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Bankruptcy 363 Sales: Avoiding Risks of Post-Sale Liability for Violating Data Breach Reporting and Privacy Laws

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Monday, September 30, 2024

Recorded event now available

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This CLE webinar will discuss data privacy and data security issues in the context of Section 363 sales, including disclosure obligations and the enforcement of state and federal data security and privacy laws. The panel will consider options for how a potential purchaser can be sure that the business being purchased is in compliance with them, as well as how to mitigate the effects of a data breach on the purchase. The program will review whether a debtor must affirm that it is in compliance with data and security laws and its own privacy policies, whether and how sale-related pleadings do or do not cover these issues, and privacy and data security best practices for Section 363 sales.

Description

Debtors seeking to sell substantially all their assets through bankruptcy cannot ignore applicable data privacy and data security laws, including data breach reporting laws. Potential purchasers want to be sure that selling debtors are in compliance. Generalized and vague language in sale orders or bidding instructions about compliance with "material laws" may or may not provide any protection.

Individual officers and directors, owners, and others who may have been used to a measure of protection before Purdue will want to be very careful about what representations and warranties are given should it turn out the debtor-seller was not in compliance with applicable privacy and data security laws.

Debtors and bidders need a checklist for privacy issues that should be addressed during the sale process, and when possible, well before the case is filed. Attorneys representing these parties must also take appropriate steps to safeguard this information, and make certain that any vendors they retain in the case do so as well.

Listen as this experienced panel reviews data security when a debtor wishes to sell substantially all its assets in a going concern Section 363 sale and how a potential purchaser can be sure that the business being purchased is in compliance with them.

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Outline

  1. Obligations imposed by data privacy laws
  2. Privacy concerns implicated by 363 sales
  3. Best practices for addressing data privacy concerns and potential pre-sale breaches

Benefits

The panel will review these and other key issues:

  • What representations or warranties about compliance with privacy laws should be included in bidding instructions, sales agreements, or other controlling documents?
  • What remedies does a purchaser have if there has been a pre-sale data breach that is not discovered until after the sale?
  • Can bankruptcy courts waive data breach notification rules the same they waive local ordinances about "going out of business" sales or advertising?

Faculty

Binford, Jason
Jason Binford

Shareholder
RSB

Mr. Binford Binford draws on his experience over a nearly two-decade career to assist clients in every aspect of...  |  Read More

Nadro, Kathryn
Kathryn C. Nadro

Partner
Levenfeld Pearlstein

Ms. Nadro is a partner in the firm’s Corporate Group, advising clients on cybersecurity and data privacy...  |  Read More

Ryan, Abigail
Abigail R. (Abby) Ryan

Bankruptcy Counsel
National Association of Attorneys General

Ms. Ryan serves as the Bankruptcy Counsel for the National Association of Attorneys General (NAAG). She spent many...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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