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Plaintiffs lawyers in California are helping craft a privacy initiative that could expand their powers under the state’s unfair competition law and thwart a rival measure pushed by the business community. Called the “California Privacy Protection Act,” the initiative was submitted to the attorney general’s office last week by James Wheaton, an Oakland attorney who runs his own practice and is senior counsel with the First Amendment Project and president of the Environmental Law Foundation. If voters OK it in November, Wheaton’s initiative would codify the right to privacy that is guaranteed by the California Constitution. Currently, there is no remedy if that right is violated; the initiative would allow people to file suit. To add teeth to the measure, Wheaton would restore to trial lawyers the use of disgorgement in lawsuits filed under the state unfair competition law — even if the cases have nothing to do with privacy rights. Trial lawyers lost disgorgement — which is a way of recovering money when all of a defendants’ victims cannot be located — under two recent state Supreme Court decisions, Korea Supply Co. v. Lockheed Martin Corp., S100136, and Kraus v. Trinity Management Services, 23 Cal.4th 116. The trial lawyers’ main lobbying group, Consumer Attorneys of California, has not officially endorsed the initiative, but group president James Sturdevant of The Sturdevant Law Firm said he expects members eventually will. The privacy measure is the third initiative in an expensive battle between trial lawyers and business interests that will play out in front of voters next year. First came tort reformers and the California Chamber of Commerce, who joined forces to collect signatures to qualify an initiative to modify California’s unfair competition statute, Business and Professions Code � 17200. They want to change the law so that someone must be actually harmed before private attorneys can file a 17200 suit, and then the case would have to follow many of the rules of class actions. Next came an initiative that would create a used-car-buyer bill of rights and limit the amount of money car dealers could charge to obtain consumer loans. Although it wouldn’t change 17200, the initiative targets car dealers who have provided the majority of the money for the tort reformers’ initiative campaign. And now there’s the privacy measure. Unlike the car initiative, it deals specifically with 17200, so it will compete directly with the tort reform proposal. According to language in both initiatives, only one can become law. In a statement, tort reformers blamed the recent proposals on a conspiracy of trial lawyers who “have induced their ally organizations to file � anti-business initiatives intended to distract attention” from the 17200 proposal. “I’d like to take credit for all of them but that would not be fair, and it’s not accurate,” Sturdevant said. Wheaton also denied he was a puppet. He said his proposal developed from his dual role as a privacy advocate and environmental lawyer. Wheaton said privacy proponents are frustrated with a new financial privacy law passed last year that many believe was watered down by state legislators. And environmental groups are worried about the tort reformers’ 17200 initiative. Wheaton said it made sense for him to combine a push for broader privacy reform with an appropriate legal remedy — disgorgement — to kill two birds with one stone. Even if it isn’t pulling all the strings, Consumer Attorneys has certainly contributed brainpower. Wheaton said the group was very helpful as he drafted the measure and gave him feedback on campaign strategy. Consumer Attorneys gave permission for Wheaton to use the services of a lawyer on retainer for the group, James Harrison of Remcho, Johansen & Purcell in San Leandro, Wheaton said. The Remcho firm represents some of the biggest-name Democrats in state politics and is also well known for its savvy with initiatives. As the measure progresses toward the ballot, Wheaton expects trial lawyers and their firms will also donate money to help out. The Next Generation, a political consulting firm in Oakland, will manage the campaign committee. Next Generation President Doug Linney said he expects to have the committee set up the first week of January. Wheaton said he’s already receiving some donor checks. He estimates signature-gathering will cost about $1 million, with $20 million to $30 million more needed for the campaign. Robert Fellmeth, executive director of the Center for Public Interest Law at the University of San Diego School of Law and an expert on unfair competition, said it seemed disingenuous for Wheaton to combine privacy with 17200. But, he said, it wasn’t as bad as tort reformers’ calling their campaign “Californians to Stop Shakedown Lawsuits,” when their initiative actually gets rid of California’s private attorney general law. “That’s a serious bait and switch,” Fellmeth said.

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