On March 15, 2023, the SEC reopened the comment period on proposed rules and amendments related to cybersecurity risk management and cybersecurity-related disclosure for registered investment advisers, registered investment companies and business development companies that were proposed on February 9, 2022. The initial comment period ended on April 11, 2022. A previous Vedder Price summary of the proposals is available here. Comments on the proposals are now due by May 22, 2023.Continue Reading SEC Reopens Comment Period for Investment Adviser and Investment Company Cybersecurity Proposals in Connection with Other Cyber and Data Privacy Related Proposals
BIPA ALERT: Illinois Supreme Court Opens the Door to “Punitive, Crippling Liability” for Illinois Businesses
In a highly anticipated decision, the Illinois Supreme Court recently held that a separate claim accrues under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.) each time biometric data or information is collected and/or disclosed. The Supreme Court’s holding in Cothron v. White Castle System, Inc., 2023 IL 128004, is likely to have a profound impact on both the ability of plaintiffs to file BIPA claims and the calculation of liquidated damages for such claims.Continue Reading BIPA ALERT: Illinois Supreme Court Opens the Door to “Punitive, Crippling Liability” for Illinois Businesses
BIPA ALERT: Five Year Statute of Limitations Applicable to All BIPA Claims
In a ruling that is unlikely to significantly alter the landscape of litigation under the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”) (740 ILCS 14/1 et seq.), the Illinois Supreme Court recently clarified that a five-year statute of limitations is applicable to all claims under the Act. The Supreme Court’s holding in Tims, et al. v. Black Horse Carriers, Inc. clarifies the applicable statute of limitations period for BIPA claims, but does not address the critical question of when claims accrue under the Act.Continue Reading BIPA ALERT: Five Year Statute of Limitations Applicable to All BIPA Claims
TCPA Turnstile: 2022 Year in Review (TCPA Case Update Vol. 17)
As 2022 comes to a close, we wanted to look back at the most significant Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) decisions of the year. While we didn’t see the types of landscape-altering decisions that we saw in 2021, there’s still plenty to take note of. We summarize here the biggest developments since our last update, listed by issue category in alphabetical order.
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Does the Latest Move in Trans-Atlantic Privacy Really Change the Game?
Much ink has been spilled over the Executive Order Enhancing Safeguards for United States Signals Intelligence Activities (the “Executive Order”) signed by President Biden in early October. The Executive Order is supposed to establish the United States’ commitments reflected in the March 25, 2022 joint EU-U.S. announcement of the Trans-Atlantic Data Privacy Framework (the “Framework”). While the Framework is described as an “agreement in principle” to facilitate cross-border transfer of personal data, the Executive Order is supposed to go further, toward actually implementing the promised protective measures. But does it?
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BIPA ALERT: $228M Judgment in First BIPA Jury Trial
In a landmark decision, a Chicago federal jury found that BNSF Railway Co. (“BNSF”) violated the Illinois Biometric Information Privacy Act (“BIPA” or the “Act” (740 ILCS 14/1 et seq.) resulting in a judgment of $228 million against BNSF. The speed in which the jury delivered its verdict, and the scope of the damages calculated by the Court, should give pause to any employer or entity facing BIPA claims.
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Sweeping Data Breaches Under the Bug Bounty Rug: Verdict against former Uber chief security officer highlights the risk of personal criminal liability for executives
A recent criminal verdict against a former Uber executive highlights the serious potential risks associated with concealing data breaches and using “bug bounty” programs as a means to hide hacking by threat actors. In early October, former Uber chief security officer Joe Sullivan was convicted of federal charges by unanimous verdict after four days of deliberation. The charges stemmed from payments Sullivan authorized to two hackers who breached the company’s data in 2016. This conviction came as a surprise to many security professionals. Many anticipated his acquittal because Sullivan had kept Uber’s CEO and others who were not charged informed of his actions. However, highlighting the insufficiency of this approach, Sullivan was found guilty of obstructing justice for failing to inform the Federal Trade Commission of the breach and of actively hiding a felony.
Continue Reading Sweeping Data Breaches Under the Bug Bounty Rug: Verdict against former Uber chief security officer highlights the risk of personal criminal liability for executives
UK-US Data Transfers Post Brexit
The UK government’s reform of data protection laws and the mechanics of cross-border data transfers has accelerated in the first half of 2022.
Various European regulators, including the UK’s Information Commissioner’s Office (ICO) have expressed an intent to more closely monitor compliance with the data transfer rules and impose potentially significant fines where breaches are uncovered – capped in the UK at the higher of £17m or 4% of group worldwide turnover. US recipients of personal data gathered in the UK (whether from a group subsidiary or otherwise) should act now to assess their current compliance and plug any gaps.
In order for personal data gathered in the UK to be transferred, in a compliant manner, to the US a number of steps must be taken:
U.S. Supreme Court Rejects Prejudice Element for a Claim of Waiver
Is the right to compel arbitration waived only when the plaintiff can show prejudice from the defendant’s inconsistent actions and delay? In Morgan v. Sundance, Inc., No. 21-328 (2022), the Supreme Court found that the Federal Arbitration Act (“FAA”) does not permit courts to create tests to favor arbitration over litigation, and that a showing of prejudice is not required for a claim of waiver.
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SEC Proposes Mandatory Cybersecurity Disclosures
Public companies may soon have another regulation to worry about when it comes to their cybersecurity regime. Last week, citing the increase in cybersecurity incidents and the need for investors to be informed about cybersecurity risks in a timely matter, the Securities and Exchange Commission (SEC) proposed amendments to its rules that demand more of registrants when it comes to cybersecurity disclosures.
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