CCPA Class Action Lawsuits Are Coming. Are You Ready?
March 23, 2020 —
Daniel Schneider & Jeffrey Dennis – Newmeyer DillionThe only certainties in life used to be death and taxes. In 2020, it would be safe to add California Consumer Privacy Act (CCPA) class actions to that "distinguished" list. On February 3, Barnes v. Hanna Andersson, LLC, N.D. Cal., Case No. 20-cv-00812, was filed in the Northern District of California, setting in motion the certainty that CCPA class actions are on their way, if not already here.* Filed on behalf of all California residents, the Barnes complaint alleges that between September and November 2019, clothing retailer Hanna Andersson and Salesforce, its online payment services provider, failed to properly safeguard the personally identifiably information (PII) of its customers after hackers stole customers' private information and posted it to the dark web for sale.
What You Need to Know
- Under the CCPA, a data breach is any unauthorized access, theft or disclosure of a consumer's non-encrypted and non-redacted personal information that results from a company's failure to implement and maintain "reasonable" security procedures and practices. Here, the complaint alleges that the defendants failed to maintain reasonable security procedures and practices in order to protect the consumers' PII.
- Although the CCPA is largely viewed as new law related to California consumers' privacy rights (and placement of subsequent obligations to companies doing business in California), the CCPA includes potentially draconian damages for a data breach permitted by unreasonable cybersecurity. Under the new law, an individual need not show any actual harm caused by a data breach, yet he/she may seek statutory fines of up to $750 per incident per individual in the event of a breach. Plaintiffs estimate that at least 10,000 California residents could have been affected by this breach, thereby exposing defendants to up to $7.5 million dollars in damages if proven true.
- There exists a duty to monitor and ensure that third party organizations are properly safeguarding a company's data. During the course of the investigation into the breach, it was discovered that the Salesforce ecommerce platform was infected with malware which allowed the hackers to steal consumers' PII from Hanna Andersson's website.
- The CCPA went into effect on January 1, 2020, yet enforcement by the California Attorney General is not allowed until July 2020. However, no such delay is required for private litigation under the data breach portion of the CCPA. Interestingly, although the complaint alleges that the data breach occurred in 2019, the court could choose to apply the CCPA but that is still yet to be determined.
While Barnes may be the first class action lawsuit to mention violation of the CCPA, it certainly will not be the last. In fact, numerous class actions lawsuits have been filed in the new year which either mention the CCPA or utilize CCPA-like language to style particular claims. As such, it is evident that the Plaintiffs' bar sees the CCPA as a potential for extensive class action litigation. Expect to see an ongoing deluge of class action litigation in California under the data breach portions of the CCPA. In addition, although the Barnes' plaintiffs may not be able to invoke the CCPA due to the data breach occurring in 2019 (before the CCPA took affect), Barnes serves as a stark reminder that implementing and maintaining reasonable data security is vital to defend a business against CCPA claims. Newmeyer Dillion can assist companies analyze their cyber risk profile, and provide access to experienced forensic teams which can ensure reasonable security exists in your organization.
*While Barnes does not yet expressly state a cause of action under the CCPA, relying upon violations of the California Unfair Competition Law in its place, we anticipate that an amendment will soon be filed to include a CCPA claim.
Daniel Schneider is a Partner in Newmeyer Dillion's Privacy & Data Security group. Focused on advocating on behalf of clients when cyber threats inevitably happen, Dan also advises on best practices to help protect the company and mitigate future concerns. Dan can be reached at daniel.schneider@ndlf.com.
Jeff Dennis (CIPP/US) is the Head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's success and bottom line. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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Torrey Pines Court Receives Funding for Renovation
August 06, 2014 —
Beverley BevenFlorez-CDJ STAFFSan Diego Source reported that “CIT Real Estate Finance provided…$60 million…to refinance existing debt and fund the renovations at Torrey Pines Court,” a five-building Class A office campus located in La Jolla, California. The 206,128 square foot complex, which resides on 9.24 acres, is adjacent to the Torrey Pines Golf Course. CIT has funded the project in partnership with Rockwood Capital and The Muller Company.
"We are excited to begin renovations that will complete our repositioning of Torrey Pines Court with state-of-the-art office space and amenities,” David Streicher, Partner at Rockwood Capital, stated according to a press release in the Wall Street Journal. “We expect that the renovations, coupled with the project's picturesque setting, will solidify Torrey Pines Court's position as the preferred office destination in the submarket. We thank CIT for working with us to create a sound financing package that will take this project to the next level."
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Read Before You Sign: Claim Waivers in Project Documents
July 06, 2020 —
William E. Underwood - ConsensusDocsNot all claim waivers are appropriately titled “Waiver of Claims.” In fact, claim waivers can be found “hiding” without any advertisement or fanfare in a number of project documents, including change orders and applications for payment. So although getting work quickly approved and paid for is important, taking time to read the specific language in your project documents is just as important. Failure to pay close attention to this language could result in the waiver of key, unresolved project claims.
Further, and although it should go without saying, it is also just as important to read all of the terms of your contract. Important waiver language might not exist on the face of form project documents, but rather might be contained in the general and/or supplemental conditions of your contract and automatically incorporated into your form project documents. And these types of incorporated waivers can be just as enforceable.
So it is critically important to understand what you are signing and the implications it might have on future claims. This article will explore some of the common types of claim waivers that can be found in project documents so that you are better positioned to avoid inadvertently waiving claims in the future.
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William E. Underwood, Jones Walker LLPMr. Underwood may be contacted at
wunderwood@joneswalker.com
Court Clarifies Sequence in California’s SB800
December 20, 2012 —
CDJ STAFFAs California’s Right-To-Repair law, SB800, nears its ninth birthday, it has remained “largely untested in the legal system” as noted by Megan MacNee of Wood, Smith, Henning & Berman LLP on the site RealEstateRama. She writes that some homeowners have requested documents prior to filing a claim, which she describes as an attempt to “game the system,” and “analogous to requiring a party to litigation to comply with discovery before a complaint is filed.”
The court determined that homeowners may not request documents from the builder until they have actually filed a claim. The court noted that SB800 lacks any clear indication that homeowners may request documents before filing a claim (and also does not indicate that a builder would have to provide documents in these circumstances). The court concluded that the section that sets up the prelitigation procedures occurs before they section on documents discovery. “Because the document request is part of the prelitigation procedure, and the prelitigation procedure does not begin until the homeowner has served notice of a claim, it follows that there can be no prelitigation obligation to produce documents under section 912, subdivision (a) unless the homeowner has commenced the prelitigation procedure by serving notice of a claim.”
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Associated Builders and Contractors Northern California Chapter Announces New President/CEO
January 24, 2022 —
Associated Builders and Contractors, Northern California Chapter(January 19, 2022 – Livermore, CA) Associated Builders and Contractors, Northern California Chapter (ABC NorCal) Board of Directors launched an exhaustive, nationwide CEO search, and recently selected Deborah Maus as the next President/CEO. Deborah is a Certified Association Executive (CAE) with 25+ years of strategic and operational leadership. Prior to accepting the position, Deborah served as the chief executive officer of Plumbing Heating Cooling Contractors of California.
Mark Kirkes, President of MK Electric & Design Inc—and 2022 ABC NorCal Chair— said, "We believe Deborah will focus on strengthening organizational structure to meet new and expanding program needs, guide policy development and strategic innovations, bring increased value to members and continue to be the leading voice of the merit shop in Northern California. Her demonstrated knowledge of the industry and her support of all who desire to succeed in the construction industry made her an ideal choice to advance ABC's mission in Northern California."
Former ABC NorCal President/CEO Michele Daugherty is transitioning to the ABC Central Florida Chapter as President/CEO, continuing her 16+ years of service in ABC. ABC 2021 Chair, Josh Ward noted, "Michele has been working for ABC since 2006 and we are happy to see that she is staying in the ABC family—continuing to fight for the Merit Shop. The Executive Committee expresses its sincere appreciation for Michele and her remarkable services to the organization. Her enthusiasm and leadership will be deeply missed and difficult to replicate. However, we believe we have found the right person in Deborah Maus."
About ABC Northern California Chapter
ABC Northern California Chapter (ABC NorCal) is a trade association founded on the merit shop philosophy and dedicated to serving construction professionals from Fresno to the Oregon border. Our mission: To promote free enterprise by advancing the merit shop philosophy in the construction industry through education, advocacy and business services. To learn more visit www.abcnorcal.org
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Building Codes Evolve With High Wind Events
November 14, 2018 —
William L. Coulbourne - Construction ExecutiveDesigns for wind loads have been in building codes for a long time. Prior to the creation of the International Building Code, the three primary legacy codes had wind load provisions but they mostly dealt with wind loads on the building frame and had little load information about the building components or the exterior cladding.
Since Hurricane Andrew in 1992, building codes include more wind design information that comes from disaster investigations and wind engineering research conducted primarily at the university level. In 2000, the legacy building codes were replaced with the International Building Code (IBC). Residential buildings must comply with the International Residential Code (IRC). Both of these building code documents reference the engineering load standard, ASCE 7 Minimum Design Loads and Other Criteria for Buildings and Other Structures. This load standard has also been in existence for a long time; it now is revised every six years and the building codes revised every three years (IBC and IRC) reference ASCE 7 so the provisions in ASCE 7 become part of the building code requirements.
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William L. Coulbourne, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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You Are on Notice: Failure to Comply With Contractual Notice Provisions Can Be Fatal to Your Claim
September 26, 2022 —
Jenifer B. Minsky - ConsensusDocsImagine your firm is the construction manager on a multi-million-dollar project. At the end of the project you are five million dollars out-of-pocket. You have a stack of claims for additional and extended work which led to the overrun, payment for which will easily cover the shortfall. However, the owner refuses to compensate you until you can satisfactorily answer their inquiry: “Where are the notices that are expressly required under the terms of the contract?” You had a good relationship with the owner’s field representative who was aware you were performing the work and understood that your company was compiling claims. The once cooperative owner, now suffering financial restraints of their own, is resolute in their refusal leaving you no choice but to expend substantial sums of money to litigate the claims, the success of which is far from assured.
What Contract Language Can Be A Trap For An Unwary Contractor?
While courts are generally hesitant to order a forfeiture and some courts disfavor condition precedents, a judge’s hands may be tied by particular contract language requiring the strict enforcement of notice requirements. Such provisions may include: (1) an explicit clause that there be precise compliance with notice requirements; (2) express consequences for noncompliance (e.g., if the required notice is not provided the claim will be waived, forfeited or abandoned); (3) a statement that the notice requirements are a condition precedent to recovery; (4) language such as “if,” “provided that,” “or else” or “on condition that” (e.g., the owner shall review the claim, “provided such claim” was received within the applicable notice period) or (5) prohibition of any waiver of the notice requirement. To the extent the notice provision includes such language, a contractor can be without recourse even when the owner has actual knowledge of the claims or cannot show prejudice by the lack of notice.
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Jenifer B. Minsky, Peckar & Abramson, P.C.Ms. Minsky may be contacted at
jminsky@pecklaw.com
Flawed Welding Faulted in Mexico City Subway Collapse
October 04, 2021 —
Jim Parsons - Engineering News-RecordFaulty structural welds have been blamed for the deadly May 3 collapse of an elevated section of Mexico City’s Line 12 subway, according to a report issued Sept. 7 by Norwegian risk management firm DNV.
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Jim Parsons, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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