G-Day is May 25, 2018, the day when the European Union’s General Data Protection Regulation (“GDPR) is set to go into effect.  Even though the Regulation has been approved and available for review for more than a year, most companies are still working to determine whether GDPR applies and, if so, how to become GDPR compliant.  The litigators from KMK’s Cybersecurity and Privacy Team have prepared a Legal Alert which helps companies answer both questions. 

On February 20, 2018, the Securities and Exchange Commission (SEC) issued interpretive guidance to assist public companies in preparing disclosures about cybersecurity risks and incidents. This guidance indicates that the SEC is expecting more robust cybersecurity-related disclosures in the filings of public companies and encourages companies to implement comprehensive cybersecurity policies and procedures.

KMK Law Partner, Joe Callow, presented at the Greater Cincinnati ISSA Chapter Meeting on Wednesday, February 21, 2018 on the topic, "GDPR and Your Business: What You Need to Know and What You Need To Do." This presentation provided an updated analysis of GDPR, discussed its potential application, and provided action steps to establish compliance.

Last week, the D.C. Circuit joined an increasing number of federal courts applying a broad interpretation of the degree of harm required to satisfy Article III standing and expanding the holding of last summer’s Spokeo, Inc. v. Robbins, 136 S. Ct. 1540 (2016).

Last week, the Eighth Circuit Court of Appeals rejected the district court’s approval of the class action settlement in the Target data breach litigation. See In re Target Corp. Customer Data Sec. Breach Litig., 2017 U.S. App. Lexis 1767 (8th Cir. Feb. 1 2017). 

Two decisions last week further widened the divide among the Courts of Appeals in applying Spokeo in cybersecurity litigation.

The U.S. Computer Emergency Readiness Team (US-CERT) is implementing new reporting requirements beginning April 1, 2017, and just released new guidelines to help federal departments and agencies; state, local, tribal, and territorial government entities; information sharing and analysis organizations; and foreign, commercial and private-sector organizations submit incident notifications to the federal government.

Two Courts of Appeals have issued decisions during the past week related to cybersecurity and data retention which anyone who maintains electronic data and personal information should read.

As we recently touched on at the KMK Cybersecurity Seminar, lower courts are beginning to apply Spokeo Inc. v. Robins as defendants renew challenges to class certification. 

This post is a follow-up to January’s cybersecurity post discussing the cybersecurity considerations in performing due diligence in M&A transactions. The previous discussion can be found here. This post addresses two contractual provisions, the closing conditions and indemnification, which, if properly utilized, can protect acquiring companies from taking on too much cybersecurity risk in M&A transactions.

Blog Contacts:  
Joe Callow, Litigation Partner
jcallow@kmklaw.com or 513.579.6419

Rob Lesan, Business Representation & Transactions Partner
rlesan@kmklaw.com or 513.579.6939

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