The Cybersecurity Law Report

Incisive intelligence on cybersecurity law and regulation

Articles By Topic

By Topic: Class Actions

  • From Vol. 3 No.5 (Mar. 8, 2017)

    Defense and Plaintiff Perspectives on How to Survive Data Privacy Collateral Litigation

    While the risks of data privacy and data breach litigation are substantial, the legal standards are in flux and may depend on the court and jurisdiction in which the case lies. Lawyers are struggling to keep up, with courts issuing potentially disruptive decisions on a near-monthly basis. During a recent PLI panel, plaintiffs’ lawyer Daniel Girard of Girard Gibbs, discussed the evolving landscape and its strategic implications with Robert Herrington, a Greenberg Traurig shareholder. The types of successful data privacy cases are shifting and each stage of litigation presents companies with strategic choices. The contrasting perspectives provide guidance to both plaintiffs and defendants as they weigh such choices throughout collateral data breach litigation. See also  “Minimizing Class Action Risk in Breach Response” (Jun. 8, 2016). 

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  • From Vol. 3 No.3 (Feb. 8, 2017)

    Third and Seventh Circuits Shed New Light on Spokeo Standing Analysis

    After the Supreme Court’s 2016 Spokeo decision opened the possibility for statutory violations to form the basis for standing in data privacy cases even without a concrete harm, lower courts have offered their own interpretations highlighting the tension in the Spokeo holding. The Seventh Circuit and Third Circuit appellate courts recently came to different conclusions looking at claims of violations of different statutes, shedding new light on the issue. This article explores and explains these decisions. See also “Spokeo’s Impact on Data Breach Cases: The Class Action Floodgates Have Not Been Opened, But the Door Has Not Been Locked” (May 25, 2016).

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  • From Vol. 2 No.12 (Jun. 8, 2016)

    Minimizing Class Action Risk in Breach Response

    Cybersecurity programs today must take into consideration the risk of class action litigation and include measures to mitigate those risks. David Lashway, a partner and global cybersecurity practice lead at Baker & McKenzie, spoke with The Cybersecurity Law Report in advance of ALM’s Mid-Year Cybersecurity and Data Protection Legal Summit on June 15, 2016, at the Harvard Club in New York City, where he will participate as a panelist. An event discount code is available to CSLR readers inside the article. In our interview, Lashway addresses mitigating litigation risk following a data security incident, takeaways from recent cases such as Target and Sony and class action litigation trends. See also “Proactive Steps to Protect Your Company in Anticipation of Future Data Security Litigation”: Part One (Nov. 25, 2015); Part Two (Dec. 9, 2015).

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  • From Vol. 2 No.10 (May 11, 2016)

    When Do Consumers Have Standing to Sue Over Data Breaches?

    When a company is hacked, civil litigation often follows, and the types of claims brought against hacked companies – like in the recent P.F. Chang’s case – include a host of traditional common law and statutory claims. None of these claims can succeed, however, unless plaintiffs can establish standing. This threshold issue has plagued plaintiffs in data breach cases, but a federal appeals court recently ruled in their favor by reversing the dismissal of a class action. In a guest article, Thomas Rohback and Patricia Carreiro, a partner and associate, respectively, of Axinn, Veltrop & Harkrider, analyze the progeny of standing outcomes in data breach cases, including the Lewert v. P.F. Chang’s holding, and examine what this issue and others might look like in future data breach class actions. See also “Making Sense of Conflicting Standing Decisions in Data Breach Cases” (Mar. 30, 2016).

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  • From Vol. 2 No.9 (Apr. 27, 2016)

    Federal Judge Offers Advice on Litigating Data Privacy, Security Breach and TCPA Class Action Suits

    What is the best way to explain technology to judges and juries? What questions can lawyers expect at the first case management conference? At a recent Practising Law Institute program, Chief Magistrate Judge Joseph C. Spero of the Northern District of California answered these and other questions lawyers face, offering advice on topics such as the best way to approach discovery issues and how to handle settlements in data breach, data privacy and TCPA class action cases. Ian C. Ballon, a partner at Greenberg Traurig, moderated the discussion. See also “In-House and Outside Counsel Offer Strategies for Navigating the TCPA, Avoiding Litigation and Responding to Breaches” (Mar. 30, 2016).

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  • From Vol. 2 No.7 (Mar. 30, 2016)

    Making Sense of Conflicting Standing Decisions in Data Breach Cases

    Does a data breach constitute a case or controversy for purposes of Article III standing? This is a threshold question that could dramatically change the course for data breach cases, yet the answer remains uncertain. If a court does not find standing, the proposed class cannot seek relief in court and plaintiffs’ relief would be limited to statutory damages and/or penalties imposed, for example, under various state data breach laws. In 2013, the United States Supreme Court’s decision in Clapper v. Amnesty International USA was widely seen to shut the courthouse door on data breach class actions. In 2015, however, some significant case law at the circuit court level called this belief into question. In a guest article, Christina H. Bost Seaton, a partner at FisherBroyles, surveys these developments and a case that could potentially change the landscape.

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  • From Vol. 2 No.7 (Mar. 30, 2016)

    In-House and Outside Counsel Offer Strategies for Navigating the TCPA, Avoiding Litigation and Responding to Breaches

    How can in-house counsel better position their companies to prevent and manage class action lawsuits resulting from Telephone Consumer Protection Act (TCPA) violations and cybersecurity incidents? At a recent PLI program, Hilary E. Ware, vice president and associate general counsel, litigation and regulatory affairs, at Netflix, Inc.; Renée T. Lawson, vice president and deputy general counsel at Zynga, Inc.; and Monica S. Desai, a partner at Squire Patton Boggs, discussed TCPA best practices and potential pitfalls; how to get ahead of litigation risks; and strategies for managing privacy, security and TCPA class litigation. See also “What Companies Need to Know About the FCC’s Actions Against Unwanted Calls and Texts” (Jul. 1, 2015).

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  • From Vol. 2 No.3 (Feb. 3, 2016)

    Germany Eases Restrictions on Certain Privacy Class Actions

    It is about to get a little easier for some groups in Germany to challenge companies’ privacy practices. On December 17, 2015, the German Parliament passed a new act that permits certain associations to file privacy class actions. Dr. Christian Schröder, an Orrick partner based in Düsseldorf, spoke with The Cybersecurity Law Report regarding the changes, the expected impact and how the German legal system differs from the U.S. class action process. See also “Seventh Circuit Reopens a Door for Plaintiffs in Data Breach Class Actions” (Jul. 29, 2015); and “Lessons From the 2013 Target Data Breach: What Future Resolutions of Large-Scale Data Breaches May Look Like” (May 6, 2015).

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  • From Vol. 1 No.18 (Dec. 9, 2015)

    Proactive Steps to Protect Your Company in Anticipation of Future Data Security Litigation (Part Two of Two)

    There are several steps companies can take before and after a data breach to best position themselves for the litigation likely to follow.  In this second installment of our coverage of a recent Mintz Levin webinar, partners Kevin McGinty and Mark Robinson explore best practices for internal investigations and common defenses in data breach class actions.  The first article featured insight from partner Meredith Leary on how companies can put themselves in the best position now to defend their actions post-breach and Robinson’s list of threshold questions that companies can ask themselves at the outset of a data breach internal investigation.

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  • From Vol. 1 No.17 (Nov. 25, 2015)

    Proactive Steps to Protect Your Company in Anticipation of Future Data Security Litigation (Part One of Two)

    In addition to the direct consequences of a data security incident, many companies that suffer data breaches must face lawsuits.  In a recent webinar, Mintz Levin members Meredith Leary, Kevin McGinty and Mark Robinson discussed the various types of data security litigation and gave advice on how companies can best prepare for the likelihood of a lawsuit after a data breach.  This article, the first in a two-part series, features their insight on how companies can put themselves in the best position now to defend their actions later.  The panelists also identified threshold questions that companies can ask themselves during an internal investigation following a data breach.  In the second article, they further explore best practices for internal investigations and common defenses in data breach class actions.  See also “Liability Lessons from Data Breach Enforcement Actions,” The Cybersecurity Law Report, Vol. 1, No. 16 (Nov. 11, 2015).

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  • From Vol. 1 No.16 (Nov. 11, 2015)

    Target Privilege Decision Delivers Guidance for Post-Data Breach Internal Investigations

    In a ruling that may clarify how companies should conduct breach responses to preserve privilege, on October 23, 2015, a federal district court in Minnesota found that certain documents created during Target’s internal investigation of its 2013 payment card breach were protected by the attorney-client privilege and work product doctrine.  The Target case “is one of the first cases we are seeing in the data breach context where the privilege issue has been tested,” Michelle A. Kisloff, a partner at Hogan Lovells, said.  The Court’s denial of class plaintiffs’ motion to compel production of these documents recognized “that data breach victims have a legitimate need to perform an investigation in the aftermath of a breach in which communications are protected by the attorney-client privilege,” Michael Gottlieb, a partner at Bois, Schiller & Flexner, told The Cybersecurity Law Report.  See also “Preserving Privilege Before and After a Cybersecurity Incident (Part One of Two),” The Cybersecurity Law Report, Vol. 1, No. 6 (Jun. 17, 2015); Part Two, Vol. 1, No. 7 (Jul. 1, 2015).

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  • From Vol. 1 No.9 (Jul. 29, 2015)

    Analyzing and Complying with Cyber Law from Different Vantage Points (Part Two of Two)

    As breaches proliferate, civil litigations related to breaches have too – and some of them can become “bet the company” cases.  In our continued coverage of a recent conference hosted by Georgetown Law’s Cybersecurity Law Institute, panelists discuss the compliance lessons from shareholder derivative suits and class actions that have followed breaches, as well as how companies should use government cybersecurity guidance in their programs.  The moderator and panelists come to cybersecurity and data privacy with different perspectives – the panel included plaintiffs’ counsel from Edelson PC; principal for reliability and cybersecurity for Southern California Edison; in-house counsel at IT company CACI International; and defense counsel from Alston & Bird.  The first article of this two-part series contained the panelists’ insights on the sources of liability for companies, best practices when collecting personal data and takeaways from government enforcement actions.

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  • From Vol. 1 No.9 (Jul. 29, 2015)

    Seventh Circuit Reopens a Door for Plaintiffs in Data Breach Class Actions

    The Seventh Circuit recently revived a prominent data breach class action by reversing the lower court’s dismissal, and in doing so gave similarly situated plaintiffs ammunition to argue that they have standing.  In Remijas v. Neiman Marcus Group LLC, the Court found that class action plaintiffs satisfied the Article III standing requirements for injury, a hurdle that many similar plaintiffs have failed to clear.  The decision contains lessons for both plaintiffs and defendants in future data breach class actions.  See also “Lessons from the 2013 Target Data Breach: What Future Resolutions of Large-Scale Data Breaches May Look Like,” The Cybersecurity Law Report, Vol. 1, No. 3 (May 6, 2015).

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  • From Vol. 1 No.8 (Jul. 15, 2015)

    Analyzing and Complying with Cyber Law from Different Vantage Points (Part One of Two)

    Cybersecurity and privacy issues have catapulted to the forefront of current hot-button legal topics, and companies are taking steps to prevent breaches and satisfy regulators, panelists said at a recent conference hosted by Georgetown Law’s Cybersecurity Law Institute.  The moderator and panelists come to cybersecurity and data privacy with different perspectives – plaintiffs’ counsel from Edelson PC; principal for reliability and cybersecurity for Southern California Edison; in-house counsel at IT company CACI International; and defense counsel from Alston & Bird.  In a panel examining emerging law on corporate cyber liability, they shared their insights on the sources of liability for companies, best practices when collecting personal data, the compliance lessons from government enforcement actions, as well as from shareholder derivative suits and class actions that have followed breaches.  Part two of this article series will cover their considerations for settling cybersecurity liability cases.

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  • From Vol. 1 No.3 (May 6, 2015)

    Lessons from the 2013 Target Data Breach: What Future Resolutions of Large-Scale Data Breaches May Look Like

    The legal fallout from the massive Target data breach that compromised the credit card and personal information of up to 110 million customers has been significant.  Target was named in over 50 class action lawsuits, filed both by consumers whose information was compromised and financial institutions that issued at least 40 million compromised cards.  In a guest article, Debevoise & Plimpton attorneys Jeremy Feigelson, David A. O’Neil, Jim Pastore and Megan K. Bannigan detail the two settlements Target has announced, and discuss how those settlements provide insight on the form future large-scale data breach settlements could take.

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