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Doug Meal, Michelle Visser, David Cohen and Rebecca Harlow of Orrick, Herrington & Sutcliffe Doug Meal, Michelle Visser, David Cohen and Rebecca Harlow of Orrick, Herrington & Sutcliffe

California consumers have only a narrow private right of action under the recently enacted California Consumer Privacy Act (CCPA) to bring suit if a data breach results in the loss or theft of their personal information. To date, two lawsuits have been filed asserting direct claims under the CCPA’s private right of action, in both cases complaining about data breaches that occurred in 2019, prior to the law’s going into effect. The plaintiff in Barnes v. Hanna Andersson, No. 4:20-cv-00812-DMR (N.D. Cal.), initially asserted only negligence and §17200 claims, but then amended to add a CCPA claim in a case arising out of a data breach that clothing retailer Hanna Andersson announced in early 2020, but that occurred in late 2019. A few weeks later, the plaintiff in Fuentes v. Sunshine Behavioral Health Group, No. 8:20-cv-00487 (C.D. Cal.), similarly included a direct claim under the CCPA alongside other contractual, common law, and statutory causes of action concerning a breach involving rehab facilities that occurred in the fall of 2019 but was only disclosed publicly in January 2020. Putting aside the issue of their reliance on breaches that occurred prior to the CCPA’s effective date, the Barnes and Fuentes complaints allege the kind of post-data breach claims directly under the CCPA’s private right of action that have long been expected.

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