The Cybersecurity Law Report

Incisive intelligence on cybersecurity law and regulation

Articles By Topic

By Topic: Data Breach Litigation

  • From Vol. 3 No.8 (Apr. 19, 2017)

    The Wisdom of Planning Ahead: The Duty to Preserve Backup Tapes, Mobile Devices and Instant Messages

    The complexities and pace of litigations and investigations often require companies to respond to competing demands quickly. Sometimes, in the heat of the battle and faced with extensive discovery demands and requests, parties fail to satisfy their obligation to preserve relevant material. In this guest article, Covington & Burling attorneys provide an overview of the duty to preserve and set forth issues to consider when accounting for this duty, particularly as it relates to backup systems, mobile devices and instant messaging. See also “Proactive Steps to Protect Your Company in Anticipation of Future Data Security Litigation” (Part One of Two)” (Nov. 25, 2015); Part Two (Dec. 9, 2015).

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  • From Vol. 3 No.8 (Apr. 19, 2017)

    How to Walk the Tightrope of Cooperation and Privilege When Facing Government Investigations and Parallel Litigation

    Companies and their counsel walk a delicate tightrope when undergoing simultaneous government investigations and civil lawsuits over data breaches – balancing competing interests, processes and incentives. A recent Practising Law Institute panel, which included attorneys from Wyndham Hotel Group, Dentons, Crowell & Moring and Troutman Sanders eMerge, provided insight and advice about handling the challenge of responding to related requests under different rules with different strategies. See also our three-part series on protecting attorney-client privilege and attorney work product while cooperating with the government: “Establishing Privilege and Work Product in an Investigation” (Feb. 8, 2017); “Strategies to Minimize Risks During Cooperation” (Feb. 22, 2017); and “Implications for Collateral Litigation” (Mar. 8, 2017).

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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.21 (Oct. 19, 2016)

    How the Financial Services Industry Can Handle Cybersecurity Threats, Acquisition Diligence and Breach Response

    The financial services sector is often praised as having some of the most mature cybersecurity practices, but it also holds especially sensitive data and is one of the most common targets for malicious hackers. Asset managers in particular are confronted with general cybersecurity risks while navigating industry nuances. At a recent panel hosted by Major, Lindsey & Africa, Debevoise partners Luke Dembosky and Jim Pastore, both former federal prosecutors, addressed emerging cybersecurity threats, risks from vendors, potential breaches in a pre-acquisition and post-acquisition context, breach response and special considerations for breaches of investor or consumer data. Much of the advice is relevant to all companies grappling with data security risks and breach consequences. See also our two-part series on how the financial services sector can meet the cybersecurity challenge: “A Snapshot of the Regulatory Landscape (Part One of Two)” (Dec. 9, 2015); “A Plan for Building a Cyber-Compliance Program (Part Two)” (Jan. 6, 2016).

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  • From Vol. 2 No.20 (Oct. 5, 2016)

    Eighth Circuit Sides With Defendants As the Spokeo Standing Battle Continues 

    In the aftermath of Spokeo, courts have had to wrestle with the notion of “concreteness” and the other facets of the standing doctrine in the statutory context. In Braitberg v. Charter Communications, Inc., the Eighth Circuit recently weighed in, finding standing cannot arise from a mere statutory violation alone without a consequent concrete harm. However, Spokeo still arguably leaves the door open for a plaintiff-friendly Article III analysis in the data privacy context or where the lawsuit stems from a hacking incident, Deborah Renner, a partner at BakerHostetler, says in a guest article. She examines the current state of Article III standing decisions in the context of the Eighth Circuit’s most recent pronouncement and discusses some of the most recent arguments likely to stand up on both sides of the bar. See “Making Sense of Conflicting Standing Decisions in Data Breach Cases” (Mar. 30, 2016).

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  • From Vol. 2 No.19 (Sep. 21, 2016)

    Managing Data Privacy Challenges While Conducting Due Diligence and Investigations in China (Part Two of Two)

    For companies doing business in China, understanding data privacy and cybersecurity legal requirements under Chinese law is critical. But once a company is familiar with these basic legal contours, more practical concerns dominate the ability to successfully conduct internal operations and external transactions. In this article, the second in a two-part series on China’s data privacy and cybersecurity laws, we share insights from practitioners working in China on how companies can manage the actual challenges of running their businesses while staying on the right side of the law. The first article in the series explained the basic structure of the data compliance regime in China, including criminal law, civil law, industry regulations and the draft Cybersecurity Law. See also Understanding the Far-Reaching Impact of Chinese State Secrets Laws on Data Flow” (Jul. 6, 2016).  

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  • From Vol. 2 No.17 (Aug. 24, 2016)

    Takeaways From the FTC’s Revival of the LabMD Action 

    What constitutes privacy harm? What are reasonable data security practices? Companies and regulators struggle to pin down these pressing questions while technology keeps moving the baseline. In the first data security case litigated before the FTC, the agency provided some answers, finding that the data security practices of LabMD were unfair under the FTC Act. The FTC disagreed with the Administrative Law Judge, who held in November 2015 that the FTC had not shown that LabMD’s conduct caused, or is likely to cause, substantial consumer injury. “The bottom line significance for companies is that you have to have reasonable security at the outset,” Phyllis Marcus, Hunton & Williams counsel, said. “Everything else flows from that. It matters much less what happens to a document once it’s breached or leaked and what actual consumer harm may be down the road than what the security measures were at the outset.” For a discussion of ALJ’s November decision, see “FTC Loses Its First Data Security Case” (Nov. 25, 2015). 

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  • From Vol. 2 No.16 (Aug. 3, 2016)

    Key Post-Breach Shareholder Litigation, Disclosure and Insurance Selection Considerations

    Publicly traded companies face an array of cyber-related decisions beyond how to best secure their data – chief among them are when and to whom to disclose cyber risks, how to handle shareholder litigation that follows a breach and what type of insurance policy to choose to mitigate post-breach costs. At a recent seminar hosted by the Practising Law Institute, speakers from Labaton Sucharow, BitSight Technologies and Beecher Carlson addressed considerations for making disclosures to investors both prior to and following data breaches, elements of a securities fraud case and the scope of possible insurance coverage to mitigate losses following a breach. 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.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.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.9 (Apr. 27, 2016)

    Regulators Speak Candidly About Cybersecurity Trends, Priorities and Coordination

    Understanding the regulators’ priorities and concerns can help a company work effectively with them to investigate and respond to cybersecurity incidents. In a recent panel at the ABA National Institute on Cybersecurity Litigation, authorities from the DOJ, the SEC, the FCC and the Connecticut Attorney General’s office weighed in about the cyber threat landscape, their agencies’ enforcement priorities, strategies for collaboration (including when and how information shared with the government will remain confidential) and effective incident response. See also “Private and Public Sector Perspectives on Producing Data to the Government” (Jun. 3, 2015).

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  • From Vol. 2 No.8 (Apr. 13, 2016)

    Picking up the Pieces After a Cyber Attack and Understanding Sources of Liability

    The expanding range of cyber threats companies face are forcing them to consider how best to anticipate, prevent and manage cyber attacks. In a recent PLI program, Brian E. Finch, a partner at Pillsbury Winthrop Shaw Pittman, discussed the changing landscape of cyber threats, sources of liability for a company and strategies to manage cybersecurity risk and related litigation, including a list of post-breach do’s and don’ts. See also “After a Cyber Breach, What Laws Are in Play and Who Is Enforcing Them?” (May 20, 2015).

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  • From Vol. 2 No.3 (Feb. 3, 2016)

    How In-House Counsel, Management and the Board Can Collaborate to Manage Cyber Risks and Liability (Part Two of Two) 

    Through engagement, risk assessment, and continual review of cybersecurity risks and solutions, directors can both mitigate their own liability as well as the data security and litigation risks threatening the company. Part two of our two-part series on the board’s critical role in cybersecurity and data privacy issues addresses: how the board can follow up on management presentations; steps it should take after a breach; recent post-breach derivative suit caselaw; and how the board, in-house counsel and management can ensure a strong defense to such derivative actions. Part one provided best practices for management and in-house counsel to educate the board and keep the directors updated on cyber-related issues. See also “The Multifaceted Role of In-House Counsel in Cybersecurity” (Dec. 9, 2015).

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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)

    Liability Lessons from Data Breach Enforcement Actions

    Inadequate cybersecurity measures can expose companies not only to data breach incidents, but to liability from multiple fronts, including state attorneys general, the FTC and civil litigants.  In a recent panel at the Practising Law Institute, Michael Vatis, a Steptoe & Johnson partner, and KamberLaw partner David Stampley discussed the dynamic enforcement and judicial climate in this space, distilling actionable takeaways from recent settlements with state attorneys general, FTC actions including Wyndham, and evolving consumer litigation jurisprudence.  The enforcement actions and litigations are instructive for companies seeking to fortify their internal information security and data privacy efforts and guard against the risk of liability in the event of a breach.  See also “After a Cyber Breach, What Laws Are in Play and Who Is Enforcing Them?,” The Cybersecurity Law Report, Vol. 1, No. 4 (May 20, 2015). 

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  • From Vol. 1 No.12 (Sep. 16, 2015)

    Privacy and Cybersecurity in Canada: Legal Risk Update

    Privacy and cybersecurity considerations are currently a key focus of private and public sector organizations, governments and individuals worldwide.  Canada is no exception.  In fact, although Canada has long been considered a global leader in striking a reasonable balance between the protection of privacy and needs of organizations, in recent years Canada has seen the emergence of unprecedented legal risks in respect of privacy and cybersecurity matters. As Alex Cameron, a partner at Fasken Martineau, explains in a guest article, organizations doing business in Canada (or that process information about Canadians) should take note of the dramatic increase in privacy litigation and class actions in Canada, and the recent introduction of mandatory breach notification, reporting and recordkeeping in Canada.  Cameron explains the developments and summarizes recent cases.  See also “Canada’s Digital Privacy Act: What Businesses Need to Know,” The Cybersecurity Law Report, Vol. 1, No. 9 (Jul. 29, 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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