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CCPA Litigation is on the Rise: Is Your Organization Prepared?

On January 1, 2020 the California Consumer Privacy Act (CCPA) took effect. Largely considered the most expansive U.S. privacy law to date, there has been much anticipation over the impact the law will have on the privacy litigation landscape. Although the California Attorney General’s (“AG”) enforcement authority only begins on July 1, this has not stopped plaintiffs from already pursuing CCPA litigation in light of the January 1 effective date.

The CCPA authorizes a private cause of action against a covered business if a failure to implement reasonable security safeguards results in a data breach. The definition of personal information for this purpose is much narrower than the general definition of personal information under the CCPA. If successful, a plaintiff can recover statutory damages in an amount not less than $100 and not greater than $750 per consumer per incident or actual damages, whichever is greater, as well as injunctive or declaratory relief and any other relief the court deems proper. This means that plaintiffs in these lawsuits likely do not have to show actual harm or injury to recover.

As of today, there have been approximately 25 CCPA-related claims filed in state and federal court. Thus far, there are three common types of CCPA-related litigation:

  • Reasonably Security Safeguards. Unsurprisingly, given the limited nature of the CCPA’s private cause of action, most claims to-date have been on the basis of an alleged failure to implement reasonable security safeguards resulting in a data breach. For example, in February a putative class action was filed in the Northern District of California, San Francisco Division, against a supermarket and its e-commerce platform provider, alleging negligence and a failure to maintain reasonable safeguards, among other things, leading to a data breach. The complaint specifically seeks recovery under the CCPA –  Civ. Code § 1798.100, et seq. It is worth noting that several complaints on the basis of an alleged failure to implement reasonable security safeguards were filed in light of the increase in videoconferencing platform usage in response to COVID-19. In addition, at least one complaint is based on a data breach that occurred before January. And, yet, another claim (the first CCPA case filed in federal court), was brought by a non-California resident. While many of these cases may face viability issues moving forward, they indicate the eagerness of plaintiffs and their counsel to pursue relief under the CCPA, and the likely uptick in CCPA litigation in the coming years.

  • Consumer Rights. The CCPA does not provide consumers with a private cause of action if their rights (g. right to notice, right to delete, right to opt out) under the statute are violated. This, however, has not stopped plaintiffs from filing claims on the basis that their rights under the CCPA have been violated. For example, in one case, the plaintiff alleged that the defendant violated the CCPA by failing to provide consumers notice of their right to opt out of sale of their personal information to a third party, and failure to provide notice of their collection and use of personal information practices.

  • CCPA References.  In several cases, although the plaintiff is not seeking relief on the basis of a CCPA violation, the CCPA is still mentioned in connection with a different violation. For example, in a case against a videoconference provider, the CCPA is mentioned in a claim regarding a violation of the Cal. Bus. Code – Unfair Competition law, highlighting that the defendant failed to provide accurate disclosures to users on their data sharing practices and failed to implement reasonable security measures, but never explicitly alleged that the defendant violated the CCPA.

CCPA litigation is only ramping up, and organizations need to be prepared. As data breaches continue to plague businesses across the country, including those subject to the CCPA, ensuring reasonable safeguards are in place may be the best defense. To learn more about the CCPA’s obligations and how to implement policies and procedures to ensure compliance, check out Jackson Lewis’s CCPA FAQS for Covered Businesses. For more information on what businesses can be doing to ensure they have reasonable safeguards to protect personal information, review our post on that topic.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 184

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About this Author

Principal

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently helps to co-lead the firm's Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals.

In short, his practice focuses on the matrix of laws governing the privacy, security and management of data, as well as the impact and regulation of social media. He also...

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Jason C. Gavejian, Employment Attorney, Jackson Lewis, Principal, Restrictive Covenants Lawyer
Principal

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination and wage and hour claims in both federal and state courts. Additionally, Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission, the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. His practice also focuses on advice/counseling employers regarding daily workplace issues.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm's attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

(973) 538-6890
Attorney

Maya Atrakchi is the Knowledge Management (“KM”) Attorney for Jackson Lewis P.C.’s Privacy, e-Communication and Data Security and International Employment Issues Practice Groups, and is based in the New York City, New York, office of Jackson Lewis P.C.

212-545-4000