No harm, no foul? Private and public litigation in cybersecurity law

Jul 08

Companies will not be protected from enforcement actions merely by showing the lack of evidence of actual harm to victims of the breach.

By Peter Sullivan, Colin Zick, Christopher Hart

Businesses confronting data breaches can face litigation from private consumers as well as from governmental entities. Managing litigation risk varies in these contexts because of the limitations of bringing private rights of action.

One such limitation is the requirement of proving actual harm in private actions. As explained below, the bar for enforcement is lower when federal regulators bring an action.

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