Tricks, But No Treats: A Halloween Visit to the Frightening World of Data Security Litigation

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• Tricks, But No Treats: A Halloween Visit to the Frightening World of Data Security Litigation

The courthouse can be a scary place, and all the more so when privacy litigation is on the docket. In the spirit of the Halloween season, we venture into the macabre realm of data security litigation; a place where shadowy evildoers operate beyond the reach of the law, infecting commercial enterprises and extracting their lifeblood – customers’ personal, financial and credit data – while leaving victims to be punished and scores to be settled in the great courts of this land.

Highly publicized data breaches involving businesses such as Target, Home Depot, and Anthem have generated a growing body of law to address the consequences of endemic data theft activity. We will examine important recent developments in data security litigation, including:

• The impact of standing and injury doctrines on data breach claims, focusing both on successful uses of standing defenses to fend off data breach class actions and on recent cases recognizing standing to assert data breach claims based on the nature or sensitivity of the information that was stolen;
• The elusive standard of care in lawsuits alleging negligent failure to protect data security, including the potential impact of Federal Trade Commission regulatory and enforcement activity in the wake of the Wyndham decision;
• Courts’ approach to class certification in data breach cases, including useful defense strategies;
• Trends and patterns in data breach settlements; and
• Handling internal investigations and dealing with regulators in the wake of a data breach incident.

For the wary and forewarned traveler, a bit of knowledge can make even a strange land a less frightening place. We hope you will join us so we can help you to be prepared to face the treacherous challenges of data security litigation.

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