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Total Articles: 66

Unanimous Supreme Court Scolds Lower Court Over Appellate Deadline Rule

In a unanimous decision, the U.S. Supreme Court ruled today that a federal procedural rule that allows a district court to extend an appeal deadline by no more than 30 days is a non-jurisdictional, mandatory claims processing rule. While this is a generally inconsequential decision when it comes to workplace law, it is a decision about which every litigant and participant in the judicial system should be aware, as it could impact litigation options and strategy. While this decision might potentially lead to a slight uptick in extension requests from pro se plaintiffs and overall delays in commencing appeals, it may also have a marginal impact on appellate litigation (Hamer v. Neighborhood Housing Services of Chicago, et al).

How to Know Which Jurisdiction's Employment Laws Reach Border-Crossing Staff: A Comprehensive Guide to International Choice-of-Employment-Law and -Forum

For the vast majority of employment relationships around the world, choice-of-law analysis is a non-issue that we rarely ever think about. Obviously (for example), a Paris-resident baker working locally for a French bakery is protected only by French employment law. A Buenos Aires-resident banker working locally for an Argentine bank is protected only by Argentine employment law. And so on. Choice-of-law (also so-called “conflict of laws”) analysis in plain-vanilla domestic employment scenarios is so simple, so intuitive and so uncontroversial that it almost never comes up.

Tenth Circuit Significantly Narrows Scope of Injunction Cases Where Irreparable Harm is Presumed

On October 30, 2017, the U.S. Court of Appeals for the Tenth Circuit held that a moving party is not excused from showing irreparable harm prior to the issuance of a preliminary injunction in a trade secret misappropriation case. First Western Capital Management Co. v. Malamed, Case Nos. 16-1434, 16-1465 & 16-1502 (10th Cir. Oct. 30, 2017). The Tenth Circuit reversed a trial court’s decision that issued an injunction without a showing of irreparable harm, which was presumed based on a statutory violation. Departing from prior Tenth Circuit precedent, the court found that the only circumstance where a trial court can excuse the moving party from demonstrating irreparable harm is where the statute calls for mandatory, not permissive, injunctive relief. As a practical result, employers within the Tenth Circuit's jurisdiction must now prove that monetary relief is insufficient, and that only an injunction can provide adequate protection.1

Recusal: Use it or Lose it

Attorneys and their clients must make strategic decisions during litigation whether to take certain actions that are available to them. Should you move for dismissal or answer the complaint? Should you seek more specific answers to written discovery, or just save your questions for a deposition? These are common questions that do not necessarily have a “right” answer.

Rule 68 Offers of Judgment

If there is any occasion in civil litigation that calls for caution by counsel, it is the drafting of a Rule 68 offer of judgment, so warns the Fourth Circuit. Consistent with the general rule of contract construction, responsibility for clarity and precision in a Rule 68 offer is that of the offeror. That concept, along with a few twists and turns unique to a SCUTPA claim, was recently visited by our District Court in Bradley Johnson, as a general guardian, for and on behalf of S.J., a minor and individually on behalf of S.J. v. Hyatt Hotels Corporation, et al, 2017 WL 4473469 (October 6, 2017).

An Ounce of Data Breach Prevention...Address Attorney-Client Privilege in Your Breach Planning

Data breach “horror” stories have become a new staple in today’s business environment. The frequency of attacks which threaten (or compromise) the security of business networks and information systems continually increases — in the health care space alone (which holds the dubious honor of Most Likely To Be Attacked), a FBI and HHS’ Office for Civil Rights report notes that ransomware attacks occur at the rate of 4,000 per day, a four-fold increase from 2015. Experienced data breach forecasters continue to predict that cyber-attacks will continue to increase in frequency. Although data security and breach response are constantly in the headlines, studies demonstrate that organizations remain unprepared to effectively respond to a data breach.

Futurama: How Innovation Can Help Lawyers Meet Client Needs Efficiently

Zev Eigen, Littler's Global Director of Data Analytics, and Ron Dolin, Senior Research Fellow at Harvard Law School Center on the Legal Profession and an Adjunct Assistant Professor at the University of Notre Dame School of Law, discuss the current and future state of technology in law.

Court Grants Request For Social Media Posts Related To Emotional State And Physical Activity

In Gordon v. T.G.R. Logistics, Inc., a personal injury case, the court ordered the plaintiff to produce her entire “Facebook account history” from the date of the accident onward to the extent such posts related to her emotional state and physical activity. The defendant had requested the history of the plaintiff’s Facebook accounts dating back three years before the accident.

Association of Corporate Counsel Issues Guidelines for Law Firm Cybersecurity Practices

The Association of Corporate Counsel (ACC) recently released a set of guidelines intended to serve as a benchmark for law firm cybersecurity practices. The guidelines include information retention, return, and destruction, data handling and encryption, data breach reporting, physical security, employee background screening, and cyber liability insurance. The requirements were developed based on corporate law departments’ experiences and with input from several law firms.

Lawyers ? Partnering with Non-Lawyers

Law firm financing has become an increasingly complex and interesting aspect of the legal business. From personal injury litigation loans, to the financing of the Gawker lawsuit by a Silicon Valley billionaire, it appears many want to get a piece of a lawsuit these days. However, the Second Circuit recently affirmed a district court ruling that law firms are still forbidden fruit for third-party financiers.

Lawyers are Stressed Out

Running a professional practice can be stressful. To be successful, professionals often must work long hours, under tight time constraints, and respond to the needs of demanding clients, while simultaneously working to manage their business and market themselves to new clients. For many professionals, the challenge of working in a professional practice is part of the reward. However, for others, the work can at times be overwhelming. Statistically, an alarming percentage of the legal profession is stressed and, unfortunately, many are depressed.

Are discussions between in-house counsel and former employees always protected by attorney-client privilege? One court says No.

The attorney-client privilege is sacrosanct to most attorneys, especially those attorneys who hold in-house positions. The privilege often – and appropriately – is asserted by in-house counsel to protect communications that were conducted with certain individuals while those individuals were employed by the company, regardless of their employment status at the moment.

Objecting to Objections

Attorneys strive to be zealous advocates for their clients. Not surprisingly, when defending depositions, attorneys are often tempted to object to questions that they perceive to be damaging to their client’s case, even if the question itself is not improper. Attorneys should be cautious, however, to avoid making excessive objections that are not likely to be sustained.

When Does the Clock Start?

Determining the length of the statute of limitations is easy but the trick often comes in figuring out when the statutory period begins running. In the legal malpractice context, this may often present the difference between dismissal or protracted litigation. A recent New York Supreme Court decision has shed some further light on why it remains important for all parties to know the applicable statute and accrual date, and highlights yet another situation in which a Court will employ a jurisdictional accrual rule to bar a claim.

Construction One-Minute Read: Litigation Challenges With Collecting Attorneys’ Fees

It is common knowledge among construction litigators that in order for a contractor to recover attorneys’ fees from a subcontractor, the subcontract must specifically state that attorneys’ fees are recoverable. However, in litigation, the arguments impeding a contractor’s recovery of fees are quite nuanced. To short-circuit these arguments before litigation occurs, contractors should consider the following issues:

Don’t Forget to Read Your Pleadings

World Wrestling Entertainment is punching back in a class action lawsuit filed by several of its former wrestlers. However, the WWE’s recent court filings take aim at the plaintiffs’ attorneys as much as the plaintiffs’ legal claims. The case provides us with a timely example of the ramifications of failing to carefully read pleadings before filing.

What’s Reasonable Attorney Review?

Although some law firms are slow to embrace new technologies, debt collection firms appear to be the exception to this general rule. Most of these firms use sophisticated computer software to retrieve information from their creditor-clients, and use the program to automatically populates legal forms.

Too Reliant Upon Technology?

Recent technological advances have rapidly changed the way professionals operate. Professionals are no longer tied to their offices, have myriad resources at their fingertips to research new issues and handle new tasks, and are able to reach new clients through social media. In general, these advances allow professionals to work more efficiently, increase their output, and broaden their professional footprint. However, professionals must tread cautiously when they employ technologies that do not merely assist with professional services, but actually supplant the professional’s role.

Attorneys Facing Addiction

It is an unfortunate reality that the legal profession reportedly has one of the highest levels of addiction of any occupation in the country. Although many states maintain hotlines and other services available to attorneys, it is all too common that addiction struggles advance to the point where ethical violations result for the attorney.

Fee Shifting with Non-Lawyers

As a general matter, the Rules of Professional Conduct prohibit lawyers from sharing fees with non-attorneys. However, there are certain exceptions to that rule. Rule 5.4 states that “a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.” A recent case out of Pennsylvania describes how a non-lawyer attempted to put this exception into action, albeit unsuccessfully.

Potential Conflicts for Summer Hires?

Many law firms employ law clerks, or hire summer associates. The former are often current law students, while the latter are almost always current law students. There are benefits to both the firm and the student in these situations; the student gains real-world legal experience and an opportunity to work alongside experienced attorneys, while the firm gets capable and often short-term employees. Many firms use these experiences as a way of determining future hiring, as a sort of “trial run” used to assess whether any of the clerks or associate could fit in well at the firm after graduating. It’s a practice that is as widespread as it is common.

Facebook Post May Lead to Attorney Disqualification

Social media is ubiquitous in the workplace. Professionals use social media to write about their achievements, to discuss developments in their field, and to promote their practices. Professionals who use social media as an extension of their practice must be cautious, however, that the discussion of pending matters does not violate their duty of confidentiality to clients or expose confidential information that would prejudice others.

Just How Super Are You? Advertising for Super Lawyers

We work hard. We achieve results. We want to develop business as a result of those successes. That’s all understandable since self-promotion is an important part of the development of professionals. By touting personal achievements, professionals are better able to position themselves to compete for new clients. Not surprisingly, many professionals include personal accolades in advertising materials. While the use of awards may be an effective advertising tool, if can also lead to ethical violations when done improperly.

How Much Harm Is Enough? SCOTUS Tackles Standing to Sue

On May 16, 2016, the Supreme Court of the United States decided a case, Spokeo, Inc. v. Robins, (No. 13–1339), involving standing to maintain an action in federal court. In the Spokeo case, an individual claimed that a search engine company willfully failed to comply with the Fair Credit Reporting Act (FCRA) by providing inaccurate information about him, among other violations. According to the Supreme Court’s decisions, the Ninth Circuit Court of Appeals wrongly concluded that the individual had properly pleaded injury in fact as required by Article III of the U.S. Constitution and because the Ninth Circuit had failed to consider both aspects of the injury-in-fact requirement, the appeals court’s standing analysis was incomplete. Although the case deals with damages resulting from a consumer reporting agency's alleged failure to comply with the FCRA, its holding may impact damage claims against employers.

The Ethical Breakup: How to Switch Firms

It’s just business, right? Not when it comes to the ethical and professional requirements associated with the transition to a new professional practice. Many professionals are seeking to expand their practice, or move, or add partners in an effort to acquire new talent. Some firms are streamlining and shrinking their practice. Under the right circumstances, departures may lead to mutually beneficial business opportunities for the departing professional and the former firm. In other cases, however, the actions taken by departing professionals could lead to costly litigation.

Referral Fees: The Logistics of Fee Sharing

Fee sharing is not unfamiliar to most attorneys.

Liability for Hacked Emails?

Professionals depend on third-party email services to operate their business. As a result, professionals may assume that the vendor is safeguarding their electronic information and therefore the professional is not exposed. False. Consider an attorney sued recently for malpractice arising from an e-mail hacking scam.

Law Firm Leadership: Reflections of a Former Am Law 100 Managing Shareholder

From 2010 until earlier this year, Kim Ebert was the managing shareholder of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. During his tenure, the firm grew from 430 attorneys to more than 750 attorneys and added 15 new offices, including those in Mexico, Canada, Germany, and England. For five years running, Ogletree Deakins has been named a U.S. News – Best Lawyers® Law Firm of the Year.

U.S. Supreme Court: For Federal Diversity Jurisdiction Purposes, Trust Takes Citizenship of Members When Sued in Trust’s Name

“While humans and corporations can assert their own citizenship, other entities take the citizenship of their members,” the U.S. Supreme Court said in a short, unanimous decision penned by Justice Sonia Sotomayor. Americold Logistics, LLC v. ConAgra Foods, Inc., No. 14-1382, 2016 U.S. LEXIS 1652 (U.S. Mar. 7, 2016). This settles a split among the lower courts as to the citizenship of a trust for the purposes of diversity-of-citizenship jurisdiction.

Social Media Ethical Considerations

You love blogging. Who doesn’t? For some professionals, blogging is an important part of education, outreach and networking. But, as we’ve discussed previously, blogs may be considered advertising and, if so, ethical considerations apply. The State Bar of California Standing Committee on Professional Responsibility recently circulated a proposed opinion for public comment that addresses the ethical implications of blogging by attorneys. The opinion considers when a communication subject to the Rules of Professional Conduct on attorney advertising.

Coverage Denied for Attorney Mixing Legal and Business Advice

Lawyers wear many hats; the key is not to wear them all simultaneously. Many lawyers are well versed in areas outside of the law and can be a source of non-legal knowledge for clients. However, lawyers need to be mindful when their services extend beyond the traditional landscape of legal advice. Mixing business interests and legal advice can easily get you in hot water if the transaction goes awry. Take for example the case of Burk & Reedy, LLP v. Am. Guarantee & Liab. Ins. Co., in which a professional liability insurer denied coverage for an attorney that was involved in both the legal and business aspects of a transaction.

Lawyers: Here are five things you can do right now to increase mindfulness.

Here’s an incident to which almost every lawyer can relate:

Can Risk-Averse Lawyers Learn to Embrace Change? An Interview With Dr. Larry Richard

Larry Richard, J.D., Ph.D., is the founder of and principal consultant at LawyerBrain LLC. A former trial lawyer since trained as a psychologist, he now provides organization development consulting to large law firms using behavioral science and psychological research findings.

Partner? Associate? Of Counsel? Does it Matter for Conflict Purposes?

Pursuant to ABA Model Rule 1.10, a single attorney’s conflict of interest may be imputed to the entire law firm. The Rule provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so under the Rules. It is not uncommon for lawyers to have different associations with a particular firm—for example the term “of counsel” is often used to designate a role different from the traditional partner or associate positions. This may beg the question what level of involvement must an attorney have in order to be “associated with” a particular firm for conflicts purposes. A recent case out of the U.S. District Court of New Jersey involving a “seconded” attorney addressed just this issue.

Preparing for an on-line (Webinar, Skype, Google Chat) presentation? Here are 10 things to remember.

As a presenter – or any type of communicator – there are a lot of ways to get the message across to a remote audience, and a lot of different styles in which to do it. But regardless of style, topic, and internet medium, there are three areas that can’t be ignored: tone, substance, and organization. The most important issues for a successful internet-based presentation can be summarized in ten basic statements.

In-House Counsel Fired for Compliance with Ethical Rules

Ever hear the joke about the in-house attorney who was fired for complying with the Rules of Professional Conduct? It’s no joke. Model Rule 1.13(b) provides that if in-house counsel knows that an employee is violating a law that may be imputed to the employer, the lawyer must proceed in the best interest of the employer.

Client Communication: What’s Enough/Too Much?

The duty to communicate is essential to every aspect of the fiduciary duty a lawyer owes to the client. Proper communication ensures that we are identifying and serving our clients’ interests. It’s possible today to be technically “available” to clients 24-7. But how much availability is required, and where is the line? That’s the subject of a recent ethics case against a Texas attorney, resulting in sanctions for unreasonably ignoring a client.

Attorneys: Don’t Hack Your Adversaries’ Files

Professionals look for ways to gain an edge over their competition. Taking extra time to prepare, investigate claims, and anticipate an adversary’s strategy can often mean the difference between success and failure. However, professionals must ensure that their attempts to gain a tactical advantage do not run afoul of ethics rules. When professionals cross the line, they not only jeopardize their clients’ interests, but also put themselves at risk of litigation or disciplinary action. Some lines are clearer than others. For example, one firm recently learned that it is improper to hack into an adversaries’ files to gain a strategic edge.

Case Closed? Ethical Obligations Upon Termination of Representation

Under Model Rules of Professional Conduct 1.15 and 1.16, a lawyer must safeguard a client’s property and deliver it promptly to the client upon the client’s request and upon termination of representation a lawyer shall take whatever steps are reasonably practical to protect a client’s interest. The ABA recently issued a formal opinion clarifying and updating a lawyer’s ethical obligations under these Rules and addressing practical considerations regarding the application of these Rules to practice.

Social Media Guidelines Get a Profile Update

Social Media has transformed the legal profession. Today’s lawyers routinely communicate, advertise, investigate and obtain information via the numerous social media platforms available at the click of a button. The rapid change in the way lawyers do business has created a new set of ethical challenges. In order to navigate this growing field of ethical issues, many states have issued guidelines for the use of social media in the legal profession. Last year, the New York State Bar Association’s Commercial and Federal Litigation Section issued its first set of Social Medial Ethics Guidelines. Just recently, those Guidelines were updated to address areas that require additional guidance including new sections on the retention of social media by lawyers, tracking of client social media, communications by lawyers with judges, and lawyers’ use of LinkedIn.

The Top Five Mistakes in Complex Litigation Work Flow

A Primer (Reminder) for Lead (and other) Paralegals

To Retain or Refrain? Legal Record Retention Requirements

Litigation generates a ton of paper – pleadings, motions, drafts, correspondence, legal research – and these materials do not simply vanish once your involvement with a case has ended.

Moonlighting: Perils of Working on the Side

Moonlighting is the practice of working for more than one employer or working for yourself while working for an employer. Professionals who moonlight may be asking for trouble. Many employers have policies forbidding the practice, some going so far as to deem it grounds for immediate termination. A recent case provides an extreme example of moonlighting at its worst.

Martial Arts And Legal Ethics

Does fighting fire with fire produce the best results? Or is there another way?

Employers and their Labor Counsel May Have Dodged a Bullet

It appears that employers and their labor counsel have narrowly missed having to make their attorney-client relationship, including the fees paid and certain campaigning and persuader activities, public.

Second, Third Circuits Tighten FLSA Pleading Standards, Challenge "Barebones" Complaints

Apologies to John Steinbeck, but in some ways, both 2013 and 2014 have been the winters of FLSA plaintiffs’ discontent on the East Coast. Last summer, the Second Circuit (which covers New York, Connecticut, and Vermont) issued a number of decisions tightening pleading standards under the Supreme Court’s decisions in Iqbal and Twombly. In one of those cases, Lundy v. Catholic Health System of Long Island, the court held that “in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege [forty] hours of work in a given workweek as well as some uncompensated time in excess of the [forty] hours.” In Lundy and other cases, the Second Circuit affirmed dismissals because the plaintiffs had failed to provide any facts or estimates to support the number of hours they worked and had simply “rephrased” the FLSA’s requirements as factual contentions.

Federal Judge Dismisses Claim against University; Failure to Appropriately Monitor Docket Not Excusable Neglect

Executive Summary: A federal trial court in D.C. recently dismissed the Amended Complaint of a former professor at the University of the District of Columbia ("UDC" or "University") due to his failure to timely oppose a Motion to Dismiss, finding that the plaintiff's counsel's reasons for the failure to timely respond to the motion did not rise to the level of "excusable neglect" under Federal Rule of Civil Procedure 6(b)(1).

Attorney’s Tweet Leads to Sanctions

Tweet with caution. It only takes 140 characters for professionals to embarrass themselves or worse. Social media has many advantages.

Employment Litigation: How Much Will You Pay?

A handy tool to help guide your litigation decisions.

Top 11 Litigation Tips in the History of the Universe

According to our most recent survey, the absolute No. 1 workplace legal issue at the moment is how to prevent and manage litigation.

It's Not Your Father's ABA Any More

ccording to my membership card, I first joined the American Bar Association in 1976. I was a first year associate at one of the large firms in Houston. A lot has changed about the practice of law since then. And like every other facet of life, not only is more change ensured, but the pace of change seems almost certain to increase as well.

A Ground Floor Opportunity? Litigation Finance

I really have not had much chance to give the area of third party litigation financing a lot of thought, but my initial instincts are that while it may be good for lawyers, it seems unlikely to be good for clients. Maybe there is a silver lining somewhere, there often is, but at the moment it escapes me.

And lawyers wonder why

Clients might wonder about our priorities.

Count The Cost Before Waging The War

When Sun Tzu wrote “The Art of War” in the sixth century B.C., he probably wasn’t thinking about how his advice would apply to employment law litigation in the 21st century, but he might as well have. One of his most famous quotes from that epic military treatise is “Those who wish to fight must first count the cost.” A recent example from Washington state shows the value of following this sage advice.

A Genius Is Someone Who Thinks Like Me - An Approach to Litigation

I was pleased to see this dialogue between Darryl R. Marsch, the General Counsel of Krispy Kreme, and the Daily Reporter in today's Corporate Counsel:

Top 11 Litigation Tips in the History of the Universe

A compilation of the best litigation prevention and management tips from the world's leading employment law experts.

Jury Duty, An Obligation Sure, But Also a Large Reward

I just happened on this post today by Adam Rich, talking about his 5 Lessons From Jury Duty that was posted on an American Express Forum for small businesses. I think his points are valid, although frankly, my role is more as a consumer of juries than as a participant.

Poll Results: Help Make Lawyers Better Human Beings

If you could change only 1 thing about lawyers, what would it be? Results of our latest poll.

Help Make Lawyers Better Human Beings

If you could change only one thing about lawyers, what would it be?

Does Employment Litigation Favor Employers or Employees?

The results of our latest poll.

Home Is Where the Nerves Are: What to Know About a Subsidiary’s Principal Place of Business When Diversity Jurisdiction Is at Stake

It goes without saying that it is vitally important to place your client in the most advantageous position at the outset of a lawsuit. For a defense attorney, the conventional wisdom is that federal court is often the best forum to defend a complex lawsuit against a corporate client. However, a defense attorney is well-advised to consider challenging federal court jurisdiction in appropriate cases. Diversity jurisdiction, of course, is a common and familiar gateway into the federal court system. However, in Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010), the United States Supreme Court altered the landscape by establishing the "nerve center" test to determine a corporation's principal place of business. Although this test clarifies the often-confusing standards previously used by various courts across the country, a defense attorney needs to understand the impact this case has on its corporate client, especially a corporation with either a geographically decentralized management structure or a subsidiary that is closely controlled by an out-of-state corporate parent. This article discusses the latter type of corporate relationship and considers the tactical options for an attorney who either represents such a corporation or is defending against the claims brought by that corporation.

If You Have a Choice, Would You Bifurcate Punitive Damages?

That was a question I was discussing with a colleague Friday just before we gave a seminar presentation on Things that Employers Do to Make Juries Mad, and Pay for it with Big Verdicts. Fortunately in our case it was purely hypothetical.

When "inside" Witnesses Support the Other Side -- Recipe for an MDV.

In a speech I have given about trying employment law suits, one of the first points is that not all lawsuits should be tried. And one of the things that would make me look twice is if there were a key witness, who appeared to have really good inside knowlege, who is not supporting my story.

Supreme Court Provides Guidance for Businesses Wishing to Avoid Unfriendly State Courts.

Businesses often wish to avoid litigation in unfriendly state court forums. For that reason it is important to know when removal is possible so that cases can be transferred automatically from state court to federal court, where judges are appointed for life rather than periodically elected by local citizens. Until recently, there was no way to be certain about whether removal would be possible because the federal circuit courts did not all agree about how the law regarding corporate citizenship for purposes of removal jurisdiction should be applied.

Summary Judgment Standard Requires Court to View Evidence in Light Most Favorable to Non-Moving Party.

Litigation often ends when one party files a motion for summary judgment, asking the court to determine that there is no issue of material fact for the jury, and asserting that a decision can be made in its favor based solely on the legal issues. In reviewing a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party. Recently, the 2d U.S. Circuit Court of Appeals reversed summary judgment for an employer in an age discrimination case, holding that the lower court “failed to construe the evidence in the light most favorable to [the employee] and to draw all permissible inferences in [his] favor.”

Lawyers as Employers- Part 1.

Lawyers are focused on the demands of practicing law and running their practices. Often, they do not have time to dedicate to managing their employees. And, in fact, some lawyers may not see themselves as employers. However, the success of any business, including law firms, is tied directly to its employees. Competent and professional employees are critical to a firm's ability to produce quality work and keep good clients.
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