February 28, 2013
Soon To Be Crying: Argentina
Posted by David Zaring

Argentina has appealed from Judge Greisa's "shoot the village" sanctions order in the long-running litigation against a hold out hedge fund that refused to go along with a debt restructuring; it has the financial community in a tizzy because it requires financial intermediaries to help the court enforce its controversial judgment in favor of the hedge fund.  But the oral argument did not go well.  As DealBook observes:

The dispute started out over a relatively small amount of debt that Argentina defaulted on over 10 years ago. But, as the case progressed in the United States courts, its significance has grown. Its outcome will test the extent to which an American court can pressure a foreign government to take actions to comply with American laws. Some debt market specialists believe a defeat for Argentina could make it harder for countries overwhelmed by debt to ease their obligations through a managed default.

And Anna Gelpern has a massively comprehensive post on the whole thing over at Credit Slips, including an interesting observation that the country, which does not look to be doing well in all of this, is preparing its own shoot-the-village-we-hate-foreign-courts response:

One of the bigger bombshells of the day came from Argentina in the form of the statement that it would default on everyone unless the Court adopted something like its payment formula. The fact that the statement was made with the Vice President and the Economy Minister sitting in the room made it feel like an even bigger deal. Jonathan Blackman's [ed.: Argentina's lawyer] contention was that sovereigns do not and cannot -- and Argentina will not --  "voluntarily obey" foreign judgments against their own domestic law and public policy. Argentina's submission to U.S. jurisdiction was made subject to the understanding that under FSIA, some judgments could go unenforced, and them's the ropes.

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February 08, 2013
A Shadow Banking Scholarship Sampler
Posted by Erik Gerding

A small sampling of recent legal scholarship on "shadow banking" (a topic of I've written about myself):

Steve Schwarcz of Duke also produced a bevy of articles on the topic at the end of last year.

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December 20, 2012
Government P&L In The Bailouts
Posted by David Zaring

DealBook, on Treasury's plan to sell off its GM holdings:

Unlike the A.I.G. rescue, however, the government’s wind-down of its G.M. bailout is expected to lose money. The Treasury Department’s break-even pricepoint is generally estimated at about $53 a share, following the car maker’s I.P.O.

But the Treasury Department has long argued that the auto makers’ bailout was always expected to be unprofitable, offset by both the A.I.G. rescue and the bank recapitalization program.

Shares in G.M. were up 5.7 percent in early morning trading, at $26.93.

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September 07, 2012
Weekend Reading: A Transactional Genealogy of Scandal
Posted by Erik Gerding

As in a bad horror movie (or a great Rolling Stones song), observers of the current crisis may have been disquieted that one of the central characters in this disaster also played a central role in the Enron era. Is it coincidence that special purpose entities (SPEs) were at the core of both the Enron transactions and many of the structured finance deals that fell part in the Panic of 2007-2008?

Bill Bratton (Penn) and Adam Levitin (Georgetown) think not. Bratton and Levin have a really fine new paper out, A Transactional Genealogy of Scandal, that not only draws deep connections between these two episodes, but also traces back the lineage of collateralized debt obligations (CDOs) back to Michael Millken. The paper provides a masterful guided tour of the history of CDOs from the S&L/junk bond era to the innovations of J.P. Morgan through to the Goldman ABACUS deals and the freeze of the asset-backed commercial paper market .

Their account argues that the development of the SPE is the apotheosis of the firm as “nexus of contracts.” These shell companies, after all, are nothing but contracts. This feature, according to Bratton & Levin, allows SPEs to become ideal tools either for deceiving investors or arbitraging financial regulations.

Here is their abstract:

Three scandals have fundamentally reshaped business regulation over the past thirty years: the securities fraud prosecution of Michael Milken in 1988, the Enron implosion of 2001, and the Goldman Sachs “Abacus” enforcement action of 2010. The scandals have always been seen as unrelated. This Article highlights a previously unnoticed transactional affinity tying these scandals together — a deal structure known as the synthetic collateralized debt obligation (“CDO”) involving the use of a special purpose entity (“SPE”). The SPE is a new and widely used form of corporate alter ego designed to undertake transactions for its creator’s accounting and regulatory benefit.

The SPE remains mysterious and poorly understood, despite its use in framing transactions involving trillions of dollars and its prominence in foundational scandals. The traditional corporate alter ego was a subsidiary or affiliate with equity control. The SPE eschews equity control in favor of control through pre-set instructions emanating from transactional documents. In theory, these instructions are complete or very close thereto, making SPEs a real world manifestation of the “nexus of contracts” firm of economic and legal theory. In practice, however, formal designations of separateness do not always stand up under the strain of economic reality.

When coupled with financial disaster, the use of an SPE alter ego can turn even a minor compliance problem into scandal because of the mismatch between the traditional legal model of the firm and the SPE’s economic reality. The standard legal model looks to equity ownership to determine the boundaries of the firm: equity is inside the firm, while contract is outside. Regulatory regimes make inter-firm connections by tracking equity ownership. SPEs escape regulation by funneling inter-firm connections through contracts, rather than equity ownership.

The integration of SPEs into regulatory systems requires a ground-up rethinking of traditional legal models of the firm. A theory is emerging, not from corporate law or financial economics but from accounting principles. Accounting has responded to these scandals by abandoning the equity touchstone in favor of an analysis in which contractual allocations of risk, reward, and control operate as functional equivalents of equity ownership, and approach that redraws the boundaries of the firm. Transaction engineers need to come to terms with this new functional model as it could herald unexpected liability, as Goldman Sachs learned with its Abacus CDO.

The paper should be on the reading list of scholars in securities and financial institution regulation. The historical account also provides a rich source of material for corporate law scholars engaged in the Theory of the Firm literature.

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March 27, 2012
MF Global As A Washington Scandal
Posted by David Zaring

It's hard to know what to think about MF Global.  On the one hand, hedge funds are buying up IOUs from those who still don't have their money back from the firm at about 100 cents on the dollar.  And the idea that $600 million would just disappear in this day and age is a stretch.  It's really hard to spend $600 million ill-gotten customer dollars to zero!  Even if you're the imperious CEO of a pirate ship of modern finance, which Jon Corzine only might be.  Anyway, put these surmises together and it looks to me like the money went out for collateral calls, and therefore should come back.

On the other, everyone is talking, and they are talking to congressional committees.  The firm's lawyer is testiyfing!  It may suggest that she doesn't have much to hide ... but to me it looks like the scandal is taking on a Washington style drip-drip reveal-reveal mein that can't be good for Corzine, despite his former senator status.  He seems to be handling the matter the right way - with delay.  And Washington scandals are arbitrary and random - health care may end up distracting everyone from the dispute such that it just stops being pursued.  But it's all a rather strange next step in a still pretty mysterious case.

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November 27, 2011
Tax Doctrine in Corporate and Commercial Law
Posted by Diane Lourdes Dick

Although I teach, write and practiced predominantly in corporate and commercial law, I also have an LL.M. in Tax. Granted, my LL.M. coursework largely focused on business taxation, and therefore falls squarely within my interests. Nonetheless, given that tax and corporate/commercial law are treated as separate legal disciplines, I see tremendous opportunities for comparative and interdisciplinary analysis among tax, corporate and commercial law.

For instance, I find it intriguing that courts employ highly divergent decision-making approaches in these realms. In the tax realm, courts tend to focus on the actual economic arrangement of the parties, in an effort to identify economic substance rather than mere contractual form. Courts presiding over tax cases tend to utilize more expansive and contextual interpretive methodologies, and routinely scrutinize objective and subjective intent and other "facts and circumstances." These approaches stand in contrast to the dominant, textualist interpretive paradigm in corporate and commercial law, which relies almost exclusively upon strict interpretive norms (such as rules of contract interpretation) to construe written agreements.

To be sure, these divergent methodologies reflect the differing goals of tax, corporate and commercial law. While jurisprudence across all three disciplines emphasizes the need for certainty, uniformity and predictability in the law, tax law remains manifestly skeptical of the party autonomy that corporate and commercial law strive to protect. Courts presiding over tax cases are often called upon to examine possible crimes against the public fisc; in contrast, courts presiding over corporate and commercial law cases are generally called upon to manage disputes among sophisticated parties to voluntary, utility-maximizing arrangements.

Yet despite these distinctions, courts are increasingly importing tax doctrine into the corporate and commercial law context. A classic example is the "debt recharacterization doctrine." In the federal income tax realm, considerably high stakes turn on the proper classification as debt or equity of a person's interest in a corporation. Generally speaking, the characterization of the investment as a loan means that payments of interest will be includible in gross income. In contrast, to the extent the investment is deemed to be an equity capital contribution, then the principal amount of the investment must be capitalized into the investor's basis in the corporation's stock. The tax treatment of any repayment will be determined pursuant to rules governing corporate distributions, with any amounts deemed to be a dividend includible in gross income. In light of these differing tax consequences, courts have developed multi-factor, highly facts-intensive and contextual analyses to recharacterize a purported debt instrument into an equity investment, and to reassign tax consequences accordingly.

The debt recharacterization doctrine was subsequently imported into the bankruptcy realm. In that context, if a court determines that an investment is equity rather than debt, then the claim will be treated as an equity ownership interest in respect of which no distribution of corporate assets can be made unless creditor claims are satisfied. Even within the less formalistic realm of bankruptcy, the importation of the debt recharacterization doctrine is a major departure from dominant jurisprudential norms. As a general matter, bankruptcy courts look to state contract law when matters arise under private agreements and there is no statutory law on point. For this reason, although bankruptcy courts have wide latitude to exercise legal and equitable powers, most matters that arise in respect of contracts are construed in accordance with state contract law, including rules of contract interpretation.

Of course, the bankruptcy context, much like the tax realm, may provide inherent justifications for the application of more expansive judicial methodologies. In particular, courts applying the debt recharacterization doctrine in bankruptcy matters are frequently responding to the plight of third party creditors who may recover less due to the crafty maneuvers of shareholders.

More recent cases demonstrate a willingness to import tax doctrine into corporate and commercial law even where the justifications for doing so are less obvious. For instance, in Coughlan v NXP BV, C.A. No. 5110-VCG (Del. Ch. Nov. 4, 2011), the Delaware Court of Chancery applied tax law's "step transaction doctrine" to an action brought by a stockholder representative seeking to construe terms of a merger agreement. In tax law, the step transaction doctrine is applied where parties engage in multiple transfers to circumvent rules that would apply to a more direct transfer. In Coughlan, the merger agreement provided that, in the event of a change in control of NXP or of pertinent corporate assets, the person acquiring NXP or the assets would be required to accelerate certain contingent payments or assume the obligations. The stockholder representative argued that NXP's two-step transfer of assets to a joint venture amounted to a change in control. NXP argued that it engaged in two transfers that were each permitted under the merger agreement. The court applied the step transaction doctrine, finding that the two transfers should be analyzed as a single transaction that ultimately effectuated a change in control.

The court explained that the step transaction doctrine has been imported into the Delaware corporate and transactional context as well as the bankruptcy realm. It cited a 2007 case construing provisions in a partnership agreement, whereby the Court of Chancery defended application of the doctrine: "I see no reason as a matter of law or equity why the step transaction principle should not be applied here. Indeed, partnership agreements in Delaware are treated exactly as they are treated in tax law, as contracts between the parties." Twin Bridges Ltd. P’ship v. Draper, 2007 WL 2744609, at *10 (Del. Ch. Sept. 14, 2007).

To be sure, such a rationale denies fundamental differences in tax, corporate and commercial law. However, in terms of judicial decision-making methodologies, the increased application of tax doctrine to cases in the corporate and commercial law realm may signal a movement away from formalism, and a rising interest in identifying the actual economic arrangement of parties as opposed to merely construing contractual form. Indeed, the Court of Chancery articulates this point in Coughlan, issuing words of caution to parties who rely on the written word in their business planning and legal advocacy: "transactional formalities will not blind the court to what truly occurred." Coughlan, C.A. No. 5110-VCG at 23.

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July 07, 2011
Rakoff & Lawless
Posted by David Zaring
  • Why is Judge Rakoff suggesting that there might be constitutional problems with clawing back Madoff money from the Mets owners?  My guess is that he's thinking about Due Process issues (a lack of notice, and a switch in legal regimes based not on the conduct of the Wilpons, but on Madoff's conduct).  But bankruptcy has usually been able to get around these sorts of problems.
  • If you missed it, the Times built a story around Bob Lawless's explanations for the decline in consumer bankruptcies.

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November 09, 2010
Cross-Border Bankruptcy
Posted by David Zaring

Cross-border resolution authority is a form of bankruptcy, and getting the sovereigns to agree on bankruptcy coordination rules is difficult, as Stephen Lubben explains in DealBook.  Chapter 15 was amended in 2005 to try to encourage more coordination in international bankruptcies.  Here's Lubben:

But Chapter 15 does nothing to address the crucial problem an international enterprise faces upon bankruptcy. Before a bankruptcy, the enterprise might operate seamlessly across borders, but after the filing,  each corporation that makes up the enterprise becomes a separate case. When all the constituent corporations are from the United States, for example, these cases are easily consolidated in a single forum with a motion for “joint administration.” Thus, all of MGM’s 160 bankruptcy cases are pending before a single court in New York.

But if the various corporate pieces of a debtor are spread across several countries, the problems of dueling bankruptcy cases are not easily addressed. Even after the passage of Chapter 15, and the enactment of similar laws in other developed economies, international corporate bankruptcy largely remains a country-by-country affair.

Similar concerns, of course, apply to resolution authority, which is one reason it has become a matter of international diplomacy for financial regulators, rather than merely a matter of extraterritorial application of the FDIC's resolution rules.  Hence the entrance of the Basel Committee, and I'll address that a bit tomorrow.

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April 08, 2010
GAO on U.S. as Auto Industry Creditor/Shareholder and Pension Regulator/Insurer
Posted by Mae Kuykendall

The General Accounting Office has released TROUBLED ASSET RELIEF PROGRAM:  Automaker Pension Funding and Multiple Federal Roles Pose Challenges for the Future, brought to my attention by my colleague, Anne Lawton.  The general subject is the impact of GM/Chrysler failure on the Pension Benefit Guaranty Corporation ("PGBC") and the conflict inherent in the government's role as shareholder.  Anne has looked over the executive summary and what follows is based on her report.

 

First point. Over the next 5 years, GM and Chrysler will need to make significant contributions in order to satisfy minimum funding requirements for their defined benefit plans. For example, GM projects that total to be $12.3 billion for 2013 and 2014, with the possibility of additional further contributions. That's fine if the firms are profitable enough to make those contributions. But, what happens if the pension funds fail? About a year ago, PBGC estimated that the losses from failure of GM's and Chrysler's defined benefit plans would be $14.5 billion.

 

Second point. The Treasury is a shareholder in the firms. But, PBGC is governed by a three-member board and the Treasury Secretary (along with Labor and Commerce Secretaries) are the board members (right now, the Assistant Secretary of the Treasury for Financial Institutions is the board rep.) So, the report asks, how is the government "dealing with the potential tensions between its multiple roles as pension regulator and insurer, and its new roles as shareholder and creditor?" 

 

That's a good question.  To remind you, the report is here.

 

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March 03, 2010
Update on Hearing on "Net Equity" in Madoff SIPC Case
Posted by Christine Hurt

Almost exactly one (short) month after a hearing on February 2, 2010, Bankruptcy Judge Burton Lifland has issued an opinion upholding Trustee Irving Picard's calculation of "Net Equity" in untangling Bernard Madoff's Ponzi scheme (referred to by the judge as the "Net Investment Method").  (Story here; opinion here; prior posts here and here.)Though many victims had argued that their claims were equal to the balances on their November 20, 2008 statements from Bernard L. Madoff Investment Securities LLC, the judge held that this "Last Statement Method" ignored the fictitious nature of the returns reflected there and any withdrawals made, which necessarily were paid out of victim principal.  Therefore, the judge upheld the Net Investment Method, which defines a valid claim as the principal paid in less withdrawals.  The judge acknowledges that this method will lessen or extinguish many victims' claims.  However, the court states that "[t]he Net Investment Method harmonizes the definition of Net Equity with these avoidance provisions [from the Bankruptcy Code] by similarly discrediting transfers of purely fictitious amounts and unwinding, rather than legitimizing, the fraudulent scheme."

In anticipation of this ruling, three "net winner" victims have filed a lawsuit in New Jersey against the President and Directors of SIPC for running a "fraudulent investment insurance scheme."  Two of the victims have lessened or extinguished claims under the ruling because of withdrawals, but one victim seems to run afoul of the definition of "customer" (she is a member of an LLC that was a customer).  As they say, we will stay tuned.

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February 01, 2010
Greek Sovereign Debt
Posted by David Zaring

Don't miss the Faculty Lounge's series on Greek sovereign debt, curated by Kim Krawiec and featuring contributions by Lee Buchheit, Mitu Gulati, and Anna Gelpern so far ... it's just the sort of rare mini-symposium that you don't often see in the blogosphere that often, present company excepted (we'll speak no ill of the Conglomerate here).  The writing is pretty witty, too, as it so often is whenever the subject is sovereign debt.  Do give it a look.

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October 23, 2009
Snake Eyes: Casino Bankruptcies
Posted by Usha Rodrigues

While in Vegas I attended a great session on the gaming industry and bankruptcy.  I took a lot of notes, but what's stuck with me are Frank Merola's remarks origins of the gaming industry and their effect on gaming regulation.

According to Merola’s account, when the gaming industry was born in the 1950s, no banks would lend money to casinos, and they lacked access to the public markets as well.  So casino operators financed each other’s operations by taking a minority interest in a competitor (Caveat: I’m not sure of the accuracy of this assertion—everything I know about the casino industry I learned from…well…Casino).  Given this background, there was a real emphasis on knowing with whom you’re doing business (insert mafia joke here).  When Nevada enacted its Gaming Control Act in the late 1950s, it also focused on who was investing money, i.e., the state’s strict licensing requirements took their cues from the underlying structure of casino financing. 

Of course, the modern financial landscape looks very different from the 1950s, and it took a while for Nevada to decide how to handle investors whose character could not be readily ascertained.  It introduced institutional investor waivers to allow mutual funds with no identifiable owners to invest in casinos.  And, eventually, it let private equity funds in as well, using a kind of blind trust. Sounds like the separation of ownership from ownership has hit even the insular world of Las Vegas, doesn't it?

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October 19, 2009
Obamanomics and the Future of Bankruptcy
Posted by Usha Rodrigues

Instructed to be provocative, the illustriously named former Sen. Gordon Smith’s opening remarks included the observation that "All great nations in history presaged their declines with massive debt" and a reference to the "awful arithmetic" of our national debt. He closed by asking whether there should be a bankruptcy remedy for states, as there is for municipalities or counties. David Skeel responded that he doubted whether Congress would allow this, but hypothesized that states could issue bonds with voting provisions in place that would allow the debt to be restructured midstream. Smith was skeptical of the market’s appetite for such debt.

There was a lot of debate over the Chrysler and GM bankruptcies, and in particular the "aggressive" use of Section 363 of the Bankruptcy Code, the provision that allowed for a quick sale of Chrysler’s assets in bankruptcy. The question came down to whether the sale was a good thing (Claude D. Montgomery 's view, because it was fast and the company had effectively been "on the block" for months) or a troubling thing (Skeel's view, because there wasn’t a robust auction, and the creditors and shareholders of Old Chrysler wound up owning the lion’s share of New Chrysler). Michelle White observed that economists in general want fast sales in bankruptcy, but also want "true" sales--which Chrysler was not. Because she characterized only 20% of Chrysler as "worth saving," she was unhappy with the government bailout.

White also gave a helpful summary of the issues in mortgage crisis. First she framed the high costs of foreclosures: homeowners and renters must relocate; moving makes kids switch schools, and families lose established neighborhood ties. Vacancies cause blight, tax revenues fall, so cities cut public services. Foreclosures cause more foreclosures by driving down values.

Given the above, lenders foreclose too often. Although they lose 1/3 to 1/2 of their investment, many of foreclosure’s costs are borne by others. Although the Obama administration’s Help for Homeowners program has resulted in 500,000 modifications, only a few thousand have permanent modifications—ie., a reduction in principal.

Why so few? Because lenders can and do veto permanent modifications, and for rational reasons. Securitized mortgages come with "pooling and servicing agreements" that compensate lenders for the cost of foreclosure, but not for the cost of modifying loans. Couple that with the fact that 30% of mortgage defaults "self-cure" (debtors scrape together the money), and that 30-45% of modifications re-default within 6 months (so lenders just have to renegotiate modifications, or foreclose on a property that’s now worth even less), and you have no lender incentive for modification.

Chapter 13 is supposed to help homeowners save homes, but White calculates that only 1% save them that otherwise would have lost them. So what if we let bankruptcy judges cram down mortgages in Chapter 13? Smith thought this wouldn’t be worth the cost to the mortgage market as a whole—presumably lenders would charge more upfront to compensate for the risk of cramdown at the back end. Moderator and bankruptcy judge Leif Clark suggested the market effect would be ameliorated by time-limiting the cramdown power to the loans made during the bubble, and then sunsetting it.

Skeel then made a shrewd observation. Despite the title of this panel and blogpost, the Obama administration has really just continued Bush’s economic policies. Skeel had thought that there would be support from Obama for mortgage cramdowns, and has been surprised not to see a departure here from Bush policies—at least, not yet.

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April 17, 2009
Bankruptcy is the new M&A
Posted by Usha Rodrigues

At least, so says Rick Chesley, head of Paul Hasting's bankruptcy practice, in today's WSJ.  The article describes a "heated auction" for the remains of Polaroid Corp, an exciting story about 28 bids and counter-bids, and victory snatched from the top bidder by the bankruptcy judge.   

I still remember the magic of the polaroids of my youth--click a button, hear a whirr, a odd-sized, thick piece of paper comes out, you wave it and maybe blow on it, and await an image snatched from just minutes ago.  Today's digital cameras offer more instant gratification, but polaroid anticipation was a large part of the fun.  The WSJ eschews such nostalgic indulgences in favor of couture-commentary worthy of People magazine, describing the auction as follows:

"The 49-year old Ms. Tilton, sporting a 13-karat yellow diamond ring and four-inch Alexander McQueen stiletto heels, hardly looked the part of a Wall Street vulture....And the 5-foot-5-inch Mr. Salter is no sartorial slouch either. Dressed in a Dolce & Gabbana suit, Ferragamo loafers and a Brioni necktie, he carried a Louis Vuitton briefcase."

But I digress from my topic:  What does it mean that bankruptcy is "the new M&A?"  According to the article, 67 deals in 2009 have come from bankrupcty courts.  At my old firm the M&A attorneys were Masters of the Universe, swooping into tense situations, taking stock and taking charge, subsisting on Diet Coke for weeks at a time as they leapfrogged from deal to deal.  One told a fellow associate, "When I walk into a room, I know I can dominate everyone else there, physically and mentally."  Bankruptcy lawyers generally had a more conciliatory personality, part-counselor, part-bulldog.  I wonder whether Chesley was trying to claim a little of that old M&A lustre for himself?  If bankruptcy really is the new M&A, there will be lots of M&A lawyers looking for a piece of the action.

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March 03, 2009
Zywicki on Bankruptcy
Posted by David Zaring

One of my favorite podcasts, in addition to banquet of delights contained the UChannel series (quite the array of luminaries there, and, uh, Jonah Goldberg), is EconTalk, which comes out once a week, takes about an hour, and gets a pretty good, if right leaning, set of guests.  If only they had more lawyers though!  Sunstein did one last year, and I'm happy to point you to Todd Zywicki in this week's episode.

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