As businesses are more and more getting hit with cybersecurity attacks, plaintiffs often sue under a plethora of claims seeking to recover damages and for various equitable relief. There exist many defenses to each of these theories, but this article focuses on the common law cause of action of negligence for an entity’s alleged failure to maintain adequate cybersecurity protections.

While the below recent New York state and federal decisions are rulings made at the pre-answer motion to dismiss stage and prior to discovery taking place, parties and counsel need to recognize that such causes of action, depending on how well they are pleaded, may survive such a dispositive motion. That means expensive fact and expert discovery for the defendant entity.