2023 was another busy year in the realm of data event and cybersecurity litigations, with several noteworthy developments in the realm of disputes and regulator activity. Privacy World has been tracking these developments throughout the year. Read on for key trends and what to expect going into the 2024.
Growth in Data Events Leads to Accompanying Increase in Claims
The number of reportable data events in the U.S. in 2023 reached an all-time high, surpassing the prior record set in 2021. At bottom, threat actors continued to target entities across industries, with litigation frequently following disclosure of data events. On the dispute front, 2023 saw several notable cybersecurity consumer class actions concerning the alleged unauthorized disclosure of sensitive personal information, including healthcare, genetic, and banking information. Large putative class actions in these areas included, among others, lawsuits against the hospital system HCA Healthcare (estimated 11 million individuals involved in the underlying data event), DNA testing provider 23andMe (estimated 6.9 million individuals involved in the underlying data event), and mortgage business Mr. Cooper (estimated 14.6 million individuals involved in the underlying data event).
JPML Creates Several Notable Cybersecurity MDLs
In 2023 the Judicial Panel on Multidistrict Litigation (“JPML”) transferred and centralized several data event and cybersecurity putative class actions. This was a departure from prior years in which the JPML often declined requests to consolidate and coordinate pretrial proceedings in the wake of a data event. By way of example, following the largest data breach of 2023—the MOVEit hack affecting at least 55 million people—the JPML ordered that dozens of class actions regarding MOVEit software be consolidated for pretrial proceedings in the District of Massachusetts. Other data event litigations similarly received the MDL treatment in 2023, including litigations against Samsung, Overby-Seawell Company, and T‑Mobile.
Significant Class Certification Rulings
Speaking of the development of precedent, 2023 had two notable decisions addressing class certification. While they arose in the cybersecurity context, these cases have broader applicability in other putative class actions. Following a remand from the Fourth Circuit, a judge in Maryland (in a MDL) re-ordered the certification of eight classes of consumers affected by a data breach suffered by Mariott. See In Re: Marriott International, Inc., Customer Data Security Breach Litigation,No. 8:19-md-02879, 2023 WL 8247865 (D. Md. Nov. 29, 2023). As explained here on PW, the court held that a class action waiver provision in consumers’ contracts did not require decertification because (1) Marriott waived the provision by requesting consolidation of cases in an MDL outside of the contract’s chosen venue, (2) the class action waiver was unconscionable and unenforceable, and (3) contractual provisions cannot override a court’s authority to certify a class under Rule 23.
The second notable decision came out of the Eleventh Circuit, where the Court of Appeals vacated a district court’s certification of a nationwide class of restaurant customers in a data event litigation. See Green-Cooper v. Brinker Int’l, Inc., No. 21-13146, 73 F. 4th 883 (11th Cir. July 11, 2023). In a 2-1 decision, a majority of the Court held that only one of the three named plaintiffs had standing under Article III of the U.S. Constitution, and remanded to the district court to reassess whether the putative class satisfied procedural requirements for a class. The two plaintiffs without standing dined at one of the defendant’s restaurants either before or after the time period that the restaurant was impacted by the data event, which the Fourth Circuit held to mean that any injury the plaintiffs suffered could not be traced back to defendant.
Standing Challenges Persist for Plaintiffs in Data Event and Cybersecurity Litigations
Since the Supreme Court’s TransUnion decision in 2021, plaintiffs in data breach cases have continued to face challenges getting into or staying in federal court, and opinions like Brinker reiterate that Article III standing issues are relevant at every stage in litigation, including class certification. See, also, e.g., Holmes v. Elephant Ins. Co., No. 3:22-cv-00487, 2023 WL 4183380 (E.D. Va. June 26, 2023) (dismissing class action complaint alleging injuries from data breach for lack of standing). Looking ahead to 2024, it is possible that more data litigation plays out in state court rather than federal court—particularly in the Eleventh Circuit but also elsewhere—as a result.
Cases Continue to Reach Efficient Pre-Trial Resolution
Finally in the dispute realm, several large cybersecurity litigations reached pre-trial resolutions in 2023. The second-largest data event settlement ever—T-Mobile’s $350 million settlement fund with $150 million in data spend—received final approval from the trial court. And software company Blackbaud settled claims relating to a 2020 ransomware incident with 49 states Attorneys General and the District of Columbia to the tune of $49.5 million. Before the settlement, Blackbaud was hit earlier in the year with a $3 million fine from the Securities and Exchange Commission. The twin payouts by Blackbaud are cautionary reminders that litigation and regulatory enforcement on cyber incidents often go-hand-in-hand, with multifaceted risks in the wake of a data event.
FTC and Cybersecurity
Regulators were active on the cybersecurity front in 2023, as well. Following shortly after a policy statement by the Health and Human Resources Office of Civil Rights policy Bulletin on use of trackers in compliance with HIPAA, the FTC announced settlement of enforcement actions against GoodRx, Premom, and BetterHelp for sharing health data via tracking technologies with third parties resulting in a breach of Personal Health Records under the Health Breach Notification Rule. The FTC also settled enforcement actions against Chegg and Drizly for inadequate cybersecurity practices which led to data breaches. In both cases, the FTC faulted the companies for failure to implement appropriate cybersecurity policies and procedures, access controls, and securely store access credentials for company databases (among other issues).
Notably, in Drizly matter, the FTC continued ta trend of holding corporate executives responsible individually for his failure to implement “or properly delegate responsibility to implement, reasonable information security practices.” Under the consent decree, Drizly’s CEO must implement a security program (either at Drizly or any company to which he might move that processes personal information of 25,000 or more individuals and where he is a majority owner, CEO, or other senior officer with information security responsibilities).
SEC’s Focus on Cyber Continues
The SEC was also active in cybersecurity. In addition to the regulatory enforcement action against Blackbaud mentioned above, the SEC initiated an enforcement action against a software company for a cybersecurity incident disclosed in 2020. In its complaint, the SEC alleged that the company “defrauded…investors and customers through misstatements, omissions, and schemes that concealed both the Company’s poor cybersecurity practices and its heightened—and increasing—cybersecurity risks” through its public statements regarding its cybersecurity practices and risks. Like the Drizly matter, the SEC charged a senior company executive individually—in this case, the company’s CISO—for concealing the cybersecurity deficiencies from investors. The matter is currently pending. These cases reinforce that regulators will continue to hold senior executives responsible for oversight and implementation of appropriate cybersecurity programs.
Notable Federal Regulatory Developments
Regulators were also active in issuing new regulations on the cybersecurity front in 2023. In addition to its cybersecurity regulatory enforcement actions, the FTC amended the GLBA Safeguards Rule. Under the amended Rule, non-bank financial institutions must provide notice to notify the FTC as soon as possible, and no later than 30 days after discovery, of any security breach involving the unencrypted information of 500 or more consumers.
Additionally, in March 2024, the SEC proposed revisions to Regulation S-P, Rule 10 and form SCIR, and Regulation SCI aimed at imposing new incident reporting and cybersecurity program requirements for various covered entities. You can read PW’s coverage of the proposed amendments here. In July, the SEC also finalized its long-awaited Cybersecurity Risk Management and Incident Disclosure Regulations. Under the final Regulations, public companies are obligated to report regarding material cybersecurity risks, cybersecurity risk management and governance, and board of directors’ oversight of cybersecurity risks in their annual 10-K reports. Additionally, covered entities are required to report material cybersecurity incidents within four business days of determining materiality. PW’s analysis of the final Regulations are here.
New State Cybersecurity Regulations
The New York Department of Financial Services also finalized amendments to its landmark Cybersecurity Regulations in 2023. In the amended Regulations, NYDFS creates a new category of companies subject to heightened cybersecurity standards: Class A Companies. These heightened cybersecurity standards would apply only to the largest financial institutions (i.e., entities with at least $20 million in gross annual revenues over the last 2 fiscal years, and either (1) more than 2,000 employees; or (2) over $1 billion in gross annual revenue over the last 2 fiscal years). The enhanced requirements include independent cybersecurity audits, enhanced privileged access management controls, and endpoint detection and response with centralized logging (unless otherwise approved in writing by the CISO). New cybersecurity requirements for other covered entities include annual review and approval of company cybersecurity policy by a senior officer or the senior governing body (i.e., board of directors), CISO reporting to the senior governing body, senior governing body oversight, and access controls and privilege management, among others. PW’s analysis of the amended NYDFS Cybersecurity Regulations is here.
On the state front, California Privacy Protection Agency issued draft cybersecurity assessment regulations as required by the CCPA. Under the draft regulations, if a business’s “processing of consumers’ personal information presents significant risk to consumers’ security”, that business must conduct a cybersecurity audit. If adopted as proposed, companies that process a (yet undetermined) threshold number of items of personal information, sensitive personal information, or information regarding consumers under 16, as well as companies that exceed a gross revenue threshold will be considered “high risk.” The draft regulations outline detailed criteria for evaluating businesses’ cybersecurity program and documenting the audit. The draft regulations anticipate that the audit results will be reported to the business’s board of directors or governing body and that a representative of that body will certify that the signatory has reviewed and understands the findings of the audit. If adopted, businesses will be obligated to certify compliance with the audit regulations to the CPPA. You can read PW’s analysis of the implications of the proposed regulations here.
Consistent with 2023 enforcement priorities, new regulations issued this year make clear that state and federal regulators are increasingly holding senior executives and boards of directors responsible for oversight of cybersecurity programs. With regulations explicitly requiring oversight of cybersecurity risk management, the trend toward holding individual executives responsible for egregious cybersecurity lapses is likely to continue into 2024 and beyond.
Looking Forward
2023 demonstrated “the more things change, the more they stay the same.” Cybersecurity litigation trends were a continuation the prior two years. Something to keep an eye on in 2024 remains the potential for threatened individual officer and director liability in the wake of a widespread cyberattack. While the majority of cybersecurity litigations filed continue to be brought on behalf of plaintiffs whose personal information was purportedly disclosed, shareholders and regulators will increasingly look to hold executives responsible for failing to adopt reasonable security measures to prevent cyberattacks in the first instance.
Needless to say, 2024 should be another interesting year on the cybersecurity front. This is particularly so for data event litigations and for data developments more broadly.