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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Class action claims have taken on a new twist in the wake of COVID-19. Already, the global pandemic has generated litigation across a broad swath of areas, including privacy, data security, and consumer, among others. To date, hundreds of business lawsuits related to the pandemic are pending, with dozens more filed weekly. According to the U.S. Chamber of Commerce Litigation Center, activity to date is only the “tip of the iceberg.” Per Steven Lehotsky, chief counsel for the Chamber Litigation Center, businesses can expect more “opportunistic class action lawsuits down the road.” In this alert, we provide an overview of the first wave of pandemic-related class action litigation trends and project what businesses should expect next.First wave of COVID-related class actions Privacy and data security litigation. Among the first cases filed related to the pandemic were a variety of privacy and data security related class actions. Plaintiffs focused on companies that now have a spotlight on them due to increased usage during shelter-in-place orders. Across the technology industry, a variety of online services are <a href="https://hbr.org/2016/04/blitzscaling">blitzscaling</a>—or rapidly growing—based on skyrocketing demand from consumers for food delivery, e-commerce, and virtual social connections. In California, in particular, the pandemic coincided with the California Consumer Privacy Act (CCPA) coming into force on January 1, 2020. Despite some calls to delay enforcement in light of COVID-19, California’s Attorney General plans to begin enforcing the law starting July 1, 2020 as planned. AG Xavier Bacerra’s office <a href="https://iapp.org/news/a/making-sense-of-calls-to-delay-ccpa-enforcement-amidst-covid-19/">has stated</a>, “We encourage businesses to be particularly mindful of data security in this time of emergency.”Telephone Consumer Protection Act (TCPA). TCPA cases continue to be active as COVID-19 issues have emerged. MoFo’s Class Dismissed blog recently <a href="https://classdismissed.mofo.com/tcpa/text-messaging-in-a-time-of-covid-19-fcc-guidance-on-emergency-messages-and-restrictions-on-telemarketing-in-new-york/">reviewed </a>the March 20, 2020 FCC Declaratory Ruling allowing certain calls for “emergency purposes” amidst the pandemic. That does not mean, however, that there is a blanket exemption from the TCPA’s rules governing certain calls and messages, and multiple TCPA lawsuits have been filed involving coronavirus-related communications. In a case filed in late April, the Texas Attorney General sued two parties for alleged violations of the TCPA and the Texas state law corollary. Specifically, the lawsuit alleges that a marketing service advertised health benefit plans by stating that they “include coronavirus testing and treatment.” <a href="https://www.courtlistener.com/recap/gov.uscourts.azd.1238468/gov.uscourts.azd.1238468.1.0.pdf">Another lawsuit</a>, filed by private plaintiff attorneys in Florida in March 2020, alleges that a golf course company sent text messages referencing COVID-19, stating “Stay safe in these crazy times by golfing at top 100 courses[.]”Beyond privacy, data security, and TCPA, class actions in other consumer areas have seen an uptick across the board.Health claims from shutting down too late. Multiple cases filed against cruise lines, for example, assert claims that cruise ships improperly continued operations despite allegedly knowing that passengers were showing symptoms of COVID-19.[1]Cancellation and refund claims. As businesses have been forced to shutter in response to the pandemic, plaintiffs have filed a slew of class actions alleging claims related to recurring membership charges and refunds. Multiple cases throughout the country have targeted gyms, levying causes of action for breach of contract and consumer protection laws.[2] Travel and vacation-related businesses have also been in the cross-hairs. Resorts, airlines, and vacation destinations—and even online event businesses—are facing a variety of class actions alleging claims such as unjust enrichment, fraudulent misrepresentation, conversion, and breach of contract.[3] Nor have educational institutions been spared. As schools moved classes online, lawsuits have been filed seeking reimbursement for room and board and reimbursement for the lost benefits of in-person education.[4]False advertising related to health benefits. With hundreds of millions of Americans suddenly seeking to stock up on supplies such as hand sanitizers, sellers of such products have been faced with scrutiny both from federal law enforcement officials (<a href="https://www.mofo.com/resources/insights/200416-law-enforcement-covid-19.html">covered</a> in a recent alert by MoFo’s national security and crisis group) as well as private plaintiff attorneys.[5]Insurance litigation. Insurance companies face a litany of lawsuits relating to denial of coverage for business interruption, as insurers have claimed in some instances that losses caused by COVID-19 are excluded from coverage. Plaintiffs such as restaurants, bakeries, dental practices, and others forced to shutter have filed cases. One group including several well-known restaurateurs such as Wolfgang Puck, Daniel Boulud, and Dominique Crenn, has banded together to create the Business Interruption Group (BIG), whose <a href="https://werbig.org/">website </a>promises to “bring BIG legal action in every state” against insurers.Financial services institutions. Banks across America have moved rapidly to participate in the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) Paycheck Protection Program (PPP), helping small businesses procure funding to maintain jobs during state-ordered shutdowns. Many of these institutions now face lawsuits related to eligibility and processing for PPP loans, as well as disputes over commercial loans and foreclosures. As with the TCPA, state AGs have gotten involved here, too. Arizona’s AG, for instance, in mid-March 2020 sent a <a href="https://www.azag.gov/sites/default/files/2020-03/Letter%20to%20Financial%20Institutions%20and%20Lending%20Institutions%20Serving%20Arizonans_3_19_2020.pdf">letter </a>to over 1,000 financial institutions requesting a suspension of foreclosures, repossessions, and evictions for a certain amount of time, as well as waivers for late fees and default interest for credit card account holders.Securities cases. Plaintiff attorneys have aimed their sights at securities litigation as well—bringing cases against companies whose stock prices have fallen alongside broader market volatility. Theories range from false and misleading statements minimizing the pandemic’s impact on a company’s business, to alleged false claims based on developments of treatments or vaccines.[6] MoFo’s Coronavirus Task Force has been following <a href="https://www.mofo.com/resources/insights/200505-us-sec-staff-issues.html">recent U.S. Securities and Exchange Commission guidance</a> for companies in this area.Policy advocacy in the wake of COVID-19 litigationAs the first wave of pandemic-related cases works its way through the pleading stages of litigation, advocates are simultaneously working to influence litigation policy as well.These efforts have already resulted in various liability limitations at multiple levels of government. At the federal level, the CARES Act contains certain liability protections for respirator manufacturers that have had to ramp up research, development, and distribution efforts. The U.S. Department of Health and Human Services has also provided guidance on tort liability immunity granted under the Public Readiness and Emergency Preparedness Act (the “PREP Act”), as <a href="https://classdismissed.mofo.com/fda/hhs-guidance-broadens-prep-act-immunity-tightens-focus-on-public-private-cooperation/">discussed </a>by our colleagues in MoFo’s Class Dismissed blog. Many states too have instituted liability protections for certain healthcare industries and medical facilities.[7]Others, meanwhile, have attempted to leverage the pandemic to advance policy goals related to challenging pre-dispute arbitration agreements. As documented by the Institute for Legal Reform, early drafts of COVID-19 relief bills in the U.S. House and Senate, as a result, contained provisions aimed at invalidating arbitration clauses in disputes about business loans and employee sick leave, among other topics.Wave two: What to expect from the next set of COVID-19 related lawsuits Wave one of pandemic class action litigation has crashed ashore. The next wave may not be far behind. In the privacy and data security arena, we expect to see more cases. The FBI, DOJ, and international law enforcement agencies have warned of unprecedented criminal hacking activity in the wake of the pandemic. There have been reports that attackers have successfully lurked in a company’s infrastructure before discovery, sometimes for weeks or even months. Given this, the ongoing surge in COVID-19 related hacking activity is likely to result in publicly revealed data breaches in the coming months. Such breaches may trigger class actions under the CCPA’s private right of action, discussed <a href="https://www.cpomagazine.com/data-protection/anticipating-ccpa-litigation-in-2020-steps-to-take-now/">here</a>, among other state data breach and notice statutes.Other privacy lawsuits will stem from implementation of biometric track and trace technology. Illinois’ biometric privacy statute, the Biometric Information Privacy Act (BIPA)—already a source of frequent litigation—will continue to be the focus of new class actions. Similar statutes, some creating even greater exposure, are being contemplated in states such as <a href="https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1215&201+sum+HB1215">Virginia</a>. To facilitate virus response and containment, organizations will look towards pooling data and leveraging anonymized datasets to perform epidemiological studies. Given advancements in de-anonymization and disaggregation technologies, this may lead to the filing of creative and new privacy claims.Just as a series of class actions arose from pandemic-related shutdowns, so too will lawsuits come as communities begin to re-open towards a new normal. Litigation around compliance with government guidelines, negligence causes of action related to safety measures, lawsuits around COVID-19 treatments, newly developed personal protective equipment and other products, and claims around social distancing implementation appear to be on the horizon. As noted above, lawmakers and regulators are keenly aware of such litigation risk and may attempt to support reopening by crafting or expanding safe harbors.How should businesses shore up in the face of the COVID-19 class action litigation wave? Morrison & Foerster’s Class Action + Mass Torts Group and Coronavirus Task Force have advised and represented many clients on emerging claims related to COVID-19. MoFo’s Litigation team routinely helps companies prepare for and respond to litigation risks including matters involving the CCPA, TCPA, BIPA, and other consumer causes of action that are being explored in this new pandemic environment. To stay a step ahead, our team has been analyzing newly filed lawsuits as well as COVID-19 publications and trends. For new products, incorporating risk analysis up front in the design process is vital. Particularly around issues of privacy and data security, organizations should be mindful of notice, consent, and other statutory and regulatory issues—especially in the areas of biometrics and data analytics. As always, organizations will benefit from strong contracts, clear representations in public facing policies, and careful consideration as to pre-dispute arbitration clauses. More time at home has not slowed down the pursuit of class action lawsuits or the need for thoughtful compliance practices.[1] See, e.g., Turner v. Costa Crociere SPA, No. 20-cv-21481 (S.D. Fla. Apr. 7, 2020); Archer v. Carnival Corporation, et al., No. 20-cv-02381 (N.D. Cal. Apr. 8, 2020).[2] See, e.g., Namorato v. New York Sports Clubs, No. 20-cv-02580 (S.D.N.Y. Mar. 26, 2020); Barnett v. Fitness International, LLC, No. 0:20-cv-60658 (S.D. Fla. Mar. 30, 2020); Delvecchio v. Boston Sports Clubs, No. 20-cv-10666 (D. Mass. Apr. 5, 2020).[3] See, e.g., McMillan v. StubHub, No. 20-cv-00319 (W.D. Wis. Apr. 2, 2020); Rutledge v. Do LaB Inc. (Cal. Super. Ct. Mar. 24, 2020); Ruiz v. Magic Mountain LLC, et al., No. 2:20-cv-03436 (C.D. Cal. Apr. 13, 2020); Carisi v. Events and Adventures California, No. 3:20-cv-02260 (N.D. Cal. Apr. 2, 2020).[4] See, e.g., Rosenkrantz, et al. v. Arizona Board of Regents, 2:20-cv-00613 (D. Ariz.); Rickenbaker, et al. v. Drexel University, 2:20-cv-01358 (D. S.C.); Student A, et al. v. Liberty University, 6:20-cv-00023 (W.D. Va.); Church, et al. v. Purdue University, et al., 4:20-cv-00025 (N.D. Ind.); Dixon, et al. v. University of Miami, 2:20-cv-01348 (D. S.C.).[5] See, e.g., David v. Vi-Jon, Inc. dba Germ-X, No. 20-cv-99999 (S.D. Cal. Mar. 5, 2020); Gonzalez v. Gojo Indus., Inc., No. 1:20-cv-888 (S.D.N.Y. Feb. 1, 2020).[6] Douglas v. Norwegian Cruise Lines, No. 20-cv-21107 (S.D. Fla. Mar. 12, 2020); Atachbarian v. Norwegian Cruise Lines et al., No. 1:20-cv-21386 (S.D. Fla. Mar 31, 2020); McDermid v. Inovio Pharmaceuticals, Inc., No. 20-cv-01402 (E.D. Pa. Mar. 12, 2020).[7] Arizona Executive Order No. 2020-27 (Mar. 11, 2020); Arkansas Executive Order No. 18 (Apr. 14, 2020); Connecticut Executive Order No. 7V (Apr. 7, 2020); Georgia Executive Order No. 04.14.20.01 (Apr. 14, 2020); Illinois Executive Order No. 19 (Apr. 1, 2020); Indiana Executive Order No. 13 (Mar. 6, 2020); Michigan Executive Order No. 30 (2020); New Jersey Executive Order No. 112 (Apr. 1, 2020); New York Executive Order No. 202.10 (Mar. 23, 2020); North Carolina Executive Order No. 130 (Apr. 8, 2020).

Wiretap Act Class Action for Technology Company

BIPA Class Action for Social Media App

RICO and Fraud Class Action for Waste Management Company 

Copyright Class Action for AI Company

CCPA and Data Breach Class Action for Leading Software Company

TCPA and Other Class Actions for Major Technology Company

Wiretap Act Action Against a Major Consumer Electronics Manufacturer

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Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Tiffany Cheung

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

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Class Action Litigation in the Wake of COVID-19

Using Waivers to Curb COVID-19 Legal Exposure

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Class action claims have taken on a new twist in the wake of COVID-19. Already, the global pandemic has generated litigation across a broad swath of areas, incl

Class Action Litigation in the Wake of COVID-19

The California Attorney General held the second of four public hearings on the California Consumer Privacy Act’s (CCPA) <a href="https://www.oag.ca.gov/sites/all/files/agweb/pdfs/privacy/ccpa-proposed-regs.pdf" target="_blank" rel="noopener noreferrer">proposed regulations</a> in Los Angeles on December 3, 2019. The Los Angeles hearing featured comments from approximately 24 speakers over a two-hour period. The following provides an overview of the Los Angeles hearing and comments made at the hearing.AG’s Opening RemarksSenior Assistant Attorney General Nick Akers opened the hearing by stating that the purpose of the hearing was to receive public comment about the proposed regulations. He specifically noted that the AG’s office did not intend to answer questions or otherwise engage in dialogue regarding the draft regulations. He also noted that the AG is accepting written comments about the proposed regulations, and that the deadline to submit written comments is this coming Friday, December 6, at 5 pm. Mr. Akers stated that the AG would review and consider all relevant comments, and would respond to those comments in the official Statement of Reasons accompanying the final regulations. He did not provide any information as to when the AG expected to finalize the regulations.Comments Made at the HearingThe hearing was well-attended, and about 24 individuals made public comments. Each speaker was given five minutes to make comments. The group of speakers consisted entirely of business and legal representatives, and included individuals from the California Chamber of Commerce, the Interactive Advertising Bureau, multiple law firms, several nonprofits, and numerous credit unions. The speakers provided the following noteworthy comments regarding the draft regulations:<ul><li style="margin-bottom: 1.25rem;">Notice at collection. Multiple speakers expressed concerns about section 999.305(d) of the regulations, which applies to businesses that collect personal information about consumers from sources other than consumers themselves. The regulations state that businesses that wish to sell personal information acquired in this manner must fulfill one of two requirements before selling that information: they must (a) contact the consumer directly to provide notice that the business sells personal information about the consumer, and provide the consumer with a notice of right to opt-out of those sales; or (b) obtain signed attestations from the sources of the personal information, describing how the sources gave the notice at collection and providing an example of the notice. The representatives of several businesses that collect personal information about consumers through indirect means (e.g., through aggregating personal information about a particular individual from several sources) voiced their opinion that the two alternatives the regulations present are unworkable from their perspective. In particular, several speakers pointed out that it would be impossible for them to provide direct notice to consumers, as they generally lacked consumers’ contact information, and that many of the sources they used to collect this information likewise lacked the means to contact consumers directly and provide an attestation to that effect. A few commentators also pointed out that this provision could prompt fraudsters to send unsuspecting consumers notices that appear to be from legitimate companies but actually serve as a means to steal information or entice consumers to click on malicious links. Several speakers requested that the AG revise the draft regulations in order to allow for the notice at collection to be posted on the websites of those businesses that collect consumers’ personal information from other sources.</li><li>Scope of applicability. Several speakers raised issues related to the scope of the CCPA, and suggested that the regulations be revised to clarify the extent of the statute’s scope. <ul><li style="margin-bottom: 1.25rem;margin-top: 1.25rem;">50,000 consumer threshold. At least three speakers pointed out that the CCPA’s definition as to the types of entities that qualify as “businesses” could capture many small businesses that, practically speaking, would struggle to meet the CCPA’s requirements. They noted that, under the CCPA, an entity may qualify as a “business” if it annually buys, receives, sells, or shares the personal information of 50,000, or more, consumers, households, or devices. They also noted that the CCPA’s definition of “personal information” is broad enough to apply to the types of data that a company may collect via cookies when a consumer visits his or her website, such as the consumer’s IP address. They reasoned that, under these definitions, many types of small businesses could be viewed as collecting the personal information of 50,000, or more, consumers, households, or devices through website visits alone, even if they do not have 50,000 customers. As a result, these small businesses potentially could qualify as “businesses” under the CCPA (provided that they meet the other requirements set out in the definition); although many such businesses would not be equipped to fulfill the obligations the CCPA imposes. The speakers requested that the AG consider these implications and revise the draft regulations to lift some of the burden on these entities (e.g., by excluding IP addresses from the definition of “personal information” to the extent an entity’s collection of IP addresses, alone, allows it to meet the 50,000 consumer threshold).</li><li style="margin-bottom: 1.25rem;">Applicability to credit unions. Multiple credit union representatives also voiced their concerns with the CCPA’s definition of “business.” Nonprofits are excluded from the CCPA’s definition of “business,” but entities that are “organized or operated for the profit or financial benefit” of their owners are not. The credit union representatives noted that although they may qualify as nonprofits, they also are organized and operated for the profit of their “owners” (their members), which made it unclear as to whether or not they were “businesses” subject to the CCPA. In addition to seeking clarity as to this point, the credit union representatives also asked for regulatory clarification on the extent of the CCPA’s exceptions related to the Gramm-Leach-Bliley Act and the California Financial Information Privacy Act. As currently drafted, the CCPA only exempts from its scope information subject to these laws, not entities subject to these laws. The speakers expressed concern that if they were subject to the CCPA, they would have to provide consumers with the notices required by the CCPA, which could confuse consumers who are already receiving multiple privacy notices from financial institutions in accordance with other laws.</li><li style="margin-bottom: 1.25rem;">Downstream notification of consumer opt-out. Several speakers raised issues with section 999.315(f) of the draft regulations, which requires a business that has received a consumer’s opt-out request to provide notice of that request to all third parties to whom it has sold the consumer’s personal information in the 90 days preceding the request, and instruct those third parties to refrain from further selling the consumer’s personal information. The speakers raised concerns that this requirement could force businesses to breach existing contracts with data resellers (i.e., by instructing the resellers that they cannot exercise rights previously granted to them in their contracts with the business), and asked that this requirement be revised or removed.</li></ul></li></ul>Dates and Locations of Upcoming Public HearingsThe AG will hold two more hearings, and information on the time and location can be found on the AG’s <a href="https://oag.ca.gov/privacy/ccpa" target="_blank" rel="noopener noreferrer">website</a>.<ul><li>San Francisco, Wednesday, December 4, 2019;</li><li>Fresno, Thursday, December 5, 2019</li></ul>Written comments must be submitted by December 6, 2019, at 5:00 pm (PST) via email to <a href="#">PrivacyRegulations@doj.ca.gov</a>, or via postal mail at Privacy Regulations Coordinator, California Office of the Attorney General, 300 South Spring Street, First Floor, Los Angeles, CA 90013.

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California Attorney General Holds Public Hearing in Los Angeles on Draft CCPA Regulations

California Attorney General Holds Public Hearing in Los Angeles on Draft CCPA Regulations

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The California Attorney General held the second of four public hearings on the California Consumer Privacy Act’s (CCPA) proposed regulations in Los Angeles on D

Nevada just joined California as the second state to enact an opt-out right for consumers from the “sale” of their personal information. <a href="https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6365/Text" target="_blank" rel="noopener noreferrer">Senate Bill 220</a>, which was signed into law on May 29, 2019, is scheduled to take effect on October 1, 2019, three months prior to its precursor under the California Consumer Protection Act (the “CCPA”). The opt-out right is one of several changes made to Nevada’s <a href="https://www.leg.state.nv.us/NRS/NRS-603A.html#NRS603ASec310" target="_blank" rel="noopener noreferrer">existing online privacy law</a>, which requires operators of commercial websites and other online services to post a privacy policy. In addition to the new opt-out right, the revised law exempts from its requirements certain financial institutions, HIPAA-covered entities, and motor vehicle businesses.

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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

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

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Nevada just joined California as the second state to enact an opt-out right for consumers from the “sale” of their personal information. Senate Bill 220, which 

Prior to the California Legislature’s May 31, 2019 deadline to pass bills out of their chamber of origin, the California Assembly passed six additional bills that would amend the California Consumer Privacy Act (“CCPA” or “Act”). The California Senate now has until September 13, 2019 to consider and potentially pass these bills prior to the conclusion of the Legislature’s 2019 term.

Recognized as an authority on financial privacy issues, Nathan helps financial institutions and other companies develop practical solutions for complying with privacy and data security laws. In partic

Nathan D. Taylor

Nathan Taylor

CCPA: California Assembly Passes Additional Bills to Amend the CCPA

Prior to the California Legislature’s May 31, 2019 deadline to pass bills out of their chamber of origin, the California Assembly passed six additional bills th

CCPA: California Assembly Passes Additional Bills to Amend the CCPA

Last week, German regulators decided to no longer accept the widely used “JusProg” software as a sufficient means for online service providers to comply with statutory youth protection requirements. The decision is effective immediately, although it will most likely be challenged in court. If it prevails, it puts video-sharing platforms, distributors of gaming content, and online media services at risk of being held accountable for not properly protecting minors from potentially harmful content. For the affected providers, this is particularly challenging because it will be hard, if not impossible, to implement alternative youth protection tools that will meet the redefined regulatory standards.Our alert provides the legal background for the decision and discusses its implications in more detail. It is relevant to all online service providers that target German users.

Counsel

Christoph advises national and international clients on a broad range of regulatory questions and has particular industry-specific experience in the areas of technology, media, and telecommunication.


Christoph Nüßing

Christoph Nüßing is a senior associate at Morrison Foerster’s German office in Berlin. He advises German and international clients on a broad range of regulatory questions and has particular industry-specific experience in the areas of technology, media and telecommunication.

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Youth Protection in Germany: Online Age Checks and Daytime Blackouts Ahead?

Youth Protection in Germany: Online Age Checks and Daytime Blackouts Ahead?

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Last week, German regulators decided to no longer accept the widely used “JusProg” software as a sufficient means for online service providers to comply with st

With privacy and data security issues dominating headlines over the past year, the Federal Trade Commission – the Nation’s top privacy watchdog – has had its hands full. The FTC’s recently released 2018 “Privacy and Data Security Update” reflects this flurry of activity. The report provides an overview of the FTC’s significant 2018 privacy and data security enforcement actions as well as the other tools the agency uses to promote consumer privacy and data security. In summarizing its 2018 activity, the FTC provides insight into its 2019 priorities and its overall approach to consumer privacy and data security. In this alert, we discuss the highlights of the report and key takeaways.

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FTC Releases 2018 Privacy and Data Security Update Report

FTC Releases 2018 Privacy and Data Security Update Report

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With privacy and data security issues dominating headlines over the past year, the Federal Trade Commission – the Nation’s top privacy watchdog – has had its ha

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.