The costs associated with a data security breach can be substantial.   In addition to addressing the security issue that gave rise to the breach, companies often must assess notice obligations under federal and state law, manage public relations challenges, and work to rebuild consumer trust.   The costs–in terms of time and resources–needed to accomplish these tasks can easily reach into the millions of dollars.  Considering potential additional losses of business and customer goodwill, the overall effect of a breach can be devastating. 

Fortunately, recent studies have shown that companies can significantly mitigate the costs of a breach by putting in place strong incident response procedures.  For instance, the most recent Ponemon study on the costs of a breach reported that from 2010 to 2011, the average overall cost of a breach declined from $7.2 million to $5.5 million.  The study states that “[t]his decline suggests that organizations represented in [the] study have improved their performance in both preparing for and responding to a data breach.”    

The improvement identified in the Ponemon study aligns with our recent experience: more clients have come to us with questions about what they can do to prepare for and respond to breaches more effectively.  Although every company–and every breach–is different, we think there are about ten basic elements that a company should consider when thinking about incident response.  My colleague Steve Satterfield and I recently wrote about these elements in this article published in Corporate Counsel.  Again, there is no one-size-fits-all approach to these issues, but we thought this article might provide a useful starting point for attorneys and other information security professionals as they consider implementing or strengthening their companies’ incident response procedures.    

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Photo of David Fagan David Fagan

David Fagan co-chairs the firm’s top ranked practice on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and is a partner in the firm’s data privacy and cybersecurity practice.

David has…

David Fagan co-chairs the firm’s top ranked practice on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and is a partner in the firm’s data privacy and cybersecurity practice.

David has been recognized by Chambers USA and Chambers Global for his leading expertise on bet-the-company CFIUS matters and has received multiple accolades for his work in this area, including being named The American Lawyer’s Dealmaker of the Year three times. His work includes successfully securing three of the four Presidential approvals in the history of CFIUS; securing the only Presidential order protecting a client against a proposed hostile takeover; and negotiating the only “golden share” the U.S. government has taken in a U.S. company. Clients laud him for “[seeing] far more matters than many other lawyers,” his “incredible insight,” and “know[ing] how to structure deals to facilitate regulatory reviews” (Chambers USA).

For more than two decades, David has handled transactions for clients across every sector subject to CFIUS review, including some of the most sensitive and complex matters that have set the template for CFIUS compliance and security agreements in their respective industries. He is also routinely called upon to rescue transactions that encounter challenges in CFIUS; provide strategic counsel to clients on navigating and addressing U.S. national security considerations in commercial transactions; and negotiate solutions with the U.S. government, including equity arrangements, that protect national security interests while preserving shareholder value and U.S. business interests.

In the enforcement area, David has represented clients in numerous enforcement actions pursued by CFIUS, including two of the three largest penalty cases resolved with CFIUS.

Reflecting his experience on complex U.S. national security matters intersecting with China, David is regularly engaged by the world’s leading multinational companies to advise on emerging legal issues, including outbound investment restrictions and regulations governing information and communications technologies and services (ICTS), as well as strategic legal projects related to the evolving U.S.-China competitive landscape.

In addition, in the foreign investment and national security area, David routinely advises clients on matters requiring mitigation of foreign ownership, control, or influence (FOCI) under applicable national industrial security regulations. His work includes advising many of the world’s leading aerospace and defense companies and private equity firms, as well as telecommunications transactions subject to public safety, law enforcement, and national security review by Team Telecom.