A private right of action (PRA) is a legal tool often found in federal and state laws that grants an individual or private party the authority to file a civil lawsuit against another party or a business for alleged harm. It outsources enforcement actions to private lawyers rather than state attorneys general or agency officials, turning plaintiffs’ lawyers into unofficial enforcers of the law.
While this definition makes private rights of action sound like a helpful resource for consumers, the truth is that PRAs can lead to litigation abuse because plaintiffs’ lawyers are financially incentivized to file as many lawsuits as possible, placing monetary gain over properly addressing potential harms. Unfortunately, private rights of action do not enhance consumer privacy or protection, but rather serve the interests of plaintiffs’ lawyers seeking large payouts.
The Illinois Biometric Information Privacy Act (BIPA) is one of the most well-known examples of how private rights of action can cause more harm than good. The stated intent behind BIPA was to ensure businesses correctly collect and store biometric data, but plaintiffs’ lawyers have taken advantage of the law to file hundreds of lawsuits against businesses. A 2021 ILR research paper, A Bad Match: Illinois and the Biometric Information Privacy Act, found that BIPA-related lawsuits skyrocketed after the Illinois Supreme Court ruled in 2019 that plaintiffs only needed to claim a business violated the law and not show they suffered actual harm.
According to ILR’s 2019 research paper, Ill-Suited: Private Rights of Action and Privacy Claims, laws that don’t have a private right of action and keep enforcement power with state AGs and agencies are a much better way to protect consumers’ privacy. Agency enforcement is led by experts who understand the complexities of the law, leading to better outcomes for both consumers and companies. State attorneys general are also held accountable by the public since they are elected officials.
Unfortunately, including PRAs in state laws is becoming much more common around the country. During the 2023 legislative session, the Texas Civil Justice League tracked almost 300 bills filed with private rights of action in the Lone Star State. PRAs were included in bills that dealt with topics ranging from the enforcement of public beach access to the issuance of permits for wind power facilities, creating new liabilities for businesses, and a new way for plaintiffs’ lawyers to get paid.
Private rights of action have ripple effects on businesses and consumers. Businesses may become less innovative or refuse to expand products into a new state because they don’t want to get sued over minor violations of complicated laws.
Our civil justice system needs to remain fair and balanced for those who need to bring claims and seek justice. Enforcement authority should be in the hands of state attorneys general or other government entities rather than private plaintiffs, to ensure a more consistent and fair application of laws and to prevent unnecessary litigation that can stifle innovation and impose disproportionate costs on businesses.
So now you know the answer to what a private right of action is. If you want to stay up to date on similar blog posts and the latest legal reform news, subscribe to our newsletter.
