The first wave of California Consumer Privacy Act litigation has begun to roll in, and the complaints are already raising interesting questions about the scope of CCPA’s private right of action. The actions assert a variety of claims under numerous theories and present a broad range of potential risks to businesses subject to CCPA. In light of the many questions that surround CCPA’s private right of action, the extent of possible liability from private litigation is still largely unknown and potentially significant.

The first wave of private lawsuits filed under the California Consumer Privacy Act (CCPA) has begun to roll in, and the complaints are already raising interesting questions about the scope of CCPA’s private right of action. The recent explosion in popularity of video conferencing and social media software in response to the COVID-19 pandemic—and the technical issues some of these products have experienced—has inspired its own wave of litigation, with several cases alleging violations of CCPA along with other laws. The flurry of litigation activity makes clear the importance of CCPA compliance, particularly in the current challenging business environment. Although it’s too early to tell how these lawsuits will play out, some themes are emerging.

Refresher on CCPA Private Right of Action

Businesses are now familiar with the long list of privacy obligations imposed by CCPA and enforceable by the California attorney general. Although CCPA contains a private right of action, that right is applicable only to CCPA’s sole data security provision. Cal. Civ. Code § 1798.150 authorizes consumers to institute a civil action against a business whose failure to implement and maintain reasonable security procedures resulted in the unauthorized access and exfiltration, theft or disclosure of the consumer’s nonencrypted and nonredacted personal information. The definition of “personal information” in the context of § 1798.150 is narrower than the expansive definition applicable to other CCPA provisions, applying only to an individual’s name together with an identifying data element, such as a Social Security number, driver’s license number or medical information. A plaintiff may seek injunctive or declaratory relief, actual damages or statutory damages in an amount not less than $100 and not greater than $750 per consumer, per incident. Before seeking statutory damages, however, the consumer must provide the business 30 days’ written notice to cure the alleged violation. The “notice and cure” provision is the subject of some controversy, because CCPA does not explain how a violation that resulted in a data breach can be “cured.” CCPA also explicitly prohibits consumers from using alleged violation of its provisions “to serve as the basis for a private right of action under any other law,” thus, in theory, prohibiting a plaintiff from alleging that a CCPA violation constitutes a violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. or other statutes. That hasn’t stopped plaintiffs from trying, as described below.

Theme #1: Suits Brought as Class Actions

Most, if not all, of the lawsuits brought under CCPA thus far have been brought as [...]

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