Cybersecurity

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Cybersecurity

Cybersecurity is vitally important for businesses, state and local governmental bodies and not-for-profit organizations. Our attorneys have mastered a vast array of legal fields intersecting with cybersecurity law, including litigation, transactions, and corporate and not-for-profit governance. We emphasize preemptive and protective measures and assist clients in addressing cyber-attacks when they occur.

Litigation

When a data breach materializes, Wilk Auslander’s seasoned attorneys work with expert information technology consultants to determine the root cause of the breach and provide counsel on preventative measures as well as a legally appropriate response aimed toward litigation avoidance. In many instances, however, litigation arising from a breach is unavoidable and may encompass various claims, including breaches of fiduciary duty, unfair competition, misappropriation of trade secrets, fraud, conversion, professional malpractice, or violations of the Computer Fraud and Abuse Act. Whenever necessary, our team of litigators will work to prosecute or defend all such civil claims arising from cybersecurity breaches.

Corporate / Transactional

With increasing frequency, we see cybersecurity issues manifest in transactions ranging from mergers and acquisitions—in which the parties require cybersecurity-related covenants, representations, warranties, and indemnity provisions—to myriad contracts requiring special provisions relating to cybersecurity issues. In each instance, our corporate attorneys provide counsel regarding the drafting of those provisions and advise on the burgeoning laws, regulations, and best practices in the cybersecurity field as they relate to the preparation of corporate and other documents and the consummation of transactions.

Corporate Governance

In today’s world, there is a clear intersection between corporate governance and cybersecurity. Boards of companies and not-for-profit organizations of all sizes should be incorporating cybersecurity issues into their agendas at least several times per year. Cybersecurity poses an array of complex legal questions for board directors, such as whether, when, and how to disclose a cybersecurity breach or threat, including the content of such disclosure. When our clients are confronted with such situations, we provide counsel on our recommended approach in view of emerging law, rules, regulations, and best practices, always with an eye toward litigation avoidance.

We represented an Argentinian mining company in connection with the successful recovery of payments totaling over $2 million wrongfully obtained through a sophisticated act of cyber fraud. The cyber-attacker had posed as an employee of a technology company with a long-standing business relationship with our client and set up a pseudo email account using a domain name similar to that of the technology company, thereafter extorting money from the client using bogus invoices. Working closely with the client and multiple federal agencies (FBI, Department of Homeland Security, U.S. Attorney General’s office, and U.S. Immigration and Customs Enforcement office), we investigate the cyberattack, identified its source, and obtained the return of over $2 million wrongfully obtained through cyber fraud.
We provided advice regarding legal and regulatory disclosure requirements, in the immediate hours following a cyber-attack, to a biotech company with thousands of customers spanning multiple jurisdictions. We worked closely with the client’s external IT support team to determine and remediate issues that directly affected the client’s immediate legal obligations, such as whether data exfiltration or infiltration occurred. We resolved the matter favorably and the applicable regulators ultimately declined to take any action against the client in connection with the cyber incident.
For a data company client, we assessed and determined their compliance with legal and regulatory obligations pertaining to cybersecurity, providing a review of the issues.
We counseled and advised several limited liability companies and business owners in connection with matters pertaining to compliance with New York cybersecurity laws and regulations, helping them establish company-wide preemptive and protective measures to ensure legal and regulatory compliance.