StrikeForce Technologies Inc. v. PhoneFactor Inc.
Filing
41
AMENDED REPORT AND RECOMMENDATIONS re #31 MOTION to Dismiss for Failure to State a Claim filed by First Midwest Bancorp Inc.. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 12/2/2013. Signed by Judge Mary Pat Thynge on 11/14/13. (cak)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
::
STRIKEFORCE TECHNOLOGIES, INC., :
:
Plaintiff,
:
v.
:
:
PHONEFACTOR, INC.,
:
and FIRST MIDWEST BANCORP, INC.
:
:
Defendants,
:
Civ. A. No. 13-490-RGA-MPT
REPORT AND RECOMMENDATION (Amended)
I. INTRODUCTION
On March 28, 2013, StrikeForce Technologies, Inc. (“StrikeForce”) brought this
action against First Midwest Bancorp, Inc. (“FMBI”), and PhoneFactor, Inc.
(“PhoneFactor”), alleging infringement of U.S. Patent No. 7,870,599, (the “‘599
patent”).1 Following an initial motion to dismiss, StrikeForce filed an amended complaint
on June 25, 2013.2 Presently before the court is FMBI’s motion to dismiss the amended
complaint pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which
relief can be granted.3 Because StrikeForce has sufficiently pled only one of its claims,
FMBI’s motion to dismiss should be denied in part and granted in part.
II. BACKGROUND
A.
Factual Allegations
StrikeForce is a corporation incorporated in the state of Wyoming, with its
1
D.I. 1. A third defendant was dismissed.
D.I. 34.
3
D.I. 31.
2
principal place of business located in Edison, New Jersey.4 FMBI is a corporation
incorporated in the state of Delaware, with its principal place of business in Itasca,
Illinois.5 FMBI has a subsidiary, First Midwest Bank, which operates in the state of
Illinois.6 First Midwest Bank is not a party to this action.
StrikeForce owns the ‘599 patent.7 This patent is directed to a multichannel
security system and method for authenticating a user seeking access to websites and
virtual private networks (VPNs), such as those used for conducting banking, social
networking, business activities, and other online services.8 This technology is
sometimes referred to as “out-of-band” authentication.9
In 2011, PhoneFactor submitted to the U.S. Patent and Trademark Office a
patent application for out-of-band authentication.10 StrikeForce subsequently contacted
PhoneFactor, giving notice of its ‘599 patent.11 Prior to PhoneFactor’s application, in
August 2010, PhoneFactor and First Midwest Bank entered into a three year
agreement, in which PhoneFactor would provide First Midwest Bank with its service.12
StrikeForce claims both PhoneFactor and FMBI infringe the ‘599 patent by making,
using, offering for sale, or selling a system and method for out-of-band authentication.13
StrikeForce alleges a number of facts addressing the intermingling between First
4
D.I. 34 at ¶ 1.
Id. at ¶ 3.
6
Id. at ¶¶ 16-17.
7
Id. at ¶ 10.
8
Id. at ¶ 10.
9
Id.
10
Id. at ¶¶ 12-14.
11
Id.
12
Id. at ¶¶ 23-24.
13
Id. at ¶ 26.
5
2
Midwest Bank and FMBI. For example, First Midwest Bank and FMBI are
headquartered at the same location in Illinois.14 Nearly all of the value of FMBI’s $8.1
billion in assets is attributable to First Midwest Bank.15 The official web page for First
Midwest Bank contains “Investor Relations” pages referencing information related to
corporate governance, stock information, and how one can invest in the company, all of
which relate to FMBI.16 First Midwest Bank has the same governance policies and
procedures adopted by FMBI.17 Finally, FMBI and First Midwest Bank have the same
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, Treasurer,
Corporate Secretary and Chief Risk Officer.18
B.
Position of the Parties
StrikeForce argues FMBI’s subsidiary, First Midwest Bank, infringes its patent.19
It contends FMBI is liable for that infringement under two similar theories: (1) FMBI and
First Midwest Bank are alter egos of each another, and (2) First Midwest Bank infringed
in its capacity as an agent of FMBI.20
FMBI argues StrikeForce’s amended complaint does not satisfy the pleading
standards of FED. R. CIV. P. 8(a) because it fails to allege facts sufficient to support an
infringement claim.21 Specifically, FMBI claims StrikeForce fails to touch the “fraud or
injustice in use of the corporate form” element under both the alter ego theory and
14
Id. at ¶ 17.
Id.
16
Id. at ¶ 19.
17
Id. at ¶ 20.
18
Id. at ¶ 21.
19
D.I. 36 at 3.
20
D.I. 34 at ¶¶ 22-24.
21
D.I. 39 at 2.
15
3
agency theory.22 FMBI also argues StrikeForce has not alleged that FMBI directed the
specific infringing actions of First Midwest Bank, a necessary element for agency.23
Finally, FMBI asserts any alleged facts supporting the missing elements are merely
legal conclusions, and do not constitute a well-pled complaint.24
In response to FMBI’s motion to dismiss, StrikeForce insists it has successfully
pleaded a claim, specifically by arguing “fraud” is not a mandatory component of the
alter ego theory,25 and the amended complaint is replete with allegations supporting
agency.26 Furthermore, StrikeForce points out that FMBI, in its motion to dismiss,
includes and relies upon documents not integral to or explicitly relied upon in the
complaint, and therefore, the motion to dismiss must be converted to a motion for
summary judgment, which, in turn, would require the completion of discovery before a
decision can be made.27
III.
STANDARD OF REVIEW
A.
Motion to dismiss for failure to state a claim
In analyzing a motion to dismiss under FED. R. CIV. P. 12(b)(6), a review of FED.
R. CIV. P. 8(a)(2) is necessary. It requires a pleading contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” The standard “does
not require ‘detailed factual allegations,’ but . . . demands more than an unadorned, the22
Id. at 5-8.
Id.
24
Id. at 8-9. StrikeForce effectively concedes the absence of any allegation in
the amended complaint contending the use of the corporate structure operates as a
fraud. D.I. 36 at 10.
25
Id.
26
Id. at 14.
27
Id. at 7.
23
4
defendant-unlawfully-harmed-me accusation.”28 Thus, to survive a motion to dismiss
under Rule 12(b)(6), a complaint “must contain sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on its face.’”29
The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of a
complaint, not to resolve disputed facts or decide the merits of the case.30 Evaluating a
motion to dismiss requires the court to accept as true all material allegations of the
complaint.31 When evaluating, “the issue is not whether a plaintiff will ultimately prevail,
but whether the claimant is entitled to offer evidence to support the claims.”32 A motion
to dismiss may be granted only if, after, “accepting all well-pleaded allegations in the
complaint as true, and viewing them in light most favorable to the plaintiff, plaintiff is not
entitled to relief.”33
To survive a motion to dismiss under Rule 12(b)(6), however, the factual
allegations must be sufficient to “raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”34
A plaintiff is obliged “to provide the ‘grounds’ of his ‘entitle[ment] to relief’” beyond
“labels and conclusions.”35 Heightened fact pleading is not required; rather, plaintiff
28
Ashcroft v. Iqbal, 566 U.S. 622, 678 (2009) (citing Bell Atl. Corp. V. Twombly,
550 U.S. 554, 555 (2007)).
29
Id. (citing Twombly, 550 U.S. at 570). See also FED. R. CIV. P. 12(b)(6).
30
Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
31
Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004).
32
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997)
(internal quotation marks and citation omitted).
33
Maio v. Aetna, Inc., 221 F.3d 427, 481-81 (3d Cir. 2000) (internal quotation
marks and citations omitted).
34
Twombly, 550 U.S. at 555. See also Victaulic Co. v. Tieman, 499 F.3d 227,
234 (3d Cir. 2007).
35
Twombly, 550 U.S. at 555.
5
must allege “enough facts to state a claim to relief that is plausible on its face.”36 A
claim has facially plausibility when its factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.37
B.
Conversion of motion to dismiss into motion for summary judgment
A court ruling on a motion to dismiss may consider documents integral to or
explicitly relied upon in the complaint, though it may not consider matters extraneous to
the pleadings without converting the motion to dismiss into a motion for summary
judgment.38 Consequentially, a court must convert a Rule 12(b)(6) motion to dismiss
into a Rule 56 motion for summary judgment when considering extraneous
documents.39 Once the court considers extraneous documents, it has gone beyond the
scope of the complaint and is analyzing the merits of the case.
If a motion under FED. R. CIV. P. 12(b)(6) is converted to a motion under FED. R.
CIV. P. 56, a plaintiff is entitled to conduct discovery before the motion can be
resolved.40 In such circumstances, this court has denied a motion to dismiss with leave
to re-file a motion for summary judgment following the close of fact discovery.41
II. DISCUSSION
A complaint for patent infringement that includes the information set forth in the
36
Id. at 570.
Id.
38
In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d
Cir. 1997).
39
See id. See also Pension Benefit Guar. Corp. v. White Consol. Indus., 998
F.2d 1192, 1197 (3d Cir. 1993); Switlik v. Hardwicke Co., 651 F.2d 852, 857 (3d Cir.
1981); Camp v. Brennan, 219 F.3d 279, 280 (3d Cir. 2000).
40
FED. R. CIV. P. 56(d).
41
See Tarkus Imaging, Inc. v. Adobe Sys., Inc., No. 10-63-LPS, 2011 U.S. Dis.
LEXIS 43248 (D. Del. Apr. 21, 2011).
37
6
sample complaint published as Form 18 to the FED. R. CIV. P. adequately pleads a claim
for relief if it alleges facts supporting the following: (1) issuance of the patent and the
plaintiff’s ownership of the patent, (2) the defendant’s infringement of the patent, and (3)
the plaintiff marked its product.42
StrikeForce’s amended complaint undisputedly contains two of these three
elements. It alleges the issuance of the patent and its ownership thereof.43 The
complaint also avers that StrikeForce marked its product.44 Further, the complaint
alleges defendant’s subsidiary, First Midwest Bank, infringed by entering into a contract
with co-defendant, PhoneFactor, for use of PhoneFactor’s out-of-band authentication
service.45 The question here is whether StrikeForce has asserted facts supporting
FMBI’s liability for First Midwest Bank’s alleged infringement.
A parent company is not liable for the actions of its subsidiary solely because of
the parent-subsidiary relationship.46 Liability requires piercing the corporate veil, which
may be permissible under either of two distinct tests: (1) the alter ego test, or (2) the
agency test.47 StrikeForce argues on the basis of both tests. While StrikeForce has not
alleged sufficient facts to support alter ego, it has alleged enough facts to support pure
agency liability. Therefore, FMBI’s 12(b)(6) motion should be denied in regard to
42
FED. R. CIV. P., Form 18.
See D.I. 34 at ¶¶ 9-10.
44
See id. at ¶ 12.
45
Id. at ¶ 24.
46
Ethypharm S.A. France v. Bentley Pharmaceuticals, Inc., 388 F. Supp. 2d 426
432 (D. Del. 2005) (citing United States v. Bestfoods, 524 U.S. 51, 61 (1998)).
47
Id. (citing Pearson v. Component Tech. Corp., 247 F.3d 471, 484-86 (3d Cir.
2001); C.R. Bard Inc. v. Guidant Corp., 997 F. Supp. 556, 559-60 (D. Del. 1998); Mobile
Oil Corp. v. Linear Films, Inc., 718 F. Supp. 260, 265-72 (D. Del. 1989)).
43
7
agency, but granted as to alter ego.
A.
Alter Ego Theory
StrikeForce argues First Midwest Bank and FMBI are alter egos of one
another.48 Under the alter ego analysis, a subsidiary may be regarded as the alter ego
of its parent corporation and render the parent liable if two requirements are met: (1) “a
lack of attention to corporate formalities, such as where the assets of two entities are
commingled, and their operations intertwined,” or “where a corporate parent exercises
complete domination and control over its subsidiary,” and (2) the use of the corporate
form would cause fraud or a similar injustice.49
StrikeForce’s allegations regarding the relationship between FMBI and First
Midwest Bank establish that the two entities are commingled. FMBI and First Midwest
Bank have a nearly identical board of officers and directors; the majority of FMBI’s
assets are attributable to First Midwest Bank; both corporations employ the same
governance polices and procedures; both corporations operate from the same location
in Illinois. While these allegations meet the first element, StrikeForce has not alleged
any facts suggesting fraud or injustice in FMBI’s use of the corporate form.
StrikeForce does not initially argue that this second element was alleged in the
48
In StikeForce’s amended complaint, it alleges FMBI and First Midwest Bank
are alter egos of one another. D.I. 34 at ¶ 22. In its brief in opposition to FMBI’s motion
to dismiss, StrikeForce initially claims FMBI is the alter ego of First Midwest Bank, but
then argues FMBI “completely dominates and controls First Midwest Bank.” D.I. 36 at
9. The latter argument treats First Midwest Bank as the alter ego of FMBI, rather than
the other way around.
49
See Mobile Oil, 718 F. Supp. at 266. See also Outokumpu Engineering
Enters., Inc. v. Kvaerner EnviroPower, Inc., 685 A.2d 724, 729 (D. Del. 1996); Applied
Biosystems, Inc. v. Cruachem, Ltd., 772 F. Supp. 1458, 1463 (D. Del. 1991).
8
amended complaint, but instead claims fraud is not required under the alter ego
theory.50 StrikeForce relies heavily on Mobile Oil Corp. v. Linear Films, Inc. (“Mobile
Oil”), by quoting as follows from this decision: “[t]he terminology used by courts in
considering whether a parent corporation will be held liable for the actions of its
subsidiary has not been a model of clarity.”51 StrikeForce further argues the alter ego
theory is muddled, and the cases outside the realm of patent infringement cannot be
applied wholesale.52 In making this argument, StrikeForce overlooks the infringement
claim at issue in Mobile Oil, and that court specifically held fraud or something similar is
required under the alter ego theory. According to Mobile Oil, holding a parent
corporation liable for the infringement of its subsidiary under alter ego theory, “may be
done only in the interest of justice, when such matters as fraud, contravention of law or
contract, public wrong, or where equitable consideration[s] . . . are involved.”53
In Trs. of Nat’l Elevator Indus. Pension, Health Benefit & Educ. Funds v. Lutyk
(“Lutyk”), the Third Circuit affirmed the requirement of injustice or fundamental
unfairness in defendant’s use of the corporate form, but rejected a rigid test demanding
proof of actual fraud.54 Lutyk highlights a number of factors that, if present, may
suggest fraud or injustice in the corporate form.55 StrikeForce fails to address any of
50
D.I. 36 at 10.
Id.
52
Id.
53
Mobile Oil, 718 F. Supp. at 268 (quoting Pauley Petroleum, Inc. v. Continental
Oil Co., 239 A.2d 629, 633 (Del. 1968)).
54
332 F.3d 188 (3d Cir. 2003)
55
See Lutyk, 332 F.3d at 194 (“We considered the following factors: gross
undercapitalization, failure to observe corporate formalities, nonpayment of dividends,
insolvency of debtor corporation, siphoning of funds from the debtor corporation by the
dominant stockholder, nonfunctioning of officers and directors, absence of corporate
51
9
these factors in the amended complaint or allege anything suggesting fraud or other
similar injustice in the structure of FMBI and First Midwest Bank. Contrary to
StrikeForce’s first argument, fraud or some similar injustice is a required element for
finding alter ego liability.
After noting Lutyk and Mobile Oil and then implicitly conceding the requirement of
fraud or similar injustice element, StrikeForce argues the alter ego test is highly factspecific and requires balancing many factors viewed in the totality of the
circumstances.56 While this may be true for a final determination of alter ego liability, a
plaintiff, however, must allege facts supporting the fraud or injustice requirement for
alter ego liability to establish a well-pleaded complaint. StrikeForce suggests that if
allowed to conduct discovery, it would provide this court all the factors necessary to
conduct a meaningful alter ego analysis.57
StrikeForce’s argument undermines the purpose of the well-pled complaint
requirement. This requirement “does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.”58 Here, StrikeForce knocks without
suggesting fraud or injustice, nor alleging any facts supporting either element.
Consequentially, its alter ego theory is inadequate when measured against the
records, and whether the corporation is merely a facade for the operations of the
dominant stockholder.” (quoting Am. Bell, Inc. v. Fed’n of Tel. Workers of Pa., 736 F.2d
879, 886 (3d Cir. 1984) (emphasis in original)).
56
D.I. 36 at 12.
57
Id. (“Unlike the plaintiff in Mobile Oil, StrikeForce has not had the opportunity to
conduct discovery and place before this Court all of the factors necessary to conduct a
meaningful alter ego analysis. Thus, the Court is not in a position to render final
determination the merits as to whether FMBI and First Midwest Bank are alter egos of
one another for the purposes of this patent infringement action.”)
58
Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009).
10
requirements of Rule 12(b)(6).
B.
Agency Theory
Agency theory treats the parent and its subsidiary as two separate corporate
entities, holding the parent liable for the specific actions it directed or authorized the
subsidiary to perform.59 While agency theory requires a close connection between the
relationship of the corporations and the cause of action, it does not apply solely
because the parent has dominion and control over the subsidiary.60 Under this theory,
only the conduct shown to be instigated by the parent may be attributed to the parent.61
A claim is facially plausible (and thereby well-pled) when the plaintiff avers factual
content allowing the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.62 Reading StrikeForce’s amended complaint in the light
most favorable to it as the non-moving party, the facts alleged reasonably support the
inference that FMBI directed First Midwest Bank’s act of infringement. Both FMBI and
First Midwest Bank operate at the same location, share the same board of directors,
and have the same governance policies and procedures. These allegations suggest a
close connection in the operations of the two companies, making it reasonable to infer
FMBI authorized or directed the adoption of PhoneFactor’s authentication service.
59
See Mobile Oil Corp. v. Linear Films, Inc., 718 F. Supp. 260, 271 (D. Del.
1989) (describing difference between pure agency theory and alter ego theory).
60
See C.R. Bard, Inc. v. Guidant Corp., 997 F. Supp. 556, 560 (D. Del. 1998)
(quoting Mobile Oil, 718 F. Supp. at 271) (reiterating need for close connection between
relationship of corporations and cause of action); see also Mobile Oil, 718 F. Supp. at
271, n.15 (explaining liability found solely on parent’s dominion and control of subsidiary
is merely alter ego theory under a different name).
61
See C.R. Bard, 997 F. Supp. at 560 (citing Applied Biosystems, Inc. v.
Cruachem, Ltd., 772 F. Supp. 1458, 1464 (D. Del. 1991).
62
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).
11
Merely showing the commingling of FMBI and First Midwest Bank may be insufficient to
ultimately succeed on agency, but it is adequate to survive a motion to dismiss at this
stage in litigation.
FMBI insists agency, like the alter ego theory, requires fraud or injustice in use of
the corporate form.63 In support, it cites Mobile Oil.64 Mobile Oil distinguishes between
“pure agency theory,” and agency akin to an alter ego theory.65 The latter, based on the
parent’s pure dominion and control of the subsidiary, indeed requires a showing of fraud
or injustice.66 Here, however, pure agency theory is being considered, and its standard
requires a connection between the relationship of the corporations and the cause of
action. For this reason, StrikeForce is not required to allege facts supporting fraud or
injustice.
Because the facts alleged support a reasonable inference that First Midwest
Bank infringed as an agent of FMBI, StrikeForce’s amended complaint is adequate.
C.
Conversion to Summary Judgment
In deciding a motion to dismiss, a court should only consider the allegations in
the complaint, exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim.67 If the court relies on materials outside the
63
D.I. 39 at 8.
Id. (citing Mobile Oil, 718 F. Supp. at 271).
65
See Mobile Oil, 718 F. Supp. at 271.
66
See id. (“The attributes of this latter form of agency (i.e. based upon complete
and dominion and control by the principal) are generally identical to those present when
the corporate veil is pierced because of an alter ego relationship.”).
67
See, e.g., Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993).
64
12
pleadings, a Rule 12(b)(6) motion is converted into a motion for summary judgment.68
FMBI proffered an affidavit of First Midwest Bank’s General Counsel, Paul R. Simpson,
describing the corporate structure of the two entities and addressing First Midwest
Bank’s service agreement with Phonefactor.69 As the Simpson affidavit was not
attached to the complaint, not a matter of public record, and not a document that formed
the basis of the claim, it is outside the scope of permissible materials for a 12(b)(6)
motion.
If a 12(b)(6) motion is converted to one under FED. R. CIV. P. 56, a plaintiff is
entitled to conduct discovery before the motion can be resolved.70 Since the court will
not consider any evidence or documents outside or and not integral to the amended
complaint, the standards of Rule 12(b)(6) apply.
D.
Likelihood of Prevailing
FMBI argues StrikeForce fails to allege enough plausible facts to suggest that
discovery would uncover sufficient evidence to support either alter ego or agency
liability.71 FMBI urges the court dismiss the claims against it because having a
regulated wholly-owned subsidiary should not subject a parent corporation to discovery
expenses based on mere allegations of a typical corporate structure.72
Although the court understands the burden of litigation, the issue, however, is not
whether StrikeForce will ultimately prevail, but whether it is has met the requirements of
68
See FED. R. CIV. P. 12(d).
D.I. 32, Ex. 1.
70
See FED. R. CIV. P.56(d).
71
D.I. 39 at 9.
72
Id.
69
13
Rule 12(b)(6) and is entitled to proceed with its claims.73 StrikeForce’s agency claim is
plausible on its face, and, therefore, FMBI’s motion to dismiss should be denied in part.
III. CONCLUSION
StrikeForce’s amended complaint is sufficient because it contains adequate facts
supporting a claim of patent infringement. StrikeForce proffered enough facts in its
amended complaint to support the theory that FMBI’s subsidiary, First Midwest Bank,
infringed the patent-at-issue while acting as its agent. Because StrikeForce’s nonconclusory factual allegations in support of its infringement claims satisfies Twombly,
Iqbal, and the requirements of Form 18, FMBI’s motion to dismiss for failure to state a
claim of infringement and agency should be denied.
IV. ORDER AND RECOMMENDED DISPOSITION
For the reasons contained herein, the court recommends that:
Defendant’s motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) for failure to
state a claim upon which relief can be granted (D.I. 31) be GRANTED in part and
DENIED in part.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(A)
and (B), FED. R. CIV. P. 72(b)(1), and D. DEL. LR 71.2. The parties may serve and file
specific written objections within ten (10) days after being served with a copy of this
Report and Recommendation.
The parties are directed to the Court’s standing Order in Non-Pro Se matters for
objections filed under FED. R. CIV. P. 72, dated October 9, 2013, a copy of which is
73
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997)
(internal quotation marks and citation omitted).
14
available on the Court’s website, www.ded.uscourts.gov.
Date: November 14, 2013
/s/ Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE
15
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