While Ye (née Kanye West) continues to bring new meaning to his song Black Skinhead with a flurry of antisemitic remarks, Biglaw firms are being Heartless and leaving his stable of representation a Ghost Town. But are they Stronger for making the move? Meanwhile, work from home policies remain in their infancy, but firms are already frustrating associates with tweaks. Cravath’s originally announced policy has added a wrinkle and Ropes & Gray has folks positively grumpy. How long will the growing pains last? We also discuss Slaughter & May’s new late night policy, the challenges facing Magic Circle firms.
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Joe Patrice: Hello.
Kathryn Rubino: Hey. You missed me. Didn’t you?
Joe Patrice: Welcome to another edition. It was more that you all missed me. You were here last week.
Kathryn Rubino: We didn’t. We didn’t. But I thought that maybe in your day-to-day life, you weren’t interrupted. You didn’t get your weekly fill of interruptions.
Joe Patrice: You are definitely my weekly fill of interruptions. And with that, we are beginning the show, I guess. So I’m Joe Patrice from Above the Law. You’re listening to Thinking Like a Lawyer. I am joined by Kathryn Rubino.
Kathryn Rubino: As usual.
Joe Patrice: Yeah. We do not have Chris this week. He’s on a train and unable to join so we’re going to soldier on and begin with, as we usually do with small talk.
Kathryn Rubino: Yeah.
Kathryn Rubino: See, that didn’t interrupt me at all.
Joe Patrice: I know because I don’t try to interrupt you.
Kathryn Rubino: You absolutely do.
Joe Patrice: No, I don’t.
Kathryn Rubino: You’re just a little slow on the button. Admit it.
Joe Patrice: That’s not true.
Kathryn Rubino: You’re lying.
Joe Patrice: No, it’s just that you were so very verbose that you’re talking all the time whenever I am hitting it.
Kathryn Rubino: Are you with a straight face trying to pretend like I talk more on this show than you do?
Joe Patrice: I mean, it’s not a video show, so I don’t know how you think it’s a straight face but –
Kathryn Rubino: You’re wild. How was your weekend? Let’s just skip right past the lies and obvious things that you’re doing there.
Joe Patrice: Very similar to your weekend.
Kathryn Rubino: I know.
Joe Patrice: And also, the reason why Chris isn’t with us. The three of us went to a debate tournament. We actually judged the finals together.
Kathryn Rubino: We did. It was a 30 decision. We all agreed.
Joe Patrice: Yes, so your podcast panel all agreed so there we go.
Kathryn Rubino: Yeah, we should have we should have just videoed our reason for a decision at the end of it, and then we could have been done with the podcase already.
Joe Patrice: A special episode.
Kathryn Rubino: Very special episode. It is, in fact, the Cross Examination Debate Association’s topic this year is a legal topic, so theoretically, we could have made it work.
Joe Patrice: Tangentially legal, yeah.
Kathryn Rubino: It’s about legal personhood. It’s at least something. People talk about law professors occasionally.
Joe Patrice: Yeah. So, anyway, that was my very exhausting weekend. Of course, I wasn’t here last week because I was at the Association of Corporate Counsel Annual Meeting, where general counsel and other in-house legal department members from around the world are all gathering together to talk about their trade.
Kathryn Rubino: Were you, like, living your best conference life?
Joe Patrice: I assume so. I was living a life.
Kathryn Rubino: You are still alive so you made it through. Check mark.
Joe Patrice: I’ll tell you it was a little scary. The event was held in the Resorts World Casino in Las Vegas, which I had never been to, but it’s a very lovely casino. And I got to say, one of the things it does, it issues the whole mazelike format of a casino.
Kathryn Rubino: Okay, so they’re not interested in you getting lost in the casino floor.
Joe Patrice: Clear lines of sight, easy to navigate. It’s as though they’ve given up on the mental tricks and decided you’re going to give us your money anyway.
Kathryn Rubino: I mean, we’re selling fun. You’re going to buy. It’ll be fine. It doesn’t matter. You don’t have to feel like you’re being tricked into having fun. You’re just going to want to have fun.
Joe Patrice: I was unable to stay in that hotel so speaking of being tricked into having fun, I stayed at Circus Circus.
Kathryn Rubino: See, I would have thought now would have been your moment for your clown sound effect.
Joe Patrice: Yeah, I guess that’s true.
Kathryn Rubino: See, that sounds like you’re staying at Circus Circus.
Joe Patrice: Yeah, so I did that.
Kathryn Rubino: What was that like?
Joe Patrice: It is not like resort world.
Kathryn Rubino: I think that is a glowing endorsement of Resort World.
Joe Patrice: It was an experience. Hunter S. Thompson wrote some stuff about how Circus Circus is what the Germans would be doing on a Saturday night if the Nazis had won the war. And I don’t know about that, but it did kind of have the feel of a January 6 reunion. It is an interesting locale.
Kathryn Rubino: When it sounds like you are happy to be away from.
Joe Patrice: There were aspects of it that were an experience so I gather also — somebody told me that it’s getting full renovation in the next couple of years, so it may well be a completely different place the next time we’re out there.
Kathryn Rubino: I also think it’s interesting you’ve been to a bunch of different legal conferences this month. You’re sort of our man on the ground when it comes to conference life. Why are there so many, first of all, all back to back and what is the difference between them? It seems like I imagine there’s a lot of overlap. You’re not the only one going to all these.
Joe Patrice: That’s true. Well, there is some overlap. Yes, this month I’ve been to three conferences.
Kathryn Rubino: That’s too many.
Joe Patrice: It does feel like too many. I went to the Clio Cloud Conference, which of course is a product conference, so that’s just Clio, the practice management software platform for a lot of small and solo firms ranging up to midsize. But that platform has a show for its clients where they come, and part of it is training sessions and also just things of interest to their client base, whatever. So that is very much a product centric show. Then I went to the corporate counsel event. That is not that. That is very much about the business of being in-house counsel. Yes, there are tech vendors there, too, plying their wares, but also law firms, consulting firms. That’s kind of the world of ACC. Then back to back, I flew directly from there to Relativity Fest, which is another product based show. Relativity, they’re trying to push away from the word e-discovery.
Kathryn Rubino: I mean, I think for plenty of lawyers or folks who have done document review at all, they have very visceral memories of Relativity. I certainly do.
Joe Patrice: Which obviously, historically e-discovery is the space they played in. But they’ve done, like, a lot of that world. The technological gains that were made in facilitating e-discovery have other applications. And so, there was a lot of talk there about the ways in which it expands. They now have a translate tool, for instance. They have algorithms that allow you to zero in on emotional markers to figure out. You can pop into the whole thing and say, like, here’s where the tone between these two people became angry, stuff like that.
Kathryn Rubino: So the machines are truly taking over all of our jobs. That’s what that feels like.
Joe Patrice: It’s not that they’re completely taking over, but yeah, it is an application that’s is kind of cool.
Kathryn Rubino: Listen, as someone who spent a lot of years in my life doing document review and sort of managing that aspect of litigation, certainly I would always say that being able to detect tone and understand sort of the nuance of language was a real benefit. And the reason why we actually needed human eyes looking at these documents, making sure they’re getting to the right parties and making sure it’s going up the litigation chain. But you’re telling me now that the AI does it?
Joe Patrice: Well, I don’t know how the AI does it. I think the AI makes the human better able to do to do that job. Because instead of going through 30,000 documents to find where the tone got angry, it’s not going to be perfect. It’s going to isolate 50 documents that seem like they’re angry and then the human can make the distinctions between them when it’s a joke, when it’s is not. But it makes that job easier by calling that –
Kathryn Rubino: Easier, but potentially less lucrative as you’re spending fewer hours accomplishing it.
Joe Patrice: Don’t worry. There are more cases out there. You can just do other matters. Anyway, so I did that. A lot of stuff back to back.
Kathryn Rubino: Are you happy to be back?
Joe Patrice: Yes. Good to be back. I feel like a debt to our listeners, so I feel like I let them down by not being here last week.
Kathryn Rubino: I think everyone was cool with it.
Joe Patrice: I mean, I don’t know. I would assume that I was missed terribly.
Kathryn Rubino: Terribly. We’re very fortunate Liz Dye, one of our columnists came on last week. I’m sure we’ll have her again on in the near future. And so we survived without you, Joe.
Joe Patrice: Not sure, but whatever. I think we’ve talked small lee for a really long time.
Kathryn Rubino: Fair.
Joe Patrice: What are we talking about?
Kathryn Rubino: I think the first story we’re going to actually jump into is one of your stories. You’ve written about sort of the back to the office world. What’s going on? Big law firms are kind of trying to feel out how many days a week they need to be in the office. Is it mandatory? Which days are mandatory? Lots of questions abound and I know Cravath, who is perennially the compensation leader, is also making some pretty notable moves in this space as well.
Joe Patrice: I think that’s true. Figuring out how to get back to the office has been a big discussion.
In the immediate aftermath of COVID, there were conversations about maybe making a four-day in the office work week. The work week would continue to be five, or more accurately, seven for big law lawyers.
Kathryn Rubino: Let’s not kid ourselves. You don’t have to work less.
Joe Patrice: Right. But four in the office was talked about. There were then some folks going with three. What if it’s three days in the office and the kind of recruiting arms race became who can be more flexible and hospitable to people continuing to work from home. In the meantime, there were also folks who continue to be just generally averse to being around other people and they don’t want to go to the office at all. I’m going to push them to one side in this conversation because no hybrid office policy is ever going to satisfy that concern.
But for the people who want to be in an office, but just not necessarily every day, four was an option. Three became an option. Cravath actually originally came out with a proposal that I dubbed the 3.5 Options, which I thought was very interesting. It split that four three divide by saying that look, you can work remotely six times a month, which translates to two three-day weeks and two four-day weeks, basically so that’s why I called it 3.5. And I thought it actually was a really good middle ground between these two points because I’ll get into this in a second. So 3.5, apparently they have been walking that back a little bit and now they’re kind of going back to –
Kathryn Rubino: When you say walking back, is there a new mandate involved? Are people not going to the office at all? And so they have to take a stricter line?
Joe Patrice: They’re bringing in the kind of — actually, what are they bringing in Kathryn? I don’t remember off top my head because I’ve got it mixed in in my head with what Ropes & Gray is doing, which I also wrote about. I wrote two of these stories last week, so you need to tell me which one was the one they were doing. Thanks for that.
Kathryn Rubino: Really depend on you to know your own stories.
Joe Patrice: I don’t understand why that would be true. Did you hear what I did last week?
Kathryn Rubino: Right, and I was writing a lot of stories to make sure that we content in our website.
Joe Patrice: No, it’s all about you.
Kathryn Rubino: It’s not. It’s just not all about you.
Joe Patrice: Okay, so here’s what’s happening. Whereas Ropes & Gray is pushing out the thing they did, the Cravath thing is actually going the other direction. It seems to be moving towards fewer days, almost like a 2.5 a week schedule, in that they are only required to go into the office two days a week but encouraged to go more, so it’s more like 2.5. On the other hand, it is mandating, what those two days are Tuesdays and Wednesdays. And this kind of goes back to that Ropes & Gray Article II, which they have more days on their calendar, but they are also demanding that they be Tuesday, Wednesday, Thursday. And in both instances, my sense is when it comes to hybrid working, I feel like firms fall into two not quite great camps. One is the camp that says everybody should be back in the office all the time, which is not particularly a reality in the world post COVID, I don’t think.
Kathryn Rubino: Right.
Joe Patrice: The other are a group of firms that believe in allowing hybrid work but think that the selling point to folks is more three-day weekends, which is not —
Kathryn Rubino: Those are less valuable when you have to work the entire weekend.
Joe Patrice: Exactly. And it’s not that the love of this is at least as I’ve been hearing from the conversations I’ve had with folks other than those who are opposed to going into office altogether, it tends to be about flexibility. It is not that they care to have a three-day weekend or a four-day weekend. And it’s not weekend, but work from home. It’s that they want the ability and the flexibility to say, oh, for me, Grandma can watch the kids every day except Tuesday so that’s the day that I really have to be home. It’s that, oh, I was able to get an appointment that I really needed. And I’m going to keep using kids because I think a lot of the feedback I’ve been getting are about raising kids.
Kathryn Rubino: Sure.
Joe Patrice: Oh, this thing that we have to do with the kids, it can only be done — I was only able to get it this next Wednesday, so I’m not going to be here Wednesday. It’s that flexibility where the firm understands they don’t expect you in the office five straight days, and you can say, you know what, this is the day I can’t be here. That’s what people want. And so it loses a lot of its power. No matter if you’re down to three days or two and a half days, it loses its power when you say, but Tuesday and Wednesday are the days you have to be here, or Tuesday, Wednesday, Thursday or whatever.
Kathryn Rubino: I think it’s interesting, though, that Cravath went from this sort of you dubbed this, “idolized flexibility schedule that actually require or at least tended to suggest that you should be in the office for more days a week into less time in the office, but more of it very clear when those days are.” And I think it’s interesting kind of seeing what firms are deciding that they need, right? It’s not the actual physical time in the office that is nearly as important.
This is at least what it feels like from watching these things happen from the outside at a variety of different firms. But a full staff day on designated days is more valuable for that kind of soft learning for their junior associates. And we’ve talked extensively about, I think, the number one reason that firms are really pushing for at least some clear times back in the office is to make sure that their younger, less experienced associates are getting trained up in the way they need to. We all know law school doesn’t actually teach you to be a lawyer. It’s done at the law firms, and it’s a lot better to be taught in person than it is over Zoom.
Joe Patrice: No. In a weird way, I’ve almost come around to the idea that the shorter week was doomed to fail. As in a four-day flexible in the office was always going to be a better model than trying to go towards three or 2.5, because when you go to three and two five, you run the risk of what you’re saying of people being in the office when no one else is. You get ships passing in the night, at which point they say, oh, if we’re going to have this, we’re going to mandate that these be the two days, and that destroys the flexibility that made this whole thing worth it. Four days and flexible. Four days, that’s going to be an overlap.
Kathryn Rubino: You’re going to overlap with somebody in your group.
Joe Patrice: There will be a day that you don’t, but you’re going to overlap with people a substantial amount of time. I actually talked with general counsel of a major American company while I was at ACC, and we talked about working from home policies, and he keeps his law department in the office for about four days a week. And we kind of talked through these issues, and we both came to the consensus that we thought that the four-day is the ideal because it prevents that ship passing in the night. He was also on board with, look, I just need the work done. I want them to be flexible and can pick what days they go in and out, but I need to make sure that people overlap enough.
Kathryn Rubino: It’s definitely very much an evolving issue. Certainly, we thought that we had a handle on Cravath’s policy and that it got changed. Whether you agree with their initial policy, their revised policy, I do appreciate that the firm is able to adjust, recognize what is and isn’t working for them as a firm and say, it’s not just written in stone at the time where we all have to kind of figure out what works best. And this may not be the final iteration.
Joe Patrice: Yes, I think that’s right. 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: I think that it’s one of those phraseologies.
Joe Patrice: Those idioms that you’re just not going to let go of.
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 reception services.
Joe Patrice: All right. That makes some sense.
Kathryn Rubino: Yes, it really does.
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Kathryn Rubino: Okay, and I think we’ll actually continue some of our conversation about this post-COVID back to the office. What does that all look like? There was a memo that went out at Slaughters and May detailing –
Joe Patrice: Slaughter, right?
Kathryn Rubino: Slaughter. Slaughter and May.
Joe Patrice: Slaughter, yeah.
Kathryn Rubino: Fair enough. It’s like maths. I just add the S when we’re talking about —
Joe Patrice: Oh, yeah, when we’re talking about Britain. Oh, that was a good save for what was clearly a screw up. Good job.
Kathryn Rubino: You’re delight, so happy to have you back.
Joe Patrice: Yeah, no, everyone’s glad I’m back.
Kathryn Rubino: Anyway, they put out an extensive memo detailing some of their policies about how folks should deal with exactly these flexible working situations. Specifically, they made it very clear that if you are on a video call between 8:00 p.m. and 8:00 a.m., you’re not required to put on your camera. So got a little permission slip for having your hair up in a high bun. That is not necessarily the most flattering, so you can feel free to kind of be comfortable. Although having to take a work Zoom during those hours is enough of a burden. You shouldn’t also have to make sure you have on lipstick, so I appreciate that.
Some of the other guidelines that they made is that on Friday nights, you only have to check your email once and not after 10:00 p.m. And then over the weekend, you should be checking your email roughly twice a day. And they did it. A bunch of folks spoke out about what happens, and it was really an effort to make things more tenable for their associates. Working from home often means a lack of boundaries, which is why some people actually do prefer the office, because they have their work brain and they have their home brain, and it’s different.
But people were constantly checking their emails and feeling like they were obligated to do even well into the evening. And for things that may or may not actually be urgent, and obviously you do need to check your email over the weekend. That’s why we all get all of our push notifications. But you have to have some balance. There can be time that you can carve out, that you can just dedicate to perhaps carving pumpkins or whatever home-based tasks that you’re currently focused on. And you don’t have to always be checking, constantly be looking. They’ve kind of set this up so people can try to create a little better work life balance for themselves. Of course, there are a couple of big caveats.
Joe Patrice: Are there?
Kathryn Rubino: Listen, they have to do these because you never know what’s going to happen. And I don’t think it really takes away from the intention of setting up these rules. But the first is that you always have to be available by phone. Something happens and they need to get a hold of you. You can’t just be like, oh, it’s the weekend, decline the call from senior partner X. No, got to be available by phone. The second caveat is that if you are working on a matter where you feel it is required for you to be in constant communication, you should be in constant communication. If you’re working on a TRO, continue to check your email even at 1:00 a.m., which obviously it’s the nature of the legal profession at the highest levels. Clients expect that level of responsiveness. You have to provide it when it’s truly urgent. But I do think that the system at least creates some guidelines where you don’t feel like you should be yelled at if you didn’t check a midnight email that was like in two days, can you please do X?
Joe Patrice: Yeah. I also wrote, just as a quick aside, an article about the Magic Circle Firms in the UK. It was interesting. A study was released that suggests that if they don’t get aggressive in mergers, they are likely to be crowded out of the lead market entirely by the American firms, which I thought was an interesting. New development we’ll see.
Kathryn Rubino: We’ll see how it all kind of plays out, but these are sort of all the ways in which we’re figuring out how post-COVID or hopefully post-COVID but mostly post-COVID, we get back to normal I think are really interesting and that we’re watching them play out in real time.
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Kathryn Rubino: Domains are definitely not covered in my law school classes.
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Kathryn Rubino: Okay, I think for our final segment we’ll take a little bit of a different turn. Not so much about big law and post-COVID life, but let’s talk about Kanye West. Obviously, folks know the rapper now legally known as Ye has been on a bit of a tear lately, doing a series of just wild and inappropriate things.
A bunch of antisemitic rants refusing to back away from those comments, saying that George Floyd did not die because of police brutality, but instead because of fentanyl. He’s actually facing a giant lawsuit as a result of that.
Joe Patrice: Is it the same kind of fentanyl that all the kids got in Halloween?
Kathryn Rubino: Well, if kids can get that for free, they are doing a better job than most —
Joe Patrice: Drug dealers giving away drugs for free.
Kathryn Rubino: It’s not really in their best interest.
Joe Patrice: It’s not really.
Kathryn Rubino: Especially to children who don’t actually have the money to then purchase it in the future. Anyway, also said wore White Lives Matter shirt. Bunch of just wild and inappropriate comments kind of that we have unfortunately come to expect from Ye. As a result, there were some reports last week that he was going — he was looking for legal representation. Camille Vasquez, Brown Ruddnick, who previously represented Johnny Depp in his defamation case against Amber Heard, was rumored to be his lawyer “in his business interests.”
Couple days after that came out, Brown Ruddnick was like, we are very much not representing Kanye. Rumor was that it was because the star refused to back away from his antisemitic comments. Not the only big law firm though that has either disavowed working with him or backed away from their previous representations of him. We have three others, we have Cadwalader, we have Pryor Cashman, and most recently we have Quinn Emanuel.
Kanye has a bunch of business deals that have gone under as a result of his comments. He lost his deal with Adidas, Balenciaga, his agency stopped representing him and he needs a lawyer. And for all of these things and because of his comments and his unwillingness to back away from the antisemitism, people just are uninterested in that business.
Joe Patrice: Well, and this goes to a philosophical question that we’ve dealt with on this show a number of times dating back to like, I remember me and Ellie doing the show about this too. There is this maxim out there that everyone deserves a lawyer, which is certainly true in the criminal context, definitely true, and it should probably be more true in certain civil contexts, I think. But they don’t deserve you as a lawyer, necessarily.
Kathryn Rubino: And certainly no one deserves a several billion dollars’ worth of money from a shoe company.
Joe Patrice: Right, well, I’m putting that to another side. This idea, I think there are people who will react to these firms dropping him as a client and saying like, that’s just such a betrayal of what it is to be a lawyer. As a lawyer, you’re supposed to be able to advocate on behalf of any client, whatever, and I don’t think that’s accurate. You don’t necessarily need, especially if you’re a lawyer who has a business that you have to care about, other clients you have to care about.
You are not obligated to say because Kanye wants to pay you some legal fees, you should put it jeopardy the fact that all your other clients don’t want to be associated with you if you do that. That’s a business decision and a fair one. And just because you aren’t in a position to be a lawyer, there is a lawyer rout there that could work with him. He does not have a right to choose one of the Am Law 100 Firms. He has the right to try, but no Am Law 100 Firm is obligated to take on that case and they have to weigh that out.
Kathryn Rubino: Yeah, I mean, I think it’s really — Quinn Emanuel, they actually had an initial statement before they dropped him as a client saying that in light of their obligations to existing — because they already had, apparently, Kanye as a client, so in lieu of their obligations to their client, they were sort of under review and then the next day came out that they were not going to be working with him any longer. You see that at work where there are obligations, you have professional obligations to clients, but you also have professional obligations to the firm and to the rest of your clients. And if that is impacting that, I think that’s an okay to great decision that they’re making.
Joe Patrice: Yeah, it is an interesting philosophical divide. I think I actually have pushed back a lot on the way in which the legal industry has draped itself in this, because a lot of times they drape themselves in it as a way of justifying bad behavior. Oh well, everybody deserves a lawyer, but you don’t in all these contexts, and it’s clear in this one, multiple firms decided that this was definitely a loser issue as a whole whole.
Kathryn Rubino: And it was really interesting too, because Quinn’s representation of Kanye became public, because Kanye posted on Instagram stories a bunch of text messages, or it appeared to be text messages between himself and an attorney at Quinn.
Joe Patrice: Yeah.
Kathryn Rubino: About that waiver of privilege not doing great.
Joe Patrice: Anyway, so yeah, I think at this point, we’re probably done with the show.
Kathryn Rubino: I think so.
Joe Patrice: Yeah, and we didn’t even touch on so many legal issues, but this was a jampacked.
Kathryn Rubino: Jampacked week that you basically got to miss.
Joe Patrice: Anyway.
Kathryn Rubino: No, you were busy conferencing.
Joe Patrice: I was and you should subscribe to the show you know if you’re listening to it.
Kathryn Rubino: Yeah, on your podcast listening service of choice.
Joe Patrice: Yes. Also, give it review stars, write something that all helps. You should be listening to other podcasts, like the Jabot, which Kathryn hosts, or the Legal Tech Week Journalists’ Roundtable that I’m a panelist on. You should be listening to other shows on the Legal Talk Network. You should read Above the Law so you can read these and other stories before we chitchat about them. Follow us on social media the blog is @atlblog. We are @josephpatrice @kathryn1. Numeral one.
Kathryn Rubino: Oh, you know.
Joe Patrice: What else should they be? I’ve lost my train of thought out of nowhere.
Kathryn Rubino: Did you talk about the Legal Tech Journalists’ Roundtable?
Joe Patrice: I did already, yeah.
Kathryn Rubino: I wasn’t listening to you.
Joe Patrice: Wow. Wow. Just tell them like it is my friend. Violence chosen out of nowhere. I should make this show wrap up thing more interactive so that to catch you all not listening to me.
Kathryn Rubino: You say the same thing enough weeks in a row, which will just snap and crackles.
Joe Patrice: Anyway, so, yeah, read all those, follow us.
Kathryn Rubino: Listen, and have a good week, y’all. Bye.
Joe Patrice: And thank you, as always, to Posh and GoDaddy Domain Broker Service for sponsoring the show.
Kathryn Rubino: Thanks.