On November 12th, 2019 the U.S. Supreme Court ruled that the families of the Sandy Hook Elementary School shooting victims can proceed with a lawsuit against Remington Arms Co., maker of the Bushmaster firearm used in the Newtown shootings. Remington Arms had sought to block the lawsuit, but was denied.
On Lawyer 2 Lawyer, host Craig Williams is joined by Timothy D. Lytton, associate dean for Research & Faculty Development at Georgia State University College of Law, and attorney Stephen P. Halbrook, senior fellow at the Independent Institute, to discuss the Supreme Court’s ruling in this matter and the potential impact this lawsuit may have for victims of gun violence and the gun industry as a whole.
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The U.S. Supreme Court Ruling on Sandy Hook Families’ Lawsuit against Remington Arms
Timothy D. Lytton: With regard to the Sandy Hook case I think there is potential jury question here as to whether or not marketing a gun by saying that some firepower with a semi-automatic weapon is a great way to explore how to express your masculinity, may actually increase the risk of misuse.
Stephen P. Halbrook: Remington is going to file a motion for summary judgment based on the lack of evidence of violation of the Unfair Practices Act. All of their advertising is going to come before the court and you’re not going to see anything anymore riled up, and I mean a reference to manhood or something I mean that just doesn’t get it.
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On November 12, 2019, the US Supreme Court ruled that the families of the Sandy Hook Elementary School shooting victims can go forward with a lawsuit against Remington Arms Company, maker of the Bushmaster rifle, the firearm used in the Newtown shootings.
Remington Arms had sought to block the lawsuit, but was denied.
So today on Lawyer 2 Lawyer, we’re going to discuss that Supreme Court ruling in the matter and the potential impact this lawsuit can have on victims of gun violence and the gun industry as a whole.
So to help us explore this topic, we have two great guests for you today. First up is Professor Timothy D. Lytton, Associate Dean for Research & Faculty Development at Georgia State University College of Law. Professor Lytton’s research examines health and safety regulation with a focus on gun violence, clergy and sexual abuse, as well as food policy. He also wrote the book, ‘Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts’. Welcome to the show, Timothy.
Timothy D. Lytton: Thank you for having me.
- Craig Williams: And our next guest is a returning guest, Attorney Stephen Halbrook, senior fellow at the Independent Institute and the author of the acclaimed books, ‘Gun Control in Nazi-Occupied France, Gun Control in the Third Reich, Securing Civil Rights, The Founders’ Second Amendment, and That Every Man Be Armed’.
He is an attorney with extensive knowledge of the historical underpinnings of the Second Amendment and practical knowledge of litigating in this rapidly evolving area of the law.
Welcome to the show, Stephen.
Stephen P. Halbrook: Glad to be back on the show there Craig.
- Craig Williams: Thank you. Glad to have you back too.
Well Timothy, I’d like to start with you. If you could give us a little bit of the background on the dispute that led up to the Supreme Court ruling and then kind of the basic elements of what the ruling, the extent that we can cite to it and what it stands for?
Timothy D. Lytton: Sure. Gun violence victims have been bringing lawsuits against gun sellers both at the retail level and the manufacturing level, starting in the late 1990s and lawsuits sort of grew over time and there was a movement by both the NRA and the gun industry to try and secure immunity from these lawsuits and they were successful in 33 states and ultimately in the US Congress in 2005 with an Immunity Bill called the Protection of Lawful Commerce in Arms Act and that act essentially says that the sellers of firearms are immune from lawsuits arising out of criminal misuse of the weapon.
Most of the litigation died down following that time. There are a number of notable exceptions to this immunity and a few cases have actually broken through the immunity at least against retailers but we have not seen any successful suits that have been brought since PLCAA against firearms manufacturers.
I think it’s also important to note that prior to the Immunity Bill, no lawsuit against the manufacturer by gun violence victim ever succeeded in obtaining a non-reverse judgment.
So these are lawsuits that had not succeeded prior to Immunity. Part of the motivation for Immunity I think was to save the industry the trouble of trying to defend against them.
Fast forward a few years, the Sandy Hook shooting occurred in 2012 and a number of the families of the victims brought a lawsuit in Connecticut State Court and the lawsuit alleged that the manufacturer of the weapon Remington that was used in the shooting was engaged in irresponsible marketing practices.
And the two theories that were used here were negligent entrustment, the idea that selling the sort of AR-15 style or platform gun, what in a civilian market is form of negligent entrustment and also an unfair trade practices allegation under the Connecticut Unfair Trade Practices Act. The argument that the type of marketing that went along with the sale of this gun that was purportedly aimed at young men and was designed to sort of extol the quasi combat features of the weapon or combat like features of the weapon was somehow an unethical practice under the State’s Consumer Protection Law.
The case was dismissed at Trial and when it was appealed to the Connecticut Supreme Court, the Connecticut Supreme Court ruled that actually the case can go forward under an exception to the Immunity Bill, to an exception to PLCAA and that’s an exception for any sale of a weapon that where the seller knowingly violated a State or Federal Statute applicable to the sale or marketing of a firearm and the Connecticut Court held that the Connecticut Fair Trade Practices Act or Unfair Trade Practices Act is essentially a statute, a state statute that’s applicable to the marketing of a firearm just like it’s applicable to the marketing of any product in the state of Connecticut.
And they argued that the term applicable here means capable of being applied to, which is a fairly broad interpretation of the word applicable in the statute and in fact, federal courts both in New York and California found that similar types of claims based on general nuisance statutes did not count as statutes applicable to the sell or marketing of a product.
The Connecticut Supreme Court allowed this case to go forward. It was appealed to the Supreme Court of the United States and the Supreme Court of the United States refused to grant cert and so the case stands right now in the position that it’s headed back down to the Trial Court in Connecticut where it’s likely to proceed towards discovery.
- Craig Williams: That’s a really great reply. Thank you very much for that background.
Well, let’s turn to Steve and Steve, what was the gun industry’s response to this?
Stephen P. Halbrook: Well, you mean to the denial of cert?
- Craig Williams: Certainly and to the whole lawsuit, what the positions have they been taking and arguing that prevents them from having liability in this situation?
Stephen P. Halbrook: Right and Professor Lytton gave a good historical view of this, let me just supplement it a little bit, back in the 80s, there were a lot of proposals, legislative proposals to ban handguns and none of them were passing.
So some of the trial lawyers decided to make an end run around the legislature and see if the courts would do that, would essentially allow product liability suits against handgun manufacturers in a way to obviously to get compensation for the victims of crimes committed by third parties, but in a way to go at the gun industry and to make inroads in it in the sense of restrictions as they couldn’t get into legislative process.
The attention later turned to so-called assault weapons once that tournament was invented in about 1989 and applied to rifles with certain kinds, Congress responded with the Protection of Lawful Commerce in Arms Act, PLCAA, in 2005, basically to say that you can’t sue a gun maker or a gun dealer for the criminal act of a third party, and the whole purpose of that was to prevent harassment of the industry, bankruptcy, violation of Second Amendment rights.
But there were exceptions and the one that’s applicable here obviously is that if you knowingly violate a state or federal statute applicable to the sale or marketing of the product. And number two, this is very important, it’s got to be the proximate cause of the harm.
So the two examples given in the statute of what that would be, would be falsifying records if you were a dealer falsifying gun records when you sell a firearm or intentionally selling a gun to a person you know is prohibited, like a felon for example.
So the kinds of statutes that are applicable to the sale or marketing of the product would consider under those examples arguably to be Gun Control Statutes. So if you violate a Gun Control Statute than and that was a proximate cause of the harm, then you could be sued.
And as Professor Lytton mentioned though the Connecticut Supreme Court ruled that the Connecticut Unfair Trade Practices Act could lead to liability there, if you market a product in a way that violates that act, it’s not a Gun Control Act, it’s an act about advertising this bad in some way.
And what the plaintiffs alleged in this case though is that Remington or Bushmaster intentionally advertised the rifle to give civilians a way to carry out offensive military-style combat missions against perceived enemies.
And you wonder what they were smoking when they made that allegation, because if you look at Remington ads, this will come out in discovery. They’re advertising for target shooting, sporting use, hunting self-defense and things like that. They’re not saying buy this gun, so you can kill lots of people quickly.
So you have that that the plaintiffs are going to have to prove at trial which they cannot pull and then you also have got to be the proximate cause of the harm. We know that Adam Lanza murdered his mother, stole her gun and murdered these children at Sandy Hook School, he didn’t hear Remington ads that made him do that. So there’s going to be a proximate cause problem there.
In any event, the Supreme Court as you mentioned, denied certiorari, they didn’t rule that the suit could go forward. What they did was to decline to hear the case and there is ample Supreme Court Authority saying that when they denied cert it doesn’t mean anything on the merits, so the fact that they’re not going to hear the case doesn’t mean that they have an opinion one way or another on this law.
- Craig Williams: So Professor Lytton what kind of discovery are we going to expect the plaintiffs to pursue and how will Remington be responding, so these basically saying that the ads aren’t going to do them any good, where are they going to go with this case?
Timothy D. Lytton: Well, I think that Mr. Halbrook is right to suggest that proximate cause is likely to be an important issue in the trial. We’ve seen prior to the Immunity Bill a number of — the handful of cases that actually made it to juries in these sorts of lawsuits can do defaulter on proximate causal issues and that’s because it tends to be a fairly long and complicated chain from the marketing activity that’s alleged to be irresponsible to the ultimate shooting and that often involves resale or stealing of the weapon or a series of different transactions, not to mention the intentional acts of the shooter themselves.
I think that the early parts of the case are likely to focus less on proximate cause from the plaintiffs’ point of view certainly and more on the question of duty and breach. The idea that the industry is somehow engaged in irresponsible conduct that increases the risk of misuse of its weapons.
I think there’s room for some debate over whether or not some of the practices, both design decisions and marketing and distribution practices in the industry, may be the types of things that could create jury questions about reasonableness and so Mr. Halbrook talked about the marketing, for sure, I think it’s true that Remington certainly was looking to advertise and promote its weapon among sportsmen and for legitimate hunting purposes. But they also had partial an eye out towards slogans like consider your man card reissued.
So I’m not sure that there’s anything on its face irresponsible about selling a gun as a type of gun that will sort of help affirm your masculinity or the type of gun that might help you make feel like you could experience a little piece of combat anymore than there isn’t selling an automobile, saying that you could race it like you’re at the Indy 500.
I think the difference is, is that we now live in a context where people are increasingly nervous about young men in particular who are looking for some sort of combat experience that they want to translate from wherever they’re getting it in popular culture towards carrying out these psychotic attacks.
And we don’t have that kind of culture, I don’t think in automobiles or other areas, and I think it may be the case that people are increasingly wondering whether or not some of these practices might be trimmed back or the readily — that the ease with which you can transform an AR-15 platform into a fully automatic weapon, even though that may not be the intended goal.
If it’s foreseeable that this is relatively easy to accomplish, these are things that may be creating concern.
Given that, I think it’s possible that the plaintiffs are going to go looking for things in the marketing strategy or in the design decisions in this weapon that might suggest that sort of unreasonable behavior or at least create a jury question for that.
I think Mr. Halbrook is absolutely right that the plaintiffs are likely to have a much more uphill battle and are going to have a very hard time showing proximate cause in this case because there’s so many things that happened between that marketing campaign and Adam Lanza’s activity, and there’s also not a clear connection as Mr. Halbrook points out between Adam Lanza’s choice of firearm and anything that Remington may have done.
- Craig Williams: Well Mr. Halbrook, what do you think? I mean we have a very sympathetic case here, children being killed in school, do you think the juries pretend there’s any potential if it ends up being a jury case that the jury would bypass some of these laws and just in passion being flamed and come out with the ruling against the Remington or any of the gun manufacturers?
Stephen P. Halbrook: I guess that’s always a danger if a jury is going to totally ignore the law, but if they’re given the proper jury instructions, I don’t know why they wouldn’t be, they got to show that the advertising was such that it was the type of thing that would cause something like this.
You would have the type of advertising and in the proximate cause which would be very difficult. But I think this shows you something kind of interesting about the allegations in the complaint. The complaint seems to allege that Remington advertised these guns, so you can use them to murder people, but the most that I’ve heard are the kinds of actual advertising that Professor Lytton just mentioned refers to increase your man card or something like that.
I mean since when would something like that be a suggestion to go murder people. We have the Turner Man Cave, that doesn’t mean that there’s some invocation here, where it’s some kind of place where very evil deeds are committed.
Today we have — masculinity seems to be maybe a bad word in certain circles, to use not to be, so what kind of advertising are they going to be able to find.
I think the discovery is going to — it should focus on the advertising. I think the plaintiffs are going to want to get into as many records as they can regardless of that subject, but Remington is going to argue that the scope of discovery should be confined to the type of marketing and advertising and the proximate cause issues.
I do disagree that the issue will not be regarding the design of the firearms, because the — what the Connecticut Supreme Court says that it could go forward on the Unfair Trade Practices Act which has to do with the way the guns were marketed and there was nothing in the lawsuit in terms of what was upheld to go forward by the court about the design, certainly nobody’s arguing that the firearms here were converted to machine guns.
And so this issue of readily convertible would not be legitimate to come up and the ATF, the Bureau of Alcohol, Tobacco, Firearms and Explosives has determined that guns of this type that truly seem automatics. They’re designed to fire only one shot per trigger pull. They don’t fire more than one shot per trigger pull, like a machine gun would do automatically.
But I don’t think that’s going to be an issue here, but that doesn’t mean the plaintiffs won’t try to raise it. But I think the issue is really going to focus on what I consider to be a defamatory allegation that Remington intentionally marketed these guns to try to encourage people to buy them so they could murder people.
Timothy D. Lytton: I think that’s right. I didn’t mean to suggest that the issue of gun designs is at play in this particular lawsuit, although it isn’t play in a lawsuit that’s been filed out of the Las Vegas mass shooting along similar lines trying to find an exception to PLCAA, and I think that insofar as other state courts may be willing to find these sorts of exceptions we might be able to — we might be seeing further suits alleging design.
With regard to the Sandy Hook case though, I think that — I think there is a potential jury question here as to whether or not marketing a gun by saying that I’m firepower with a semi-automatic weapon is a great way to explore how to express your masculinity may actually increase the risk of misuse, whether or not it does it in this case it’s going to be something that comes under proximate cause.
But as far as proximate cause is concerned, if you think about proximate cause in terms of scope of the risk, one of the things that may actually make it dangerous to suggest that a person ought to explore or develop their masculinity through the firepower of semi-automatic weapons is, is that it’s likely that if they do that, they may do it in a way that could cause harm to others.
And so again, I think this is an uphill battle but I’m not sure it’s far-fetched to think that there are possible jury questions here, and furthermore no court to my knowledge has ever found that there’s any been anything frivolous or defamatory about these lawsuits.
And so, I think it is true that plaintiffs did not won these. They don’t have a — the plaintiffs’ bar doesn’t have any win record in these lawsuits, but I think that’s different than saying that somehow they’re frivolous or defamatory or ought not to be brought.
- Craig Williams: Well we’re taking a look here also at Bushmaster that got — apparently the Newtown shooter in Sandy Hook took from his mother. Does that create a Palsgrave type of a situation for us?
Timothy D. Lytton: I certainly think that creates serious questions about proximate cause and scope of the risk and I think Mr. Halbrook is absolutely right, that the theft of the weapon and the murder of the mother are not going to help the plaintiff’s case at all here, if anything, those facts are going to make it much more difficult for them to make a strong case to get into jury and even when they — if they do succeed in getting through jury, it’s going to be tough to convince a jury, those are going to be tough points for them.
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- Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Timothy Lytton. He is the associate dean for Research & Faculty Development at Georgia State University College of Law and Attorney Stephen Halbrook, senior fellow at the Independent Institute, and we have been talking about the U.S. Supreme Court Ruling on the Sandy Hook Families’ Lawsuit against the gun maker Remington Arms.
Ultimately, Steve what do you see who is going to win this lawsuit and if it’s the Remington Arms that’s going to win what kind of a case in a perfect world needs to be presented to get around PLCAA and have a finding of liability against gun manufacturers.
Stephen P. Halbrook: I think the case is going to go on summary judgment. There’s going to be discovery, Remington is going to file a Motion for summary judgment based on the lack of evidence of violation of the Unfair Practices Act. All of their advertising is going to come before the court and you’re not going to see anything, any more riled up than — I mean a reference to manhood or something. I mean that just doesn’t get it, and then on the proximate cause issues, the plaintiffs aren’t going to be able to find any proximate cause here. The mother bought the gun whether she was ever influenced to buy the gun by advertising we don’t know, but I doubt she was influenced to buy it because she thought it was going to be a really cool gun to murder people with.
Adam Lanza spent all this time locked in his room playing weird violent video games and things like that. He murdered his mother then he took the gun and did his misdeed. So the proximate cause issue just isn’t going to be there, so I think that summary judgment is going to be granted if there is no material facts and dispute, and that one party is entitled to judgment as a matter of law and I think that’s what’s going to be the case here.
Now, anything that any lawyer predicts is going to happen, I mean your own — should may be shaking around, so yeah, I admit the case, could go to trial, the court could deny the motion for summary judgment, but that’s going to be the big fight you are going to have — I don’t know maybe a year of discovery who knows, and then the motions are going to —
- Craig Williams: Can I take that hypothetical and throw it over to the law professor and say what kind of a final exam question you would see on a tort case where you could envision holding the gun manufacturers liable? What’s the perfect world?
Timothy D. Lytton: Well as I mentioned, I mean I think it’s possible to make out a case for breach even if it’s a tough one, which is that the type of marketing language and the type of targeted marketing increases possibility or increases the risk of criminal misuse of the weapon and if that’s the case you have to ask, well, what are the risks within the scope of that, increased risk and some of the risks may be something like you know a mass shooting.
Given if that’s the case, it seems to me that’s possible, the case could make it into a jury. I mean even if it makes it into a jury, it’s going to have to face appeal. I was somewhat surprised, I have to admit that the Connecticut Supreme Court took the appeal and actually found the way that it did and actually disagreed with both the New York and the California Federal Courts and how it interpreted PLCAA and my understanding is, Mr. Halbrook can correct me if I’m wrong, that the Supreme Court’s denial of cert in this sort of pre-trial stage does not at all suggest that don’t have an opportunity to review this later.
And my guess is if the case goes to Trial, the plaintiffs win a verdict and it’s appealed up to the Connecticut Supreme Court, we may be seeing another opportunity for the Supreme Court to weigh in on what the proper interpretation of this Federal Statute is with regard to the exceptions to PLCAA, and I would expect that the Supreme Court probably would want to settle that matter because if their plaintiffs win here there will be blood in the water and you can expect a lot more litigation around the country.
- Craig Williams: Steve, what kind of wake up calls this lawsuit give to the gun industry, do you think they will be making any changes to avoid future litigation?
Stephen P. Halbrook: I’m not sure what changes they could make because I haven’t seen any advertising of the type that’s implied by the allegations in the complaint here. I’m not sure what they could do.
I mean they make lawful products. They give new designs to the ATF for review for classification, they try to do what’s lawful and the legislative branches make the law and you asked what kind of case could be brought where there would be liability and it’s clear in the PLCAA itself negligent entrustment by a dealer for example, that’d be the case where you intentionally sell a gun to a felon that would besides negligent entrustment that would be the violation of the Gun Control Statute itself.
A manufacturer could not be said to negligently entrust a gun because they don’t deal with the ultimate consumer but a manufacturer — if a manufacturer intentionally made a gun where it would fire like a machine gun and somehow marketed it in that way that’s the allegation in the complaint in the Nevada shooting, the Las Vegas Massacre, and the plaintiffs aren’t going to be able to prove that these guns were ruling machine guns because there were semi-automatic and the ATF classify them as such, but that’s what you would have to do to create liability here. The manufacturer would have to actually violate the law and that violation law would have to be a proximate cause of whatever harm came about.
- Craig Williams: It seems like an impossible task. Well, we’ve almost reached the end of our program. So it’s time to wrap up and get your final thoughts along with your contact information.
So what I’d like to do is throw the question over to Professor Lytton, just perhaps give us an indication here. I mean obviously the parents of the Sandy Hook children are wanting some gun reform and some gun issues, and then it appears from everything we’re seeing in this lawsuit that litigation is not going to be one of the remedies. So where do the remedies lie? So let’s get your final thoughts and perhaps wrap up with that question along with your contact information, Professor Lytton I’ll throw it over to you.
Timothy D. Lytton: Sure, well, like I said I wouldn’t write off the plaintiffs altogether, surprising things have happened so far in this lawsuit and there may be more surprises to come. But that being said, I think that there are some public value to the litigation process itself regardless of who ultimately prevails in court and that has to do with the idea that by filing a lawsuit you can frame the issue in a way that generates public attention and the way this issue has been framed is not just focusing on the role of mass shooters but also any role that the industry might have in its capacities to exercise discretion in terms of marketing, and designs, and distribution and trying to help with efforts to reduce the risk of gun violence.
And I also think that the discovery process is likely to bring out information that may not be readily available that we don’t know about how the gun industry regularly does business and how they think about who their marketing to and how they want to boost sales in those different sectors. And I think finally, this litigation just the process itself is likely to keep the issue on legislative agendas around the country, for people to keep their eye out on meaningful reforms. I think the first of which would be proper funding of public health, studies to figure out, are there things that we can do to reduce gun violence.
I think everybody on all sides of this debate is eager to reduce gun violence. The question is what are the levers that would make that possible and I think one of the problems is we don’t have enough information to know that, part of that is because we have underfunded public health research in this area now for over ten years and that probably something that needs to be remedied in the litigation, it’s likely to keep those sorts of issues on the public agenda.
With that in mind I just want to mention, it’s been a pleasure to be on the program. There is some interesting studies from all different angles and different sides of gun politics in my book, ‘Suing the Gun Industry’. So I would encourage people who are looking for a variety of different takes on the litigation to look at that and I’d be happy for people to contact me here at Georgia State University College of Law. You can find me on the Law School website.
- Craig Williams: Great thank you very much. And Stephen we’ll throw it to you.
Stephen P. Halbrook: Well the Newtown case shows how complex the issue really is. It’s not about a piece of metal. It’s about a mentality, a psychosis, a sickness in our society. That case the Parkland School shooting, I mean you’ve got so many variables here, you have a failure of law enforcement, we have a transformation of society.
When I was growing up guns were readily available, there was never a school shooting, there was never any of these things, none of this stuff took place. We’ve got some very complex problems here and we have millions of law-abiding people in this country who own and possess the kinds of guns that was involved in this case.
They’re law-abiding people, they haven’t harmed anybody. A small minority of people commit crimes with guns. We have a Second Amendment right to keep and bear arms in our Constitution and that’s why Congress to protect that right into protective interest pass the PLCAA and all it does is basically does to say that you can’t sue a manufacturer for something that somebody else did when the manufacturer didn’t do anything wrong.
There are those who have not been able to get what they want legislatively and they want to use the courts to get that. Now the State of Connecticut passed its own version of a so-called assault weapon ban, the mother of Adam Lanza was in compliance with that. There was no law violated there but what was done here exhibits a sickness in our society that yeah, we do need to know more about what’s going on, what causes these things.
I don’t think we need to fund research to know what we know already about the fact that a gun doesn’t by itself do anything. We have people who are either mentally ill or they’re terrorists or for whatever reason they’re committing murders and what can we do about that and has to do with proper law enforcement, say something if you know something, a lot of things like that.
We won’t solve it and on this show obviously, but yeah, it does need to be more dialogue and certainly the litigation itself will bring out more in terms of the public discourse on this issue and we’ll see where that heads.
So that’s my story and I’m sticking with it and let me just give you my contact information. I have a website stephenhalbrook.com, and besides the books that you mentioned which you introduced me, since this is a lawyer show, I also have a book called the ‘Firearms Law Deskbook’. It’s a Westlaw publication and it’s the only comprehensive treatise on firearms law it basically has to do with the statutes and case law and it’s useful for prosecutors and for criminal defense bar in terms of Federal Law, ATF Regulations all those issues. So that’s something you might want to check out the ‘Firearms Law Deskbook’.
- Craig Williams: Great and thank you very much. Well we’d like to thank associate dean Timothy Lytton and Stephen Halbrook for being with us today.
So if you like what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can leave a comment on today’s show and sign up for our newsletter.
I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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