Private Right of Action

If you or someone you know has ever gotten into trouble, received a ticket from an officer, or faced criminal charges, then you have faced legal action. This is when the state (or in more extreme circumstances, the federal government) takes action against you. But what about private right of action?

What is Private Right of Action?

According to Federal law, a private right of action is when a regular person, a private citizen, is legally entitled to enforce their rights under a given statute. This differs from situations where a state or the federal government enforces something like legal violations under a statute. 

  • To break it down more effectively, the word “private” here refers to a person, or private persons –  a regular citizen like yourself – as opposed to the state or federal government. 
  • The “action” part refers to a lawsuit in civil court. Again, this means that private persons have the right to initiate a lawsuit

How Does it Work?

So how does enforcement work for the courts? For starters, there can be legislative decisions by the courts which establish a statute passed by congress. When this happens, it also explains when the government can prosecute someone for breaking the law. 

For example: 

The supreme court has laws which prohibit people from defrauding others through securities sales or stock sales. If a criminal enterprise or person breaks these laws, the state has the power of enforcement for damages. 

By comparison, there are securities laws for a private plaintiff as well, which means that if a criminal enterprise or person defrauds a private citizen through stock sales, that private citizen has civil rights to seek punitive damages to compensate them for being defrauded. 

In this particular example, both the state and the private citizen can enforce the statutory laws about fraudulent activity. 

Types of Private Rights of Action

There are two types of right privates of action: Express right of action and implied right of action. 

Express rights

Express rights are those granted by Congress. So, if a law has been passed by Congress that specifically prohibits people from being part of a criminal enterprise, and the law also stipulates that private persons are allowed to sue members of said criminal enterprise if they are victimized, this is an express right. In effect, an express right is one that is “expressed” or stated as part of the law. If a law says a private person can take action, then that private person is given an express right to sue. 

Naturalized or Derived Citizen
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Implied rights

Implied rights, as the name suggests, are not stated in the law, but rather implied as part of the law. For example, if a federal agent breaks into your home without a warrant and collects evidence, you might be able to sue them for the damages they caused because they violated your rights. Now, the law does not expressly say that as a private citizen you have the right to sue a federal agent or agency. However, the Supreme Court has already ruled that a person has an implied right based on the statute. 

Examples of Private Right of Action

That said, not every situation will give rise to a lawsuit. In order to use private action, you need legal grounds. This means the law must give you authorization expressly or implied. 

If a private citizen were to bring a case against another person or entity, that private citizen would be referred to as the “plaintiff,” and the person against whom they submitted a claim is the “defendant”. There are, however, some state-based examples where a citizen can take action against a company or other citizen under the private right of action. 

Biometric Laws

If you live in Illinois, you have protection as it relates to Biometric laws. These are situations that involve your biometrics, usually a fingerprint – like those scanners on your computer or smartphone.Here, you can utilize biometric laws to sue a company for invading your privacy.

Companies using biometric technology are under a legal obligation to keep your information safe and secure. If they fail in that obligation, and you suffer damages as a result, then you can sue over the situation. 

CCPA

In California, there is a law called the California Consumer Protection Act (CCPA). This law does not contain information on how much compensation or what type of damages can be sought in a legal claim, but it does give people the right to sue companies if they have mismanaged personal data and the person suffered as a direct result of that mismanagement. 

It’s important to note that even this does not mean anyone can sue anyone else. 

If you are in California and Company A mismanages your personal data, you can use private right of action to sue IF you have suffered damages. So, IF the mismanagement in question resulted in your private data being made public, your identity stolen, and money lost, you can sue. However,  if it resulted in nothing, you can’t sue. 

This distinction is important here, as it is for all legal aspects: something adverse must have resulted from the cause or basis for your claim. A negligent company or a bad driver that doesn’t cause harm is not grounds to sue. But either of those happening and resulting in injuries or damages is. 

7 U.S. Code § 25

Not all examples are at the state level; some are federal, like 7 U.S. Code § 25. This one is a bit more comprehensive than biometrics or personal data. Here, the law states that anyone who violates this law can be sued for any of the damages they cause. The laws in question relate namely to securities. 

This code states that you:

  1. Cannot give false trading advice for a fee;
  2. Cannot create a fake contract for options trading or commodity trading, nor can you take money, property, or securities from someone as payment for a fake contract; and
  3. Cannot sell fake stocks or commodities

In effect, this entire securities chapter stipulates that you cannot register a fake entity and sell fake stocks or commodities to other people. This is fraudulent and if you do it, then all the other people to whom you sold are allowed to sue you for damages. 

HIPAA

HIPAA is another federal example. With this law, also known as the health insurance portability and accountability act, health insurance companies and anyone who accesses your health information must adhere to very strict privacy regulations. For example, if somebody places a call to your family doctor pretending to be your family and they ask for updates on your situation, and your doctor provides it to them without your consent, this could be grounds for a lawsuit. Your doctor is not permitted to provide private information to this person, and therefore is in direct violation of federal law.

ADA

The Americans with Disabilities Act is another example of a federal act that also has ties with private action decisions. Under this regulation, there are measures that companies and individuals must take and rules they must follow. For example, companies cannot discriminate against somebody based solely on a disability. Similarly, places of business must have ADA compliant features, such as a ramp so somebody in a wheelchair can access the place of business. In any situation where discrimination takes place or a business doesn’t comply with the law, an individual can sue that business or person. In fact, examples of private citizens taking action against companies and suing them for damages because of a disability are among one of the most common uses of the private right of action laws.

CAA

The CAA, known as the Clayton Antitrust Act, is a set of laws designed to prevent unfair competition. This means that companies cannot prohibit labor unions, stop employees from striking, or prevent their employees from boycotting. Companies also cannot use price discrimination to drive other businesses out of an area and take over in the form of a monopoly. Businesses cannot use anti-competitive mergers in order to drive other companies out of business either. If a business violates antitrust laws, then private citizens can sue. 

In this case, it is likely that the person suing would be one of the companies victimized by the monopolistic measures of the bad company. 

Conclusions

Overall, a private right of action literally means that a private citizen has the right to take action. Action can be taken against another person or a criminal enterprise as Congress intended. Through the privacy act and the privacy clause therein, someone can exercise their rights alongside a state or federal government case successfully. 

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