Can a company be sued under the CCPA for failing to honor a deletion request?


Section 1798.150 of the CCPA permits consumers to “institute a civil action” only where consumer “nonencrypted or nonredacted personal information, as defined in subparagraph (A) of paragraph (1) of subdivision (d) of Section 1798.81.5, is subject to unauthorized access and exfiltration, theft, or disclosure.”1 The CCPA does not provide a private right of action, nor does it provide statutory damages, if a company violates its obligation to delete personal information about a consumer after receiving a deletion request.2

The California Unfair Competition Law (“UCL”) defines “unfair competition” as including “any unlawful, unfair, or fraudulent business act or practice.”3  Plaintiffs’ attorneys in California have historically attempted to use the text of the UCL to bring suit against companies that allegedly violated any other California or federal law arguing that the secondary violation constituted an “unlawful” practice for which the UCL might permit recovery.  It is unlikely, however, that such a strategy would succeed in connection with the CCPA as the Act expressly states that “[n]othing in this title shall be interpreted to serve as the basis for a private right of action under any other law.”4

An amendment to the CCPA – Senate Bill 561 – has been proposed which, if passed, would extend the private right of action, and the ability for plaintiffs’ attorneys to seek statutory damages, to all alleged violations of the CCPA.  While the amendment received the endorsement of the California Attorney General, on May 16, 2019, it was held in committee under submission pending fiscal review.  As a practical matter this means that the amendment will more than likely not be enacted this year, although it could come back for a vote after 2019.

The net result is that the CCPA, as it currently stands, will not permit consumers to sue businesses that are alleged to have failed to honor deletion requests, and it is unlikely that courts will permit such suits through the auspices of the UCL.  The California legislature could, however, decide at any time to amend the CCPA to provide a private right of action in connection with deletion requests.