The dust settled recently on another chapter of the Target Corp. data breach litigation. Although the five shareholder derivative lawsuits filed against Target’s officers and directors have been dismissed, they underscore the critical oversight function played by corporate directors when it comes to keeping an organization’s cyber defenses up to par. While the ink isn’t quite dry on the court papers, it’s time to start reflecting on the lessons of the skirmish.
In the midst of the 2013 holiday shopping season, news leaked that hackers had installed malware on Target’s credit card payment system and lifted the credit card information of more than 70 million shoppers. That’s almost 30 percent of the adult population in the U.S.
Predictably, litigation was filed, regulatory and congressional investigations commenced, and heads rolled. Banks, shareholders, and customers all filed lawsuits against the company. Target’s CEO was shown the door.
And Target’s directors and officers were caught in the crossfire. In a series of derivative lawsuits, shareholders claimed that the retailer’s board and C-suite violated their fiduciary duties by not providing proper oversight for the company’s information security program, not making prompt and accurate public disclosures about the breach, and ignoring red flags that Target’s IT systems were vulnerable to attack.
The four derivative cases filed in federal court were consolidated (one derivative lawsuit remained in state court) and Target’s board formed a Special Litigation Committee (SLC) to investigate the shareholders’ accusations. The SLC was vested with “complete power and authority” to investigate and make all decisions concerning the derivative lawsuits, including what action, if any, would be “in Target’s best interests.” Target did not appoint sitting independent directors but retained two independent experts with no ties to the company—a retired judge and a law professor. The SLC conducted a 21-month investigation with the help of independent counsel, interviewing 68 witnesses, reviewing several hundred thousand documents, and retaining the assistance of independent forensics and governance experts.
On March 30, 2016, the SLC issued a 91-page report, concluding that it would not be in Target’s best interest to pursue claims against the officers and directors and that it would seek the dismissal of all derivative suits.
Minnesota law, where Target is headquartered, provides broad deference to an SLC. Neither judges nor plaintiffs’ are permitted to second-guess the SLC members’ conclusions so long as the committee’s members are independent and the SLC’s investigative process is ‘adequate, appropriate and pursued in good faith.” By these standards, U.S. District Judge Paul A. Magnuson recently dismissed the derivative cases with the “non-objection” of the shareholders, subject to their lawyers’ right to petition the court for legal fees.
Target isn’t the only data-breach-related derivative case filed by shareholders against corporate officers and directors. Wyndham Worldwide Corp.’s leadership faced derivative claims relating to three separate data breaches at the company’s resort properties. After protracted litigation, the derivative claims were dismissed in October 2014, in large measure because Wyndham board’s was fully engaged on data security issues and was already at work bolstering the company’s cybersecurity defenses when the derivative suit was filed. A data-breach-related derivative action was also filed against the directors and officers of Home Depot, which remains pending.
Despite the differences between the Target and Wyndham derivative suits, both cases contain important lessons for corporate executives and sitting board members.
Treat data security as more than “just an IT issue.” Boards must be engaged on data security issues and have the ability to ask the right questions and assess the answers. Board members don’t know what they can’t see. Developing expertise in data security isn’t the objective; rather, it’s for directors to exercise their oversight function. Board members can get cybersecurity training and engage outside technical and legal advisors to assist them in protecting their organizations from data breaches.
Evaluate board information flow on cybersecurity issues. How are board members kept up-to-date on data security issues? Are regular briefings held with the chief information officer (CIO) to discuss cybersecurity safeguards, internal controls, and budgets? Boards might also consider appointing special committees and special legal counsel charged with data security oversight.
Prepare for cyberattacks in advance. Boards should ask tough questions about their organization’s state of preparedness to respond to all aspects of a cyber-attack, from reputational risk to regulatory implications. Get your house in order now, and not during or after an attack. Not surprisingly, multiple studies—including the Ponemon Institute’s 2016 Cost of Data Breach Study—suggest that there is a correlation between an organization’s up-front spending on cybersecurity preparation and the ultimate downstream costs of responding to a breach.
Decide whether and when to investigate data breaches. Before hackers strike, boards must decide whether and when to proactively investigate the breach, wait to see if lawsuits are filed, or wait to see if regulators take notice. Regardless, boards should be prepared to make this difficult decision, which will establish the tone of the company’s relationship with customers, shareholders, law enforcement, regulators, and the press.
Develop a flexible cyber-risk management framework. Cyber-risk oversight isn’t a one-time endeavor, nor is there a one-size-fits-all solution. The threat environment is constantly changing and depends, in part, on a company’s sector, profile, and type of information collected and stored. While cyber-criminals swiped credit card data in the Target and Wyndham cases, the threat environment has escalated to holding organizations hostage for ransomware payments and stealing industrial secrets.
Cybercrime is scary and unpredictable. It poses risks to a company’s brand, reputation, and bottom line. Board members are on the hot seat, vested with the opportunity and responsibility to oversee cybersecurity and protect the company they serve.
Craig A. Newman is a litigation partner in Patterson Belknap Webb & Tyler LLP and chair of the firm’s Privacy and Data Security practice. He represents public and private companies, professional service firms, nonprofits institutions and their boards in litigation, governance and data security matters. Mr. Newman, a former journalist, has served as general counsel of both a media and technology consortium and private equity firm.
I watched with interest as Senators Jack Reed (D-RI) and Susan Collins (R-ME) advanced bipartisan legislation that would require companies to disclose whether they have a director with cyber expertise on the board, and if not, why. Regardless of whether it passes, The Cybersecurity Disclosure Act of 2015 has apparently widened the door for shareholders and regulators to increase their pressure on boards and hold them more accountable for being proactive about understanding the company’s cybersecurity risk.
As someone who has witnessed the global cybersecurity battlefield at close range for over 14 years, I wholeheartedly agree that boards should increase their knowledge of cyber related risks and engage more proactively with the company’s strategy for mitigating them. Yet for boards to rise to Sen. Reed’s challenge that companies “have the capacity to protect investors and customers from cyber-related attacks,” it’s important to solve for the problem and not just the perception. Electing a cyber-expert to the board could certainly be helpful for companies. However, it may not be practical at this time. Nor does it solve for capacity.
No matter what risks they oversee, from financial to geopolitical, board members have an obligation to avail themselves of the right information to make informed decisions that safeguard shareholder value. This is no less true of cybersecurity risk. In order to empower an effective security program, the board should seek the right information and expertise on which to base its decisions about tolerance, investment, policy, and practice. That information includes but is not limited to: a solid understanding of the threats, the results of a well-prepared cybersecurity risk assessment, a roadmap that articulates desired outcomes and metrics for monitoring effectiveness.
Companies are trying to answer the questions: “How do we know if we’re making a reasonable and appropriate effort to mitigate these risks?” and “How do we measure and rationalize our security investment in the context of corporate strategy and risk tolerance?” I believe boards and their committees should oversee the cyber risk similar to the way the audit process manages financial risk.
Seek a balanced view of Information Technology (IT) security and IT enablement. Give both sides adequate time on the boardroom agenda at each meeting. You’ll gain insights on how strategic initiatives add risk so they are addressed earlier with less disruption, but you’ll also have the added benefit of exploring how security can enable those initiatives.
Ask whether the cybersecurity program has early warning capabilities that reduce time-to-respond. And if not, ask when to expect them. The goal is resilience, not the elimination of risk. Defense is not the endgame. The goal is to reduce the time it takes to detect and respond to the threats targeting your company’s digital assets. Early response is the cornerstone of mitigating risk and damage. Boards should ask if there is a one to three year roadmap for achieving an early warning system that increases visibility and applies threat intelligence to existing solutions, at a minimum, for a more proactive security posture.
Be sure that specific “point solutions” are not confused with the company’s cybersecurity strategy. New technology solutions may be necessary, but being resilient against the threats will depend on how those solutions are integrated, managed and governed as a whole. Ask your cybersecurity officer “what are the desired outcomes?” and “what is the roadmap for getting there?” It’s better to crawl-walk-run toward a well-integrated, manageable program than to jump at every new solution. It’s not about how many “boxes” are deployed to stop the adversary. It’s about how well you’re organized for the fight.
Seek the right threat and risk monitoring dashboard. Security officers with a proactive security program in place should be able to answer: are there threat actors in our systems now? If the answer is no, how can we be sure? and “How do we know they’re there?” Another important metric to monitor is how well the company is improving its “time to respond” to incidents.
And finally, seek third party input and intelligence to aid informed decision-making. Cybersecurity risk is asymmetric, so any security program that provides early warning is going to need threat insights beyond a company’s own experience to date. The right security expertise can help you identify your most likely threats based on global threat intelligence gathered from outside the company’s own limited experience. A third party can also help your security team assess the effectiveness of its current posture against those real-world threats by simulating the attacks. With capabilities in place to anticipate the real threats and prioritize effort, you can greatly expand the security program’s capacity and effectiveness.
It’s inevitable that more and more board members will come to the table with a working knowledge of IT enablement and IT security over time. But for now, boards can take a more proactive and knowledgeable stance by: seeking equal input from IT security and IT enablement leaders; leveraging third party threat intelligence and expertise; and monitoring the company’s progress toward a stronger security posture with “early warning” capabilities that mitigate risk with faster response. These measures go beyond the appearance of “prioritizing” cybersecurity. They add up to tangible improvements in risk mitigation on behalf of all the company’s stakeholders.
Mike Cote is CEO of SecureWorks, a global cybersecurity services firm that provides an early warning system for evolving cyber threats, enabling organizations to prevent, detect, rapidly respond to and predict cyberattacks. SecureWorks minimizes risk and delivers actionable, intelligence-driven security solutions for more than 4,200 clients in 59 countries.
Hackers are hard at work trying to steal your information. That is a fact of modern life, whether you are an individual making purchases with your personal credit card or a Fortune 500 company managing many millions of customer records. Indeed, a company that maintains it has not been hacked probably doesn’t realize the full extent of the attacks it faces or how successful hackers may have been already. Moreover, the fallout from successful cybersecurity breaches is not limited to lost information. From 2014 through the second quarter of 2015, companies reported over 2,429 data breaches containing more than 1.25 billion records of personal information, according to a study published by data security firm Gemalto. IBM recently reported that in 2015 the average corporate cost of data breaches reached $154 per record and more than $3.75 million per incident.
Regulators and plaintiff lawyers alike pay increasing attention to data breaches in an environment where the technology and the legal obligations change rapidly. Keeping ahead of both the threats and the evolving laws and regulations is challenging. In the United States alone, the list of interested regulators is expansive and includes the Securities and Exchange Commission, the Federal Trade Commission, the Consumer Financial Protection Bureau, the Federal Communications Commission, and fifty State Attorneys General, each with potentially distinct requirements and agendas. Security breaches reviewed by these authorities have led to a variety of adverse actions against well-established corporations and their directors, including Facebook, Home Depot, and Target. Reasonable safeguards and notice requirements also vary significantly by industry, particularly in healthcare and financial services, as well as by the kind of Personally Identifiable Information (or PII) involved. For companies with a global presence, especially those with European customers, the compliance challenges multiply, as do the accompanying uncertainties.
Despite the highly technical and complex nature of the problem, these issues should be discussed and addressed at the board level. As former Securities Exchange Commissioner Louis A. Aguilar observed at a recent Cyber Risks and the Boardroom Conference: “[E]nsuring the adequacy of a company’s cybersecurity measures needs to be a critical part of a board of director’s risk oversight responsibilities.… [B]oards that choose to ignore, or minimize, the importance of cybersecurity oversight responsibility, do so at their own peril.” Because the applicable rules and standards typically require the company to “evaluate and adjust” the security program over time, safeguards that may be state-of-the-art today can become an alleged basis for liability in a changed environment.
Recent rulings and a settlement in FTC v. Wyndham Worldwide Corporation relating to claims for allegedly sloppy security practices demonstrate the growing challenge boards face with cyber risk oversight. In that case, the extended fallout from several relatively small attacks from 2008 to 2010 (affecting approximately 500,000 customer credit cards) has taken more than five years and many millions of dollars in legal fees to resolve. Unsuccessful claims asserted against the company’s directors also demonstrate the real possibility that if directors do not react swiftly and assertively (as the Wyndham directors did), they may face the prospect of personal responsibility for their failures.
In a world where hackers are constantly refining their attacks and reassessing the different vulnerabilities that can be exploited, there simply is no “one size fits all” approach. Nevertheless, the list below identifies issues that directors should consider, as well as some proactive steps to consider:
Add cybersecurity to the list of risks evaluated by the committee of the board that evaluates enterprise risks;
Develop company procedures and a communication plan (sometimes known as a security incident response plan) to be implemented in the event of a data breach;
Add cybersecurity expertise to the board in the form of an experienced director or outside advisors (including experienced counsel);
Create reporting lines from the company’s most senior IT executives, CISO, and in-house counsel responsible for cybersecurity to the company’s directors;
Establish a “tone at the top” that instills a company-wide awareness of security risks;
Consider and explore purchasing cyber insurance to mitigate exposure to risks;
Regularly consult with third-party technical, legal, and training specialists on cyber security and related compliance issues; and
Act promptly if cyberattacks or intrusions occur. Many states have their own prompt notice provisions that must be observed.
While the nature and extent of future attacks is unforeseeable, it is certain that hackers are focused on attacking most companies. All directors therefore must be persistently vigilant in this evolving technical and legal environment.
David R. Owen and Bradley J. Bondi are partners at Cahill Gordon & Reindel LLP. They advise global corporations and financial institutions, boards of directors, audit committees, and officers and directors in significant matters, including those involving cybersecurity, data protection, and regulatory investigations. Travis Scheft, an associate at Cahill, assisted with this article.