LeadsCouncil Industry Alerts

USTELECOM INDUSTRY TRACE BACK GROUP FILES TO BE TRACED ACT CONSORTIUM
USTELECOM INDUSTRY TRACE BACK GROUP FILES TO BE TRACED ACT CONSORTIUM

Last month the Federal Communications Commission’s (FCC) Enforcement Bureau (EB) informed parties interested in serving as the single consortium that conducts private-led efforts to trace back the origin of suspected unlawful robocalls that they had to provide Letters of Intent to the EB by May 21, 2020. The establishment of the consortium is a requirement under Section 13(d) of the Pallone-Thune TRACED Act.

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UNPRECEDENTED Episode 14 Now Available: Constitutional Law Professor Garret Epps Joines the Czar to Discuss TCPA SCOTUS Review

Well folks, our coverage of the HUGE SCOTUS review of the TCPA continues today. Of course we famously live blogged the oral argument earlier this month, then followed up with definitive analysis and an incredible round-table podcast breaking it down (including analysis from one of Supreme Court Justice Ginsburg’s former law clerk’s-  Ben Beaton, co-head of SPB’s Appellate Team.) And now we have EXPERT analysis from Constitutional Law Professor Garret Epps of the University of Baltimore.

Missed Marks: Court Transfers Carpet Bagging TCPA Class for Improper Attempt to Bend Venue Rules to Take Advantage of 9th Circuit Case Law
Missed Marks: Court Transfers Carpet Bagging TCPA Class for Improper Attempt to Bend Venue Rules to Take Advantage of 9th Circuit Case Law

As TCPAWorld is well aware, the 9th Circuit’s Marks decision broadly defines what constitutes an ATDS under the TCPA. And, of course, this decision has led plaintiffs to seek out various ways to bring their claims in California (and elsewhere within the Circuit) in order to take advantage of that broad ruling. However, the Court’s decision in Laguardia v. Designer Brands, Case No.: 19cv1568 JM(BLM), 2020 U.S. Dist. LEXIS 88142 (S.D. Cal. May 7, 2020), demonstrates that those deliberate tactics are not beyond reproach.

Double Whammy: Repeat Players Craig Cunningham and Andrew Perrong Crush TCPA Defendant on Pair of Critical Issues
Double Whammy: Repeat Players Craig Cunningham and Andrew Perrong Crush TCPA Defendant on Pair of Critical Issues

The latest example is particularly painful because it involved two notorious TCPA repeat players—Craig Cunningham and Andrew Perrong— adding another feather to their already well-adorned caps. And adding salt to the wound, the Defendant’s critical position on the absence of a cause of action under CFR 64.1200(d) was rejected for the first time in Utah. Trainwreck.

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FCC SETS DATES FOR ONE-RING SCAM NPRM COMMENTS

TCPAWorld previously reported that the Federal Communications Commission (FCC) had initiated a Notice of Proposed Rulemaking (NPRM) proceeding to develop rules to combat one-ring scam calls.

FTC Halts Deceptive Payday Lender, Harvest Moon Financial, Gentle Breeze Online, Green Stream Lending
FTC Halts Deceptive Payday Lender, Harvest Moon Financial, Gentle Breeze Online, Green Stream Lending

Washington, DC (STL.News) The Federal Trade Commission has charged a payday lending enterprise with deceptively overcharging consumers millions of dollars and withdrawing money repeatedly from consumers’ bank accounts without their permission.  A federal court has entered a temporary restraining order halting the operation and freezing the defendants’ assets, at the FTC’s request.

Who decides what’s a worthwhile education?
Who decides what’s a worthwhile education?

Who decides what’s a worthwhile education?

That’s a question that has defined the fight over charter schools, homeschooling and education vouchers, and now there’s a new front in the battle: privately owned schools that teach useful skills to adults.

FTC Sues Negative Option Marketers
FTC Sues Negative Option Marketers

On May 13, 2020, the Federal Trade Commission filed a complaint in the Eastern District of Pennsylvania against American Future Systems, Inc. (“AFS”), a Pennsylvania-based telemarketing company, and its alleged co-conspirator, International Credit Recovery, Inc. (“ICR”) (AFS and ICR, collectively, “Defendants”), for conspiring to bilk businesses into paying for publications that they never ordered. 

FCC/FTC UP THE PRESSURE: New Warning Letter Advises Carriers to Cease Carrying Spam Robocalls—Or Else
FCC/FTC UP THE PRESSURE: New Warning Letter Advises Carriers to Cease Carrying Spam Robocalls—Or Else

Well the telecom world continues to shift from an environment where carriers are expected to faithfully connect every call to one in which they are expected to continuously monitor their network traffic to assure that spammers and scammers aren’t afforded access to the U.S. market.

Preparing CCPA Privacy Policies Before the July 1 Enforcement Date
Preparing CCPA Privacy Policies Before the July 1 Enforcement Date

Despite the myriad issues that businesses now face with the Covid-19 pandemic, the California State Attorney General remains committed to the California Consumer Privacy Act (“CCPA”) enforcement date of July 1, 2020. As such, businesses that have not already done so should add CCPA compliance to their immediate to-do lists. One area of compliance that requires attention is online privacy policies that include CCPA-mandated provisions (“CCPA Privacy Policies”). 

[FCRA] NEW BREACH RISK?: Experian is Collecting YOUR Behavioral Data and Claiming it is Beyond the Reach of FCRA—is it Right?
[FCRA] NEW BREACH RISK?: Experian is Collecting YOUR Behavioral Data and Claiming it is Beyond the Reach of FCRA—is it Right?

­­­­­­­What is behavioral data really? And where does it stand in relation to the FCRA? In this recent ruling out of the Central District of California, Tailford v. Experian Info. Sols., Inc., 2020 U.S. Dist. LEXIS 84658, the putative class of plaintiffs defined behavioral data as “non-traditional consumer data such as household income and purchase history,” and argued that Experian, as a consumer reporting agency (“CRA”)  is required to disclose all such data IF it “might be” furnished in a consumer credit report.

CRACKING DOWN?: FTC Issues Warning Letters to Big Lead Sellers re COVID Funding Claims and Everyone Should Take Notice
CRACKING DOWN?: FTC Issues Warning Letters to Big Lead Sellers re COVID Funding Claims and Everyone Should Take Notice

I’ve said it once, I’ll say it again–the FTC is not messing around when it comes to potentially false/misleading COVID/PPP/CARES claims or related scams.

If you’re buying or selling leads these days there’s already a lot to keep in mind these days. From claims of bogus lead traffic to(allegedly) invented consents, TCPA traps for the unwary seem to lurk around every corner.

Court Finds Fax Survey is TCPA Advertisement
Court Finds Fax Survey is TCPA Advertisement

The United States Court of Appeals for the Third Circuit recently upended the legal landscape governing fax marketing by issuing a decision which held that a market research-related fax survey is an advertisement for purposes of the Telephone Consumer Protection Act (“TCPA”).

What are the implications of the Third Circuit’s fax survey decision?

Seller Files Complaint Against Marketer Alleging Fraudulent TCPA Consent

An energy supplier that is a defendant in a class action for alleged Telephone Consumer Protection Act (TCPA) has filed a counterclaim against a third-party leads generator, alleging that the TCPA violations came about because they expressly disregarded compliance instructions and then falsified documentation to cover up their misdeeds.

Creditors to be Covered by New FDCPA w/ 10x Damages Available?: HEROES Act Seeks to Make Massive Changes to Consumer Protection Laws– Here’s What You Need to Know
Creditors to be Covered by New FDCPA w/ 10x Damages Available?: HEROES Act Seeks to Make Massive Changes to Consumer Protection Laws– Here’s What You Need to Know

Well its a new week so there’s a new Coronavirus bill floating around–this time a House-drafted bill that affords $3 trillion in relief to consumers and businesses impacted by COVID 19. (A trillion here, a trillion there–sooner or later it starts to add up.)

Not Exactly Even–TCPA Defendant Recovers a Little over $1,000 in Costs After Defeating Years-Long Nationwide TCPA Class Action
Not Exactly Even–TCPA Defendant Recovers a Little over $1,000 in Costs After Defeating Years-Long Nationwide TCPA Class Action

A TCPA defendant faces the prospect of a nationwide class action of thousands of individuals seeking to recover (collectively) millions of dollars in statutory fines, attorneys’ fees, and interest.  To defeat that kind of lawsuit, a TCPA defendant will invest years, extensive company resources, and hundreds-of-thousands of dollars in attorneys’ fees.   Yet the individual who files the underlying TCPA lawsuit faces no comparable downside risk.

HUGE NEWS: Regulation Banning Debt Collection Calls During COVID Struck Down as Unconstitutional– How Does that Play SCOTUS TCPA Review?
HUGE NEWS: Regulation Banning Debt Collection Calls During COVID Struck Down as Unconstitutional– How Does that Play SCOTUS TCPA Review?

So while everyone was looking at the big Supreme Court TCPA review, there was some unexpected and overshadowed news out of Massachusetts this week that is really a big deal. Turns out the state’s prohibition on debt collection activity–including phone calls–is illegal; at least according to one judge that issued an injunction preventing the AG’s office in that state from enforcing it. See Aca Int’l v. Healey, Case NO. 20-10767-RGS, 2020 U.S. Dist. LEXIS 79716 (D. Mass. May 6, 2020).

Big TCPA Supreme Court Oral Argument Complete: Here Are the Top 10 Things You Need to Know About the Barr v. AAPC TCPA Review Right Now
Big TCPA Supreme Court Oral Argument Complete: Here Are the Top 10 Things You Need to Know About the Barr v. AAPC TCPA Review Right Now

Well folks, today was the big day–oral argument took place in Barr v. AAPC and it did not disappoint.

With the advocates and the Supreme Court Justices –including Ginsburg who called in from a hospital bed– calling into the hearing by phone the stage was set for a robust back-and-forth between the advocates and the Justices, who asked questions in order of seniority.

STATE ATTORNEYS GENERAL STATE ROBOCALL ENFORCEMENT PRIORITIES
STATE ATTORNEYS GENERAL STATE ROBOCALL ENFORCEMENT PRIORITIES

State Attorneys General from all 50 states have called upon USTelecom –The Broadband Association to take further actions to trace back and combat illegal robocalls using the Industry Traceback Group (“ITG”) formed under the auspices of the Association.

FTC active in litigation over advertising, promotional claims during pandemic
FTC active in litigation over advertising, promotional claims during pandemic

The U.S. FDA’s enforcement regarding products related to the COVID-19 pandemic has picked up steam recently, but the U.S. Federal trade commission (FTC) is also involved in this enforcement arena. 

U.S. Supreme Court Debates TCPA Government-Debt Exception
U.S. Supreme Court Debates TCPA Government-Debt Exception

The U.S. Supreme Court—via teleconference—debated the constitutionality of content restrictions in automated calls to cell phones and a federal exception for calls to collect government debt in an hour-long hearing Wednesday.

FTC May Change Obscure Data Breach Rule In Telehealth Era
FTC May Change Obscure Data Breach Rule In Telehealth Era

Law360 (May 8, 2020, 8:00 PM EDT) -- The Federal Trade Commission said Friday that it is considering changing a decade-old, little-used rule that requires certain companies handling health information to publicly report data breaches — and which could gain new relevance as consumers increasingly turn to telehealth.

AG Warns Of Scammers Impersonating Government Entities
AG Warns Of Scammers Impersonating Government Entities

AUSTIN – Yesterday, Attorney General Ken Paxton warned Texans that scammers have been spotted posing as state agencies to solicit money from hardworking consumers. There are variations of this scam, such as local law enforcement contacting you with a warrant, agencies asking for donations, back taxes or fines, or asking for your personal information to either confirm innocence or receive a payment.

‘Tiny’ COPPA Case Provides Broad Guidance
‘Tiny’ COPPA Case Provides Broad Guidance

At the end of April, the U.S. District Court in New Mexico dismissed most, but not all, of the New Mexico Attorney General’s claims against a group of Ad Networks and Google for violations of the federal Children’s Online Privacy Protection Act (“COPPA”) and New Mexico’s Unfair Practices Act (“UPA”). Although the decision was a major win for the Ad Network defendants in the case, companies involved in mobile gaming apps should still proceed with caution when collecting information from children. 

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Trust is vital to the future of the media publishing industry

In 2020, media companies will continue to redefine what it means to be a publishing brand.

Traditional broadcast providers are evolving into software companies, with cloud delivery mechanisms such as Infrastructure as a Service supporting this transition. 

Liberal Groups Support Bill Banning Most M&As During Crisis
Liberal Groups Support Bill Banning Most M&As During Crisis

Law360 (May 8, 2020, 8:51 PM EDT) -- Congress' top two Democratic leaders were urged by more than two dozen liberal and progressive groups Friday to pass a planned bill that would ban most mergers and acquisitions by companies over a certain size while the country recovers from the COVID-19 pandemic.

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[FCRA] BEWARE FCRA Dangers: Court Awards $400k in Attorneys’ Fees to Plaintiff After Trial Win—But Defendant Avoids Potential $165MM in Punitive Damages

FCRA cases can be dangerous. Potentially deadly. Especially when the FCRA plaintiff’s counsel pros get a hold of you.

One defendant recently found that out the hard way in a suit that saw an award of over $100k in damages and nearly $400k in attorney’s fees awarded to a Plaintiff in an individual suit.

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Motion to Reopen Granted: RICO Claims Against TCPA Plaintiff May Proceed

In January 2020, Jacovetti Law, P.C., a law firm in Pennsylvania, filed a lawsuit against prolific TCPA filer, Blake Shelton, and his company Final Verdict Solutions, for allegedly inducing companies to call Shelton, so he can file a TCPA lawsuit in violation of RICO, wire fraud, and unjust enrichment.

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[FCRA] Unfair Attack?: 23 State AGs Blast CFPB’s COVID-19 FCRA Response—But is the Criticism Justified?

A coalition of 23 attorneys general are upset with the Consumer Financial Protection Bureau (“CFPB”). 

Really upset. 

On April 1, 2020, the CFPB issued a policy statement that it intended to relax certain oversight priorities during the current COVID-19 pandemic, and this sent the attorneys general into something of a panic.

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It's lonely during the quarantine.

This is an awesome tale of how some of our members are getting (or not) along during COVID - It's lonely during the quarantine.

AKA. Beth and Rich hanging out at the office during the COVID-19 quarantine.

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BREAKING: U.S. TELECOM’S PATRICK HALLEY JOINS UNPRECEDENTED PODCAST TO DISCUSS INDUSTRY TRACEBACK EFFORT AND CARRIER CALL BLOCKING

Although you’ve probably never heard of him, he’s the head of one of the most effective anti-robocall task forces in the nation: the Industry Traceback Group–an outfit designed to get to the root of scam robocalls and shut them down at the source.

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TCPA Quick Hitter: Another Court Joins the Ranks of Those Staying TCPA Matters Pending SCOTUS Review

As I reported earlier today, the big TCPA SCOTUS review is now fully briefed and oral argument is just 8 days away. Wow!

But in the meantime, TCPA cases rumble forward at the district court level with many courts inexplicably refusing to stay cases pending the outcome of the SCOTUS review.

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TCPA Quick Hitter: 5-Text-Standing-Dismissal TCPA Suit Appealed to Eleventh Circuit—Another Case Stayed Pending the Outcome

As we reported a few weeks back, a court in Florida extended the standing limitations of Hanna (dismissal of a TCPA suit involving 2 text messages for lack of any concrete harm) to a case involving 5 text messages. That suit—Eldridge—is now on appeal to the Eleventh Circuit Court of Appeal.

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FCC ESTABLISHES REASSIGNED NUMBER DATABASE GUIDELINES

The Federal Communications Commission (FCC) Wireline Competition Bureau (Bureau) has established guidelines involving key terms and the disposition of excess funds for the reassigned number database being deployed to address the problem of unwanted calls to consumers with numbers reassigned from a previous consumer.

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[FCRA] Hassel – A Defense Roadmap for Furnisher Victory

 Another furnisher victory on the pleadings, which again highlights the importance of an aggressive defense mindset from a case’s inception.    Winning a case on a motion to dismiss is one of the quickest and most cost-efficient ways to end a lawsuit; and below is how Centric Bank’s (“Centric”) defense team did just that in Hassel v. Centric Bank, No., 2020 U.S. Dist. LEXIS 65883 (M.D. Pa. Apr. 13, 2020).

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Every Penny Counts: Stop Losing Money from Affiliate Marketing Fraud

But why is affiliate marketing fraud so popular with criminals? For one, digital ad spending is up. As marketers allocate more of their budget to affiliate marketing and other digital streams, criminals follow. According to eMarketer, digital ad spend will comprise nearly 60 percent of ad spending in 2020 and will reach 66.8 percent by the year 2023.

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BREAKING: Court Awards $89MM Attorney Fee In TCPA Trial Win–Refuses to Reduce $267MM Judgment Against Defendant

As I have recently remarked, the TCPA is the biggest cashcow in the history of American class action practice.

Apropos: Friday a court entered an order approving an attorney fee request of $89,116,333.33 in favor of a group of TCPA plaintiff lawyers that successfully pursued a certified TCPA class action to trial against a collector.

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[FCRA] No Actual Leg to Stand On: Seventh Circuit Affirms Dismissal of Consumer’s FCRA Suit and Experian’s Counterclaim for Lack of Article III Standing

To sue, you must have standing.  To have standing, you must have an actual, concrete injury.  In 2011, Experian accidentally gave a lender a list of prescreened consumers.  The consumer found out about this disclosure five years later, after an attorney told him about it.  

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FCC ENFORCEMENT BUREAU SEEKS TRACEBACK CONSORTIUM LETTERS OF INTENT

In accordance with the agency’s recently adopted rules, the FCC Enforcement Bureau (Bureau)  has now required “interested consortia to provide Letters of Intent in accordance with the Commission’s updated rules and the discussion of the statutory requirements and registration process found” in the rules.

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Statutory Penalties and Prospective Injunction Not Covered By Insurance in TCPA Case

Getting hit with a $280 million judgment and a prospective injunction against future telemarketing practices is bad enough, but not getting insurance coverage to pay for the defense of the case or indemnify the statutory damages adds insult to injury. But, unfortunately, that is the nature of the lack of insurance coverage for TCPA violations.

Chase Scores $250,000 Against TCPA Plaintiff Firm
Chase Scores $250,000 Against TCPA Plaintiff Firm

Chase Bank has marked its territory in TCPAWorld.com!  Last year, Chase was sued in New Jersey for alleged auto-dialer violations. Chase answered by asserting an unclean hands defense. 

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[FCRA] Split Personalities: Government Immune From FCRA Suit, Maybe Not?

As of 2018, the Department of Education had issued $1.5 trillion in student loans.  As the United States’ top student-loan lender, it is one of the largest furnishers of credit data in the country.  That’s right, the Government as a furnisher.  

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What Does Ad Fraud Have to Do with Your Digital Marketing Campaign?

When you think of cybercrime, the first thoughts that come to mind are likely centered around the big-time data breaches that make headlines. When companies such as Marriott, Yahoo, Equifax, and Capital One have hundreds of millions of records exposed, it tends to make an impression.

[FCRA] No Target Moving: FCRA Plaintiff Cannot Sue to Remedy Inaccurate Reporting Not Raised in Original Dispute to Reporting Agencies
[FCRA] No Target Moving: FCRA Plaintiff Cannot Sue to Remedy Inaccurate Reporting Not Raised in Original Dispute to Reporting Agencies

For purposes of FCRA litigation, a plaintiff cannot strategically withhold arguments about the accuracy of information provided to a CRA when these arguments were not raised in the plaintiff’s original dispute with reporting agencies. 

RICO Claim Update: Navient Beats the Lohman Law Firm Again–Court Determines Crime/Fraud Exception Permits Disclosure
RICO Claim Update: Navient Beats the Lohman Law Firm Again–Court Determines Crime/Fraud Exception Permits Disclosure

The saga builds! To summarize our previous coverage: Navient has turned the tables and sued a plaintiff firm – The Lohman law firm – for allegedly coaching clients to bilk Navient out of millions of dollars.  The alleged scheme: the Lohman firm had students stop paying their debts to Navient (and pay other entities); and gave a word-for-word script for the students to instruct Navient to cease all phone calls to them. 

Federal Ruling: Marketer Can Be Liable For Dispensarys’ TCPA Violations
Federal Ruling: Marketer Can Be Liable For Dispensarys’ TCPA Violations

On April 20, 2020, the Northern California district court ruled on corporate awareness, corporate parenthood, and tcpa compliance for cannabis. The rulings, and the opinion’s timing, has nothing to do with the national holiday for cannabis. A judicious wink.

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NY TELEMARKETING LAW GOES INTO EFFECT: HUGE FINES TO CLOSE A LOOPHOLE THAT DOESN’T EXIST

On March 1, New York’s Nuisance Call Act went into effect (full text available HERE). The Act requires live telemarketers to give call recipients the option to be added to the telemarketer’s internal “do not call” list.

COST OF REASSIGNED NUMBERS DATABASE UNDER REVIEW BY FCC
COST OF REASSIGNED NUMBERS DATABASE UNDER REVIEW BY FCC

The FCC is seeking comments on the fee structure for the reassigned numbers database (RND) that may ultimately impact operating costs for users and companies in the accounts receivable management industry.

A THREE-WAY CIRCUIT SPLIT ON ATDS?
A THREE-WAY CIRCUIT SPLIT ON ATDS?: COURT RECOGNIZES MASS ATDS CONFUSION IN OVERRULING TCPA PLEADINGS CHALLENGE

A clear split now exists between the expansive ATDS definition adopted in the Ninth Circuit’s Marks opinion and the statutory ATDS definition adopted by the Seventh and Eleventh Circuit’s ruling in Gadelhak and Glasser.

TCPA CASE SOUGHT TO HOLD AN ATTORNEY LIABLE FOR A FAX HE DIDN'T SEND OR EVEN KNOW ABOUT
DISMISSED FAX BLAST TCPA CASE SOUGHT TO HOLD AN ATTORNEY LIABLE FOR A FAX HE DIDN'T SEND OR EVEN KNOW ABOUT

The issue in the case is a quirky and hard-to-apply FCC ruling suggesting that anyone whose goods or services are promoted in a fax are automatically deemed a “sender” of the fax.

CALIFORNIA BILL PROPOSES CCPA EXCEPTIONS FOR HIPAA DEIDENTIFIED INFORMATION, OTHER HEALTH DATA
CALIFORNIA BILL PROPOSES CCPA EXCEPTIONS FOR HIPAA DEIDENTIFIED INFORMATION, OTHER HEALTH DATA

On January 6, 2020, the California State Senate’s Health Committee unanimously approved California AB 713, a bill that would amend the CCPA to except from CCPA requirements additional categories of health information, including data de-identified in accordance with HIPAA.

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WHAT DOES AD FRAUD HAVE TO DO WITH YOUR DIGITAL MARKETING CAMPAIGN

When you think of cybercrime, the first thoughts that come to mind are likely centered around the big-time data breaches that make headlines. When companies such as Marriott, Yahoo, Equifax, and Capital One have hundreds of millions of records exposed, it tends to make an impression.


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