Protecting Yourself Against Data Breach: Don't Be a Target

by Bracewell LLP

To listen to the podcast, please click here.

On May 5, 2014, Target Corporation Chief Executive Officer Gregg Steinhafel resigned after having been with the company for 35 years, another casualty of the massive data breach that continues to damage the nation’s third-largest retailer.1 The data breach already claimed the job of Target Chief Information Officer Beth Jacob, who resigned shortly after the breach had been discovered and disclosed.2 But both of these high-profile resignations pale in comparison to the impact on Target itself, its business, its profits, and its future.

The data breach occurred on approximately November 12, 2013, at which time hackers began to access more than 40 million credit card numbers and 70 million addresses, phone numbers, and other personal information.3 From that time through February 1, 2014, Target spent a whopping $61 million responding to the breach.4 This total does not include the costs (and potential liability) incurred in the more than 90 lawsuits filed against Targets by their customers and banks, and it does not account for the fact that Target’s holiday sales fell by more 46 percent from the same quarter in the previous year due to shaken consumer confidence.5 Also, the $61 million does not capture the spectacle of Target Chief Financial Officer John Mulligan appearing before the Senate and testifying that Target was “deeply sorry”6 but that it failed to have responded to multiple intrusion warnings from its software prior to the breach.7

The Target breach was followed by high profile breaches at Neiman Marcus8 and Sally’s Beauty Supply,9 although none on the same scale as Target. Nonetheless, corporations remain at risk and the risks remain much the same: costs to repair the damage, costs to secure their systems, costs to repay the consumers, losses in profits, losses in consumer confidence, and lawsuits seeking damages for alleged negligence. Intense media and Congressional scrutiny have classified all data breaches as direct attacks on privacy, and any company that has possession of personal identification information should consider itself in possession of potentially explosive material.

The first three paragraphs of this client alert are the external view – in other words, what the public at large perceives of the corporation. But what about the corporation itself? What should it be considering when faced with a data breach? Very little is going to prevent determined thieves from getting into protected systems, even well-protected systems. But the company’s response – from containing the damage to communicating with the public – will largely dictate whether it can survive intact.

So, we know the following must happen:

  1. You’ve got to do something. There is a saying that ostriches bury their heads in the sand at the first sign of danger on the notion that if they can’t see reality, reality can’t see them either. But this is a myth. Actually, at the first sign of danger, ostriches take off running, at speeds of up to 40 miles per hour. Now, we are certainly not suggesting that a corporation flee from a data breach. But taking no action – much like what Target was criticized for doing – is tantamount to disaster.
  2. You’ve got to do something fast. This is the age of instantaneous communication. Twitter, Facebook, and many other forms of social media mean that information spreads at the click of a button, whether it is true or not. This places tremendous pressure on the victim of a data breach; the longer the delay, the more likely it is that the corporation will lose control of the news cycle. Target’s delay in responding to the data breach – a delay measured in weeks – was eons in Internet-time. In the void created by Target’s silence, the narrative wrote itself.
  3. You’ve got to do something effective. Effectiveness is measured in many different ways, and your response is going to involve corporate multi-tasking on a level that you will rarely ever see. For example, the corporation will need to provide information to law enforcement and its regulators, notify customers, publicly acknowledge the breach, repair the breach, and protect the systems, almost all simultaneously.

Knowing this makes the takeaway lesson simple: every single corporation that has access to personal information must have a crisis response team and a crisis response plan. The team is a collection of key individuals who understand technology, communications, and the core business; the crisis response plan sets forth the steps that must be taken in the event of a data breach. The plan must be rehearsed until it is second nature and it must be continuously updated. Practice does make perfect.

The best course of action is to pair your experts – the people that know your business and your technology – with outside experts – people who know communication, law, and technology. This concerted effort can make your corporation avoid being a target … or a Target.











DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bracewell LLP | Attorney Advertising

Written by:

Bracewell LLP

Bracewell LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.