Photo of Jonathan Ende

Jonathan Ende focuses his practice on antitrust and competition, with particular strength in regulatory matters. He has a great deal of experience in internal investigations, and has a keen insight on the manufacturing and biomedical industries in particular. Read Jonathan Ende's full bio.

 

The California Consumer Privacy Act (CCPA) is not yet one month old, but movement has already started on a new California privacy law. In November 2019, the advocacy group Californians for Consumer Privacy, led by Alastair Mactaggart, the architect of CCPA, submitted a proposed California ballot initiative to the Office of the California Attorney General that would build upon the consumer privacy protections and requirements established by CCPA. In December 2019, as required under state law, California Attorney General Xavier Becerra released a title for and summary of the proposed ballot initiative, which will be known as the California Privacy Rights Act (CPRA).

Key Provisions of the CPRA

CPRA seeks to give California consumers additional control over and protection of their personal information in five core ways.


Continue Reading CCPA Has Just Gone Into Effect, But Businesses May Need to Prepare for a New California Privacy Law

As businesses have scrambled to obtain compliance with the California Consumer Privacy Act (CCPA) in recent months, questions surrounding its constitutionality have arisen. As a broad, sometimes unclear state law that imposes significant obligations on businesses around the country, CCPA may be ripe for legal challenge. The strongest bases for such challenges appear to be: (1) that CCPA violates the “Dormant Commerce Clause”; and (2) that CCPA is impermissibly vague.

Dormant Commerce Clause

The burden that CCPA imposes on out-of-state economic activity may place it in violation of the Dormant Commerce Clause, a legal doctrine created out of the Commerce Clause of the US Constitution. The Commerce Clause allows the US Congress to regulate interstate commerce; from this grant of power, courts have inferred a limitation on the authority of states to regulate interstate commerce, a doctrine coined the Dormant Commerce Clause. On this basis, courts will strike down state laws that explicitly discriminate against out-of-state actors or that regulate activity that occurs entirely outside of the state. In addition, the Dormant Commerce Clause prohibits laws that do not explicitly discriminate against out-of-state economic interests if the effect of a law is to unduly burden interstate commerce. If a state law does unduly burden out-of-state interests, a court will typically balance the burdens imposed on interstate commerce against the benefits the law creates for the state to determine whether or not the law should be upheld.


Continue Reading Though CCPA is Now Live, Questions About Its Constitutionality Linger

California’s Senate and Assembly unanimously approved AB 375 (also known as the California Consumer Privacy Act of 2018), on June 28, 2018. This new consumer privacy bill will be the most progressive and comprehensive privacy law in the United States, reaching far beyond California’s borders to give California consumers more visibility and control over their