Faust et al v. Comcast Cable Communications Managment, LLC
Filing
43
MEMORANDUM. Signed by Judge William M Nickerson on 11/1/11. (mps, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOEL FAUST, et al.
v.
COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC.
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* Civil Action WMN-10-2336
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MEMORANDUM
Pending before the Court is Plaintiffs’ Motion for
Conditional Certification and to Facilitate Notice under the
Fair Labor Standards Act, ECF No. 23.
Defendant has also filed
a Request for a Hearing, ECF No. 34, which Plaintiffs have
opposed.
The motion is fully briefed and ripe for review.1
Upon
consideration of the pleadings, facts and applicable law, the
1
Defendant has also filed a Motion for Leave to File a SurReply, ECF No. 35, seeking permission of the court to file
additional briefing with regard to the relevance of the Supreme
Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.
2541 (2011). Specifically, Defendant contends that the Dukes
case compels the Court to apply a higher standard when
determining whether the Plaintiff has established sufficient
commonality to warrant certification of the proposed class. As
the Dukes case pertains to class certifications under Federal
Rule of Procedure 23 and was premised on alleged sexual
discrimination pursuant to Title VII of the Civil Rights Act of
1964, and the present case pertains to certification of a
collective action for unpaid overtime wages under the Federal
Labor and Standards Act, the Court finds Dukes to be
inapplicable and will therefore deny the Motion for Leave to
File a Sur-Reply. See, e.g., Nehmelman v. Penn Nat’l Gaming,
Inc., No. 11-C-23, 2011 WL 4538698, at *9 (N.D. Ill. Sept. 29,
2011); Alli v. Boston Mkt. Co., No. 3:10-CV-4, 2011 WL 4006691,
at FN 3 (D. Conn. Sept. 8, 2011).
Court determines that no hearing is necessary, Local Rule 105.6,
and Plaintiff’s Motion for Conditional Certification and to
Facilitate Notice will be granted in part.
I. BACKGROUND
The present motion pertains to Plaintiffs’ claims brought
under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.
(FLSA).
Plaintiffs allege that Defendant Comcast Cable
Communications Management, LLC (Comcast) has failed to pay wages
to them and other similarly situated employees and former
employees, for work performed “off the clock” from August 2007
to the present.
Plaintiffs Faust and Feldman worked as hourly,
non-exempt Customer Account Executives (CAEs) for Comcast in one
of its Maryland call centers.2
During the relevant time period,
Comcast operated eight different call centers in Maryland and
employed approximately 3,000 CAEs.
Comcast currently operates
six call centers and employs approximately 1,200 CAEs.
2
Plaintiff Faust worked full-time as a CAE at a Comcast call
center located at 8110 Corporate Drive in White Marsh, Maryland
from December 2002 to June 2010.
Plaintiff Feldman worked as a CAE at the same call center from
November 1997 to April 2010. During the last 3 to 4 years of
his employment Feldman went to part time status.
Opt-in plaintiff Brandon Alfred worked full-time as a CAE at the
same call center from November 2004 to June 2010. From November
2006 to April 2010 he worked as a CAE in the Customer Advocacy
Group.
2
The title “Customer Account Executive” generally describes
employees who share the common duty of providing service and
support over the phone to current or prospective Comcast
customers.
In addition to handling customer calls, CAEs are
also required to review company emails in order to stay abreast
of new products, services, marketing campaigns and other
updates.
Plaintiffs allege that Comcast failed to pay them and other
similarly situated CAEs for all work performed, including work
performed causing them to accrue more than 40 hours worked in a
week.
Plaintiffs specifically allege that because they were
required to be ready to accept calls at their scheduled start
time, they had to arrive prior to that time in order to boot
their computers, open necessary software applications, and
review important company emails prior to taking calls.
Plaintiffs contend that completing these additional work-related
tasks caused them to work in excess of 40 hours a week, which
entitled them to receive overtime pay.
They allege that
Comcast, however, only paid them for scheduled time worked and
failed to pay them overtime wages in violation of federal law.
In the instant motion, Plaintiffs request that the Court
grant conditional certification for a collective action under
the FLSA and facilitate providing notice of the pendency of this
3
suit to similarly situated Comcast employees.
Plaintiffs’
proposed definition for the FLSA collective class is:
All persons who have been employed in Maryland by Defendant
as hourly employees in customer service, sales, and other
similar positions, that require logging into and out of the
telephone system since August 22, 2007, to the conclusion
of this action, and who have not been paid overtime wages
for all hours worked in excess of forty (40) hours per week
Compl. at 5.
II. DISCUSSION
A. Conditional Certification
Plaintiff seeks conditional certification pursuant to
Section 216(b) of the FLSA, found in Title 29 of the United
States Code.
Section 216(b) prescribes that “an action . . .
may be maintained against any employer . . . in any Federal or
State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and other
employees similarly situated.”
This section establishes an
“opt-in” scheme that allows similarly situated potential
plaintiffs to become a party to a pending FLSA case by
affirmatively notifying the court of their intention to join the
collective action.
Whether to allow an FLSA claim to proceed as a collective
action is a discretionary decision.
Camper v. Home Quality
Mgmt. Inc., 200 F.R.D. 516, 519 (D. Md 2000) (citing Hoffmann-La
Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
4
Allowing a
collective action to proceed “affords plaintiffs >the advantage
of lower individual costs to vindicate rights by the pooling of
resources.=
Furthermore, >the judicial system benefits by
efficient resolution in one proceeding of common issues of law
and fact.=@
Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp.
2d 493, 496 (D.N.J. 2000) (quoting Hoffman-La Roche Inc., 493
U.S. at 170) (internal citation omitted).
When determining whether to grant a conditional
certification for a collective action, courts generally follow a
two-stage process.
As this Court recently explained,
In the first stage, sometimes referred to as the "notice
stage," the court makes a threshold determination of
"whether the plaintiffs have demonstrated that potential
class members are 'similarly situated,'" such that courtfacilitated notice to the putative class members would be
appropriate. Camper v. Home Quality Mgmt., Inc., 200 F.R.D.
516, 519 (D. Md. 2000). In the second stage, following the
conclusion of discovery, "the court engages in a more
stringent inquiry to determine whether the plaintiff class
is [in fact] 'similarly situated' in accordance with the
requirements of § 216, and renders a final decision
regarding the propriety of proceeding as a collective
action." Rawls v. Augustine Home Health Care, Inc., 244
F.R.D. 298, 300 (D. Md. 2007). This second stage, which
typically begins when the defendant files a motion for
decertification, is sometimes referred to as the
"decertification stage." See id.
Syrja v. Westat, Inc., 756 F. Supp. 2d 682, 686 (D. Md. 2010).
Significantly, this initial inquiry is limited to whether class
members are “similarly situated”, and does not require the Court
to make a decision on the merits of Plaintiff’s allegations, nor
to weigh the credibility of the evidence presented thus far.
5
At the first stage, a plaintiff "need only make a modest
factual showing sufficient to demonstrate that they and
potential plaintiffs together were victims of a common policy or
plan that violated the law."3
Roebuck v. Hudson Valley Farms,
Inc., 239 F. Supp. 2d 234 (N.D.N.Y. 2002).
Despite this low
standard, plaintiffs cannot merely stand on the allegations of
their complaint but must make an adequate factual showing.
Marroquin v. Canales, 236 F.R.D. 257, 259 (D. Md. 2006).
burden is “not onerous, but it is also not invisible,”
This
Purdham
v. Fairfax Cty. Pub. Schools, 629 F.Supp. 2d 544, 548 (E.D. Va.
2009) (citation omitted), and “Plaintiffs must submit evidence
establishing at least a colorable basis for their claim that a
class of ‘similarly situated’ plaintiffs exist.”
Severtson v.
Phillips Beverage Co., 137 F.R.D. 264, 266 (D. Minn. 1991).
Plaintiffs have sought to make their modest factual showing
by submitting a number of documents, including declarations made
under penalty of perjury by Plaintiffs Joel Faust, Marshall
Feldman, and opt-in plaintiff Brandon Alfred; copies of Faust
3
Defendant argues that because some discovery has already taken
place the Court should undertake a more rigorous analysis of the
record and require that Plaintiffs meet a higher evidentiary
burden to demonstrate that other employees are similarly
situated to Plaintiffs, essentially collapsing the two stages of
the certification analysis into one. Opp’n at 20. The Court
disagrees because extensive discovery has not taken place; as of
the time of the briefing of this motion the parties had only
engaged in written discovery that was limited in scope to the
named Plaintiffs Faust and Feldman.
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and Feldman’s Comcast time records; emails sent by Comcast
supervisors regarding time keeping; and documents outlining some
of Comcast’s official time keeping policies.
Plaintiffs’ declarations aver that they worked as CAEs in a
Comcast call center located in White Marsh, Maryland and that
they were required to arrive early to login to their computers
and start up certain software programs in order to be
immediately available to take customer calls when their shifts
began.
1, 5.
Faust Decl. ¶ 1, 5; Feldman Decl. ¶ 1, 5; Alfred Decl. ¶
Plaintiffs state that they were not compensated for the
time worked prior to the start of their shifts.
7; Feldman Decl. ¶ 7; Alfred Decl. ¶ 7.
Faust Decl. ¶
They further aver that
though the time keeping systems made it possible to record time
worked in excess of a scheduled shift, doing so would negatively
impact a CAE’s ability to meet performance goals.
Faust Decl. ¶
10 - 13; Feldman Decl. ¶ 10 – 13; Alfred Decl. ¶ 10 – 13.
Finally, Plaintiffs declare that other CAEs were subject to this
same scheme and were encouraged to work “off the clock” without
receiving additional compensation.
Faust Decl. ¶ 16 - 17;
Feldman Decl. ¶ 16 - 17; Alfred Decl. ¶ 16 - 17.
Plaintiffs’ time records support these declarations as they
indicate that for the vast majority of the days worked by Faust
and Feldman the start and end times are all round numbers.
These round numbers exactly correspond to the scheduled shift
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times but seemingly fail to account for the pre-shift work that
Plaintiffs aver took place.
Pls.’ Exs. O and P.
Plaintiffs also submitted copies of several emails.
The
first email, chronologically, was sent on April 10, 2010, by
manager Brian Becker4 to all supervisors overseeing CAEs in the
IP Support group.
This email directed the supervisors to “not
reject time entered for the few minutes a CAE may need to load
their Cisco phones at the beginning of their shift.”
22.
Pls.’ Ex.
Becker’s email also included a link to a “Time Entry &
Payroll Q&A Document” and excerpts from that document, including
a question and answer sequence that indicates CAEs should indeed
record time worked for job duties, such as reading job-related
memos or notices, performed before or after a shift.
Id. at 2.
Plaintiff also included two additional emails sent several
months later, in August 2010, by supervisor Jonathan Anderson to
two different CAEs at the White Marsh call center.5
Both emails
note that the CAE’s adherence rating was below 93%, meaning that
the CAE was not meeting performance goals with regard to
4
Brian Becker is the Manger of Customer Technical Support at the
call center located at 8110 Corporate Drive in White Marsh, MD.
Becker Decl. ¶ 1.
5
One email was sent to CAE Ondrea McClain, Pls.’ Ex. 11, and the
other to CAE Donte Stanley, Pls.’ Ex. 12. Manager Brian Becker
was sent copies of both emails.
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availability to take customer calls during their shift.6
Exs. 11 and 12.
Pls.’
The supervisor suggests that to improve this
rating the CAE should be available and signed in to the phones
starting at the scheduled shift time and to come to work a few
minutes earlier, if necessary, to accomplish this.7
Id.
The
emails do not mention whether or not the CAE would be
compensated for the pre-shift time used to load his or her
computer and necessary software applications.
The Court finds that the documents submitted by Plaintiffs
satisfy their modest burden, but only as to those employees
working at the call center located at 8110 Corporate Drive in
6
A CAE’s performance is measured by a variety of “metrics”
established by Comcast. For many CAEs, the most important
metric is “Schedule Adherence,” which effectively measures the
CAE’s productivity by determining what percentage of the CAE’s
scheduled time he or she is available to take customer calls.
An “Exceptional” score is achieved by having 98% adherence,
“Highly Effective” requires at least 96% adherence and
“Achieves” requires 93% adherence. In order to meet performance
goals a CAE must have at least 93% adherence, meaning that out
of an eight hour work day the CAE may only be “unavailable” to
take calls for a maximum of 33.6 minutes. This unavailable time
includes any paid breaks that CAEs are permitted to take during
their shift. CAEs that work an eight hour shift are also
typically scheduled to take between 30 minutes and one hour for
an unpaid lunch break, but this scheduled break does not impact
the adherence rating.
7
According to CAE Declarations provided by Defendant, the
computer-booting and application-loading process takes anywhere
from two to eight minutes to complete. Budd Decl. ¶ 2; Twyman
Decl. ¶ 3; Brooks Decl. ¶ 5.
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White Marsh, Maryland (“8110 Call Center”),8 whose primary duty
is to perform telephone customer service.9
Plaintiffs have
successfully demonstrated that they are similarly situated to
other CAEs in their call center in so far as they are all
subject to standardized employment policies, a common
compensation scheme, and the same timekeeping mechanisms. The
primary duty for all of these CAEs is to be available to provide
customer service on the phones during their scheduled shift.
To
be prepared to do this, all CAEs must have their computers
booted, must be logged in, and must load necessary software.
The means and order by which this happens may vary by employee,10
but this variation is not enough to undermine the
appropriateness of granting conditional certification.
Furthermore, Plaintiffs have averred that “based on . . .
observations and conversations with [] CAE co-workers, all of
the other CAEs. . . were subject to the same practices [as
Plaintiffs.]”
Feldman Decl. ¶ 17; Faust Decl. ¶ 17; Alfred
8
The Court notes that there are 3 call centers located in White
Marsh, Maryland: 8110 Corporate Drive, 8029 Corporate Drive, and
8031 Corporate Drive. Callahan Decl. ¶ 2.
9
Plaintiffs acknowledge that “any CAE who did not perform
telephone customer service would not be similarly situated.”
Reply at FN 6.
10
For example, some employees do not completely shut down their
computers at the end of their shifts so they will only need to
log back on to be ready to accept calls, while other will need
to boot the computer and load necessary programs. See, e.g.,
Trice Decl. ¶ 5; Hayes Decl. ¶ 7; Wallace Decl. ¶ 5.
10
Decl. ¶ 17.
There is no reason to suspect that Feldman, Faust
and Alfred were singled out and that other employees at this
facility were receiving adequate compensation for work they were
required to complete prior to their scheduled shifts.
Moreover,
the emails sent to two other CAEs in this call center illustrate
that there were indeed others who were encouraged to complete
work prior to the start of their scheduled shifts and who, like
Plaintiffs, may not have been compensated for that time.
This
is sufficient evidence to demonstrate a potentially failed
implementation of Comcast’s policy prohibiting off the clock
work at the 8110 Call Center in violation of FLSA, and as such
Plaintiffs’ modest burden is satisfied.
Notwithstanding, Plaintiffs argue that the class should not
be limited to the 8110 Call Center, but should include CAEs from
all eight Maryland call centers.
This is because, they argue,
all CAEs perform the same basic duties and are subject to the
same company-wide policies, regardless of their physical call
center location.
While the Court acknowledges this may be true,
Plaintiffs have failed to provide any concrete evidence
demonstrating that CAEs in other call centers are similarly
situated in so far as they too have been victims of a failed
implementation of Comcast’s policy prohibiting off the clock
work.
11
This Court similarly limited the scope of an opt-in class
in Camper v. Home Quality Management, Inc., 200 F.R.D. 516 (D.
Md. 2000).
In Camper, Plaintiffs requested that the court
facilitate notice to similarly situated employees working in all
47 nursing home facilities managed by the Defendant.
517.
Id. at
While the Court recognized that the Defendant had a
company-wide policy that potentially violated the FLSA, it
limited the notice class to only those employees working at a
single facility because Plaintiffs only provided deposition
testimony and declarations attesting to company knowledge of
these violations from employees at that single facility.
Id.;
See also Hens v. ClientLogic Operating Corp, No. 05-CV-381S,
2006 WL 2795620, at *5 (W.D.N.Y. Sept. 26, 2006) (despite
company-wide policy to pay overtime, the Court limited the
certified class to employees from only 8 of Defendant’s 52 call
centers because these are the only call centers for which
Plaintiffs made some showing, in the form of declarations from
employees working at these locations, that potential FLSA
violations occurred); Shabazz v. Asurion Ins. Serv., No. 3:070653, 2008 WL 1730318, at *5 (M.D. Tenn. Apr. 10, 2008)
(refusing to grant certification for Houston call center
employees when evidence only speaks to violations at Nashville
locations).
As in Camper, this Court refuses to enlarge the
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opt-in class absent some evidentiary showing of alleged
violations at other Maryland call centers.11
Defendant raises numerous arguments against granting
conditional certification for any class.
It argues, inter alia,
that Plaintiffs have not established an unlawful common policy,
Plaintiffs are not similarly situated to other CAEs, and that
Plaintiffs’ claims are inappropriate for collective action
because they will require individualized inquiries.12
The Court
has satisfied the majority of these concerns by limiting the
opt-in class to only those former and current employees working
at the 8110 Call Center.
11
Plaintiff also argues that the fact that a district court in
Illinois granted statewide Rule 23 class certification to
Comcast employees for the same allegations as are made in the
present case indicates that the practice of denying overtime pay
was a common policy perpetrated company wide and not isolated to
specific call centers. See Kernats v. Comcast Corporation, No.
09-C-3368, 2010 WL 4193219 (N.D. Ill. Oct. 20, 2010). This
Court notes two problems with this argument. One, the Kernats
court was provided with 355,265 records from 3,192 Illinois CAEs
in multiple call centers that indicated a discrepancy between
initial log-in time and scheduled start time, and so had
substantial evidentiary support to justify a finding that
plaintiffs in that case were subject to a common, statewide
policy denying overtime pay. Two, the granting of class
certification is not a decision on the merits, so the employees’
victory in receiving class certification does not prove that
there in fact was a company-wide policy to deny overtime pay or
that such policy extended beyond any single call center.
12
Defendant also argues that granting conditional certification
for Plaintiffs’ FLSA claim is incompatible with Plaintiffs’
pending class action claims. The Court declines to entertain
this argument at this time, however, because Plaintiffs have not
yet sought Rule 23 certification. At such time as they do, the
Court will perform a separate analysis.
13
First, Defendant claims that there is no common unlawful
policy because Comcast has a written policy that strictly
prohibits off the clock work and specifically directs CAEs to
record all time worked, including time spent prior to their
shift loading computers or reviewing company emails.
Plaintiffs
do not dispute that this written policy exists, but allege that
despite this written policy CAEs are encouraged to work off the
clock, are in fact working off the clock with their supervisor’s
knowledge, and are not being properly compensated for that time.
Plaintiffs have provided the modest evidence necessary to
suggest that Comcast’s “official” policy is not being
implemented at the 8110 Call Center and, as such, Comcast cannot
use its written policy as a shield to prevent conditional
certification at this early stage in the litigation.
See
Russell v. Ill. Bell Tel. Co., 757 F.Supp. 2d 930, 935 (N.D.
Ill. 2008) (“the mere fact that a company has a written overtime
policy does not defeat conditional certification when a
plaintiff provides countervailing evidence of a common policy of
not paying for overtime”); see also Burch v. Quest Commc’ns.
Int’l, Inc., 500 F.Supp. 2d 1181, 1188 (D. Minn. 2007) (“at this
early stage of litigation, the mere fact that Qwest has a
written policy [to pay overtime] does not defeat Plaintiffs'
motion in light of Plaintiffs' countervailing evidence of a
centralized policy to not pay overtime”).
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Second, Defendant argues that Plaintiffs are not similarly
situated to each other or to the proposed class because CAEs
work in different departments and have different schedules, job
duties, performance goals, supervisors, and managers.
These
differences are irrelevant, however, because all of the
potential class members, as limited by the Court, share the
common complaint that they were encouraged to work off the clock
but did not receive overtime pay.
The Court acknowledges that
the CAE title is very broad, and so has prescribed that the
class will be limited to CAEs who primarily work on the phones,
and thus have similar job duties and are a subject to similar
performance goals.
Furthermore, the Declarations provided by
Plaintiffs indicate that they performed uncompensated off the
clock work under the supervision of multiple supervisors and
managers, suggesting that this practice is not limited to just
one rogue supervisor but is a call center-wide problem.
Finally, Defendant argues that Plaintiffs’ claims are
inappropriate for collective action because adjudicating the
dispositive issue will require individualized inquiries that
will burden the Court and the parties.
Once again, in making
this argument, Defendant ignores the fact that, at this stage of
the litigation, the only question the Court needs to answer is
whether or not employees in the proposed class are similarly
situated.
Plaintiffs have satisfied their burden by
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demonstrating that there are sufficient common links between the
employees so that notice may be issued to the opt-in class.
Though there are some differences between employees that may
require individualized inquiry, a great deal of discovery will
concentrate on common issues such as Comcast’s time keeping
policies and performance metrics.
Furthermore, much of the
individual inquiry will involve time entry data and log-in data
that is available through Comcast’s computer systems; such
inquiry should not be overly burdensome because it is
electronically available and so can be easily manipulated and
analyzed.
Moreover, courts have regularly granted conditional
certification for these types of classes because some
individualized analysis of class members is inevitable and
cannot be avoided.
Any burden on the parties due to the need to
perform some individualized inquiry is outweighed by the justice
gained in giving aggrieved employees an opportunity to vindicate
their rights by joining together to challenge apparent illegal
policies of their employer; the absence of this type of
collective action would leave most employees powerless to
enforce the law.
For the above reasons, the Court will grant Plaintiffs’
motion in part and conditionally certify the class as limited to
those employees working at the 8110 Call Center whose primary
duty is to perform telephone customer service.
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B. Notice
Along with their motion, Plaintiffs have included a
proposed notice form to be sent to the opt-in class.
23-23.
ECF No.
Defendants argue that the proposed notice is not fair
and accurate and needs to be revised.
Plaintiffs concede that
the notice should be revised to indicate that Comcast denies the
allegations therein.
Reply at 15.
Furthermore, the notice must
be revised to reflect that the Court has granted conditional
certification for a more limited class than requested by
Plaintiffs.
As such, the Court directs the parties to work
together to revise the notice and submit for approval a mutually
agreeable notice to the Court within 14 days of the Court’s
Order.
III. CONCLUSION
For the foregoing reasons, the Court concludes that
Plaintiffs’ Motion for Conditional Certification and to
Facilitate Notice will be granted in part.
Accordingly, the
Court will order Defendant to produce to Plaintiffs’ counsel,
within 14 days, a computer-readable data file containing the
full name and last known residential address13 of each and every
individual who was employed by Defendant from August 22, 2007,
13
Plaintiffs have also requested employee phone numbers but the
Court agrees with Defendant that Plaintiffs have not established
a need for this information, and conclude that names and
addresses should be sufficient to provide notice to the opt-in
class.
17
to the present, at the call center located at 8110 Corporate
Drive in White Marsh, Maryland, as a Customer Account Executive,
whose primary duty is to perform telephone customer service and
who are required to log into and out of the telephone system.
Furthermore, the Court will order that the parties provide a
mutually agreeable Notice form to the Court within 14 days.
separate order will issue.
/s/
William M. Nickerson
Senior United States District Judge
November 1, 2011
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A
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