CBF Industria De Gusa S/A et al v. Amci Holdings,Inc., et al
| CBF Industria De Gusa S/A, DA Terra Siderurgica LTDA, Fergumar-Ferro Gusa Do Maranhao Ltda, Ferguminas Siderurgica Ltda, Gusa Nordeste S/A., Sidepar-Siderurgica Do Para S/A and Siderurgica Uniao S/A. |
| Amci Holdings,Inc., American Metals&Coal International,Inc., K-M Investment Corporation, Prime Carbon GMBH, Primetrade,Inc., Hans Mende and Fritz Kundrun |
| 1:2013cv02581 |
| April 18, 2013 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of U.S. |
| Robert W. Sweet |
| Other Statutory Actions |
| 09 U.S.C. ยง 1 U.S. Arbitration Act |
| None |
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Filing
702
ORDER: terminating 653 Motion in Limine; terminating 657 Motion in Limine; terminating 659 Motion in Limine; terminating 661 Motion in Limine; terminating 663 Motion in Limine; terminating 665 Motion in Limine; terminating 667 Mo tion in Limine; terminating 669 Motion in Limine; terminating 671 Motion in Limine. For the reasons stated in the parties' proposed Joint Pre-Trial Order (ECF 691) and at the Final Pretrial Conference on July 26, 2023, plaintiffs' cla ims against defendants Primetrade, Inc. and American Metals & Coal International, Inc. are dismissed with prejudice. At the Final Pretrial Conference, the Court ruled on motions in limine. See transcript. The Clerk is respectfully directed to termina te the motions (ECF 653, 657, 659, 661, 663, 665, 667, 669, and 671). The caption of this action is amended as indicated above. SO ORDERED. (Signed by Judge P. Kevin Castel on 7/27/2023). ** Party White Energy, Inc., American Metals&Coal International,Inc., and Primetrade,Inc., terminated. (ama) Modified on 7/27/2023 (ama).
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Filing
699
ORDER: The Court has received the joint letter of July 12, 2023 concerning the Final Pre-Trial Conference set for July 26, 2023. The Court has reviewed the parties' motions in limine. If the parties are content to rest on their submissions that will be sufficient, except that the Court may pose questions. The Court anticipates ruling on the motions at the conference. Jury instructions will be addressed at trial. The principals on each side should be redoubling their efforts to settle this m atter. The Court will require the parties to make a joint submission to the Chambers email inbox (and not filed on ECF) by July 18, 2023 on the process (not negotiating positions) utilized by the parties to resolve this case since the Court's Op inion and Order of January 13, 2023, including any past or future meeting and the identity of participants. and as set forth herein. SO ORDERED., ( Final Pretrial Conference set for 7/26/2023 at 02:00 PM before Judge P. Kevin Castel., Jury Selection set for 9/18/2023 at 10:00AM before Judge P. Kevin Castel., Jury Trial set for 9/18/2023 at 10:00 AM before Judge P. Kevin Castel.) (Signed by Judge P. Kevin Castel on 7/12/2023) (ama)
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Filing
694
ORDER: There will be a Final Pretrial Conference at 3 p.m. on July 19, 2023 in Courtroom 11D. SO ORDERED. ( Final Pretrial Conference set for 7/19/2023 at 03:00 PM in Courtroom 11D, 500 Pearl Street, New York, NY 10007 before Judge P. Kevin Castel.) (Signed by Judge P. Kevin Castel on 7/5/2023) (vfr)
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Filing
649
OPINION AND ORDER: re: 563 MOTION for Summary Judgment filed by Fritz Kundrun, K-M Investment Corporation,, Hans Mende, Prime Carbon GMBH, Primetrade,Inc., American Metals&Coal International,Inc., Amci Holdings,Inc., 539 MOTION for Summar y Judgment filed by CBF Industria De Gusa S/A, Gusa Nordeste S/A., Fergumar-Ferro Gusa Do Maranhao Ltda, DA Terra Siderurgica LTDA, Siderurgica Uniao S/A., Ferguminas Siderurgica Ltda, Sidepar-Siderurgica Do Para S/A. Defendants' summary judgm ent motion as to the First Claim is GRANTED to the extent plaintiffs seek to proceed on a theory of successor liability but DENIED to the extent plaintiffs seek to proceed on an alter-ego or veil-piercing theory. The Second Claim is dismissed but sub ject to reinstatement in the event that (1) CBF applies within 45 days of this Order to reopen the SBT bankruptcy and seeks an assignment of clawback claims; and (2) an assignment of any clawback claims is obtained from the proper Swiss bankruptcy of ficials within 180 days of this Order. Plaintiffs' summary judgment motion is GRANTED as to affirmative defenses 2, 3, 5, 6, 7, 16 and 29 and DENIED as to affirmative defenses 9, 12, 13, 14, 17 and 28. All other affirmative defenses are withdrawn, deferred, or preserved for appeal, as set forth above. The Clerk is respectfully directed to terminate the motions. (Doc 539, 563.) SO ORDERED. (Signed by Judge P. Kevin Castel on 1/13/2023) (ama)
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Filing
621
ORDER: In addition to the submissions ordered at the November 9, 2022 hearing, the Court orders as follows: Within 14 days, the parties shall confer and submit to the Court a complete hard-copy English language version of the Rules of the ICC then in effect governing the arbitration between plaintiffs and SBT. SO ORDERED. (Signed by Judge P. Kevin Castel on 11/10/2022) (ama)
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Filing
615
ORDER: The Court will hear oral argument on the parties' motions for summary judgment on November 9, 2022 at 3:30 p.m. in Courtroom 11D. The parties may submit supplemental letter-briefs no later than October 21, 2022 and letter-briefs in respon se no later than October 28, 2022. And as set forth herein. SO ORDERED., ( Oral Argument set for 11/9/2022 at 03:30 PM in Courtroom 11D, 500 Pearl Street, New York, NY 10007 before Judge P. Kevin Castel.) (Signed by Judge P. Kevin Castel on 10/04/2022) (ama)
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Filing
614
ORDER: granting 538 Letter Motion to Seal. The letter motion to seal is provisionally Granted. (Doc. 538) SO ORDERED. (Signed by Judge P. Kevin Castel on 9/28/2022) (ama)
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Filing
612
ORDER: granting 585 Letter Motion to Seal. Application Provisionally Granted. SO ORDERED. (Signed by Judge P. Kevin Castel on 9/15/2022) (ama)
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Filing
610
OPINION AND ORDER re: 557 MOTION for Attorney Fees . filed by CBF Industria De Gusa S/A, Gusa Nordeste S/A., Fergumar-Ferro Gusa Do Maranhao Ltda, DA Terra Siderurgica LTDA, Siderurgica Uniao S/A., Ferguminas Siderurgica L tda, Sidepar-Siderurgica Do Para S/A. For the foregoing reasons, the Courts grants Plaintiffs' motion as modified, and awards $872,557.62 (the sum of $539,177.62 in Day Pitney Fees and Disbursements and $333,380 in Capsicum Fees). The Clerk of Court is respectfully directed to terminate the motion at Dkt. No. 557 and mark it as "granted as modified."SO ORDERED. (Signed by Magistrate Judge James L. Cott on 9/8/2022) (jca)
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Filing
609
ORDER: vacating 608 Letter Motion to Adjourn Conference. September 16, 2022 oral argument is VACATED. SO ORDERED. (Signed by Judge P. Kevin Castel on 9/07/2022) (ama)
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Filing
607
ORDER: The Court will hear argument on the parties' motions for summary judgment on September 16, 2022 at 2 p.m. in Courtroom 11D. SO ORDERED., ( Oral Argument set for 9/16/2022 at 02:00 PM in Courtroom 11D, 500 Pearl Street, New York, NY 10007 before Judge P. Kevin Castel.) (Signed by Judge P. Kevin Castel on 9/01/2022) (ama)
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Filing
575
ORDER granting 560 Letter Motion to Seal. The Court provisionally grants defendants' application, provided that redacted versions of each document are filed on the public docket and each document in unredacted form (i.e., full set of unredacted motion papers) is delivered to Chambers within five (5) business days of filing. SO ORDERED.. (Signed by Judge P. Kevin Castel on 2/16/2022) (ks)
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Filing
551
ORDER: No party sought or was granted leave to file a motion to exclude the testimony of any witness. See Joint Letter of Oct 22, 2021 and Order of October 25, 2021. Plaintiff knew of the pre-motion letter requirement in the Individual Practices at 3 (A)(i) or it would not have submitted a pre-motion letter on the summary judgment motion. Why did plaintiff's counsel remain silent about seeking to exclude a witness? Why did it not comply with the Individual Practices? File a response with in seven days. One of the several purposes of the pre-motion letter required by the undersigned's Individual Practices is to set a schedule and modify page limits when necessary. Plaintiff has unilaterally appropriated to itself 24 pages of addi tional briefing than was authorized by the Court. To mitigate the prejudice to defendants, they may file a responsive brief by February 14 and plaintiffs may reply by March 14, 2022. SO ORDERED., ( Responses due by 2/14/2022, Replies due by 3/14/2022.) (Signed by Judge P. Kevin Castel on 1/12/2022) (ama)
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Filing
533
ORDER: The Court waives the pre-motion conference and orders the following schedule: Plaintiff may move for summary judgment on January 10, 2022 and file a brief not to exceed 40 pages. Defendant shall respond to the motion for summary judgment and m ay cross move for summary judgment by February 14, 2022 and file a single brief not to exceed 50 pages. Plaintiff shall respond to defendant's cross-motion and may reply on its motion for summary judgment by March 14, 2021 in a single brief not to exceed 40 pages. Defendant may reply on its motion for summary judgment by March 31, 2021 in a brief not to exceed 30 pages. SO ORDERED., ( Cross Motions due by 2/14/2022., Motions due by 1/10/2022., Responses due by 3/14/2022, Replies due by 3/31/2022.) (Signed by Judge P. Kevin Castel on 10/25/2021) (ama)
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Filing
530
MEMORANDUM ORDER : For the foregoing reasons, the Court grants defendants' requests for redactions except those at pages 12, 16, 17, 18, 36, 37, 40, 41, and 49, as discussed in this Memorandum Order. By September 15, 2021, defendants are dir ected to submit to the Court, by email, a redacted version of the Opinion and Order consistent with this Memorandum Order. The Court will, in turn, docket that version, and then submit it to Westlaw and Lexis for publication. (Signed by Magistrate Judge James L. Cott on 9/10/2021) (ate)
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Filing
525
ORDER granting in part and denying in part 447 Motion for Sanctions; denying as moot 473 Letter Motion for Local Rule 37.2 Conference; granting 484 Letter Motion for Leave to File Document. For the reasons set forth in an Opinion and Or der to be filed today temporarily under seal, Plaintiffs' motion for sanctions is granted in part and denied in part, and sanctions pursuant to Rule 37(e)(1) of the Federal Rules of Civil Procedure shall be imposed on Defendants, consistent w ith the Opinion and Order. In addition, Plaintiffs' letter-motion for leave to file a reply expert report is granted. The Clerk of Court is respectfully directed to terminate the motions at Docket Nos. 447, 473, and 484, and mark Dkt. No. 447 as "granted in part and denied in part," Dkt. No. 473 as "denied as moot," and Dkt. No. 484 as "granted." SO ORDERED. (Signed by Magistrate Judge James L. Cott on 8/18/2021) (jca)
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Filing
517
ORDER denying without prejudice 509 Letter Motion for Discovery. In sum, the facts and circumstances augur in favor of a denial of the request for a Prime Carbon 30(b)(6) witness at this time. After Defendants potentially make additional produc tion and/or provide additional clarifications on the issues, and the deposition of the former Prime Carbon director takes place, the record will be more fully developed. If Plaintiffs still believe that a Prime Carbon 30(b)(6) deposition can thereafter be justified, they may renew their request. The Clerk is respectfully directed to closed Docket No. 509 and mark it as "denied without prejudice." (Signed by Magistrate Judge James L. Cott on 5/19/2021) (rro)
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Filing
431
ORDER: The Court will hold a conference by telephone on May 7, 2020 at 2:30 p.m. to address Defendants' April 17, 2020 objections to the production of documents requested by Plaintiffs pursuant to the Forensic Protocol Order (Dkt. Nos. 426, 42 9) and Plaintiffs' motion to compel (Dkt. Nos. 428, 430). Counsel should contact chambers using the Courts conference line, (877) 873-8017 (Access Code: 5277586). The Court will arrange for a court reporter to transcribe the conference.(Telephone Conference set for 5/7/2020 at 02:30 PM before Magistrate Judge James L. Cott.) (Signed by Magistrate Judge James L. Cott on 4/30/2020) (js)
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Filing
425
OPINION AND ORDER re: 361 MOTION to Dismiss in Part Third Amended Complaint: Defendants' motion is therefore DENIED. (Docket #361.) The Clerk is directed to terminate the motion. (Signed by Judge P. Kevin Castel on 4/6/2020) (jwh)
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Filing
418
ORDER: Before the Court are defendants' objections (Dkt. No. 405) under the Forensic Protocol Order (Dkt. No. 379) to the production of certain documents requested by plaintiffs pursuant to paragraph 6 of the Order. Familiarity with the Order as well as the parties' dispute is assumed. The Court has reviewed the parties' submissions and overrules defendants' objections. While defendants set forth several bases for their objections, they do not contend that the production of the 21 outstanding documents is either burdensome or implicates privilege. On the record presented, the Court finds that production of the limited number of additional documents sought by plaintiffs is justified. Part of their claim is that defen dant Mende dominated the family of companies he owned (along with defendant Kundrun) and plaintiffs want to establish Mende's relationship with those entities and his purported control over them. These documents appear to be relevant to that cla im, and the issue before the Court is simply their discoverability, not their admissibility. Moreover, there is force to plaintiffs' argument that the production of these 21 documents may have some relevance to their ESI investigation. That sai d, and in light of defendants' reply letter (Dkt. No. 412), the Court declines to order defendants to explain why these outstanding documents (as well as the other so-called New Mende emails) were not previously discovered, and what steps they have taken to confirm no new ESI remains to be produced. Defendants are directed to produce the 21 outstanding documents by March 11, 2020. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 3/3/2020) (mml)
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Filing
397
ORDER: The Court held a status conference today to address various discovery issues. As discussed at the conference, IT IS HEREBY ORDERED as follows:1. Plaintiffs' request for cost-shifting is denied without prejudice. 2. Defendants are directe d to produce the remaining OneDrive data to Capsicum by January 24, 2020 (the other recently discovered data sources having been produced). 3. Discovery on the issue of Defendants ESI is extended to March 13, 2020. 4. Plaintiffs are permitted to con duct a three-hour deposition of Ricoh. The deposition is limited in scope to issues that have arisen or new data that has come to light since the previous deposition of Ricoh. The deposition must take place by March 13, 2020. 5. Plaintiffs' re quest for Ricoh to issue a new report is moot, as Plaintiffs withdrew the request. 6. The schedule for Plaintiffs' anticipated spoliation and/or cost-shifting motion is as follows: a. Plaintiffs' motion is due April 24, 2020. Plaintiffs a re directed to provide Defendants with Capsicums expert report, if any, by April 10, 2020. b. Defendants' response is due May 29, 2020. c. Plaintiffs' reply is due June 12, 2020. 7. If the parties wish to hold a discovery conference with th e undersigned the week of February 18, 2020, they are directed to file a letter informing the court by Tuesday, February 11, 2020 at 5:00 p.m. Finally, Plaintiffs are directed to docket their January 10, 2020 letter previously emailed to the Court with redactions, as appropriate, to protect confidential information. SO ORDERED. (Deposition due by 3/13/2020, Discovery due by 3/13/2020, Motions due by 4/24/2020, Responses due by 5/29/2020, Replies due by 6/12/2020, Status Conference set for 2/11/2020 at 05:00 PM before Magistrate Judge James L. Cott.) (Signed by Magistrate Judge James L. Cott on 1/17/2020) (jca)
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Filing
390
ORDER APPOINTING COMMISSION TO REQUEST DEPOSITION PURSUANT TO ARTICLE 17 OF THE HAGUE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS granting 388 JOINT MOTION Issuance of a Letter of Request for Interna tional Judicial Assistance Pursuant to The Hague Convention and an Order Appointing Commission. You have been duly appointed as commissioners and are hereby authorized, pursuant to Article 17 ofthe Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, to request that voluntarily appear for a deposition in the Cantons of Zurich and/or Zug, Switzerland related to above-captioned matter. (And as further set forth herein.) (Signed by Magistrate Judge James L. Cott on 1/6/2020) (jca) Transmission to Records Management Clerk for processing.
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Filing
380
ORDER granting in part and denying in part 368 Letter Motion for Discovery. IT IS HEREBY ORDERED as follows: 1. Plaintiffs' request for a two-week extension of the fact discovery deadline is granted,on consent. The fact discovery deadline is now February 14, 2020. 2. The Court will separately issue a Forensic Protocol Order, consistent with the procedures discussed at today's conference. 3. On January 17, 2020 at 10:00 a.m., the parties shall appear before the Court for the next sta tus conference in courtroom 21-D, 500 Pearl Street, New York, New York. 4. Any disputes to be addressed by the Court at the next conference should be submitted by letter-motion no later than January 10 at 5:00 p.m. and any responses to the letter-mot ion should be filed by noon on January 14. 5. Alternatively, if the parties do not believe the January conference is necessary, they should file a letter so informing the Court by January 10. The Clerk of Court is respectfully directed to close Docket No. 368 and mark it as granted in part and denied in part, consistent with the Forensic Protocol Order. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 12/12/2019) (jca)
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Filing
295
OPINION AND ORDER: For the foregoing reasons, the Court: grants defendants' motions to compel to the extent they seek the production of materials related to SBT's liability and plaintiffs damages from the underlying transactions; denies defendants' motions to compel to the extent they seek the production of plaintiffs' internal communications related to the underlying transactions; denies defendants' motion to compel production related to the Swiss Bankruptcy and t he Swiss Action; grants plaintiffs' motions to the extent they seek to strike defendants' general objections to interrogatories and document requests and directs the U.S. defendants to amend their responses to the discovery requests; gra nts plaintiffs' motion to compel U.S. document production to the extent they seek the bank account records of the U.S. corporate defendants and the personal bank account records of the U.S. individual defendant; grants plaintiffs' motion to compel U.S. document production to the extent they seek records from third parties Loyalhanna (currently limited to the email account of Mike Keenan) and Holsinger, but not from GYF; grants plaintiffs' motions to compel U.S. and European do cument production to the extent they seek transparency of defendants' ESI collection and directs a further response from defendants (as outlined in the Opinion to follow); denies plaintiffs' motion to compel European document production to the extent they seek to preclude defendants from making arguments that the Transfer Agreement was the result of arm's-length negotiations; declares, consistent with the parties' agreement set forth in the letter to the Court dated May 20, 2019 (Dkt. No. 229), that plaintiffs are entitled to the following related to their motions directed at the European defendants: o to strike defendants' general objections to interrogatories and document requests with leave to amend their responses to the discovery requests; o to obtain the European corporate defendants' bank account records and the European individual defendant's personal bank account records; and o to collect documents from the third-party Schweiger Firm, but not from THV; grants plaintiffs motion to compel documents subject to the crime-fraud exception and directs the U.S. defendants to produce the withheld documents; and declares that plaintiffs are entitled to documents from the European defenda nts that have been withheld on privilege grounds because the crime fraud exception applies. This Opinion and Order refers to information that has been redacted in the parties' motion papers and in the accompanying exhibits, and accordingly wi ll be temporarily filed under seal (and provided to the parties in unredacted form by email). The Court directs the parties to advise the Court by email to CottNYSDChambers@nysd.uscourts.gov within five business days of the date of this Opinio n and Order with any proposed redactions for the Courts review. The parties should be mindful of the presumption of public access to judicial documents inproposing any redactions. See, e.g., Brown v. Maxwell,__ F.3d __, 2019 WL 2814839, at *3 (2d C ir. July 3, 2019); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 11920 (2d Cir. 2006). The Court will then determine how this Opinion and Order may be filed on the public docket. Until further order of the Court, the Clerk is respectfully directed to file this Opinion and Order under seal. SO ORDERED. (Signed by Magistrate Judge James L. Cott on 7/15/2019) (jca) Transmission to Sealed Records Clerk for processing.
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Filing
116
OPINION: For the foregoing reasons, the Defendants' motion to dismiss is denied. (Signed by Judge Robert W. Sweet on 6/15/2018) (tro)
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Filing
91
OPINION re: 59 MOTION to Dismiss . filed by Fritz Kundrun, K-M Investment Corporation,, Hans Mende, Prime Carbon GMBH,, Primetrade,Inc.,, American Metals&Coal International,Inc.,, Amci Holdings,Inc.,, 50 MOTION to Sta y . filed by CBF Industria De Gusa S/A, Gusa Nordeste S/A., Fergumar-Ferro Gusa Do Maranhao Ltda, DA Terra Siderurgica LTDA, Siderurgica Uniao S/A., Ferguminas Siderurgica Ltda, Sidepar-Siderurgica Do Para S/A. Based on the con clusions set forth above, the Defendants' motion to dismiss the Complaint is granted. Plaintiffs have leave to renew this case against the non-SBT Defendants following successful confirmation against SBT. It is so ordered. (See Opinion.) (Signed by Judge Robert W. Sweet on 3/12/2015) (ajs) Modified on 3/16/2015 (ajs).
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Filing
46
OPINION re: 19 MOTION to Dismiss filed by K-M Investment Corporation, Prime Carbon GMBH, Primetrade,Inc., American Metals&Coal International,Inc., Amci Holdings,Inc.: Based on the conclusions set forth above, the Defendants' motion to dismiss the Complaint is granted and the Complaint is dismissed. Plaintiffs are granted leave to replead within twenty days. (Signed by Judge Robert W. Sweet on 4/9/2014) (tn)
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