What to do When the Worst Happens: Responding to a Cybersecurity Breach
November 21, 2018 —
Scott L. Satkin & J. Kyle Janecek – Newmeyer Dillion LLPCybersecurity is a growing concern for today's businesses. While it's always advisable to take whatever action possible to avoid a cybersecurity breach, no security measures can be one hundred percent perfect, and malicious actors are always innovating and trying to find new security flaws. The implementation of new technology brings with it new opportunities, but also potentially new vulnerabilities. And hackers have one major advantage – those working to defend against cyber-attacks have to try to find and fix every potential exploit, whereas those on the other side only need to find one. As demonstrated by recent high-profile breaches at Google and Facebook, even massive tech companies with access to vast financial resources and top engineering talent can still fall prey to cyber-attacks. Therefore, understanding how to respond to a breach is just as critical to a company's cybersecurity plan as attempting to prevent one. Below are a few solid tips on how to react when an organization's cybersecurity has been compromised.
Plan in Advance
The best response to a cybersecurity breach begins before the breach ever happens. A written incident response plan is of paramount importance. In the immediate aftermath of a cybersecurity breach, people will be scared and stressed. In those circumstances, they will be more likely to be able to respond effectively if there is a plan laid out for them and they have received training on how to follow that plan. Make sure that employees are trained on the parts of the plan that are relevant to them. Most may only need to know who to report to if they suspect a breach may have occurred, while those who will be involved in the breach response will need more in-depth training. The plan should also be updated regularly to account for staffing changes, new technology, and the evolving legal landscape. The law may also require a plan for responding to cybersecurity breaches, depending on the jurisdiction.
Call Your Lawyer- Early and Often
At the risk of sounding self-aggrandizing, attorneys are critical in responding to a cybersecurity breach. The most obvious reason is to advise clients on their legal obligations and potential liability – and this is indeed an important function. The patchwork of federal and state regulations governing cybersecurity is something laypeople – and even non-specialized attorneys – should navigate with caution. Of equal importance is the preservation of confidential communication under the attorney-client privilege. The presence of an attorney helps to improve the security of information surrounding the response to the breach because correspondence with that attorney is privileged, allowing candid evaluation of the breach. The ability to assert attorney-client privilege regarding an internal investigation and response can be quite useful in the event of a later external investigation or litigation.
To Disclose or Not to Disclose?
An important question that needs to be asked in the wake of a cybersecurity breach is whether the incident must be disclosed, and if so, when, how, and to whom should such disclosures be made? While many understandably wish that their mistakes and failures will never see the light of day, there are also many people who will want to know when a company's cybersecurity has been breached. Shareholders want to know – and may have a right to know – if such a breach has harmed the business. Consumers want to know if their personal information has been compromised so that they can protect against identity theft. Furthermore, state breach notification laws may mandate certain disclosures to consumers depending on facts surrounding the breach. Legal requirements from states, the federal government, and even foreign entities may also require companies to provide notices to one or more regulatory agencies.
An attorney can advise on whether a company is legally required to provide any notice in the aftermath of a data breach, but even though notice may not be a legal requirement in a particular set of circumstances, it may still be prudent to give it anyway. Google decided not to disclose the recent breach of data from its Google+ service to avoid a PR and regulatory backlash, but the fact that it had happened eventually leaked out anyway. Even though legal experts have opined in the aftermath that Google likely was not obligated to disclose the breach, the fact that it did not caused exactly what Google attempted to avoid, but with magnified effect. "Google Experiences Consumer Data Breach" may not have been a good headline, but "Google Hides Consumer Data Breach" was a worse one.
Remember: Protection Is Key
No company wants a cybersecurity breach, but past experience has increasingly demonstrated that this is not a question of "if" but rather one of "when" and "how bad." Planning ahead and knowing what to do when a data breach does happen can ensure that an organization bounces back from a breach as smoothly and painlessly as possible.
Scott Satkin and Kyle Janecek are associates in the Cybersecurity group of Newmeyer & Dillion. Focused on helping clients navigate the legal dispute implications of cybersecurity, they advise businesses on implementing and adopting proactive measures to prevent and neutralize cybersecurity threats. For questions on how they can help, contact Scott at scott.satkin@ndlf.com and Kyle at kyle.jancecek@ndlf.com.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of cybersecurity, business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client's needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America© and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.ndlf.com.
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Can a Home Builder Disclaim Implied Warranties of Workmanship and Habitability?
August 30, 2021 —
Kevin J. Parker - Snell & Wilmer Real Estate Litigation BlogIn a recent Arizona Court of Appeals case, Zambrano v. M & RC II LLC, 2021 WL 3204491 (7/29/2021), the Court of Appeals addressed the question whether a home builder’s attempt to disclaim implied warranties of workmanship and habitability was effective. In that case, the buyer initialed the builder’s prominent disclaimer of all implied warranties, including implied warranties of habitability and workmanship. After the purchase, the buyer sued the builder, claiming construction defects. The builder moved for summary judgment, seeking enforcement of the disclaimer of warranties. The trial court granted the builder’s motion for summary judgment, thereby enforcing the disclaimers. The buyer appealed.
The Court of Appeals addressed the question whether – as a matter of public policy – the implied warranties of workmanship and habitability were waivable. The Court of Appeals started the analysis by noting that the Arizona Supreme Court had, in a 1979 case, judicially eliminated the caveat emptor rule for newly built homes. The court further noted the long history of cases detailing the public policy favoring the implied warranties. But the court also noted the competing public policy of allowing parties to freely contract; explaining that the usual and most important function of the courts is to maintain and enforce contracts rather than allowing parties to escape their contractual obligations on the pretext of public policy.
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Kevin J. Parker, Snell & WilmerMr. Parker may be contacted at
kparker@swlaw.com
Best Lawyers® Recognizes 29 White and Williams Lawyers
October 07, 2019 —
White and Williams LLPTwenty-nine White and Williams lawyers were recognized in The Best Lawyers in America© 2020. Inclusion in Best Lawyers® is based entirely on peer-review. The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers® employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of quality legal services.
In addition, Randy Maniloff was named the Best Lawyers® 2020 Insurance Law "Lawyer of the Year" in Philadelphia.
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White and Williams LLP
Personal Injury Claims – The Basics
February 11, 2019 —
Jessica L. Mulvaney - Bremer Whyte Brown & O'Meara LLPPersonal injury claims can manifest in multiple ways, and while procedurally many may be similar, no two cases are ever exactly alike. The basis of all personal injury claims is a person suffering some injury or harm. The laws related to personal injury claims are in place to allow for the party at fault to be held responsible, and the injured party to seek a remedy and be “made whole” after suffering injury.
Typical causes of action for personal injury claims can include intentional actions (torts) against an individual, negligence, or strict liability. At the heart of all injury claims are the issues of liability and damages. Liability is the determination of whether the defendant being accused of the harm is responsible, i.e. caused the injury and resulting harm. Damages is a concept that encompasses the harm a person suffered as a result of the injury. For personal injury, typical damages can include medical bills, loss of earnings, future medical care, and pain and suffering.
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Jessica L. Mulvaney, Bremer Whyte Brown & O'Meara LLP
Henderson Land to Spend $839 Million on Hong Kong Retail Complex
September 03, 2014 —
Michelle Yun – BloombergHenderson Land Development Co. (12), controlled by billionaire Lee Shau-kee, will spend HK$6.5 billion ($839 million) on a shopping center in a prime retail area of Hong Kong after beating 17 rivals to win a land tender.
The complex in the Tsim Sha Tsui district will be completed by 2019 and will house retail, services and dining, as well as a public 345-space parking garage, spokeswoman Bonnie Ngan said yesterday, citing Vice Chairman Martin Lee. Henderson won the site for HK$4.69 billion as the highest bidder, the government said in a statement yesterday.
Henderson beat other developers, including Cheung Kong Holdings Ltd. (1), Sino Land Co. (83), and Sun Hung Kai Properties Ltd., to win the site in the district host to global luxury brands and hotels such as the Peninsula. The price was more than the HK$3.4 billion median estimate of three surveyors compiled by Bloomberg News.
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Michelle Yun, BloombergMs. Yun may be contacted at
myun11@bloomberg.net
Residential Interior Decorator Was Entitled to Lien and Was Not Engaging in Unlicensed Contracting
August 04, 2021 —
David Adelstein - Florida Construction Legal UpdatesResidential construction disputes can sometimes take nasty turns. This is not attributed to one specific reason, but a variety of factors. Sometimes, there are not sophisticated contracts (or contracts at all). Sometimes, relationships and roles get blurred. Sometimes, parties try to skirt licensure requirements. Sometimes, a party is just unreasonable as to their expectations. And, sometimes, a party tries to leverage a construction lien to get what they want. In all disputes, a party would certainly be best suited to work with construction counsel that has experience navigating construction disputes.
An example of a construction dispute that took a nasty turn involving an interior decorator is SG 2901, LLC v. Complimenti, Inc., 2021 WL 2672295 (Fla. 3d DCA 2021). In this case, a condominium unit owner wanted to renovate his apartment. He hired an interior decorator to assist. As his renovation plans became more expansive, the interior decorator told him he would need to hire a licensed contractor and architect. The interior decorator arranged a meeting with those professionals and, at that meeting, they were hired by the owner and told to deal directly with the interior decorator, almost in an owner’s representative capacity since the owner traveled a lot. The interior decorator e-mailed the owner about status and requested certain authorizations, as one would expect an owner’s representative to do. At the completion of the renovation job, the owner did not pay the interior decorator because he was unhappy with certain renovations. The interior decorator recorded a construction lien and sued the owner which included a lien foreclosure claim. There was no discussion of the contracts in this case because, presumably, contracts were based on proposals, were bare-boned, or were oral.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Indiana Court Enforces Contract Provisions rather than Construction Drawing Markings
January 14, 2015 —
Beverley BevenFlorez-CDJ STAFFTimothy J. Abeska, a vice-chair of Barnes & Thornburg LLP’s Construction Law Practice Group, analyzed Goodrich Quality Theaters, Inc. v. Fostcorp Heating and Cooling, Inc., 16 N.E.3d 426 (Ind. Ct. App. 2014), which “provides an example of a court enforcing contract provisions rather than markings on construction drawings that are inconsistent with contract requirements.”
The case evolved from a dispute on a construction of an IMAX theater, when the general contractor did not understand the architect’s markings for non-standard joist girders, and ordered standard joist girders, per the contract. The error created delays and other problems, which led to payment disputes and mechanic’s liens against the project.
Abeska stated that “[t]his case shows the importance of making sure all documents which comprise a construction contract are consistent with each other, as courts will enforce contracts negotiated by the parties. The case also demonstrates that litigation is not a quick process, as the Court of Appeals Opinion was issued more than seven years after the project was completed.”
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Colorado Nearly Triples Damages Caps for Cases Filed in 2025, Allows Siblings to File Wrongful Death Claims
July 22, 2024 —
Amy Johnson - Lewis BrisboisDenver, Colo. (June 13, 2024) - On June 3, 2024, Colorado Governor Jared Polis signed HB24-1472 to increase the damages caps for personal injury and wrongful death claims. The law nearly triples the amounts available to plaintiffs, which will continue to increase for inflationary adjustments beginning in 2028 and every two years thereafter. These new damages caps affect not only claims that accrue in 2025 and beyond, but they also change the caps for any civil cases filed on or after January 1, 2025. This law was enacted as a compromise to a ballot measure that would have removed any cap on damages. The new caps are as follows:
- The cap on noneconomic damages for personal injuries will be $1.5 million.
- The cap on noneconomic damages for wrongful death will be $2.125 million.
Plaintiffs are likely to delay filing new actions through the rest of 2024 as long as they are not up against a statute of limitations deadline.
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Amy Johnson, Lewis BrisboisMs. Johnson may be contacted at
Amy.Johnson@lewisbrisbois.com
