Archive for category Social Media

Facebook Friends & Workplace Enemies, cont.

On Monday, I provided details about the Ehling case wherein an employee had made an inappropriate Facebook post and, unbeknownst to her, had that Facebook post sent to her manager by a Facebook “friend” and coworker.

When the plaintiff, Ehling, was suspended from her hospital job because of the post, she sued in federal court alleging a violation of her rights under the SCA. The District Court found that non-public Facebook wall posts are protected by the SCA. A key factor in the Court’s ruling was that Ehling had configured her privacy settings so that her posts were only viewable by her Facebook friends.

Despite this protection, the Court held that the hospital was not liable because one of the SCA’s exceptions applied. Specifically, the exception was conduct authorized “(1) by the person or entity providing a wire or electronic communication service; [or] (2) by a user of that service with respect to a communication of or intended for that user.” Because Ehling had “friended” her coworker, giving him access to her Facebook wall, and the coworker had provided management with the posting without any solicitation, the exception applied.

If the hospital had asked the paramedic for the information or to keep them apprised of a fellow employee’s online activity, it would have led to a SCA violation. The access would be unauthorized.

The lesson learned from Ehling is that employers should be cautious when presented with an employee’s social media account material by another employee. While the posts may warrant some kind of action being taken against the subject employee, if the information is solicited or requested by the employer, it could lead to a federal violation.

 

Cindy Effinger

 

 

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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Facebook Friends & Workplace Enemies

Inappropriate Facebook posts, pictures and the like have led to many firings in recent years. A large number of employees have become smarter on social media and made a concerted effort to not “friend” a manager or boss. They think that they are keeping their online persona and work reputation separate…but is that really possible when dealing with the Internet?

It is not uncommon for an employer to be completely oblivious to an employee’s inappropriate online actions until presented with the evidence from a Facebook “friend” and coworker of the subject employee. If the employer chooses to take adverse employment action against the subject employee, the coworker’s evidence can be crucial in defending against a discrimination lawsuit.

Nonetheless, employers should think twice before they solicit coworkers to disclose the postings of another employee because of the Federal Stored Communications Act (“SCA”). The SCA prohibits intentionally accessing without authorization a facility through which an electronic communication service is provided or intentionally exceeding an authorization to access that facility. 18 U.S.C. §2701(a).

In Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-3305 (WMJ)(D.N.J. Aug. 20, 2013), a New Jersey federal court held than an employee’s Facebook wall posts were protected by the SCA.

Deborah Ehling (the plaintiff) was a registered nurse and paramedic. She had a Facebook account with approximately 300 friends, but was careful to not add any hospital managers or supervisors as friends and maintained her privacy settings so that only friends could see posts.

In 2009, Ehling made a statement on her Facebook wall criticizing emergency response paramedics at a shooting at the Holocaust Museum in Washington, D.C., who reportedly saved the life of the shooter. It read:

An 88yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? And 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards…go to target practice.

A coworker and Facebook friend of Ehling’s printed a screenshot of this post and emailed it to Ehling’s manager. It is important to note that the friend was not prompted by the manager for any information about Ehling or to be apprised of any of her online activity. It was simply something the “friend” chose to do on his own.

Ehling was subsequently suspended and received a memo from the hospital explaining that such action was taken because her Facebook comment reflected a “deliberate disregard for patient safety.” The memo prompted Ehling to file a complaint with the National Labor Relations Board. It was found that the hospital was not in violation of the National Labor Relations Act. She then filed suit in federal court, alleging the hospital had violated her rights under the SCA.

To learn about the outcome of this case, check back on Wednesday.

Cindy Effinger

 

 

 

 

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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McBrayer Attorneys Present at NADSA Conference

On October 10, 2013, three McBrayer attorneys spoke at the 2013 National Adult Day Service Association Conference held in Louisville, Kentucky. Lisa English HinkleJaron P. Blandford,and Cynthia L. Effinger presented, “ Hot Topics in Employment Law: Social Media; the Intersection of HIPAA and the NLRB; and Everyday Challenges.” The seminar discussed several important employment law updates for adult day service providers. You can download a copy of their presentation here: 2013 NADSA Conference.

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McBrayer Attorneys’ 2013 KYSHRM Conference Presentation

On September 25th, Amy D. Cubbage and Cynthia L. Effinger spoke at the 29th Annual Kentucky SHRM Conference, held in Louisville, KY. Their presentation, “Social Media: Strategy and Implementation. Are you protected?,” focused on what companies can do to protect their businesses when issues arise (both internally and externally) with social media. The presentation included informative tips on how to create an legally sound social media policy and some new issues that employers and HR managers will soon face in the social media realm. If you missed the presentation, you can check out Amy and Cindy’s presentation here and find a copy of their supporting documents here.

Cindy picture

 

 

 

 

 

 

Congrats to Amy and Cindy on a great presentation. We’re already looking forward to the 2014 conference!

Amy Cubbage

 

 

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

Cindy Effinger

 

 

 

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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NLRB’s Advice Memorandum to Giant Foods LLC: A Giant Shock to Employers, cont.

I informed readers on Monday that the NLRB recently publicly released its Advice Memorandum to Giant Foods LLC. The company’s social media policy contained provisions that prevented employees from sharing confidential or non-public information, using the company’s logo or trademarks or filming the company premises without prior approval.

The NLRB found that the provision prohibiting employees from posting information that could be deemed “confidential” or “non-public” is unlawful because “non-public” is a vague term which employees could reasonably construe to include working conditions and “confidential” could reasonably be interpreted to include terms and conditions of employment.

Regarding an employer’s legitimate interest in protecting his logo, trademark, or graphics, the Memorandum stated: “Although the employer has a proprietary interest in its trademarks, including its logo if trademarked, employees’ use of its name, logo, or other trademark while engaging in Section 7 activity would not infringe on that interest.” The Memorandum illustrated a scenario in which an employee posted picket signs containing the employer logo.

As to the provision prohibiting employees from photographing or videotaping the employer’s premises, the Memorandum stated: “…a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos…”.

Despite the NLRB’s Advice Memorandum, employers will understandably continue to draft social media policies limiting employees’ sharing of confidential information, use of proprietary images, or filming of workplace premises. If you are going to include policy provisions similar to Giant Foods LLC’s, I offer the following advice:

  • Make every attempt to carefully define “confidential” or “non-public” information, clearly stating that working conditions or terms of employment are not within these categories.
  • Prohibit workplace photos and videos only in work areas where confidential or privacy interests are a real concern and provide specific examples of banned areas. For example, “No photographing or filming of the plant’s proprietary conveyer belt process.”
  • Limit the commercial use of your name, logo, and trademark by employees, without prior authorization.

It should also be noted that Giant Foods LLC policy had the following savings clause: “Please note that the company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.” The Advice Memorandum made clear that savings clauses such as these do not cure otherwise unlawful policy provisions.

The NLRB’s Advice Memorandum to employers seriously downgrades employers’ appropriate and reasonable privacy interests. Employer policies routinely prevented employees from sharing confidential information with non-employees long before the advent of social media. The NLRB memorandum seems to be long on speculative scenarios, but short on common sense. It is going to take time for employers, and the NLRB, to reach a happy-medium for social media policies.

Amy Cubbage

 

 

 

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of newly enacted federal and/or state law and does not constitute legal advice.

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NLRB’s Advice Memorandum to Giant Foods LLC: A Giant Shock to Employers

On July 11, 2013, in response to a Freedom of Information Act request, the National Labor Relations Board (“NLRB”) released a copy of the Advice Memorandum (find it here) issued for Giant Food LLC. The Advice Memorandum, originally issued in  2012, concludes that portions of Giant Food LLC’s social media policy violates the National Labor Relations Act (“NLRA”).

The NLRB has struggled over recent years to provide guidance on employer social media policies. The constant introduction of new social media venues and capabilities, along with occasional contradictory court rulings, only add to the confusion. Under Section 7 of the NLRA, employees have the right to band together for mutual aid and protection. Policies that are overbroad or vague are being struck down by the NLRB at a steady rate for fear that such policies will chill employee rights.

Giant Foods LLC social media guidelines stated, in relevant part:

…You have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized Associate any confidential information about the Company or any related companies including Ahold USA, or about other Associates, customers, suppliers, or business partners.

Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval…

While employers have come to know that they cannot outright ban employees’ social media use and that they must be careful of how they restrict employee speech, many are stunned to learn that they are prevented from protecting confidential information, proprietary company logos, trademarks or graphics, or the filming of their own premises. To find out more about the NLRB’s reasoning for determining Giant Foods LLC’s social media policy unlawful, check back on Wednesday.

Amy Cubbage

 

 

 

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of newly enacted federal and/or state law and does not constitute legal advice.

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Menacing Social Media: When Your Business is Defamed Online

Social media is a wonderful tool for businesses. In fact, in today’s Internet-reliant society, it is quickly becoming a necessity.

But every rose has its thorns – social media can destroy a business as fast as it can promote one.

In the dark ages (you know, before email, Facebook, and Twitter), consumers shared their experiences with others by word-of-mouth. The fact that a consumer can now share their experiences with thousands at a time through a simple Facebook post is both thrilling and frightening.

Amy’s Baking Company: A Social Media Nightmare

Amy, an Arizona restaurateur, and her co-owner husband recently appeared on the reality show “Kitchen Nightmares” and gave celebrity chef Gordon Ramsay a backstage pass to their failing business.

While the episode created quite a stir, it was the owners’ subsequent actions that received national attention. After the airing of the show, people everywhere took to user-driven websites, like Yelp and Facebook, to express their abhorrence for the owners and the business.

Amy’s Baking Company experienced a social media meltdown. The owners reacted in a less-than professional manner by responding to negative posts with vulgar obscenities and threats of legal action. The documented online drama is a textbook example of how not to handle a social media crisis.

Amy’s Baking Company is an extreme illustration of bad publicity, but chances are every business will encounter some sort of undesirable feedback on social media. Everyone has seen a Facebook post that rants about a bad waitress, the cable guy that never showed, or the dry cleaning service that ruined a shirt. People can get away with saying a lot of adverse things.  The anonymity of the Internet serves as a great enabler.

The key as a business owner is knowing when a review or statement crosses the line and becomes defamatory. It may not be possible, or even advisable, to respond to every criticism that appears on social media, but if a business is the target of true defamation, then action is required.

What Qualifies as Defamation and What Should You Do?

To qualify as defamatory, a false statement must be communicated to others and cause injury to a person or entity. If a statement is true (no matter how damaging) or simply a person’s opinion, then it is not defamatory.

The first step to handling any online negativity is to act fast.

Social media moves at the speed of light—a tweet or YouTube video can reach millions in no time. When an unfavorable statement is discovered, do not fight it with traditional tools. Instead, respond in kind using social media.

There is nothing wrong with responding directly to a Facebook post or Tweet as long as it is done in a professional and considerate manner. It will demonstrate that the business cares about its image and customers’ concerns. If the statement is highly derogatory or inappropriate (i.e., more than a person’s bad experience), ask for a retraction from the site. Some sites are more willing to pull content than others.

If the statement is not taken down and your business is suffering as a result, consider contacting a lawyer to consider what other legal remedies are available to you.

 

 

Cindy Effinger

 

 

 

 

 

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com

 

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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Do LinkedIn Endorsements Create a Chink in Professionalism?

LinkedIn is touted as the “World’s Largest Professional Network.” A far cry from more personal social media sites like Facebook and Twitter, LinkedIn keeps the emphasis on people’s employment and their professional connections. Consider it like a networking event, only online. Unlike in-person networking, though, LinkedIn enables people to make connections with anyone, anywhere.

Last year, LinkedIn added a new feature to its site: LinkedIn Skill Endorsements. According to the site, “Endorsing others is a great way to recognize your colleagues for the skills you’ve seen them demonstrate. It helps contribute to the strength of their profile, and increases the likelihood they’ll be discovered for opportunities related to the skills their connections know they possess.” This sounds great, right? Everyone appreciates acknowledgement; the endorsements are like a virtual thumbs-up or even a letter of recommendation. But, what if the person endorsing you has it wrong? What if the person endorsing you does not even know you?

If you are like me, you are not overly selective when it comes to accepting invitations from people on social media sites. If someone wants to connect with me via LinkedIn, I generally accept the request. The more, the merrier. Even if I do not recognize someone’s name on an invitation, I normally will go ahead and accept in order to see what connections we might share. The result is that my LinkedIn circle is pretty large and includes many people whom I only vaguely know and, reciprocally, people who know very little about me and my career.

Yet, these people can endorse me for whatever skills they believe I possess. In the legal field, this presents numerous issues teetering on ethical boundaries. All attorneys must abide by rules promulgated by the American Bar Association. For example, ABA Model Rule 7.1 states that a lawyer is not to make any false or misleading claims about his or her services. If someone endorses me on LinkedIn for patent law work, of which I have no experience with, am I allowing a false claim to be made about my services? Do I have an obligation to remove the endorsement from my page?

Granted, many professionals are not subject to such stringent regulations. However, no matter what the profession, these endorsements may do more harm than good.

For starters, they are just too easy to make. With a few clicks, I can endorse a Human Resources manager with the skills of “insurance planning” or “contract negotiations.” But an HR manager may not have experience with either. How does it help a professional if she is endorsed for skills she in actuality does not have? Endorsements, if not monitored by the receiving person, can create a false image.

There is also the “you scratch my back, I’ll scratch yours” dilemma. Should you reciprocate an endorsement? And, if everyone returns the favor, do endorsements become meaningless? My rule of thumb is to only endorse someone for whom I would write a letter of recommendation; I must have seen their skills in action and interacted with them on a personal level.

LinkedIn has enabled a feature that allows users to hide endorsements, so that they are not visible to others. While you may or may not choose to use this feature, I do recommend actively monitoring your profile. If you are an employer, educate your employees about the nature of LinkedIn endorsements. After all, employees’ endorsed skills are a reflection of your business. If you operate a flower shop and one of your employees is endorsed as an “expert botanist,” but in reality she is just a teenager who likes flowers, it may be misleading to customers. Professional endorsements, no matter the format, should always be honest and accurate.

If you are an employer and are interested in knowing more about social media policies in the workplace, contact the employment law attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Amy Cubbage

 

 

 

 

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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Social Media & Emerging Employer Issues: Are You Protected?

On June 13, Business First and McBrayer sponsored their second Social Media Seminar. The seminar’s precedent, Social Media: Strategy and Implementation, was offered in 2012 and was hugely successful. This year’s proved to be no different. Presented by Amy D. Cubbage and Cynthia L. Effinger, the seminar focused on emerging social media issues for employers. If you missed it, you missed out! But don’t worry, a seminar recap is below and you can find a copy of the PowerPoint slides by clicking here. 

McBrayer:  If a business has been designated as an entity that must comply with HIPAA, what is the risk of employees using social media?

Cubbage: Employers are generally liable for the acts of their employees which are inconsistent with HIPAA data privacy and security rules. As employees’ use of social networking sites increase, so does the possibility of a privacy or security breach. An employee may be violating HIPAA laws simply by posting something about their workday that is seemingly innocent. For instance, a nurse’s Facebook status that says, “Long day, been dealing with a cranky old man just admitted into the ER” could be considered a HIPAA violation and expose an employer to sanctions and fines.

McBrayer: Should businesses avoid using social media so that they will not become the target of social media defamation?

Effinger: In this day and age it is hard, if not impossible, for a business to be successful without some use of social media. There is always the risk that someone will make negative comments about an individual or a business online, especially when anonymity is an option. Employers need to know the difference between negativity and true defamation. Negative comments or reviews are allowed, perhaps even encouraged, on some websites. If a statement is truly defamatory, however, then a business should make efforts to have the commentary reported and removed. The first step should always be to ask the internet service provider for a retraction of the comment, but legal action may sometimes be required.

McBrayer: When does a negative statement cross the line and become defamation?

Effinger: It is not always easy to tell. First, a statement must be false. If it is true, no matter how damaging, it is not defamation. The same goes for personal opinions. Second, the statement must cause some kind of injury to an individual or business, such as by negatively impacting a business’s sales, to be defamation.

McBrayer: Can employers ever prevent employees from “speaking” on social media?

Effinger: Yes and no.  Employers should always have social media policies in place that employees read, sign, and abide by. Private employers have more flexibility to control employees’ speech, however, there are some federal and state laws that provide some protection for the employee.

McBrayer: What constitutes “speech” on the internet? Is “liking” a group on Facebook speech? How about posting a YouTube video?

Effinger: This is a problem that courts and governmental employment agencies, like the National Labor Relations Board, are just starting to encounter. There is no bright-line rule for what constitutes “speech,” but it is safe to say that anything an employee does online that is somehow communicated to others (even “liking” a group or posting a video) qualifies.

McBrayer: Since a private employer is not bound by the First Amendment, can they terminate employees for social media actions with no repercussions?

Effinger: No! In fact, it could be argued that private employees are afforded more protection for what they say online than public employees. While a private employer has no constitutional duty to allow free speech, the employer is subject to state and federal laws that may prevent them from disciplining an employee’s conduct. As a general rule, private employees have the right to communicate in a “concerted manner” with respect to “terms and conditions” of their employment. Such communication is protected regardless of whether it occurs around the water cooler or, let’s say, on Twitter.

McBrayer: It seems like the best policy would be for employers to prohibit employees from discussing the company in any negative manner. Is this acceptable?

Effinger: It is crucial for companies to have social media policies and procedures, but crafting them appropriately can be tricky. There have been several instances where the National Labor Relations Board has reviewed a company’s policy and found its overly broad restrictions or blanket prohibitions illegal. Even giant corporations like General Motors and Target have come under scrutiny for their social media policies and been urged to rewrite them so employees are given more leeway.

McBrayer: Is social media a company asset?

Cubbage: Yes! Take a moment to consider all of the “followers”, “fans”, or “connections” that your business may have through its social media accounts. These accounts provide a way to constantly interact with and engage clients and customers. Courts have recently dealt with cases where a company has filed suit after a rogue employee stole a business account in some manner, for instance by refusing to turn over an account password. Accounts are “assets,” even if not tangible property.

McBrayer: What is the best way for an employer to protect their social media accounts?

Cubbage: Social media accounts should first be addressed in a company’s operating agreement. Who gets the accounts in the event the company splits? There are additional steps every employer should take, such as including a provision in social media policies that all accounts are property of the business. Also, there should always be more than one person with account information, but never more than a few. Treat social media passwords like any other confidential business information – they should only be distributed on a “need to know” basis.

Amy Cubbage

 

 

 

 

 

 

 

 

Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.

 

Cindy Effinger

 

 

 

 

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger has a broad range of legal experience gained through 13 years of practice throughout the Commonwealth of Kentucky where her clients conduct business. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com

 

This article is intended as a summary of  state and federal law and does not constitute legal advice.

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