Natasha Kohne and Michelle Reed Speak with Media on CCPA Litigation Trends

Reuters has published “Q&A: What’s next for California Consumer Privacy Act litigation,” a conversation with Natasha Kohne and Michelle Reed, the co-heads of Akin Gump’s cybersecurity, privacy and data protection practice, following the release of the firm’s “2020 CCPA Litigation Report: Trends and Developments.”

The report, as the article notes, examines the cases filed last year related to the California Consumer Privacy Act (CCPA) and previews what could be in store for the rest of 2021 and beyond.

One of the key takeaways from the report, according to Kohne, was that “over 75 consumer class actions [were] filed and over half of them don’t even allege a data breach at all.” Plaintiffs, she pointed out, “are experimenting, trying to push the boundaries and understand if this private right of action can serve other purposes, other than, sort of, what we believe to be the real, or the original intent, which is to limit the private right of action to data breach violations.”

Another interesting finding, Reed added, was that “a lot of these cases were being filed in federal court and not state court. Usually state court is the often-preferred forum for plaintiffs. And here, we didn’t see that. So even though the cases on the whole related to California residents, you have plaintiffs’ lawyers that were sort of originating from all over the country.”

Going forward, Reed predicts that court decisions in 2021 will address issues such as the scope of the private cause of action, whether a non-California resident can sue or participate in a class and what the standard is of doing business in California.

Kohne said that if the courts misinterpret the private right of action for what it’s intended to be, “then we are going to see an influx of those cases.”

In order for businesses to prepare for future enforcement under the CCPA and the California Privacy Rights Act, which takes effect in January 2023, Reed said, “they have to understand what data they have, how they use it, how they process it, and who they share it with.” She also suggested “making sure that you have processes in place to be responsive to your customers is critical, because the easiest way to get in trouble is to have complaints.”

Reed also spoke about the Akin Gump report with Global Data Review for its article “Unexpected trends emerge from CCPA litigation.”

For out-of-state plaintiffs trying to make a successful CCPA claim against businesses that only provide data subject rights to Californians, Reed said the prospects are dim. The Federal Trade Commission (FTC), she pointed out, could, however, get involved and use its enforcement powers against unfair and deceptive practices.

“If you don’t fulfil those privacy promises, that’s when you can get in trouble with the FTC,” Reed said. “You have to be careful about how you do that and what you represent that you’re doing.”