Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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In April, a New York federal court denied certification for a purported class alleging that Johnson & Johnson misled customers by placing the words “no trans fat” on labels for its Benecol buttery spreads. See Bowling v. Johnson & Johnson, et al., 1:17-cv-03892, S.D.N.Y. 2017. The court’s order focused on issues highly specific to the lead plaintiff, showing the benefits of carefully investigating the lead plaintiff in class actions.Case BackgroundIn 2017, Suzanna Bowling brought suit against Johnson & Johnson alleging that the labeling for its Benecol buttery spreads was misleading. According to the complaint, the labeling includes text reading “No Trans Fat” and “No Trans Fatty Acids,” some of which is in “all capitalized, bolded letters.” It was these statements that the complaint alleged misled a New York class of customers to purchase, and overpay for, the product.Court Denies Plaintiff’s Motion for Class CertificationThe United States District Judge Alison J. Nathan denied Ms. Bowling’s motion to certify the New York class, finding that Ms. Bowling was not a suitable class representative for a couple of reasons.First, Ms. Bowling had previously settled with Johnson & Johnson, and as a part of that settlement, there was a “covenant not to sue” in place. This covenant, among other aspects of the settlement, could potentially impede the current case were it to proceed. Judge Nathan stated, “It may be that the covenant not to sue is not binding or is inapplicable to Bowling’s claims here, but … the court concludes she will be required to ‘devote considerable time’ to rebutting its applicability.” As a result of this potentially binding covenant, Ms. Bowling was certainly an atypical—and arguably an inadequate—class representative.Second, Ms. Bowling’s credibility suffered “on key issues.” In fact, key allegations in her complaint were demonstrably false. Ms. Bowling stated in the complaint that she purchased Benecol at a particular location and time, but Johnson & Johnson’s internal records showed that Benecol was never sold at that particular location and time. Ms. Bowling also alleged that, after she came to believe that Benecol actually contained trans fats, she immediately wrote Johnson & Johnson requesting a refund. However, Johnson & Johnson’s customer service department found no record of such a refund request.In conclusion, Judge Nathan stated, “Here, defendants have presented unrebutted evidence that Bowling could not have purchased Benecol Light in the manner in which she has testified; she is therefore ‘vulnerable to serious attacks’ on her credibility.” Accordingly, Ms. Bowling’s motion for class certification was denied.TakeawayThis case reinforces that it is imperative for defendants to always carefully investigate the lead plaintiffs, whether by running a background check or asking questions about their prior litigation history during depositions. All too often, as was the case here, the lead plaintiff is an inadequate class representative for personal reasons that are not apparent at first glance. And while the plaintiff’s unsuitability to represent the class may not end the entire litigation, it can certainly stall the proceedings and create leverage for defendants during settlement negotiations.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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Lead Plaintiff Spreads Her Misleading Butter Case a Little Too Thin

Lead Plaintiff Spreads Her Misleading Butter Case a Little Too Thin

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In April, a New York federal court denied certification for a purported class alleging that Johnson & Johnson misled customers by placing the words “no trans fa

False Advertising

Class Certification

Food Misbranding

Consumer Products

Consumer products companies are familiar with the reporting requirement under Section 15(b) of the Consumer Product Safety Act (the Act), but when does that obligation kick in for statute of limitations purposes?  The Seventh Circuit considered this question when it heard arguments on when a claim first accrues for reporting violations under the Act in USA v. Spectrum Brands, Inc., 18-1785 (7th Cir.).  Spectrum raised the issue in an effort to undo part of the $1.9 million in civil penalties it faces for not “immediately” reporting a product hazard under Section 15(b) of the Act.  The Seventh Circuit’s comments suggest that the penalty will hold, even though Spectrum’s duty to report a product hazard arose six years before the Consumer Product Safety Commission (the Commission) initiated enforcement.  Consumer products companies should be aware that the statute of limitations likely does not begin to run until a company satisfies its reporting obligation by submitting a report to the Consumer Product Safety Commission.Case BackgroundThis case arose out of a line of coffeemakers that defendant Spectrum acquired when it merged with Applica Consumer Products, Inc. in 2014.  Applica began selling a line of coffeemakers in 2008.  By May 2009, Applica had received 60 reports of broken handles and four reports of burns.  According to the Commission, these reports triggered Applica’s obligation to “immediately” report a product hazard to the Commission within 24 hours.  16 C.F.R. § 1115.14(e).  In April 2012, Applica submitted a Section 15(b) report to the Commission.  A voluntary recall followed.  Applica inadvertently sold an additional 641 units after recalling the coffeemakers.  In light of the merger, Spectrum was the responsible party when the Commission and Department of Justice teamed up and filed an enforcement action in 2015.As we <a href="https://classdismissed.mofo.com/consumer-products/court-decision-cpsc-enforcement-action/">previously</a> <a href="https://classdismissed.mofo.com/consumer-products/fortune-favors-the-quick-to-report-judge-slaps-spectrum-brands-with-1-9-million-penalty-in-dojcpsc-tag-team-enforcement-action/">reported</a>, a federal district court in Wisconsin ruled against Spectrum on the government’s failure-to-report claim, ordering civil penalties of $1.9 million and an injunction for violations of the Act.[1]  The court assessed $1,115,000 for selling recalled products and $821,675 for violating the reporting requirement.  The court also ordered Spectrum to maintain “sufficient systems, programs, and internal controls to ensure compliance” with the Act.[2]  The court later modified the injunction to require that an independent consultant review Spectrum’s compliance procedures and propose improvements.On Appeal—When the Statute of Limitations First Accrues for Reporting ViolationsSpectrum paid the fine for selling recalled products but challenged the penalty for selling recalled products.[3]  Spectrum argued the government’s actions were too little, too late because the statute of limitations on the reporting violation ran before the government filed suit in 2015.Claims under the Act are subject to a general statute of limitations regulating government enforcement actions.  Specifically, 28 U.S.C. § 2462 provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.”  Thus, the government must bring an action for civil penalties within five years of when the claim “first accrued.”Therein lies the issue—when does a claim for a reporting violation first accrue?  The government and the district court characterized the failure to report as a “continuing violation” that accrues anew each day the violation occurs, and the five-year statute of limitations commences only when the company actually reports to the Commission.  Under this interpretation, the clock did not start to tick until April 2012.  Therefore, the government argued it beat the clock by nearly two years when it filed suit in June 2015.Spectrum disagreed.  It argued instead that the claim first accrued as soon as the government could go after Applica for a reporting violation.  As a result, when the court concluded that Applica possessed information triggering its reporting obligation in May 2009, it also fired the starting gun on the statute of limitations.  As the timeline below demonstrates, these two accrual dates make all the difference for Spectrum.The Seventh Circuit seemed unconvinced by Spectrum’s argument.[4]  The panel consisted of Chief Judge Diane P. Wood and Judges Daniel A. Manion and Ilana Diamond Rovner.  Chief Judge Wood and Judge Rovner focused on the argument that a violation of Section 15(b) is not complete until a company reports the product hazard to the Commission or has “actual knowledge” of the risk.  Thus, Spectrum’s delay in reporting was an “ongoing event” until it notified the Commission in April 2012.  In response to Spectrum’s argument that the May 2009 reporting date triggered the statute of limitations, Chief Judge Wood explained that May 2009 served as the “trigger for the duty, but the duty itself is a reporting duty” that continues until a report is filed.  Otherwise, companies could “brazen it out” and avoid the reporting scheme and any negative consequences.As a practical matter, the filing date of a Section 15(b) report is unambiguous.  In contrast, the date a reporting obligation is first triggered is not so well defined.  No magic number of consumer complaints flips the switch on a company’s duty to report.  As Judge Rovner noted, adopting Spectrum’s view would lead to “pitched battles over how soon a company was first obliged to make a report.”  She expressed concern that companies receiving consumer complaints may remain quiet in the hope of running out the clock on the statute of limitations before the government became aware of the hazard.  According to Judge Rovner, such a system would be “directly at odds” with the Act’s goal of consumer safety and “cannot possibly be what Congress intended.”The panel took the case under advisement but, based on their statements at oral argument, we expect the district court’s order to be affirmed.Key TakeawaysConsumer products companies will want to keep the Seventh Circuit’s comments in mind when assessing whether a product hazard exists and considering what steps to take in response.  Before merging with another company or acquiring a product line, consumer products companies should evaluate the target company’s complaint and reporting history to assess the company’s compliance with reporting requirements.[1] United States v. Spectrum Brands, Inc., No. 15-CV-371-WMC, 2017 WL 4339677 (W.D. Wis. Sept. 29, 2017).[2] Id. at *9.[3] On appeal, Spectrum also seeks to undo the permanent injunction imposed by the district court.[4] Listen to oral argument in USA v. Spectrum Brands, Inc., 18-1785 (7th Cir.), <a href="http://media.ca7.uscourts.gov/oralArguments/oar.jsp?caseyear=18&casenumber=1785&listCase=List+case%28s%29">here</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

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Ready, Set, Report! Seventh Circuit Considers When a Claim First Accrues for Failing to Report a Product Hazard

Ready, Set, Report!  Seventh Circuit Considers When a Claim First Accrues for Failing to Report a Product Hazard

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Consumer products companies are familiar with the reporting requirement under Section 15(b) of the Consumer Product Safety Act (the Act), but when does that obl

CPSC

At a recent product safety conference, Ann Marie Buerkle, Acting Chair of the U.S. Consumer Product Safety Commission (CPSC), announced CPSC’s priorities for 2019. These include technology—both for consumers and within the agency—as well as window coverings and furniture tipover. Buerkle surprised the audience with a stern warning that any clothing storage not complying with ASTM’s F2057-17 standard will be deemed to have a defect that could pose a substantial product hazard.Buerkle’s Address at the Annual ICPHSO MeetingBuerkle addressed the annual meeting of the International Consumer Product Health & Safety Organization (ICPHSO), a nonprofit organization that brings together diverse stakeholders. Attendees included manufacturers, retailers, standards organizations, service providers, government agencies, and consumer advocates. This year, the meeting took place in Washington, D.C., to facilitate attendance by regulators, particularly on the day known as “CPSC Day.” Fittingly, CPSC Day opened with Buerkle’s address outlining CPSC’s priorities.IoTBuerkle opened with a topic at the top of everyone’s minds—the Internet of Things (IoT). CPSC recognizes that IoT is here to stay. Although the agency recognizes the urgency of moving quickly in this area to keep up with technology, CPSC appears to be still evaluating possible IoT policy initiatives. Buerkle reminded the audience about CPSC’s past activity in this space, including its January 2017 report, “<a href="https://www.cpsc.gov/content/potential-hazards-associated-with-emerging-and-future-technologies">Potential Hazards Associated with Emerging and Future Technologies</a>,” and its May 2018 hearings on this topic. She also previewed processes CPSC plans to put in place to address emerging technologies, such as reassigning staff to dedicate their efforts solely on IoT, creating an interagency working group, coordinating with the National Cybersecurity Center of Excellence on IoT and Home Safety, and collaborating with voluntary standards organizations.Technology at CPSCIn addition to addressing technology advances outside the agency, Buerkle announced some technology upgrades within the agency. She spoke of the <a href="https://www.cpsc.gov/content/cpsc-releases-new-recall-app">recall app</a> that CPSC recently rolled out. She proudly congratulated the developers of CPSC’s <a href="https://www.cpsc.gov/Newsroom/News-Releases/2019/robot-reboot-cpsc-launches-upgraded-regulatory-robot-tool-to-help-small-business-community">regulatory robot 2.0</a>, which can help assess the regulatory framework that applies to a particular product. And she welcomed the coming changes to CPSC’s SaferProducts.gov website, born out of the Consumer Product Safety Improvement Act of 2008 and now due for a refresh. Though not addressed by Buerkle, other technology advances discussed at the conference included upgrades to the FOIA process; consumer product safety lawyers breathed a sigh of relief on hearing that CPSC will finally send FOIA correspondence electronically and de-duplicate the often voluminous documents responsive to FOIA requests.Window CoveringsNext, Buerkle turned to more traditional product safety initiatives. First, she discussed the updated ANSI window covering standard released last year, which requires stock window coverings to be cordless or have inaccessible cords.Furniture Tipover SafetyFinally, Buerkle addressed furniture tipover safety, which she noted has been one of her top priorities as acting chair. In a surprising announcement, she told the audience that CPSC had that day sent a <a href="https://www.cpsc.gov/s3fs-public/Clothing%20Storage%20Unit_Letter%20to%20Manufacturers_Importers_Distributors_and_Retailers_2.27.19.pdf">letter</a> to furniture manufacturers about tipover safety. The letter stated that any clothing storage units not compliant with ASTM F2057-17 would be regarded as having a defect that could present a substantial product hazard under Section 15(b) of the Consumer Product Safety Act. Though not explicit, her message was clear: even though CPSC has not gone through the formal rulemaking process, it wants noncompliant furniture products off the market, and companies that fail to report noncompliant units run the risk of swift investigation and penalties for failure to report.Our Product Liability and Counseling attorneys provide guidance on how CPSC’s priorities have shifted over time and how those shifting priorities affect our clients and their products. We will continue to monitor and report on any notable updates from CPSC and how they might impact the consumer product safety landscape.

CPSC Acting Chair Buerkle’s Priorities Include IoT and Furniture Safety

At a recent product safety conference, Ann Marie Buerkle, Acting Chair of the U.S. Consumer Product Safety Commission (CPSC), announced CPSC’s priorities for 20

CPSC Acting Chair Buerkle’s Priorities Include IoT and Furniture Safety

Internet of Things

Product Liability

If you thought California’s privacy laws couldn’t get any tougher, think again. The California Legislature has proposed amendments to the California Consumer Privacy Act and additional privacy bills that could expand businesses’ privacy and data security obligations and heighten liability for noncompliance.  These proposals confirm that the dust is far from settled in California with respect to the CCPA specifically and privacy regulation generally.Proposed CCPA Amendments.  On February 25, 2019, Senator Hannah-Beth Jackson <a href="https://oag.ca.gov/news/press-releases/attorney-general-becerra-senator-jackson-introduce-legislation-strengthen">announced</a> proposed amendments to the CCPA (<a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB561">SB 561</a>), backed by the California Attorney General, which would dramatically change enforcement of the Act by:<ul><li>Expanding the private right of action to cover any violation of the Act.  The Act limits consumers to suing if their personal information is involved in certain data security incidents.  Cal. Civ. Code § 1798.150(a).  SB 561 would expand the private right of action to cover any violation of the Act, including violations related to compliance with the Act’s individual rights provisions.  This change increases businesses’ litigation risk and exposure arising out of the Act’s broad (and in many ways ambiguous) requirements.</li><li>Eliminating businesses’ ability to cure violations before AG enforcement can occur.  The Act currently requires the AG to notify businesses of alleged noncompliance and give businesses thirty days to cure alleged violations before bringing an enforcement action.  Cal. Civ. Code § 1798.155(b).  SB 561 would eliminate this “right to cure,” allowing the AG to sue without notice.</li><li>Removing the AG’s obligation to provide compliance guidance to businesses.  The amendments would remove businesses’ ability to seek the AG’s guidance on how to comply with the Act, Cal. Civ. Code § 1798.155(a), instead providing that the AG may publish general compliance guidance.</li></ul>In backing SB 561, the AG has renewed requests for changes the Legislature declined to adopt in August 2018, when it approved other amendments to the Act (<a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1121">SB 1121</a>).  Whether the AG’s proposed amendments will gain traction in the Legislature this session remains to be seen.  The Legislature must also consider SB 561 in connection with other proposed CCPA amendments that would expand exemptions under the Act,<a href="#3998465-v5-CCPA_Amendments_and_CA_Privacy_Bills_Update.docx" name="_ftnref1">[1]</a> clarify required mechanisms to submit consumer requests,<a href="#3998465-v5-CCPA_Amendments_and_CA_Privacy_Bills_Update.docx" name="_ftnref2">[2]</a> and make nonsubstantive changes.<a href="#3998465-v5-CCPA_Amendments_and_CA_Privacy_Bills_Update.docx" name="_ftnref3">[3]</a>  And, it is likely that there will be additional amendments on the table as well.Additional Privacy Bills.  California Assembly Members have recently introduced other privacy bills that would expand the State’s existing privacy laws, including:<ul><li><a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB288">AB 288</a> – Social Media Privacy. This bill would require social media companies to give users the option to have their personally identifiable information permanently removed from company records and excluded from sale when users close their accounts.  AB 288 includes a private right of action permitting consumers to sue for violations.</li><li><a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB950">AB 950</a> – Consumer Privacy Protection. This bill would require businesses that collect California residents’ consumer data to disclose the average monetary value to the business of consumers’ data and any use of such data that is not directly related to providing services to consumers.  The bill would also require businesses that sell California residents’ consumer data to disclose the average price the business receives for consumers’ data and the actual price it received for a consumer’s data in response to a verified request by the consumer.</li><li><a href="http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1035">AB 1035</a> – Personal Information: data breaches.  This bill would require businesses to disclose data breaches involving personal information within 72 hours of discovering the breach.</li><li><a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1202">AB 1202</a> – Privacy: data brokers.  This bill would require data brokers to register with, and provide certain information to, the AG and would require the AG to publicize that information on the AG’s website.  The AG could sue data brokers for noncompliance.</li><li><a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1281">AB 1281</a> – Privacy: facial recognition technology: disclosure.  This bill would require a business in California that use facial recognition technology to disclose that usage in a clear and conspicuous physical sign posted at the entrance of locations where such technology is used.  Violations would constitute “unfair competition” under California’s Unfair Competition Law.</li><li><a href="http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1395">AB 1395</a> – Smart Speaker Privacy Act. This bill would prohibit “smart speaker devices,” and manufacturers of such devices, from saving or storing voice data collected by the devices.</li></ul>This legislative activity suggests that privacy regulation is a priority for the Legislature and remains top of mind for consumer advocates.  It will be important for businesses to be mindful of the full privacy landscape as they plan for and focus on CCPA compliance this year.<a href="#3998465-v5-CCPA_Amendments_and_CA_Privacy_Bills_Update.docx" name="_ftn1">[1]</a> See <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1146">AB 1146</a> (exempts vehicle information shared between a new motor vehicle dealer and specified parties in relation to certain vehicle repairs); <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1355">AB 1355</a> (excludes deidentified or aggregate consumer information from the definition of personal information under the Act); and <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1416">AB 1416</a> (confirms the Act does not restrict businesses’ ability to comply with the law, exercise or defend legal claims, protect against fraud, security incidents, or other illegal activity, or investigate, report, or prosecute those responsible for such activity).<a href="#3998465-v5-CCPA_Amendments_and_CA_Privacy_Bills_Update.docx" name="_ftn2">[2]</a> See <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1564">AB 1564</a> (requires businesses to provide consumers with a toll-free number or email address to submit requests and, if the business maintains a website, a website to submit requests).<a href="#3998465-v5-CCPA_Amendments_and_CA_Privacy_Bills_Update.docx" name="_ftn3">[3]</a> See <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1760">AB 1760</a> (nonsubstantive changes to deletion right); <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1758">AB 1758</a> (nonsubstantive changes to provision confirming Act does not require businesses to retain personal information for a single, one‑time transaction if the business does not sell or retain the information); <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB752">SB 752</a> (nonsubstantive changes to financial incentive provision); and <a href="http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB753">SB 753</a> (nonsubstantive changes to requirement to provide opt-out link on internet homepage).

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Purvi G. Patel is the former managing partner of the Los Angeles Office. She represents retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy matters.

Purvi G. Patel is the former managing partner of the Los Angeles Office. She represents retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy 

Purvi G. Patel

Purvi G. Patel defends retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy matters. She has built a robust practice defending household names in complex and class action litigation in federal and state courts across the country, winning motions to dismiss, defeating class certification, and securing summary disposition in several multi-million dollar lawsuits. Purvi is a strategic and practical thinker who is in tune with her clients’ priorities, which leads to successful outcomes both inside and outside the courthouse.

Purvi Patel

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California Seeks to Strengthen Tough Privacy Laws

Nevada Enacts CCPA-Style Opt-Out Right for Consumers—but Similarities Are Few

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If you thought California’s privacy laws couldn’t get any tougher, think again. The California Legislature has proposed amendments to the California Consumer Pr

California Seeks to Strengthen Tough Privacy Laws

Privacy

The California Attorney General (AG) held its final public forum on the California Consumer Privacy Act (CCPA) in Stanford on March 5, 2019. The Stanford forum was well attended, with over 100 people in the audience, and it featured 22 individuals speaking for two and a half hours. The following provides an overview of the Stanford forum and comments made at the forum. You can also read our reports on previous forums.

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Of Counsel

Mary Race assists clients with a wide range of challenging privacy compliance and data security matters. Her practice focuses on managing privacy risks and helping clients develop and implement comprehensive privacy programs across a variety of industries, including tech, retail, manufacturing, advertising, social media, and communications.