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The California Consumer Privacy Act is HERE: Are You Litigation Ready?
Most companies doing business in California are well aware of the California Consumer Privacy Act of 2018 (CCPA) and prepared diligently in advance of the law's Jan. 1, 2020 compliance deadline. While compliance certainly is key, even compliant businesses must consider — and prepare for — the eventual onslaught of class action litigation that is coming.
Indeed, at least one data breach class action lawsuit has been filed already that expressly claims a "deprivation of rights" under the CCPA based on the alleged "fail[ure] to maintain reasonable security procedures and practices appropriate to the nature of" personal information maintained by the defendants. Barnes v. Hanna Andersson, LLC, et al., N.D. Cal. Case No. 3:20-cv-00812. While the plaintiff in Barnes does not presently seek damages under the CCPA, she expressly "reserve[s] the right to amend this Complaint as of right" to do so at a later time. The plaintiff's decision not to seek damages under the CCPA likely stems from the retroactivity hurdles she would face, given the data breach "occurred from September 16, 2019 to November 11, 2019," and the relevant provisions of the CCPA are not expressly retroactive. Weinberg v. Valeant Pharm. Int'l, 2017 WL 6543822, at 7 (C.D. Cal. Aug. 10, 2017) ("California statutes apply prospectively unless the Legislature expressly indicates otherwise."). Nonetheless, the allegations highlight the looming threat on the horizon.
As background, the CCPA expands consumer data rights relating to the access to, deletion of, and "sale" of personal information collected by businesses. The CCPA also creates a private right of action that allows for the recovery of statutory damages ranging from $100 to $750 in the event of data breaches, which now are ubiquitous. Accordingly, if a breach affects just 100,000 California customers, the statutory damages quickly multiply, making claims under the CCPA attractive to the plaintiffs' bar.
How Does the New Law Change Things?
The plaintiff's bar has formed a cottage industry suing businesses that fall victim to data breaches — and they did so long before the passage of the CCPA. So what is new?
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