KMK Law Corporate & Securities Blog

On October 22, 2024, the Securities and Exchange Commission charged four companies with making materially misleading disclosures about their cybersecurity risks. Each of the companies—Unisys Corp., Avaya Holdings Corp., Check Point Software Technologies Ltd., and Mimecast Limited—agreed to pay hefty monetary penalties to settle the SEC’s charges.

The fines follow a lengthy investigation by the SEC into public companies affected by the 2020 SolarWinds breach, one of the most widespread cyberattacks to date. The attack, largely believed to have been carried out by ...

On March 9, 2022, the Securities and Exchange Commission (“SEC”) proposed amendments to rules to expand and standardize disclosures regarding cybersecurity risk management, strategy, governance, and incident reporting by public companies. The proposed rules respond to investor concerns related to the growing prevalence of cybersecurity incidents, the increasingly sophisticated methods of cyber criminals in executing their attacks, and the susceptibility of public companies of all sizes operating in all industries to cybersecurity incidents that can stem from ...

On August 16, 2021, the Securities and Exchange Commission imposed a cease-and-desist order and a $1 million civil penalty on Pearson plc, finding violations of the negligence-based antifraud provisions of the Securities Act.

On February 20, 2018, the Securities and Exchange Commission (SEC) issued interpretive guidance to assist public companies in preparing disclosures about cybersecurity risks and incidents. This guidance indicates that the SEC is expecting more robust cybersecurity-related disclosures in the filings of public companies and encourages companies to implement comprehensive cybersecurity policies and procedures.

This post is a follow-up to January’s cybersecurity post discussing the cybersecurity considerations in performing due diligence in M&A transactions. The previous discussion can be found here. This post addresses two contractual provisions, the closing conditions and indemnification, which, if properly utilized, can protect acquiring companies from taking on too much cybersecurity risk in M&A transactions.

In today’s M&A transactions, cybersecurity deficiencies in a target company pose potentially significant financial and regulatory risks to the acquiring company. For this reason, new measures must be implemented in M&A transactions to protect both companies from today’s emerging cybersecurity epidemic.

Cyber insurance
The risk of a data breach now tops the list of concerns of many in-house counsel and C-suite executives. Cyber insurance is an important component in managing this risk and mitigating the damages and loss that follow a data breach.