipe, scroll and entry, from opening the app to closing it, and sent those recordings to LogRocket’s servers without telling users.
Who is in the proposed Five Below class?
The complaint proposes a nationwide class of everyone in the United States who used the Five Below apps during the applicable statutory period and whose data was transmitted to third parties by the tracking tools; a California Subclass of California users; and a Purchaser Subclass of California users who bought something through the apps. These are proposals only; no class has been certified.
Does the lawsuit address Five Below’s arbitration terms?
Yes. The complaint alleges that the app’s terms, referenced on the download and first-launch screen and at checkout, were never presented in a way users could review and accept, and asks the court to declare any arbitration provision, class-action waiver and consent-to-data-sharing terms unenforceable. Five Below has not yet responded, and the court has not ruled on that question.
Sources
• Class Action Complaint, Rubio v. Five Below, Inc., No. 2:26-cv-07553 (E.D. Pa., filed September 30, 2026), Document 1: Five Below class action complaint (PDF).• Rubio v. Five Below, Inc. docket on CourtListener.
