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Private Rights of Action and the CCPA—Unlimited Limitation?

May 5, 2020 Blog
The Recorder

As we are all well aware by now, the California Consumer Privacy Act (CCPA) (Cal. Civ. Code Sections 1798.100 et seq.) went into effect on Jan. 1. Through its amendments and regulations (the latter of which have yet to be finalized as of this article’s publication), one aspect of the act has stayed largely consistent: the CCPA grants a private right of action only in limited situations. While the California Attorney General has the ability to impose fines for any CCPA violation, the private right of action is specifically limited (over significant debate and a proposed amendment that failed to pass) to data breach. Moreover, in creating that private right of action, the act specifically notes that violations “shall not be interpreted to serve as the basis for a private right of action under any other law.”

Does that mean there will not be significant litigation concerning the CCPA outside of the data breach realm? The answer is clearly a resounding “no.” Indeed, we have already seen multiple lawsuits filed taking direct aim at the CCPA’s claimed limitations on private enforcement. In those cases, in direct contravention of the stated limitation on private rights of action, plaintiffs have claimed (among other things) that the failure to provide proper notice required by the CCPA predicates a violation of California’s Unfair Competition Law (Cal Civ. Code. Section 17200) (the UCL). See, e.g., Burke v. Clearview AI, Case No. 3:20-cv-00370 (S.D. Cal., filed Feb. 27, 2020); Sheth v. Ring, Case No. 2:20-cv-01538 (C.D. Cal., filed Feb. 18, 2020). Whether such claims will fail as expressly barred by the act remains to be seen.

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