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DOJ Offers Narrow Window to Comply With New Data Security Rules

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Kaylee Cox Bankston, Joe Folio, and Josh Fattal published an article in Bloomberg Law that highlights nine (9) key insights for...

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Kaylee Cox Bankston, Joe Folio, and Josh Fattal published an article in Bloomberg Law that highlights nine (9) key insights for U.S. companies to keep in mind as they navigate the new requirements under the Department of Justice's Bulk Sensitive Data regulations.Read the <a href="https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X88RE2UG000000?bna_news_filter=us-law-week#jcite" target="_blank">full article</a>.

DOJ Offers Narrow Window to Comply With New Data Security Rules

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Kaylee Cox Bankston is a partner in Morrison Foerster’s Privacy + Data Security Group. She advises clients across all industries on complex cybersecurity, privacy, and data matters, including cybersecurity investigations and breach preparation, corporate governance and risk management, regulatory investigations, litigation and class action defense, and other emerging industry issues, such as the use and impacts of Artificial Intelligence (AI). Kaylee was recognized by The Legal 500 US for her work in Cyber law (including data privacy and data protection) in 2023. Kaylee is also a co-author of The International Handbook of AI Law: A Guide to Understanding and Resolving the Legal Challenges of Artificial Intelligence.<ul><li>Cybersecurity Investigations and Incident Response Preparedness: Kaylee has extensive experience leading clients in investigations of sophisticated cyberattacks and security breaches conducted by high-profile threat actor groups, including ransomware, data extortion events, and business email compromises. She also counsels clients on incident response programs and preparedness, including developing and conducting cybersecurity simulations and “tabletop” exercises, preparing clients for security assessments, audits, and testing, and advising on post-assessment implementation and risk mitigation strategies. Kaylee also advises clients on cybersecurity information- and intelligence-sharing, data access requests, and related national security matters.</li><li>Regulatory Investigations and Litigation: Kaylee has substantial experience representing clients in privacy and security investigations and related regulatory actions. She has represented companies in cybersecurity and privacy matters before U.S. and international regulators, including the U.S. Federal Trade Commission (FTC), the U.S. Securities and Exchange Commission (SEC), the U.S. Department of Justice (DOJ), the U.S. Department of Health and Human Services, Office of Civil Rights (HHS OCR), New York Department of Financial Services (NYDFS), and state attorneys general, and in litigation matters in various U.S. federal and state courts.</li><li>Public Companies Counseling, Corporate Governance, and Compliance: Kaylee has advised numerous companies in connection with the new SEC Cybersecurity Disclosure Rules, including counseling on disclosure obligations for material cybersecurity incidents and developing annual SEC cybersecurity disclosures for publicly traded companies. Kaylee also counsels executives and boards of directors on cybersecurity and privacy corporate governance and risk management matters. She also regularly advises clients on the development of cybersecurity and privacy programs and compliance with other regulatory requirements and standards, such as the NYDFS Part 500 cybersecurity requirements, the FTC Safeguards Rule, the FTC Act, the California Consumer Privacy Act (CCPA) and state data privacy laws, the Illinois Biometric Information Privacy Act (BIPA), the Children’s Online Privacy Protection Act (COPPA), the Health Insurance Portability and Accountability Act (HIPAA), the Family Educational Rights and Privacy Act (FERPA), the Gramm-Leach-Bliley Act (GLBA), and the Payment Card Industry Data Security Standard (PCI DSS).</li><li>Corporate Transactions and Vendor Management: Kaylee counsels clients on vendor management programs, including developing security and privacy contracting frameworks and negotiating data protection agreements. Kaylee also advises clients on privacy and security diligence matters in connection with corporate transactions.</li></ul>Kaylee is an adjunct professor at Georgetown University Law Center, where she teaches a cybersecurity course. Kaylee is a Certified Information Privacy Professional (CIPP) through the International Association of Privacy Professionals. She previously served on the Center for a New American Security, Technology Policy Lab Working Group for Data Privacy and the Bar Association of the District of Columbia Board of Directors and National Security Steering Committee. She is also a member of Women in CyberSecurity (WiCyS).

Kaylee Bankston

Partner

Joseph Folio is a trial lawyer and partner in Morrison Foerster’s Global Antitrust Law, Crisis Management, and Privacy + Data Security Groups, with more than a dozen years of experience leading complex government investigations and high-profile litigation.Joe has extensive experience in cartel investigations, congressional investigations, and complex civil litigation. Having served in all three branches of the federal government, and with his experience in both criminal and civil litigation, Joe is able to leverage his insider knowledge across a variety of enforcement perspectives to guide clients through difficult cases. He is also a member of our global ESG + Sustainability steering committee.As a prosecutor in the Antitrust Division of the U.S. Department of Justice (DOJ), he investigated companies and individuals involved in domestic and international antitrust cartels. Among them, he oversaw all aspects of the investigation into generic pharmaceuticals as the case’s chief of staff, including the handling of the parallel multidistrict litigation case brought by several state attorneys general and private plaintiffs. He also prosecuted and investigated cases in the international freight forwarding industry and cases involving bid rigging in state infrastructure projects.Prior to joining Morrison Foerster, Joe served as Chief Counsel for the Committee on Homeland Security & Governmental Affairs, the chief oversight committee of the U.S. Senate. In this position, he oversaw a variety of investigations, including the coordination of investigations with other Senate and House committees with overlapping jurisdictions. He also advised the committee on all policy issues falling within its broad jurisdiction, including cybersecurity, border security, domestic terrorism, election security, supply chain security (including 5G policy), and reforming the National Emergencies Act. Joe advised committee members on oversight of the Cybersecurity and Infrastructure Security Agency (CISA) within the Department of Homeland Security, legislation providing CISA with administrative subpoena authority, the creation of the National Cyber Director, and oversight of government and private efforts to protect against and respond to cyber breaches and ransomware attacks.While at the Federal Programs Branch of the DOJ’s Civil Division, Joe handled complex, high-profile litigation, focusing largely on national security matters, and his clients included the FBI; the Departments of Defense, Homeland Security, and State; and several members of the U.S. Intelligence Community. He also represented the Export-Import Bank against multiple administrative and constitutional challenges. Due to the cutting-edge nature of this litigation, he has experience navigating the inter-agency process when cases raise novel legal or policy issues that must be resolved at the highest levels.Joe received his B.A., magna cum laude, in philosophy and government from Georgetown University; M.A. with honors in national security studies from Georgetown University; and J.D., cum laude, from the George Mason University School of Law. After graduating from law school, Joe clerked for the Honorable Richard L. Voorhees in the U.S. District Court for the Western District of North Carolina.<h4>Representative Matters</h4>Antitrust<ul><li>Representing a major U.S. healthcare company in a criminal antitrust investigation of alleged “no-poach” conduct.</li><li>Representing a senior executive of an international company in a U.S. criminal cartel investigation.</li><li>Representing Nexstar Media Group in a putative class action alleging that certain media companies conspired to fix the prices of local television advertising.</li></ul>Congressional Investigations<ul><li>Representing Andy Karsner, a member of ExxonMobil’s board of directors, in response to a high-profile House Oversight and Reform Committee investigation regarding the role of the fossil fuel industry in addressing climate change, including preparing him to testify before the committee.</li><li>Representing a former government official who testified before the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol.</li><li>Representing a Fortune 100 company responding to inquiries from committees and members regarding its policies and practices.</li></ul>

Joseph Folio III

Joshua R. Fattal is an associate in Morrison Foerster’s Privacy + Data Security Group. He advises clients across industries on data protection best practices, product development, complex national and international regulatory compliance, transaction diligence, incident preparedness and response, and emerging topics, such as the use of artificial intelligence (AI).Joshua regularly counsels clients in a variety of industries on complex data privacy issues related to local, state, and federal legal frameworks, including the California Consumer Privacy Act (CCPA) and other U.S. state privacy laws; the Biometric Information Privacy Act (BIPA) and other U.S. state and local biometric laws; the Gramm-Leach-Bliley Act (GLBA); the Fair Credit Reporting Act (FCRA); the Telephone Consumer Protection Act (TCPA); the Children’s Online Privacy Protection Act (COPPA); and the Family Educational Rights and Privacy Act (FERPA). Joshua also advises clients on cybersecurity laws, regulatory requirements, and best practices, including the SEC’s cybersecurity disclosure rules for public companies, registered investment advisors, and broker-dealers; the New York State Department of Financial Services’ (NYDFS) Cybersecurity Regulation; and the NIST Cybersecurity Framework. Joshua also advises global clients on foreign privacy and security frameworks, including the General Data Protection Regulation (GDPR), the EU-U.S. Data Privacy Framework, and the EU’s e-Privacy Directive.Joshua works with clients ranging from emerging to public companies across a variety of industries, including technology, life sciences, EdTech, Fintech, crypto, consumer services, and AdTech. Joshua assists clients in developing information security policies and procedures, standing up cybersecurity governance processes, negotiating data transfer and processing agreements, designing third-party vendor risk management programs, and product development and design. Joshua also advises clients on incident response strategy, assisting companies in investigating data breaches and preparing notifications to customers, affected individuals, and regulators. As part of his practice, Joshua performs privacy and cybersecurity due diligence and negotiates transaction documents in connection with public and private corporate deals.Joshua maintains an active pro bono practice. He has worked on numerous immigration matters, helping to reunite separated families and obtaining a grant of asylum for a Honduran woman escaping sexual violence. Joshua has also represented tenants in litigation against their landlords over unhabitable living conditions. Additionally, Joshua regularly helps nonprofits build and develop their privacy and cybersecurity programs.Prior to joining Morrison Foerster, Joshua was an associate in the data privacy and cybersecurity practice at another international law firm. Joshua previously worked in the U.S. Intelligence Community, including as an attorney advisor in the Intelligence Law Division at the U.S. Department of Homeland Security, where he advised government officials on compliance with domestic and international privacy regimes and data security matters related to information sharing, data analytics, and cloud computing technology. In 2020, Joshua was a judicial law clerk for the Honorable Sarah Netburn, U.S. Magistrate Judge, Southern District of New York.Joshua received his J.D. from New York University School of Law, where he graduated cum laude and was recognized as a Robert McKay Scholar. Joshua was also awarded the ASPIRE Cybersecurity Scholarship, a prestigious full-tuition merit scholarship providing a select group of students with a cybersecurity education from a multidisciplinary perspective. Joshua received his B.A. from Columbia University, where he graduated magna cum laude and was a member of Phi Beta Kappa.

Joshua Fattal

Associate

Privacy + Data Security

Privacy + Data Security Litigation