K Todd Wallace, Attorney in New Orleans, Louisiana: November 2018

Tuesday, November 27, 2018

Business Attorney K. Todd Wallace publishes article on the necessity for companies to have a data breach response plan in place

Business Attorney K. Todd Wallace publishes article on the necessity for companies to have a data breach response plan in place

In his most recent article, experienced business litigation attorney K. Todd Wallace discusses the critical importance of companies having a data breach response plan in place.

In a rapidly evolving field with increasing regulatory oversight, companies dealing with personal or sensitive information should be mindful of their legal obligations with respect to data protection. While securing customer data and ensuring compliance with protection obligation is an obvious area of concern, another important aspect of data protection is having a contingency plan in place in case of an actual data breach.

A company’s obligations in case of a data breach are now regulated by law in all 50 U.S. states and the District of Columbia. Those laws effectively require companies to timely notify consumers of the breach. Furthermore, recent trend continues toward expansion of information covered by these data protection and strengthening of consumer protection.

A major development in the field of data protection is the newly enacted General Data Protection Regulation (“GDPR”) in Europe. While a comprehensive discussion of GDPR is beyond the scope of this article, GDPR is one of the most expansive data protection laws in the world. With the passage of GDPR and increasing public concern over data protection, many U.S. states are now strengthening their own data protection laws. For example, data protection laws in California and Vermont are some of the most stringent in the country. Furthermore, multiple states have amended their data protection laws in 2018, mostly expanding the scope of protected information and clarifying or adding obligations in case of a breach.

These regulatory requirements regarding data breach highlight the need for companies to work diligently to create and maintain a data breach response plan. Companies should work with an experienced attorney in the field of data protection laws to ensure that they are ready and able to deploy a rapid response in accordance with all the applicable legal requirements should the need arise. Such planning is even more critical for multistate or international operations that may be subject to legal obligations in multiple jurisdictions.

Mr. Wallace notes that keeping the response plan up to date and educating management regarding the response plan are just as critical as creating one in the first place. Because this area of the law is undergoing such rapid changes across multiple jurisdictions, Mr. Wallace stresses the importance of ensuring that there are processes in place to regularly review and update the response plan. Any change in business operations may trigger the need for a review, such as expansion into new localities or addition of services or operations.

The article will be published in full on the Blog of Mr. Wallace.

About Kenneth Todd Wallace

K Todd Wallace is an attorney and founding partner of the law firm Wallace Meyaski LLC. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, employment law compliance, government relations, mergers and acquisitions, and team building.

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*** K. Todd Wallace is an attorney at Wallace Meyaski in New Orleans. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, government relations, mergers and acquisitions, and team building. See http://www.walmey.com/our-attorneys/k-todd-wallace/

K. Todd Wallace

K. Todd Wallace is an attorney and founding partner of the law firm. He has nearly 20 years of experience in the legal and business professions with established excellence in trial advocacy, negotiation, strategic and initiative planning, government relations, mergers and acquisitions, and team building. Contact: Wallace Meyaski, LLC, 5190 Canal Blvd., Suite 102, New Orleans, LA 70124, (504) 644-2011, Email: info@walmey.com. -- Since September 2017, he has been an attorney (and Founding Partner) of the law firm Wallace Meyaski, LLC in New Orleans, Louisiana.

Antitrust attorney K. Todd Wallace comments on the latest development in Apple, Inc. v. Pepper, a case involving the issue of standing in antitrust cases

Antitrust attorney K. Todd Wallace comments on the latest development in Apple, Inc. v. Pepper, a case involving the issue of standing in antitrust cases

The Case of Apple Inc. v. Pepper is currently pending in the United States Supreme Court. At issue is whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense. Oral argument is set in this case for November 26, 2018. The case centers on Apple Inc.'s App Store, and whether consumers of apps offered through the store have Article III standing under federal antitrust laws to bring a class-action against Apple for alleged improper regulation of its App Store. The case centers on the applicability of the ‘Illinois Brick doctrine’ established by the Supreme Court in 1977 in Illinois Brick Co. v. Illinois, which determined that indirect consumers of products lack Article III standing to bring antitrust charges against producers of those products.

The Solicitor General has already weighed in favor of the Supreme Court granting cert, arguing that the Ninth Circuit decision was wrongly decided. Specifically, Solicitor General’s brief argued that the Ninth Circuit misapplied Supreme Court’s precedent in Illinois Brick by focusing on Apple’s functional role. The central issue, according to the Solicitor General, should have been whether the plaintiffs are pursuing a “pass-on theory”, that is “that the defendant unlawfully overcharged a third party and that the third party passed on all or part of the overcharge to the plaintiff.” Such claims are barred by Illinois Brick, the Solicitor General argued. Unsurprisingly, the Solicitor General has filed a brief arguing for reversal and the motion to participate in oral argument has been granted.

Presenting a different perspective, thirty-one states have joined in filing an amicus brief in support of the purchasers. Drawing support from states across the political spectrum, the amicus brief argues that Illinois Brick should be overturned, a position advocated by a number of antitrust commentators since the 1980’s. The amicus brief argued that Illinois Brick was based on policy concerns, not legislative text. “The [Illinois Brick] Court relied on a policy concern that the extent of passing-on is ‘virtually unascertainable,’ making proof of that injury unreliable and burdensome to courts and to potential plaintiffs. The Court also reasoned that a serious risk of duplicative liability for the same conduct justified allowing direct purchasers to recover 100% of the violator’s overcharges, even if passed on, and disallowing any recovery by indirect purchasers for their injury. Finally, the Court believed that allowing all victims to recover for their actual injuries (trebled, plus attorney’s fees) would insufficiently encourage private suit, as compared to Illinois Brick’s rule allowing only a subset of victims to recover for a larger but presumed injury.” The brief goes on to note that states have since overwhelmingly refused to apply the Illinois Brick rule in state antitrust law. “As a result, state courts (and federal courts hearing state-law antitrust claims) now have decades of experience assessing proof that indirect-purchaser consumers were injured by illegal overcharges that distributors passed on from manufacturers. Illinois Brick’s predictions and policy judgments have not withstood that test of time.”

The amicus brief further notes that “[s]ince Illinois Brick, economists serving as experts in indirect-purchaser cases have reliably used previously unavailable tools and methodologies to assess that harm.” “Second, courts have shown themselves capable of applying gatekeeping rules of evidence to this type of expert analysis.” The brief goes on to note that there has been no reported case of multiple liability and that excluding indirect purchasers can actually serve to disincentivize private suit because aggregation of claims can serve as an incentive to private suit. Therefore, the states argue Illinois Brick should be overturned. In what is building up to be a seminal case on antitrust standing, the federal government and majority of states have taken up opposing positions on the appropriate outcome.

The docket of the case Apple Inc. v. Pepper is at http://www.scotusblog.com/case-files/cases/apple-v-pepper/