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Financial Services Law Insights and Observations


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  • States say student loan trusts are subject to the CFPA’s prohibition on unfair debt collection practices

    State Issues

    On November 15, a bipartisan coalition of 23 state attorneys general led by the Illinois AG announced the filing of an amicus brief supporting the CFPB’s efforts to combat allegedly illegal debt collection practices in the student loan industry. As previously covered by InfoBytes, in February, the U.S. District Court for the District of Delaware stayed the Bureau’s 2017 enforcement action against a collection of Delaware statutory trusts and their debt collector after determining there may be room for reasonable disagreement related to questions of “covered persons” and “timeliness.” The district court certified two questions for appeal to the U.S. Court of Appeals for the Third Circuit related to (i) whether the defendants qualify as “covered persons” subject to the Bureau’s enforcement authority; and (ii) whether the case can be continued after the Supreme Court’s 2020 decision in Seila Law v. CFPB (which determined that the director’s for-cause removal provision was unconstitutional but was severable from the statute establishing the Bureau—covered by a Buckley Special Alert). Previously, the district court concluded that the suit was still valid and did not need ratification because—pointing to the majority opinion in the Supreme Court’s decision in Collins v. Yellen (covered by InfoBytes here)—“‘an unconstitutional removal restriction does not invalidate agency action so long as the agency head was properly appointed[,]’” and therefore the Bureau’s actions are not void and do not need to be ratified, unless a plaintiff can show that “the agency action would not have been taken but for the President’s inability to remove the agency head.” The district court later acknowledged, however, that Collins “is a very recent Supreme Court decision” whose scope is still being “hashed out” in lower courts, which therefore “suggests that there is room for reasonable disagreement and thus supports an interlocutory appeal here.”

    The states argued that they have a “substantial interest” in protecting state residents from unlawful debt collection practices, and that this interest is implicated by this action, which addresses whether the defendant student loan trusts are “covered persons” subject to the prohibition on unfair debt collection practices under the CFPA. Urging the 3rd Circuit to affirm the district court’s decision to deny the trusts’ motion to dismiss, the states contended among other things, that hiring third-party agencies to collect on purchased debts poses a large risk to consumers. These types of trusts, the states said, “profit only when the third parties that they have hired are able to collect on the flawed debt portfolios that they have purchased.” Moreover, “[d]ebt purchasing entities, including entities like the [t]rusts, are thus often even more likely than the original creditors to resort to unlawful tactics in undertaking collection activities,” the states stressed, explaining that in order to combat this growing problem, many states apply their prohibitions on unlawful debt collection practices “to all debt purchasers that seek to reap profits from these illegal activities, including those purchasers that outsource collection to third parties.” The Bureau’s decision to do the same is therefore appropriate under the CFPA, the states wrote, adding that “as a practical matter, these debt purchasers are as problematic as debt purchasers that collect on their own debt. The [t]rusts’ request to be treated differently because of their decision to hire third party agents to collect on the debts that they have purchased (and reap the profits on) should be rejected.”

    State Issues Courts State Attorney General Illinois CFPB Student Lending Debt Collection Consumer Finance Appellate Third Circuit Seila Law CFPA Unfair UDAAP Enforcement

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  • 3rd Circuit says defendants conducted reasonable investigations into FCRA claims


    On November 9, the U.S. Court of Appeals for the Third Circuit affirmed a district court’s summary judgment ruling in favor of defendants in an FCRA reasonable investigation suit. According to the opinion, the plaintiff obtained a credit card from one of the defendants, exceeded her credit limit, and was past due on payments. Another of the defendants (furnishing defendant) acquired her account and reported the outstanding debt to the consumer reporting agencies (CRAs). Plaintiff disputed the tradeline as inaccurate with two of the CRAs claiming several alleged inaccuracies, including that the date the account was opened and the original balance were inaccurate, and the payment history was incomplete, among other things. The CRAs notified the furnishing defendant of the disputes, and the furnishing defendant conducted an investigation in accordance with its FCRA dispute policies and procedures, which revealed that the account status, payment history, current balance, amount past due, and account number were accurate. Discrepancies in the spelling of the plaintiff’s name and street address were corrected however. It was not until after the plaintiff sued the defendants for violations of the FCRA that she asserted the furnishing defendant should have been aware she was enrolled in a credit protection program and that it was therefore liable for the original creditor’s failure to apply the program’s benefits to her credit card account. The opinion noted that the plaintiff also filed a “similarly vague dispute” against a student loan servicer for allegedly misreporting information about her account with the CRAs.

    In agreeing with the district court, the 3rd Circuit concluded that summary judgment in favor of the defendants was properly granted as the plaintiff “failed to introduce any direct or circumstantial evidence” showing either of the defendants failed to “conduct reasonable investigations with respect to the disputed information.” Additionally, the plaintiff’s disputes were vague and failed to provide specifics as to the alleged errors or explain why the information was inaccurate or incomplete. “To the extent that [plaintiff] claims that the investigations were unreasonable because a reasonable investigation would have revealed the inaccuracies alleged, her conclusory assertion is insufficient to defeat summary judgment,” the appellate court wrote.

    Courts Appellate Third Circuit FCRA Consumer Finance Consumer Reporting Agency

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  • 3rd Circuit says debt collector owes finder’s fee


    On September 23, the U.S. Court of Appeals for the Third Circuit overturned a district court’s summary judgment ruling in favor of a defendant debt collector. The action concerned whether a federal contract entered between the debt collector and the Department of Education (DOE) required the payment of a finder’s fee to a plaintiff consulting company that helped the defendant secure the contract. The defendant entered into an agreement with the plaintiff to help it secure federal contracts in debt collection in exchange for a finder’s fee. The defendant signed a contract with the DOE in 2014, but did not begin performing work on the contract until 2016 after the agreement with the plaintiff had expired. The defendant refused to pay the finder’s fee, arguing that even though the contract with the DOE was signed while the agreement was still active, the contract had not been “consummated” during the agreement’s applicable period because the defendant was not eligible to receive work orders or start performing work until after the agreement expired. The plaintiff sued, but the district court ruled in favor of the defendant. The plaintiff appealed and the 3rd Circuit reversed, holding that the contract had in fact been “consummated” when it was formed in 2014, and that the defendant owed the finder’s fee. On remand, the district court again granted summary judgment for the defendant, this time on the grounds that the defendant had not “facilitated” the contract with the DOE.

    On the second appeal, the 3rd Circuit determined that the agreement specifies that a finder’s fee is owed whenever a “fee transaction is consummated” and defined a fee transaction as “the subsequent consummation of any contract with any Federal government agency for which [defendant] has been invited to compete, and is later awarded a contract to perform, which both parties herein expressly agree shall have arisen due to any ‘teaming’ or ‘subcontracting’ engagement Finder may have facilitated in advance of any such award of a contract by a Federal government agency.” According to the appellate court, it did not matter when the work orders from the DOE began, because the fee transaction was consummated during the agreement period.

    Courts Appellate Third Circuit Debt Collection Finder's Fee Department of Education

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  • 3rd Circuit: Debt buyer not required to be licensed under Pennsylvania law


    On September 19, the U.S. Court of Appeals for the Third Circuit affirmed a district court’s ruling in an FDCPA suit, finding that a defendant debt buyer was not required to be licensed under Pennsylvania law when it attempted to collect interest that had accrued at a rate of more than 6 percent under the original credit card agreement. According to the opinion, the plaintiff opened a credit card with a bank, which had an interest rate of 22.9 percent. The plaintiff defaulted on a debt he accrued on the card, and the debt was subsequently charged-off and sold by the bank to the defendant. The plaintiff argued that the defendant violated the FDCPA since the interest rate was limited by the Pennsylvania Consumer Discount Company Act (CDCA), which states that an unlicensed firm “in the business of negotiating or making loans or advances of money on credit [less than $25,000]” may not collect interest at an annual interest rate over 6 percent. The district court granted the defendant’s motion to dismiss, ruling that the defendant was entitled to collect interest above 6 percent because it held a license under a different state law.

    On the appeal, the 3rd Circuit found that the CDCA applies to companies that arrange for or negotiate loans with certain parameters, and that there is nothing in the plaintiff’s amended complaint to suggest that the defendant is in the business of negotiating loans. The appellate court noted that the plaintiff’s allegations “indicate that [the defendant] purchases debt, such as [plaintiff’s] credit card account that [the bank had] charged off. But even with that allegation as a starting point, it is not reasonable to infer that an entity that purchases charged-off debt would also be in the business of negotiating or bargaining for the initial terms of loans or advances.” The appellate court further noted that “the amended complaint cuts against such an inference: it alleges that [the bank], not [the defendant], set the annual interest rate for [plaintiff’s] use of the credit card for loans and advances at 22.90%. Thus, with the understanding that negotiate means ‘to bargain’ and not ‘to transfer,’ [the plaintiff’s] allegations do not support an inference that [defendant] is in the business of negotiating loans or advances.”

    Courts Licensing FDCPA Debt Collection Debt Buyer Appellate Third Circuit Consumer Finance Pennsylvania

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  • FTC, CFPB say furnishers must investigate indirect disputes

    Federal Issues

    On September 13, the FTC and CFPB (agencies) filed a joint amicus brief with the U.S. Court of Appeals for the Third Circuit, seeking the reversal of a district court decision that held furnishers of credit information are only obligated to investigate “bona fide” indirect disputes and may choose to decline to investigate other indirect disputes raised by consumers that are deemed frivolous. The agencies argued that this “atextual, judge-made exception” could undermine a key FCRA protection that allows consumers to dispute and correct inaccurate information in their credit reports, leading to a likely increase in consumer complaints related to credit reporting inaccuracies. Under the FCRA, consumers may file a direct dispute with a furnisher or file an indirect dispute with a consumer reporting agency (CRA), which may refer the dispute to the furnisher.

    The case involves a direct dispute submitted by a plaintiff to a cable company, requesting an investigation into an allegedly fraudulent delinquent account listed on his credit report. The plaintiff informed the cable company that he was a victim of identity theft and that the account was opened in his name without his authorization. The cable company eventually referred the account to a debt collector (defendant) for collection after the plaintiff failed to provide requested information showing his account was opened due to fraud. An indirect dispute was later filed by the plaintiff with the CRA, which in turn sent the dispute to the defendant as the furnisher of the allegedly inaccurate information. After a second indirect dispute was filed noting the allegedly fraudulent account was the subject of litigation, the defendant removed the account from the plaintiff’s credit report and ceased collections. The plaintiff sued, asserting claims under the FCRA, FDCPA, and Pennsylvania law. The district court granted summary judgment in favor of the defendant, ruling that the plaintiff failed to provide evidence substantiating the basis of his dispute, and that “a furnisher is obligated to investigate only ‘bona fide’ indirect disputes and may therefore decline to investigate any indirect dispute it deems frivolous.” 

    In urging the appellate court to overturn the decision, the agencies countered in their amicus brief that the text of the FCRA is unambiguous—“furnishers must investigate all indirect disputes.” Nothing in the text suggests that a furnisher can choose not to investigate an indirect dispute if it determines it to be frivolous, the agencies stressed, further noting that if Congress intended to “create an exception for frivolous disputes, it knew how to do so,” and that in other parts of the statute Congress expressly provided that certain frivolous disputes do not need to be investigated.

    The amicus brief also pointed out that under the FCRA, consumers are entitled to be notified about the outcome of their disputes, as well as given an opportunity to cure any deficiencies. The district court holding, the agencies said, would circumvent these requirements, thereby undercutting a central remedy under the FCRA that ensures consumers are able to dispute and correct inaccurate information in their credit reports. If furnishers were able to ignore disputes referred to them by CRAs, it could open an unintended loophole that would allow disputes to disappear “into a proverbial black hole,” the agencies asserted, emphasizing that if the district court’s interpretation is affirmed, consumers who submit an indirect dispute that is deemed frivolous by a furnisher may never receive any notice of that determination, and therefore, may never be able to cure any deficiencies or correct erroneous information in their credit reports.

    The agencies also challenged whether the exception created by the district court’s ruling is necessary, as the FCRA already provides protections to furnishers from investigating frivolous disputes. Specifically, the statute allows CRAs to determine if a dispute a frivolous before forwarding a dispute to the furnisher. Moreover, furnishers “are not required to conduct an unreasonably onerous investigation into a conclusory or unsubstantiated dispute,” the agencies explained, stating that whether a furnisher has satisfied its obligation to conduct a reasonable investigation is normally a fact-intensive question for trial.

    The Bureau noted in an accompanying blog post that it has also filed several other amicus briefs in other pending FCRA cases (previously covered by InfoBytes here) related to consumer reporting obligations.

    Federal Issues Courts Appellate Third Circuit CFPB FTC Consumer Finance Credit Report Credit Furnishing Dispute Resolution FCRA

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  • 3rd Circuit: Arbitration valid despite questions about loan assignment


    On September 1, the U.S. Court of Appeals for the Third Circuit concluded that a district court erred in finding that it had the authority to adjudicate the question of arbitrability based on questions concerning the underlying legality of an assignment of a consumer’s loan. The plaintiff took out a personal loan, which included an arbitration clause in the underlying agreement that delegated questions of arbitrability to an arbitrator. The plaintiff’s charged-off debt was assigned to the defendant who filed a lawsuit to recover the unpaid balance but later dismissed the suit rather than litigating. The plaintiff later contended that the defendant reported his loan delinquency to credit agencies in “an unlawful attempt to collect the [l]oan,” and sued, claiming that because the defendant was not licensed in Pennsylvania during the time period at issue it was not lawfully permitted to purchase the debt. The defendant filed a motion to compel arbitration under the purchase agreement with the loan originator. Focusing on the validity of the assignment, the district court denied the defendant’s motion to compel arbitration.

    On appeal, the 3rd Circuit concluded that the district court’s only responsibility was to determine whether the parties to the underlying loan “clearly and unmistakably” expressed an agreement to arbitrate the issue of arbitrability, and, if so, the district court was required to send questions about arbitrability to the arbitrator. The appellate court reasoned that even if the underlying assignment is invalidated later, it would not affect whether the initial agreement to arbitrate was valid. The appellate court vacated the district court’s order denying arbitration and remanded with instructions to grant the motion to stay and refer the matter to arbitration. A dissenting judge countered that the plaintiff never signed an arbitration agreement with the defendant, and that because the underlying assignment was invalid, the plaintiff never consented to arbitration with the assignee of the contract.

    Courts Appellate Third Circuit Arbitration Consumer Finance

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  • 3rd Circuit vacates dismissal of data breach suit


    On September 2, the U.S. Court of Appeals for the Third Circuit vacated the dismissal of a class action alleging that a defendant pharmaceutical research company’s negligence led to a data breach. According to the opinion, the plaintiff, who is a former employee of the defendant’s subsidiary, provided her sensitive personal and financial information in exchange for the defendant’s agreement, pursuant to the plaintiff’s employment agreement, to “take appropriate measures to protect the confidentiality and security” of this information. After plaintiff ended her employment with the company, a hacking group accessed the defendant’s servers through a phishing attack and stole sensitive information pertaining to current and former employees. In addition to exfiltrating the data, the hackers installed malware to encrypt the data stored on the defendant’s servers and held the decryption tools for ransom. The defendant informed current and former employees of the breach and encouraged them to take precautionary measures. To mitigate potential harm, the plaintiff took immediate action by conducting a review of her financial records and credit reports for unauthorized activity, among other things. As a result of the breach, the plaintiff alleged that she has sustained a variety of injuries—primarily the risk of identity theft and fraud—in addition to the investment of time and money to mitigate potential harm. The district court granted the defendant's motion to dismiss based on lack of Article III standing, concluding “that [the plaintiff's] risk of future harm was not imminent, but ‘speculative,’ because she had not yet experienced actual identity theft or fraud.”

    On the appeal, the 3rd Circuit noted that the district court “erred in dismissing [the plaintiff’s] contract claims, which are raised in Counts III (breach of implied contract) and IV (breach of contract),” arising from her employment agreement. The appellate court wrote that the plaintiff “has alleged an injury stemming from the breach—the risk of identity theft or fraud—that is sufficiently imminent and concrete,” because the defendant “expressly contracted to ‘take appropriate measures to protect the confidentiality and security’ of plaintiff’s information in [the plaintiff’s] employment agreement.” The appellate court also noted that in an “increasingly digitalized world, an employer's duty to protect its employees’ sensitive information has significantly broadened.” The 3rd Circuit vacated the judgment on all counts and remanded the dispute to the district court for consideration of the merits of the claims.

    Courts Appellate Privacy, Cyber Risk & Data Security Class Action Third Circuit Data Breach

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  • District Court denies request to reverse summary judgment in FDIA suit


    On August 29, the U.S. District Court for the Eastern District of Pennsylvania denied a consumer plaintiff’s request to reconsider its summary judgment order against him in a Federal Deposit Insurance Act (FDIA) suit. According to the opinion, the plaintiff accrued debt to a federally-insured, state-chartered bank, which had then assigned that debt to defendants, who were not state-chartered, federally-insured banks. The plaintiff’s debt included interest charges that had accrued at an annual rate between 24.99 percent and 25.99 percent, which the plaintiff argued could not be collected by defendants because the interest exceeded the six percent allowed under Pennsylvania's usury law. The court ruled in favor of the defendants, relying on a recently promulgated FDIC rule that determined that state usury laws are preempted by section 27 of the FDIA in cases where state usury law interferes with state-chartered, federally-insured banks' ability to make loans or when they interfere with a state-chartered, federally-insured bank’s assignee’s efforts to collect on those loans. The plaintiff requested the reconsideration of the district court's summary judgment decision and filed a notice of appeal to the U.S. Court of Appeals for the Third Circuit. In his motion for reconsideration, the plaintiff argued that the court’s previous summary judgment decision was “erroneous” because: (i) the 3rd Circuit held in In re: Community Bank of Northern Virginia that “the FDIA unambiguously excludes non-bank purchasers of debt from its coverage and that deference to the FDIC’s contrary interpretation would, therefore, be inappropriate”; (ii) the FDIC’s rule cannot apply to his debts because such an application would be impermissibly retroactive; and (iii) LIPL fits within the FDIC rule’s exception for “licensing or regulatory requirements.”

    The court denied the plaintiff’s motion for reconsideration, holding that the plaintiff “failed to identify an appropriate basis for reconsideration,” as the consumer’s arguments are “either a new argument that could have been presented before judgment was entered or a reprisal of an argument that the Court addressed in its original decision.” The court further noted that it would be “inappropriate for the Court to grant a motion to reconsider under either of those circumstances.” The court went on to determine that the new arguments advanced by the plaintiff were unpersuasive in any event, finding that the 3rd Circuit had not held section 27 of the FDIA to be unambiguous in its meaning and that application of the FDIC’s rule did not create an impermissible retroactive effect.

    Courts State Issues Interest Deposit Insurance Usury Third Circuit Appellate Federal Deposit Insurance Act Pennsylvania Consumer Finance

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  • 3rd Circuit vacates dismissal of FCRA lawsuit regarding sovereign immunity


    On August 24, the U.S. Court of Appeals for the Third Circuit vacated the dismissal of an FCRA lawsuit, holding that the federal government does not have sovereign immunity under the statute and can be held liable for reporting requirement violations. The plaintiff sued the Department of Agriculture (USDA) and a student loan servicer for allegedly reporting two loans as past due even though he claimed both were closed with a $0 balance. The plaintiff notified the relevant consumer reporting agency who in turn notified the USDA and the servicer. When neither entity took action to investigate or correct the disputed information, the plaintiff sued all three parties for damages under Section 1681n and 1681o of the FCRA. The USDA moved to dismiss for lack of subject matter jurisdiction based on sovereign immunity claims, which the district court granted on the grounds that the United States and its agencies are not subject to liability under the FCRA—a decision in line with opinions issued by the 4th and 9th Circuits.

    On appeal, the 3rd Circuit disagreed, instead siding with opinions issued by the D.C. and 7th Circuits that reached the opposite conclusion. According to the 3rd Circuit, the federal government and its agencies enjoy sovereign immunity from civil suits unless Congress unambiguously waives it within a statute. The FCRA provides that any “person” who either negligently or willfully violates the statute is liable to the consumer for civil damages, the appellate court wrote, noting that the term “person” is defined to include any “government or governmental subdivision or agency.” The appellate court stressed that Congress need not express its intent in any particular way, and that courts need only look at the statutory text to discern Congress’ intent. Where Congress wanted to use a narrower definition of “person” in the FCRA, it did so, the appellate court said, pointing to where the FCRA specifically excludes the federal government from the statutory obligations for persons who make adverse employment decisions based on credit reports. “We presume, therefore, that Congress’s failure to do so in §§ 1681n and 1681o was deliberate and intended to convey the full statutory definition,” the 3rd Circuit wrote, finding that Congress unambiguously waived the government’s sovereign immunity in enacting FCRA.

    Courts FCRA Appellate Third Circuit Consumer Reporting Agency Consumer Finance Credit Furnishing Credit Report Sovereign Immunity Department of Agriculture

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  • 3rd Circuit: District Court erred in applying ascertainability precedent when denying class action certification


    On August 24, the U.S. Court of Appeals for the Third Circuit vacated a ruling denying class certification in an action concerning inaccurate consumer reports, holding that the district court misinterpreted Section 1681g(a) of the FCRA and erred in applying the appellate court’s ascertainability precedent. According to the plaintiffs, the defendant, a consumer reporting agency (CRA), provided inaccurate consumer reports as part of a rental application process. The plaintiffs further alleged that the defendant refused to correct the information on the reports unless plaintiffs “obtained proof of the error from [the defendant’s] sources” despite failing to provide the identity of the sources to the plaintiffs. Plaintiffs responded by filed a putative class action alleging the defendant “violated its obligation under the FCRA to disclose on request ‘[a]ll information in the consumer’s file at the time of the request’ and ‘the sources of that information.’” However, the district court denied class certification on the grounds that class members “failed to satisfy Rule 23(b)(3)’s predominance and superiority requirements and that their proposed class and subclass were not, in any event, ascertainable.”

    On appeal, the 3rd Circuit closely reviewed when the provisions of § 1681g(a) were applicable. The appellate court first determined the disclosure requirements of § 1681g(a) could only be triggered by a direct request from a consumer, and not a third-party request as the plaintiffs had argued. In so doing, the appellate court found that the district court was “right to distinguish between consumers who made direct requests under § 1681g and consumers who received courtesy copies of the property managers’ Rental Reports,” and affirmed the denial of the “All Requests” class sought by plaintiffs. The appellate court next determined that the district court incorrectly narrowed the disclosure requirements of § 1681g(a) to where a request was specifically made for a consumer’s “file” as opposed to a request for a “report.” The appellate court concluded that “[n]othing in the statute’s text, context, purpose, or history indicates that any magic words are required for a consumer to effect a ‘request’ under § 1681g(a) or that a consumer’s request for ‘my consumer report’ is any less effective at triggering the CRA’s disclosure obligations than a request for ‘my file.’” As a result, the appellate court vacated the district court’s finding as to the predominance requirement of class certification and remanded for the district court “to consider whether Rule 23(b)(3)’s predominance and superiority requirements are satisfied with respect to” consumers in a purported subclass who had made a direct request for a report or file.

    The appellate court concluded by determining the district court had additionally errored in its analysis of ascertainability of the proposed class by requiring too high a standard for administrative feasibility. The district court had ruled that where identification of putative class members would require a file-by-file review, ascertainability was “not administratively feasible.” The appellate court disagreed, stating that ascertainability does not mean that “no level of inquiry as to the identity of class members can ever be undertaken,” as it “would make Rule 23(b)(3) class certification all but impossible.” The appellate court instead held that “a straightforward ‘yes-or-no’ review of existing records to identify class members is administratively feasible even if it requires review of individual records with cross-referencing of voluminous data from multiple sources.”

    Courts Appellate Third Circuit Class Action FCRA Consumer Reporting Agency Consumer Finance

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