When Is A Cyber Incident Likely to Be Litigated and How Much Will It Cost? An Empirical Study

Abstract

Numerous cyber incidents have shown that there are substantial legal risks associated with these events. However, empirical analysis of the legal aspects of cyber risk is largely missing in the existing literature. Based on a dataset of historical cyber incidents and cyber-related litigation cases, we provide one of the earliest quantitative studies on the likelihood of cyber incidents being litigated and the cost of settling a cyber-related case. Using regression models, we showed that some company and incident characteristics play an important role in determining the litigation probability and settlement costs, and the models proposed in the paper display good explanatory power. Our findings show that the lack of Article III standing is commonplace in cyber-related cases and that solely relying on the common law system makes it difficult for victims of malicious data breaches to sue and receive legal remedies. In addition, we demonstrate that our findings have valuable implications for enterprise risk management in terms of how the legal risk associated with different types of cyber risk should be properly addressed.

Keywords: cyber loss, cyber incident, legal risk, litigation