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4 Steps to Safeguard Against Individual Liability for Data Security Failures
By Justin R. Donoho
With cyberattacks on the rise and class actions arising from cyberattacks being filed at an increased rate, executives and board members increasingly face the risk of being individually targeted in lawsuits brought by class action plaintiffs and governmental bodies alleging individual liability for data security failures. Typically, such suits allege that the individuals made misrepresentations about their companies’ cybersecurity risks and practices and took or failed to take certain actions in connection with data security incidents.
This article identifies recently emerging trends in such varied but similar lawsuits, including two currently being prosecuted in U.S. district courts, draws common threads, and discusses four best practices that executives and board members should consider to mitigate the risk of individual liability for data security failures: don’t make any alleged misleading statements about cybersecurity risks and practices; don’t conceal cybercrimes or obstruct proceedings; disclose use of website advertising technology; and implement reasonable data security practices.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.