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Financial Services Law Insights and Observations

Defendant obligated to indemnify bank in data breach suit

Courts Privacy/Cyber Risk & Data Security Data Breach Payment Processors Credit Cards

Courts

On May 10, the U.S. District Court for the Southern District of Texas ordered a defendant hospitality company to reimburse a national bank and its payment processor (collectively, “plaintiffs”) for $20 million in assessments levied against the plaintiffs by two payment brands following a data breach announced by the defendant in 2015. An investigation into the data breach determined that the defendant failed to require two-factor authentication on its remote access software, which contributed to the data breach and violated the payment brands’ security guidelines. The bank paid roughly $20 million to the payment brands and asked the defendant to indemnify it for the assessments. The defendant refused, arguing that its agreement with the bank was not breached because the payment brands’ rules “distinguish between actual and potential data comprises.” Moreover, the defendant stressed that “[b]ecause no evidence indicates that the attackers used the cardholder information” it was not obligated to indemnify the bank. However, the plaintiffs claimed that under the agreement, the defendant agreed to indemnify the bank “if its failure to comply with the brands’ security guidelines, or the compromise of any payment instrument, results in assessments, fines, and penalties by the payment brands.” The plaintiffs filed suit and moved for partial summary judgment on a breach of contract claim. In granting the plaintiffs’ motion for partial summary judgment, the court determined that the hospitality company is contractually obligated to cover the costs, ruling that actual data compromise is not necessary to trigger the agreement’s indemnification guidelines and that the bank does not need to show that the attackers used the payment information.

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