The January 6 Committee is very interested in speaking with Ginni Thomas following revelations that she had a correspondence with John Eastman about election shenanigans. But more interesting is the revelation that Eastman was telling his buddies that he had inside information about closed door Supreme Court meetings casting an even brighter spotlight on Thomas. It’s still anyone’s guess who leaked the Dobbs opinion, but it’s worth noting that Occam’s Razor is undefeated. We also discuss the latest religious schools opinion from the Supreme Court and UCLA’s Absent-Minded… or just plain absent… professor.
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Joe Patrice: Hello. Welcome to another edition of Thinking Like Lawyer. I’m Joe Patrice from Above the Law. And I am here with my Above the Law colleagues as usual, Chris Williams and Kathryn Rubino are here.
Kathryn Rubino: Hi.
Joe Patrice: Yeah, Catherine has been relatively silent instead of cutting me off in the middle of our intro, which I’m going to take as finally having —
Kathryn Rubino: You beaten me down.
Joe Patrice: Yeah, that was kind of what I was thinking.
Kathryn Rubino: You can take it any way you want, friend.
Joe Patrice: Okay. So we’re off to a great start. How is everybody? Oh, I guess this is small talk so — yeah. How is everybody?
Chris Williams: I recently started season three of ‘The Boys’.
Kathryn Rubino: Nice.
Joe Patrice: Okay.
Chris Williams: Then a hero show on Amazon.
Kathryn Rubino: I always forget that that exists.
Chris Williams: I did, too, until I saw this one meme of a guy being birthed through a penis and I was like, “Yeah, I need to get context.”
Kathryn Rubino: Intrigued.
Chris Williams: Yeah, yeah. And then I saw the first episode of season three and I got the context, and I was like, “Oh, this is the show that I’ve been missing.” So that’s been me.
Joe Patrice: I feel like that’s an argument for a C section.
Chris Williams: I think that was a P section, to be honest.
Joe Patrice: Oh, yeah, yeah. Whichever it is. Okay. Catherine?
Kathryn Rubino: Yeah. This past weekend was both a celebration of Juneteenth and Father’s Day. I had a family barbecue and it was freezing cold. My family always has a sort of Father’s Day barbecue, and I cannot tell you the amount of years I’ve gotten burnt to a crisp. It doesn’t matter if I’m wearing like 70 SPF. I always get burnt over Father’s Day weekends when we always have our barbecue and this time I was like, “Does anybody have a sweatshirt?” It’s freezing out here because cataclysm with climate change is coming for us all.
Joe Patrice: Yeah. Well, on that note, as of recording, we do not have a decision in the EPA case. So cataclysmic climate change could still theoretically be averted.
Kathryn Rubino: I mean, it cannot.
Joe Patrice: That won’t be true by the end of this —
Kathryn Rubino: It only going to get worse.
Joe Patrice: But here we are for now. So yeah, that’s great. Everybody’s —
Kathryn Rubino: How about you, Joe? How did you spend your weekend?
Joe Patrice: Cooking, cleaning, the usual household shores sorts of things. I made a mole sauce. Yeah, I’d never done that. There’s a lot that goes into it.
Kathryn Rubino: It’s like notoriously difficult.
Joe Patrice: Yeah. People who don’t know, mole sauce is — I mean, like Mexican cuisine has a reputation of being easy to make or you get some tomatoes and, I don’t know, some chili powder, but mole is really fucking hard to make, like yeah. And there’s no consensus whatsoever, like all recipes have some variation and no consensus, but this was wildly different as I tried to put together my own version of a lot of different recipes. I mean, whole, completely — other than a couple of key ingredients, they’re wildly different.
Chris Williams: How do you get the unicorn blood?
Joe Patrice: Yeah, exactly right. I mean, I saw some recipes were pumpkin seeds, others were not. Some said almonds, some said peanuts, like sesames — like tahini. Ultimately, I use the tahini version, but yeah, it’s all over the place.
Chris Williams: What color was it when you were done?
Joe Patrice: I mean pretty dark. It was a very dark. I feel like I could do better with more different kinds of dried chilies. I didn’t have a huge variety of dried chilies. I think if I could do a few different ones whatever. It was good. It’s a new take for me. It was one of those things that I would order when I go out, but I figured I should figure out how to do it at home. So experiment successful, I think. We’ll see.
Chris Williams: I hope it didn’t have much of the pressure cooker eggnog flavor in it or anything.
Joe Patrice: No, it’s was not — I don’t have a pressure cooker, but it’s slow cookers.
Chris Williams: I love how that was the first thing you want to address.
Joe Patrice: Yeah.
Chris Williams: I’m not a heathen. No.
Joe Patrice: I mean, pressure cookers are super useful, but I don’t know —
Kathryn Rubino: Certainly, on cooking competition shows, you play an outsized role.
Joe Patrice: Yeah, but I’m usually not cooking with a time limit, so I don’t necessarily need them. Anyway, this seems like we’ve gone on way too long without talking about law in some way, which is theoretically what we’re supposed to do. So let’s put a cap on small talk and move on to talking about law. So I think the right answer to begin this week is with one of the biggest stories of last week. Let’s talk about the Supreme Court and who they’re all married to.
Kathryn Rubino: Yeah. So let’s start not talking about lawyers, right?
Joe Patrice: Yeah.
Kathryn Rubino: Yeah, Ginni Thomas has been in the news unsurprisingly, perhaps, given the fact that she seems to be a magnet for controversy these days. But Ginni Thomas is a right-wing political operative in her own right has been for years. This is not a new development. But after the election of 2020, she was super involved in the effort to keep Donald Trump in power and a bunch of stuff we had already known about her involvement. We knew that there was something like 29 text messages with Mark Meadows that were — I characterize them as unhinged.
We knew that she had a letter writing campaign to Arizona State representatives trying to convince them to have independent electors that would disregard the results of the actual election in the state and instead put forward their votes for Donald Trump. So those are the kind of things that we knew were simmering in the backgrounds. But in the sort of wake of the January 6th Commission and the live hearings that have been going on over the last couple of weeks, we found out some new details, which also include that she was in communication with Coups 4 Dummies Lawyer John Eastman, who was the former legal academic at Chapman, who put forward the theory that Mike Pence could just decide to undo the election, which kind of was the start of everything that happened on January 6th. And as a result, the committee would like to speak to Ginni. So that’s the thing that’s happening.
Joe Patrice: Yeah. Let’s break that. There’s a lot going on there. Let’s break down some of the key aspects. So the Chapman University former professor and former dean, actually, John Eastman who had been Thomas’ clerk. Eastman puts out a memo where he’s — it’s a little more complex than he says that the vice president can unilaterally just change the election. His argument is that the job of the vice president, according to the Electoral Act of 1887, is to count and certify these electors when they come in. And while he can’t necessarily reject them out of hand if there are claims that they aren’t real for whatever made up reason, then he could say, “We’re just not counting those.” With those excluded, the argument was of the counted votes Trump would win of those and that was the first argument.
And then the second argument was when people thought that was too crazy, he argued that, “Well, maybe what he can do is say certain states like in particular like a Wisconsin or Arizona, where there were state legislatures that were run by Republicans instead, maybe what Pence had the right to do is say, “Because of controversy surrounding these, we’re sending it back to the legislature to tell us who actually won in their own right,” and that the state legislatures then could disregard the vote and just say that Trump won. So those are the two competing theories. He apparently was in communications with Ginni Thomas about this.
The next wrinkle that then comes up is he’s also sending around emails telling people that he has been told that the Supreme Court Justices are having internal fights and disagreements over whether or not these election lawsuits should go forward. This indicates that he has some inside information about private Supreme Court deliberations. That would seem to be one of those leaks that everybody told us was so problematic. The only person that he seems to have been in communication with throughout all of this is Ginni Thomas leading everybody to make the two plus two equals four conclusion that Ginni Thomas is the source of this information that he’s pawning off on people, which then led to some folks making the next dog bites man conclusion, which is that we have a known leaker at the Supreme Court releasing this Dobbs opinion.
Most of us have largely come around to the idea that the conventional wisdom at this point is that Ginni is probably that leaker too, releasing the opinion in a way to stop conservatives who had signed on to it in theory from potentially defecting to a more moderate course advocated by Chief Justice Roberts. So to that extent, we have that potential leak. We have this leak going on, and folks are starting to wonder if maybe the improvidence speaker is Ginni Thomas and in multiple leaks, this seems to be the person who’s at the center of it all.
Kathryn Rubino: I think it is interesting because I kind of speculated lots of folks are talking what will the January 6th Commission asked Ginni Thomas and certainly I think that the leak of the Dobbs opinion is outside at their scope and they will not go near it, but it is very interesting that two of the largest controversies that are going on currently regarding the Supreme Court both have the same person at the center of them.
Joe Patrice: Yeah. The idea is that we needed to find a leaker and then we start hearing about somebody in communication leaking, and it’s just like —
Kathryn Rubino: That wasn’t okay.
Joe Patrice: What?
Chris Williams: Boo.
Kathryn Rubino: That was terrifying. It was not — no.
Joe Patrice: No?
Kathryn Rubino: No, no.
Joe Patrice: I thought it was very appropriate.
Kathryn Rubino: It was startling. It was unnecessary.
Chris Williams: It was not very cash money of you.
Joe Patrice: Art is always startling. That’s what we’re —
Kathryn Rubino: This is art?
Joe Patrice: I think our podcast is art.
Kathryn Rubino: Okay, great. Super, super.
Joe Patrice: Okay, fine. All right. Anyway, so —
Kathryn Rubino: It’s not even a fight. I’m just shocked that that’s the arg. No animus there, just surprise. Just surprise. But I do think it’s interesting that Ginni continues to be in the center of these controversies and to be clear, despite knowing his wife’s involvement in a lot of these post-election machinations, Supreme Court Justice Clarence Thomas still heard cases regarding the January 6th Committee, right?
Joe Patrice: In particular, he was the lone dissenter in the case that authorized the disclosure of these emails, basically.
Kathryn Rubino: I wonder why he did want these.
Joe Patrice: Which really speaks to the idea that these two are in communication which you would assume they would be, but that these two are talking at home about exactly all these shady dealings.
Kathryn Rubino: It’s more than just stretches credulity to say that like, “How are they not talking about this at home?” The fact that he’s literally the only dissent to say the January 6th Committee shouldn’t get to do this is the handwriting on the wall that makes it, I think, more obvious than if it had just been a 9-0 decision, right? That’s what he should have done. If he was actually playing the long game, he would have been part of the 9-0 and people like, “Well, you know. Look at he just does what he thinks is the right thing, and blah, blah, blah.” But he didn’t, right? He went out on a limb in order to protect his wife’s communications and now it looks like it.
Joe Patrice: Yeah. It’s going to continue to be an interesting course. I put out some gambling odds on who the leaker was and while some clerk going off on their own still was the odds bet because that’s where everyone’s head was at that time. The person who I thought was the most likely outright, in a real sense in those odds, was Ginni. And I can only imagine if I redid those odds today that they would be a little bit better on that one.
Chris Williams: I’m still in that. This is all just to distract you from the liberals getting Ketanji Brown Jackson in the court, and I think that she’s behind the leak.
Joe Patrice: Yes. There was also that one, yeah. In the annals of bad prognostication, the people who predicted that that was the issue somebody who’s not on the court was the leaker. Yeah, that’s likely.
Chris Williams: I saw a recent tweet. Somebody said making Juneteenth a federal holiday was part of the reason that mass shootings are a problem. I think this was yesterday when I tweeted out basically a happy Juneteenth tweet from the Above the Law Twitter, and people got under and were mad. They’re like, “You’re being racist for celebrating the federal holiday.” And one of the people that said that they retweeted a thing and I was like, “Oh, Juneteenth is why mass shooters are a thing.”
Joe Patrice: The list of reasons keeps growing, it just there’s always another one.
Chris Williams: Anything but gun.
Joe Patrice: Yeah, pretty much.
Kathryn Rubino: It is astonishing. I’m sure we’ve all seen these kind of memes that go around about the number of mass shootings that happen in the U.S. compared to the next top 15 countries combined, the U.S. is in the hundreds of mass shootings and everyone like, the next one is like, three or something like that. And somebody like, “What could it be?” And somebody, “It’s the guns.” Our Second Amendment Jurisprudence, I know exactly what it is. That’s what it is. It’s the guns.
Joe Patrice: So it’s been a busy time.
Kathryn Rubino: Yeah. You know how I know it’s busy?
Joe Patrice: How?
Kathryn Rubino: Because we’ve had the phone ringing off the hook.
Joe Patrice: Off the hook? Is it really on a hook?
Kathryn Rubino: Well, I think that it’s one of those phraseologies —
Joe Patrice: Idioms that you’re just not going to let go off?
Kathryn Rubino: I’m not going to. But you know what I will let go of? My need to actually answer the telephone.
Joe Patrice: Okay. How will you do that?
Kathryn Rubino: Virtual Receptionist Services.
Joe Patrice: All right. That makes some sense.
Kathryn Rubino: Yeah, it really does.
Joe Patrice: So let’s hear from Posh about that.
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Craig Williams: Today’s legal news is rarely a straightforward as the headlines that accompany them. On Lawyer 2 Lawyer, we provide legal perspective you need to better understand the current events that shape our society. Join me, Craig Williams, in a wide variety of industry experts as we break down the top stories. Follow Lawyer 2 Lawyer on the Legal Talk Network or wherever you subscribe to podcasts.
Joe Patrice: So, speaking of the Supreme Court, we had decisions today. There were not a lot of the big landmark ones, though we did have one of the big cases that folks were waiting on, and it came down exactly as terrifyingly rewriting the Constitution as you might expect. That decision was the Maine decision which expands now the Free Exercise Clause of the First Amendment to the point where, and I think Justice Breyer in descent puts this pretty well. It now extends the Free Exercise Clause to overrule the Establishment Clause.
Specifically, so in this case, the state of Maine has some rural areas where there aren’t just public schools, but it also has a state constitution that requires kids the right to a public education. And so to get around that, they had passed a law saying, “People in these rural districts, given that they have a right to have an education, but there’s no school in that district, will give you some subsidies so that you can go to a nonreligious private school out there.” You can use this public money to get your education that you would otherwise get at a public school from a nonreligious private school.
That seems pretty straightforward. This Supreme Court continuing a line of cases that has been rewriting how Free Exercise operates over the course of the last roughly 20 years or so, pushes one step further than they have up until now and turned that into “If the state is offering money to private schools at all, it now must make sure that that money can go to religious schools.” This attempt by the state to avoid an Establishment Clause problem, according to this new Supreme Court opinion, violates the Free Exercise Clause. So it is a violation of Free Exercise to give somebody money that they then could go use on religion, even though there’s no attempt to prevent them from — it’s not about them being able to exercise their religion. It’s about them being able to go to a school that is distinct. If they wanted to go to a religious school, they could have done that on their own. It’s just the public money is meant to go for —
Kathryn Rubino: Nonreligious education.
Joe Patrice: Which obviously this has come up before. This is kind of an extension of prior cases that had said, “If you’re, for instance giving money to schools through kind of a voucher program and they wanted to utilize that money for a religious school for nonreligious uses, it was wrong for the state to say, “Oh, well, you can’t give it to the Lutheran School, basically.”” That was previous case law saying that, “Yes, it would still be wrong to –” You could still make the distinction about whether or not the money is going to religious uses, but you can’t say, “because it’s religious per se, you don’t get it.”
This opinion now pushes past that and now says that you must give it to religious use. And Breyer actually points to one of the schools involved in the case which is a school with that has as part of its mission statement that gay people are not allowed to be there and that its primary mission is to teach everybody that Christ is their personal savior. These statements would seem to suggest that the money is not going to buying textbooks about math, but instead going toward religious education, which is what we used to call in the Establishment Clause Violation when we had an Establishment Clause.
Kathryn Rubino: Yeah. I mean, just the kind of gymnastics and hoops involved that the decision has to jump through in order to come to the predetermined conclusion, right? Given the current composition of the court, it was always going to kind of be this pro religion kind of jurisprudence, but just kind of the way that they had to jump through the hoops to make it all kind of makes sense, it doesn’t if you are familiar at all with First Amendment Jurisprudence, but here we are.
Joe Patrice: Yeah, it’s an interesting move. Now, Justice Breyer is very cold about it. We just rewrote this. Such that the First Clause of the religion rules is gone, Establishment Clause just gone.
Kathryn Rubino: We just don’t like the first clause of amendments. The whole well-regulated militia, we’ve just kind of forgotten about that part.
Joe Patrice: That’s actually the joke in my writeup of it is, “Man, this guy’s going to be upset when Bruin (ph) comes out.” The founders are so genius in paying attention to the text is so important that we can just ignore every clause before the one that we really are focusing on.
Kathryn Rubino: That we have decided to meet our current political goals.
Joe Patrice: Yeah, it’s not great. So on that note, we have this opinion — not on that note. That was just a bad transition to what I was going to say, which is so minority (ph) takes another dissent largely agreeing with Breyer, but being a little more directly confrontational about it, making some statement along the lines of I’m terrified of where this court is going to lead us next, which is —
Kathryn Rubino: Aren’t we all?
Joe Patrice: Yeah. And I think we’re about —
Kathryn Rubino: Same.
Joe Patrice: Yeah. As of the time you’re hearing this podcast, there are 13 cases left to go, including almost all of the big ticket ones besides this church and state case. There is one scheduled day left for those to be released. The idea that they’re going to release 13 on that day are —
Kathryn Rubino: Unlikely.
Joe Patrice: Highly unlikely. So we assume that after Thursday, there will be some other day or days added. So term is not over yet.
Kathryn Rubino: Yeah. They’re just going to, I think, figure out when is the day that most people are likely to be otherwise busy and occupied and not spending nearly as much time thinking about the Supreme Court in which case they will release.
Joe Patrice: Close July 5th.
Chris Williams: I was going to say one of the holidays coming up, yeah.
Kathryn Rubino: Yeah, it’s July 5.
Joe Patrice: So any who?
Kathryn Rubino: I think in particular the gun case because for whatever you think about the Dobbs leak, I think that most of the sort of political blowback as a result of it has already occurred. So I think they’re probably more concerned. And also given the fact that every time we think that they’re going to release it, there’s a massive —
Joe Patrice: I mean, this is very dark, but on July 5, schools are mostly out of session. The odds that something’s going to happen and it’s horrifying that the mere act of schools being out is something that probably is in their calculus, but schools out, so there probably won’t be a shooting over that weekend. So that’s when they can do it.
Kathryn Rubino: Well, there won’t be a school shoot.
Joe Patrice: Right.
Chris Williams: The thing that’s going to be wild, I’m just thinking about this now is that years out when people are undergraduates looking at the American response to the COVID pandemic, they’re going to be like, “Oh, one interesting thing about the response to the global pandemic was that less children were murdered because they were at home.” Right? But hey, that’s living in advanced civilization.
Kathryn Rubino: Yeah.
Joe Patrice: All right, well, to conclude, let’s talk about law school. Interesting case issue that came up in law school. I shouldn’t say cases since we’ve just been talking about the Supreme Court so much, but we had an what?
Kathryn Rubino: Incident matter.
Joe Patrice: Incident, yeah. I don’t want to talk about school incident after what we just were talking about either. So UCLA has had a rough go with it in the last couple of weeks.
Kathryn Rubino: Can’t get to break those folks.
Joe Patrice: So UCLA Law School accidentally sent around a spreadsheet of GPAs?
Kathryn Rubino: Sure did. And they’re like, “Please delete this.”
Joe Patrice: Yeah. They’re not great.
Chris Williams: Whenever schools send that “please delete” message, you go see the thing.
Joe Patrice: Right, see thing. Yeah. The odds that students were really opening emails from the school was so slim, you didn’t even have to.
Kathryn Rubino: Well, apparently, it was some cells and stuff that could be found and the school was notified by students were like, “Hey, did you know that you can see individuals’ GPAs as well as which law firms they got interviewed from, which ones gave them a call back, who gave them offers?” Like literally as John Smith with a 3-7 got that. So it wasn’t great. They really had to do something. They couldn’t just pretend that it didn’t happen.
Joe Patrice: On the heels of that, we learned that a visiting professor who had taught a course at UCLA had not turned in their grades, long after grades were due, sufficiently long after they were due that anyone —
Kathryn Rubino: At least they can’t disclose those grades.
Joe Patrice: That’s right. So it gives so for —
Chris Williams: It’s a selling point. It’s a selling point. I do this for the people.
Joe Patrice: Yeah. So with these grades not being there, it got sufficiently out of hand that anyone applying to clerkships had to be given a letter by the school explaining why that grade wasn’t going to be available. We’d reached right up until the line in which the school has to report to the State Bar everyone’s grades, all the graduates grades, so they can even take the bar exam and it turned out we don’t know all the details, but it seemed as though this was that the professor just kind of ghosted on the school.
Kathryn Rubino: Like blanked on it or?
Joe Patrice: Just went away.
Kathryn Rubino: I got a vacate (ph) planned piece.
Joe Patrice: In particular, with an exam that I gather from tipster’s talking about it had a 3000-word limit. So it’s not like it was a particularly long exam either, but yeah, it just disappeared. And according to students who talked about it, they reached out to the school and the school said, “Yeah, we’re also not able to get a hold of this guy.” He just disappeared.
Chris Williams: Everybody talks, makes a good talk about work life balance. This is it. This is it. The semester is over, I’m supposed to work during the semester. I don’t know what’s going to grade these papers. I did my part. There’s a dream.
Joe Patrice: I mean, work life balance doesn’t require they’d be in balance, just some distribution, yeah.
Chris Williams: Because that’s the thing. It usually never is.
Joe Patrice: Yeah.
Chris Williams: You’re either working or you’re unemployed.
Joe Patrice: There is a happy ending. Soon after this story came to light, the school successfully got a hold of the professor and we have grades now, I think everyone can move on. But yeah, it was a bit of a little fire drill there where nobody knew what was going to happen. Because if you have a bunch of exams from a course and then that professor isn’t there to grade it, what do you do? Even if you say —
Kathryn Rubino: It’s like the apple falls in the wood and no one is there to grade the exam, did it even happen?
Joe Patrice: Yeah, obviously you would turn it into some kind of a pass/fail, but you still need somebody to read it to figure out if anyone failed. So you’d have to build your own new rubric about a course you didn’t teach and the questions you didn’t write.
Chris Williams: You know how they’re like those unspoken rules where everybody knows nobody knows the origins, like if the teacher doesn’t show up to 15 minutes, you get to leave. Or like I think it’s an undergrad if your roommate dies, you get like an A. One of what happen is if there’s some unknown known code for if a teacher plays a — and just ghosts everyone like a beaver —
Kathryn Rubino: Everyone passes, yeah.
Chris Williams: Everyone passes the flying sea.
Joe Patrice: Yeah. Thankfully, it come to a conclusion. And one thing that I made a note of is if things are not going UCLA’s way these days, but given credit for being upfront and keeping people informed, they quickly told people, “Hey, here, sorry, we’ve released a bunch of GPAs.” They seemed very upfront that they were making every effort to get a hold of this person and just couldn’t find them. So the schools at least not trying to hide the ball on everybody, so that’s great.
Chris Williams: Shout to UCLA for having more accountability than the Uvalde’s Police Department.
Joe Patrice: Yeah, right. Wow, that’s —
Chris Williams: I’m not wrong. You’re not wrong.
Joe Patrice: Yeah, you’re not wrong on that very dark note. Hey, thanks everybody for listening.
Kathryn Rubino: Listen, it’s 2022. Sometimes things are dark.
Joe Patrice: Things are going to get dark.
Chris Williams: It was Juneteenth yesterday. It’s still very dark. It’s a good time of the year.
Joe Patrice: So with that, we are concluding you should be subscribed to the show so you can listen to new episodes when they come out. You should write reviews for it so that more people know and engage with the show. You should be reading Above the Law, so you see these stories when they come out, these and more stories when they come out on Above the Law. You should be listening to the Jabo, which is Catherine’s other show. I’m also a panelist on the Legaltech Week journalist roundtable where we talk about Legaltech. Check out the other shows from the Legal Talk Network. Follow us on social media. I’m @josephpatrice. She’s @catherine1.
Kathryn Rubino: That’s the numeral one.
Chris Williams: He’s @rightsforrent. You should be — what else? There’s something else I’m supposed to say, but now I’ve completely lost it.
Kathryn Rubino: Read Above the Law?
Chris Williams: I did the Read Above the Law. Maybe it’s because I did things out of order, because I’m always trying to shake things up.
Kathryn Rubino: Keep things fresh.
Joe Patrice: Yeah, keep it. Yeah, a little bit.
Kathryn Rubino: No one will be listening anymore.
Joe Patrice: Yeah. I like to think somebody as well.
Kathryn Rubino: Somebody’s falling asleep.
Joe Patrice: And with that, I think we’d be done.
Chris Williams: Next week.
Kathryn Rubino: Thanks to our sponsor, Posh.