The Oklahoma Bar Journal September 2023

C orporate L aw

T HE FUTURE OF COMMERCE IS NO LONGER COMING; it has arrived. Every single industry is driven by the internet and data, even industries like pipeline 1 and railroad 2 operations. In common parlance, “Data is the new oil.” As a result, attorneys and compa nies no longer have a choice in adopting and adapting to new technologies. They either do, or they go extinct. Technology, however, is something many people, including industry leaders and attorneys, loathe. Has anyone ever purchased a printer and been able to get it to work without troubleshooting it first? I doubt it. A Cyber Primer: 6 Practical Lookouts for Advising Companies in the 21st Century By Collin R. Walke

commerce. Hopefully, each look out will at least provide a general direction from which attorneys can begin their own research. LOOKOUT NO. 1: TRADITIONAL THEORIES OF LIABILITY STILL EXIST Even though cyber issues may be “unique” in some aspects, at the end of the day, many legal claims are simply new spins on already existing theories of recovery. For example, in Oklahoma, simple negligence may be sufficient to state a viable claim for damages resulting from a data breach. In Cook v. McGraw Davisson Stewart, 3 a real estate client sued his former real estate broker for negligence. Allegedly, a hacker

accessed the broker’s email and used it to cause the client to send a fraudulent wire transfer to the hacker, thinking the client was sending it to the broker for clos ing. The client claimed the broker “failed to maintain proper secu rity” on their email. The broker in Cook got lucky because the client did not present evidence sufficient to demonstrate a question of fact on his negligence claim because “he could not present evidence that [the broker’s] email had been hacked, as opposed to his own.” 4 Similarly, in In re McDonald’s Corporation Stockholder Derivative Litigation , 5 the Delaware Court of Chancery extended the duty of oversight found in In re Caremark International, Inc., Derivative Litigation 6

But the practical frustrations that stem from technological implementation shy in comparison to the legal liabilities. Given that virtually every single business touches data, attorneys counsel ing companies on … well, really anything, need to appreciate that there is a labyrinthine set of regulations and laws governing the cyber realm. The aim of this article is to provide six practical lookouts that corporate attorneys need to consider when advising their clients from the inception of a business to a data breach. Obviously, an entire volume of books can be written about these topics, but this primer provides, in general, the common issues attor neys come across in 21st-century

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

SEPTEMBER 2023 | 7

THE OKLAHOMA BAR JOURNAL