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Financial Services Law Insights and Observations


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  • District Court approves $4.3 million data breach settlement


    Earlier this month, the International Organization of Securities Commissions (IOSCO) released draft policy recommendations to support greater regulatory and oversight consistency within the crypto and digital assets markets. According to the global securities watchdog, regulators must strive for consistency in their oversight of crypto-asset activities given the cross-border nature of these markets and the varying approaches taken by individual jurisdictions. Seeking to optimize consistency in the way crypto-asset and securities markets are regulated, the IOSCO advised regulators to enhance cooperation efforts and attempt “to achieve regulatory outcomes for investor protection and market integrity that are the same as, or consistent with, those required in traditional financial markets in order to facilitate a level-playing field between crypto-assets and traditional financial markets and help reduce the risk of regulatory arbitrage.” Encouraging regulators to engage in rulemaking and information sharing, the IOSCO presented a comprehensive strategy for harmonizing the oversight of crypto companies, including standards on conflicts of interest and governance, fraud and market abuse, cross-border cooperation, custody of client monies and assets, and operational and technological risks. The IOSCO also suggested measures for reducing money laundering risks, explaining that crypto assets may be more appealing to criminals who want to avoid traditional financial system oversight. The IOSCO noted that its goal is to finalize its policy recommendations in early Q4 2023. Comments will be received through July 31.

    Courts Privacy, Cyber Risk & Data Security Class Action Settlement Data Breach

  • New York AG releases guide for businesses to protect consumer’s personal information

    Privacy, Cyber Risk & Data Security

    On April 19, the New York attorney general released a data security guide to help businesses adopt effective data security measures for protecting state residents’ personal information. The guide outlines recommendations for preventing data breaches and securing personal information, and discusses recent data security failures. Recommendations include (i) implementing strong controls for secure authentication; (ii) encrypting sensitive customer information; (iii) ensuring third-party vendors use appropriate, reasonable data security measures to safeguard customer information; (iv) maintaining inventories of assets and locations that contain customer information; (v) implementing effective safeguards to prevent “credential stuffing” attacks where usernames and passwords stolen from other online services are used in an attempt to log in to a customer’s online account; and (vi) notifying customers quickly and accurately when a data breach occurs. The guide is drawn from the AG’s experience in investigating and prosecuting data breaches. 

    Privacy, Cyber Risk & Data Security State Issues State Attorney General New York Consumer Protection Data Breach

  • District Court upholds arbitration in website terms of use


    On March 28, the U.S. District Court for the Western District of North Carolina ruled that class members must arbitrate their claims against an online lending marketplace relating to a 2022 data breach that affected current, former, and prospective customers. The court found that a mandatory arbitration clause contained in the defendant’s terms of use agreement “is broad enough to encompass the claims” brought by class members, and adopted recommendations made by a magistrate judge in February, who found that the agreement not only requires users to agree to be bound by its terms of use when they make their accounts, but also requires that users consent, acknowledge, and agree to its terms of use any time they submit consumer loan searches on the website. The plaintiff argued that there was not a binding contract between the parties because he did not “fully and clearly” understand that he had agreed to arbitrate disputes with the defendant. He further attested that because he never saw the terms of use, he “lacked actual or inquiry notice.” In particular, the plaintiff complained about the placement and font size of the notice, which he claimed no reasonable consumer would have seen “as there is no reason to scroll down the page after seeing the ‘Create Account’ tab.” The magistrate judge disagreed, stating that the “[p]laintiff had multiple opportunities to read and decline the terms if he chose,” and that “[t]his is not the needle in a haystack search that [p]laintiff depicts.” In agreeing with the recommendations, the court concluded that the plaintiff failed to show that the magistrate judge’s determination “was clearly erroneous or contrary to law” and said the plaintiff is bound by the arbitration clause.

    Courts Privacy, Cyber Risk & Data Security Class Action Data Breach Online Lending Arbitration

  • Law firm settles breach claims related to health care data

    Privacy, Cyber Risk & Data Security

    On March 27, the New York attorney general announced a settlement with a law firm to resolve claims that it allegedly failed to protect individuals’ personal and health care data. According to the announcement, an attacker was able to exploit a vulnerability in the law firm’s email server and gained access to the sensitive private information, including names, dates of birth, social security numbers, and/or health data, of nearly 115,000 individuals, including more than 60,000 New Yorkers. According to the AG, the law firm’s data security failures not only violated state law, but also violated HIPPA requirements relating to the adherence to certain advance data security practices. The law firm, which represents New York City area hospitals and maintains patients’ sensitive private information, is required to adopt several measures required by HIPPA, including conducting regular system risk assessments, encrypting private information housed on its servers, and adopting appropriate data minimization practices—all of which it failed to do prior to the breach. 

    Under the terms of the assurance of discontinuance, the law firm is required to pay $200,000 in penalties to the state and strengthen its cybersecurity measures. Required actions include encrypting private information, monitoring and logging network activity, establishing a reasonable patch management policy, developing a penetration testing program, updating its data collection and retention practices, and permanently deleting data “when there is no reasonable business or legal purpose to retain it.”

    Privacy, Cyber Risk & Data Security State Issues State Attorney General Data Breach New York

  • Utah amends disclosure requirements for data breaches

    Privacy, Cyber Risk & Data Security

    On March 23, the Utah governor signed SB 127, which, among other things, requires additional disclosure requirements for system security breaches and creates the Utah Cyber Center. For example, it mandates additional notice requirements to the office of the Utah attorney general (AG) and the Utah Cyber Center where an investigation “reveals that the misuse of personal information relating to 500 or more Utah residents, for identity theft or fraud purposes, has occurred or is reasonably likely to occur.” If the investigation reveals the misuse of personal information relating to 1,000 or more Utah residents, the notification must also be sent “to each consumer reporting agency that compiles and maintains files on consumers on a nationwide basis.”

    The Utah Cyber Center will be responsible for, among other things, developing a statewide strategic cybersecurity plan for executive branches and other governmental agencies; identifying, analyzing, and mitigating cyber threats and vulnerabilities; coordinating cybersecurity resilience planning; providing cybersecurity incident response capabilities; developing incident response plans to coordinate federal, state, local, and private sector activities; and developing and promoting cybersecurity best practices.

    The amendments are effective 60 days follow adjournment of the legislature.

    Privacy, Cyber Risk & Data Security State Issues State Legislation Utah Data Breach Consumer Protection

  • SEC proposes new cybersecurity requirements

    Agency Rule-Making & Guidance

    On March 15, a divided SEC issued several proposed amendments to the agency’s cybersecurity-related rules.

    The first is a proposed rule that would implement cybersecurity requirements for participants in the securities market, including broker-dealers, clearing agencies, and major security-based swap participants, among others. (See also SEC press release and fact sheet.) Among other things, the proposed rule would require all market entities to establish, maintain, and enforce written policies and procedures that are reasonably designed to address cybersecurity risks. Market participants would also be required to review the design and effectiveness of their cybersecurity policies and procedures at least once a year, and immediately provide the SEC written electronic notice of a significant cybersecurity incident should the participant have a reasonable basis to conclude that the incident had occurred or is occurring. Certain market entities would also be required to make public disclosures addressing cybersecurity risks and significant cybersecurity incidents to improve transparency. The SEC explained that the “interconnectedness of [m]arket [e]ntities increases the risk that a significant cybersecurity incident can simultaneously impact multiple [m]arket [e]tities causing systemic harm to the U.S. securities markets.”

    The second proposed rule would amend Regulation S-P to enhance the protection of customer information and provide a federal minimum standard for data breach notifications. Regulation S-P requires broker-dealers, investment companies, and registered investment advisers to implement written policies and procedures for safeguarding customer records and information. The regulation also imposes requirements for proper disposal of consumer report information, implements privacy notice and opt-out provisions, and requires covered institutions to tell customers how their financial information is used. (See also SEC press release and fact sheet.) Under the proposed rule, covered institutions would be required to adopt an incident response program to address unauthorized access or use of customer information. Covered institutions would also be required to notify customers affected by certain types of data breaches that may expose them to identity theft or other harm by providing “notice as soon as soon as practicable, but not later than 30 days after the covered institution becomes aware that an incident involving unauthorized access to or use of customer information has occurred or is reasonably likely to have occurred.” The proposed rule would also “extend the protections of the safeguards and disposal rules to both nonpublic personal information that a covered institution collects about its own customers and to nonpublic personal information that a covered institution receives about customers of other financial institutions.” Modifications to provisions related to registered transfer agents are also proposed.

    Comments on both proposed rules are due 60 days after publication in the Federal Register.

    Additionally, the SEC announced it has reopened the comment period on proposed cybersecurity risk management rules and amendments for registered investment advisers and funds. Under the proposed rules, advisers and funds would be required to adopt and implement written policies and procedures reasonably designed to address cybersecurity risks that could harm advisory clients and fund investors. The proposed rules also laid out additional requirements relating to the disclosure of cybersecurity risks and significant cybersecurity incidents as well as filing and recordkeeping. (Covered by InfoBytes here.) The SEC reopened the comment period for an additional 60 days.

    In voting against the proposed rules, Commission Hester M. Pierce questioned, among other things, whether the amendments would create overlapping requirements for financial firms subject to state data breach laws that have customer notification provisions, some of which conflict with the SEC’s proposals. Commissioner Mark T. Uyeda also raised concerns as to how the three proposals interact with each other. He cautioned that the “lack of an integrated regulatory structure may even weaken cybersecurity protection by diverting attention to satisfy multiple overlapping regulatory regimes rather than focusing on the real threat of cyber intrusions and other malfeasance.”

    Agency Rule-Making & Guidance Securities Privacy, Cyber Risk & Data Security SEC Data Breach Consumer Protection

  • Design firm to settle False Claims Act allegations related to cybersecurity failures

    Privacy, Cyber Risk & Data Security

    On March 14, the DOJ announced a $293,771 settlement with a design company to resolve alleged False Claims Act (FCA) violations related to failures in its cybersecurity practices. According to the DOJ, the company failed to secure personal information on a federally-funded Florida children’s health insurance website that was created, hosted, and maintained by the company. “Government contractors responsible for handling personal information must ensure that such information is appropriately protected,” Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division, said in the announcement. “We will use the [FCA] to hold accountable companies and their management when they knowingly fail to comply with their cybersecurity obligations and put sensitive information at risk.” In this case, the Florida entity (which receives federal Medicaid funds, as well as state funds to provide children’s health insurance programs) contracted with the design company for the provision of a hosting environment that complied with HIPPA’s personal information protection requirements. The company also agreed to adapt, modify, and create code on the webserver to support the secure communication of data. However, between January 1, 2014, and Dec. 14, 2020, the company allegedly failed to provide secure hosting of applicants’ personal information and failed to implement necessary updates. In December 2020, the website experienced a data breach that potentially exposed more than 500,000 applicants’ personal identifying information and other data. In response to the data breach and the company’s cybersecurity failure, the Florida entity shut down the website’s application portal.

    Privacy, Cyber Risk & Data Security Federal Issues DOJ False Claims Act / FIRREA Enforcement Data Breach

  • District Court approves $1.75 million data breach settlement

    Privacy, Cyber Risk & Data Security

    On March 3, the U.S. District Court for the Central District of California granted final approval of a $1.75 million class action settlement resolving allegations related to a 2020 data breach that compromised nearly 100,000 individuals’ personally identifiable information, including financial information, social security numbers, health records, and other personal data. The affected individuals are students, parents, and guardians who were enrolled in a system used to manage student data in a California school district. According to class members, by failing to adequately safeguard users’ login credentials and by failing to timely notify individuals of the breach, the company violated, among other things, California’s unfair competition law, the California Customer Records Act, and the California Consumer Privacy Act.

    Under the terms of the settlement, the company is required to pay a non-reversionary settlement amount of $1.75 million, which will be used to compensate class members and pay for attorney fees and costs, service awards, and administrative expenses. Additionally, as outlined in the motion for preliminary approval of the class action settlement, class members are eligible to submit claims for “ordinary losses” (capped at $1,000 per person), as well as “extraordinary losses” (capped at $10,000 per person). Ordinary losses include expenses such as bank fees, long distance phone charges, certain cell phone charges, postage, gasoline for local travel, “[f]ees for additional credit reports, credit monitoring, or other identity theft insurance products,” and up to 40 hours of time, at $25/hour, for at least one full hour used to deal with the data breach. Extraordinary losses are described as those “arising from financial fraud or identity theft” where the “loss is an actual, documented, and unreimbursed monetary loss” and is “fairly traceable to the data breach” and not already covered by another reimbursement category. Class members must also show that they made “reasonable efforts to avoid, or seek reimbursement for, the loss.” All class members will be offered 12 months of credit monitoring and identity theft protection at no cost, and the company will implement “information security enhancements” to prevent future occurrences.

    Privacy, Cyber Risk & Data Security Courts Settlement Data Breach Class Action State Issues California CCPA

  • 4th Circuit remands privacy suit to state court

    Privacy, Cyber Risk & Data Security

    On February 21, the U.S. Court of Appeals for the Fourth Circuit held that a proposed class action over website login procedures belongs in state court. Plaintiff alleged that after a nonparty credit reporting agency experienced a data breach, it used the defendant subsidiary’s website to inform customers whether their personal data had been compromised. Because the defendant’s website required the plaintiff to enter six digits of his Social Security number to access the information, the plaintiff alleged violations of South Carolina’s Financial Identity Fraud and Identity Theft Protection Act and the state’s common-law right to privacy. Under the state statute, companies are prohibited from requiring consumers to use six digits or more of their Social Security number to access a website unless a password, a unique personal identification number, or another form of authentication is also required. According to the plaintiff, the defendant’s website did not include this requirement.

    The defendant moved the case to federal court under the Class Action Fairness Act and requested that the case be dismissed. Plaintiff filed an amended complaint in federal court, as well as a motion asking the district court to first determine whether it had subject matter jurisdiction, given the U.S. Supreme Court’s ruling in TransUnion LLC v. Ramirez, which clarified the type of concrete injury necessary to establish Article III standing (covered by InfoBytes here). Although the district court held that the plaintiff had alleged “an intangible concrete harm in the manner of an invasion of privacy,” which it said was enough to give it subject-matter jurisdiction “at this early stage of the case,” it dismissed the case after determining the plaintiff had not plausibly stated a claim. 

    In reversing and remanding the action, the 4th Circuit found that the plaintiff alleged only a bare statutory violation and had not pled a concrete injury sufficient to confer Article III standing in federal court. The appellate court vacated the district court’s decision to dismiss the case and ordered the district court to remand the case to state court. The 4th Circuit took the position that an intangible harm, such as a plaintiff “enduring a statutory violation” is insufficient to confer standing unless there is a separate harm “or a materially increased risk of another harm” associated with the violation. “[Plaintiff] hasn’t alleged—even in a speculative or conclusory fashion—that entering six digits of his SSN on [defendant’s] website has somehow raised his risk of identity theft,” the 4th Circuit said. In conclusion, the 4th Circuit wrote: “We offer no opinion about whether the alleged facts state a claim under the Act. Absent Article III jurisdiction, that’s a question for [plaintiff] to take up in state court.”

    Privacy, Cyber Risk & Data Security Courts State Issues Class Action Data Breach Credit Reporting Agency Consumer Protection Appellate Fourth Circuit

  • NCUA approves final cyber incident reporting rule

    Agency Rule-Making & Guidance

    On February 16, the NCUA approved a final rule that requires federally-insured credit unions (FICUs) to notify the agency as soon as possible (and no later than 72 hours) after a FICU “reasonably believes that a reportable cyber incident has occurred.” Specifically, the rule requires FICUs to report cyber incidents that lead “to a substantial loss of confidentiality, integrity, or availability of a network or member information system as a result of the exposure of sensitive data, disruption of vital member services, or that has a serious impact on the safety and resiliency of operational systems and processes.” Under the rule, FICUs must report any cyberattacks that disrupt their business operations, vital member services, or a member information system within 72 hours of the FICU’s “reasonable belief that it has experienced a cyberattack.” The NCUA explained that the 72-hour notification requirement provides an early alert to the agency but that the rule does not require the submission of a detailed incident assessment within this time frame. The final rule takes effect September 1. Additional reporting guidance will be provided prior to the effective date.

    “Through these high-level early warning notifications, the NCUA will be able to work with other agencies and the private sector to respond to cyber threats before they become systemic and threaten the broader financial services sector,” NCUA Chairman Todd M. Harper said. Harper further explained that “[t]his final rule will also align the NCUA’s reporting requirements with those of the federal banking agencies and the Cyber Incident Reporting for Critical Infrastructure Act.”

    Agency Rule-Making & Guidance Federal Issues Privacy, Cyber Risk & Data Security NCUA Credit Union Data Breach