Dealing with the Aftermath of  Yet Another Data Breach . . . Bring in the Lawyers

A couple weeks ago someone asked me what “area of law” is currently a big litigation area in civil law. My immediate response was data breach / data privacy. And within a couple days we all learned that Equifax had suffered a data breach and hackers had accessed up to 143 million customer account details, including names, Social Security numbers, driver licenses, and credit card numbers. Just take a look at the Identity Theft Resource Center’s website and you’ll see that data breaches are growing rapidly year in and year out. Just take a look at the list put out by WIRED of data breaches in 2017 and you’ll see names like Verizon and Chipotle. And, as the Equifax breach shows, no company appears safe.

Data breaches, like the Equifax breach, create numerous legal issues that produce a fair amount of litigation. First, if the hackers can be tracked down, you have companies suing the hackers.  Second, you have class actions by the customers or consumers whose information was taken against the companies who were hacked. Those typical class-action lawsuits involve questions such as, what policies did the company have in place to prevent the hack and to detect the hack, did the company follow those policies, and how quickly did the company act upon learning of the hack. From what we know regarding the Equifax breach, the breached lasted for two and a half months and Equifax was aware of the potential breach point before it was hacked. So Equifax will be litigating whether its policies and actions were “reasonable” in light of industry standards and what it knew and when. Third, you may have a litigation fight between Equifax and its insurers if Equifax believes its insurance covered data breaches resulting from negligence. There the insurers will argue that language does not cover the breach while Equifax will argue the language does cover the breaches. 

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FCPA Enforcement in the Trump Administration: Nevertheless, It Persists

Whenever a new president transitions into the White House, there is almost always a level of uncertainty around how the new administration will handle certain hot button issues now in their purview. As logic dictates, we often look to the newly minted president’s campaign promises to ascertain their stance on these issues. But with the election of President Donald Trump, many of us looked to Twitter and old interviews from the then-businessman turned reality TV maven to determine what would come of a myriad of laws and loose ends. One of the laws that many speculated could come under attack is rooted in preventing corporate corruption, and geared towards the promotion of respectable business practices, both domestically and internationally – the Foreign Corrupt Practices Act of 1977 [“FCPA”].

What is the FCPA?

The FCPA ascended from a cauldron of toil and trouble – or more aptly stated, came into existence as a result of corruption, scandal, and an unveiling of the pervasive bribery of foreign officials perpetuated by U.S. companies. The botched break in of the Democratic National Committee (DNC) Shaking hands with hidden moneyHeadquarters at the Watergate office complex ultimately led to the discovery of slush funds used to bribe domestic political parties and certain foreign government officials. In order to conceal these payments, companies misrepresented their corporate financial statements, allowing the cycle of corruption to continue domestically and internationally. These findings not only tainted the view of U.S. businesses, but revealed just how awful corruption is for business. Recognizing the need to restore confidence in U.S. businesses and mitigate future corruption, Congress enacted the FCPA.

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Proposed Changes to the Model Business Corporation Act: Future Changes to Chapter 180?

The Model Business Corporation Act, potentially following suit with the rest of ever-changing 2016, has acquired proposed notable changes through provisional amendments by its Official Committee. Some of these changes model company-friendly Delaware’s legal structure, which can only help to attract companies to incorporate within states that choose to adopt such changes. Although Wisconsin has modeled its own state corporation statutes based on the Act under Chapter 180 of the state legislature, the addition of these new amendments could help attract local companies to incorporate within the state.

First, the Committee has proposed adoption of the addition of subchapter E to chapter one of the Act, mirroring the Delaware General Corporations Law’s 2014 amendments. The subchapter permits the ratification of defective corporate actions, including actions in connection with the issuance of shares. It also provides for retroactive validity of subsequent actions taken in reliance on the validity of the defective action upon its ratification. If Wisconsin adopts this subchapter, actions taken by local corporations won’t be hindered and found void based on, for example, a greater issuance of shares than allowed by the articles of incorporation. This malleability gives companies assurance that certain vote-based corporate actions have a safety net from being deemed void instantly, ensuring a remedy for defective corporate actions.

Next the Committee has proposed changes to sections 2.02 and 8.70 of the Act, allowing corporations to include a provision within its articles limiting or eliminating the duty of a director or officer to become involved with a corporate opportunity without informing the corporation, which typically falls under a director’s or officer’s duty of loyalty. These provisions would give the corporation control over the liability imposed upon its directors and/or officers upon involvement in corporate opportunities, shielding them from said liability. It would also allow directors and officers to engage in such opportunities against the wishes of the company. These provisions have their strengths and weaknesses, but the advantage surrounds the control given to the corporation.

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