CHEX SYSTEMS v. MICROBILT CORPORATION

Filing 25

MEMORANDUM OPINION. Signed by Judge Michael A. Shipp on 6/26/2013. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

In re MICROBILT CORP.,
Bankruptcy Action. No. 11-18143 (MBK)
Debtor,

CHEX SYSTEMS, INC.,
Appellant,

v.

ON APPEAL FROM THE
BANKRUPTCY COURT OF THE
DISTRICT OF NEW JERSEY
Civil Action No.12-4132 (MAS)
MEMORANDUM OPINION

MICROBILT CORP.,
Appellee.

SHIPP, District .Judge
I.

Introduction

Appellant Chex Systems, Inc. ("Appellant" or "Chex") appeals an Order entered by the
Bankruptcy Court on May 16, 2012 ("May 16 Order"). That Order memorialized the Bankruptcy
Court's oral opinion issued on April 18, 2012 ("April 18 Opinion"). (APP31-94.) The April 18
Opinion adjudicated two motions (the "Assumption Motions") filed by the Parties, both of which
sought, to different extents, to settle the terms of a Resale Agreement between the Parties and
allow Appellee MicroBilt, Corp. ("Appellee" or "MicroBilt"), to assume a Resale Agreement the
Parties had previously entered. The April 18 Opinion outlined several conclusions: 1) the Resale
Agreement was ambiguous as to the amounts MicroBilt was required to pay Chex for
information it was provided pursuant to the Resale Agreement; 2) due to that ambiguity, the
Bankruptcy Court supplied pricing terms it determined were consistent with the intent of the

Parties; and 3) the Bankruptcy Court found that the allegations of default alleged by Chex were
either not supported by the facts or were immaterial to the Resale Agreement. Chex alleges that
the factual findings of the Bankruptcy Court were clearly erroneous and its legal conclusions
constituted manifest errors of law. After careful consideration, and for the reasons set forth
below, the Court AFFIRMS the findings and determinations of the Bankruptcy Court in part,
REVERSES in part and REMANDS for further proceedings consistent with this Opinion. 1

II.

.Jurisdiction and Standard of Review
United States District Courts have jurisdiction to review appeals "from final judgments,

orders, and decrees ... of bankruptcy judges entered in cases and proceedings referred to the
bankruptcy judges under section 157 of this title." 28 U.S.C. § 158(a)(1-3). The District Court
sits "as an appellate tribunal, appl[ying] a clearly erroneous standard to review the bankruptcy
court's factual findings and a de novo standard to review its conclusions of law." In re Blatstein,
260 B.R. 698, 705 (E.D. Pa. 2001) (citing In re Siciliano, 13 F.3d 748, 750 (3d Cir. 1994)). The
Court is required to "break down mixed questions of law and fact, applying the appropriate
standard to each component." Meridian Bank v. Alten, 958 F.2d 1226, 1229 (3d Cir. 1992)
(citation omitted).
A factual finding "is 'clearly erroneous' when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). If it is
alleged that the bankruptcy court abused its discretionary authority, "the district court may only
1

Chex filed an additional appeal docketed as 12-7293 on November 27, 2012. For the reasons
stated below, that appeal is granted and the determination of the Bankruptcy Court is reversed.
The Court will limit its discussion of this issue and merely note that the unambiguous language
of the Resale Agreement requires that the volume discounts in paragraph three of the Pricing
Attachment only apply to the end uses outlined in the Online Data Pricing Schedule. Pricing for
uses which fall under the Debit Price Schedule (e.g. payday lending, tenant screening) are
controlled solely by the volume pricing scheme in the Debit Price Schedule.
2

determine whether ... the [lower] court's decision rests upon a clearly erroneous finding of fact,
an errant conclusion of law, or an improper application of law to fact." Blatstein, 260 B.R. at 705
(alteration in original) (citing In re Top Grade Sausage, 227 F.3d 123, 125 (3d Cir. 2000);
quoting Int'l Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir. 1987)).

III.

Background
Debtor MicroBilt is a consumer reporting agency that provides information to lenders

that service the non-traditional or alternative lending markets, such as "lenders who make loans
to consumers who have no credit files[,] ... thin credit files or stale credit files." (APP40.)
Typical end users of MicroBilt's product include pay-day lenders, collection agencies, landlords
performing tenant screenings and lenders providing unsecured loans. (APP67.) Pay-day lenders
make up roughly 50 percent of MicroBilt's end users. (APP65.) Chex provides MicroBilt with
information integral to the product that MicroBilt provides to its customers. (APP40.) Without
access to Chex' s information, MicroBilt would not be able to "perform its obligations to its end
user[s]." (/d.)

A.

The Information Resale Agreement

MicroBilt and Chex were parties to a resale agreement which was terminated by Chex in
October 2008. (APP41.) MicroBilt, unable to provide its product to its end users, sued Chex for
wrongful termination. (/d.) That suit culminated in mediation held before the Honorable John M.
Hughes, U.S.M.J. (Ret.), in June 2009. (/d.) That mediation, in tum, resulted in a Memorandum
of Understanding (the "Memorandum") between the Parties and an eventual agreement between
the Parties: the Information Resale Agreement (the "Agreement"). (/d.) The Agreement was
finalized on August 26, 2009. (MicroBilt Br. 13.) Unsurprisingly, the Parties have differing
versions of events that occurred at the mediation and during the negotiation of the Agreement.

3

Those disagreements, and more importantly the Bankruptcy Judge's factual findings
resolving them, are discussed in further detail below. The most basic and uncontroverted facts
about those events and the Agreement are as follows. Prior to the mediation, MicroBilt was more
properly considered a reseller, in whole form, of the information that it acquired from Chex.
(APP41.) During the mediation, MicroBilt made it known to Chex that it intended to use Chex's
data as a component of a new product that was based upon the "FICO Expansion Score," which
it was in the process of purchasing the rights to from Fair Isaac, Inc. 2 (Id.) MicroBilt's new
product would be known as "PRBC with FICO Expansion" (the "Merged Report").
The Agreement contains several attachments, the most important of which is Attachment
1 (the "Pricing Attachment"). (APP1691-93.) The Pricing Attachment states that the information
MicroBilt purchased from Chex "shall only be provided to End Users in the following industries
or markets: [1] pay-day lending; [2] telecommunications; [3] tenant screening; [4] auto loans; [5]
unsecured loans, [6] credit cards, [7] mortgage origination application transactions; and [8] first
and third-party account review and collections." (APP1691.)
The Pricing Attachment also contains two pricing schedules: "1. Debit Report Service
Fees" ("Debit Price Schedule"), and "2. Online Data Royalty" ("Online Data Price Schedule").
(APP 1691-1692.) The prices contained in the two fee schedules are materially different in both
monetary value (price per record) and the manner in which they are calculated (whether
MicroBilt was forced to pay "per inquiry" or "per Matched Record"). (!d.; APP63.) Moreover,
the Online Data Price Schedule enumerates pricing for four of the discrete end user types that
MicroBilt was permitted to sell the information it purchased from Chex to: 1) Mortgage

2

Fair Isaac is the creator and owner of the FICO credit score commonly used by banks and
financial institutions. It changed its name to FICO, Inc. in March 2009. See "Fair Isaac is Now
FICO," available at http://www.fico.com/en/Company/News/Pages/03-10-2009.aspx.
4

Origination, 2) Installment Origination, 3) Credit Card Origination, and 4) Direct to Consumer
Offerings. (APP1692.) The Debit Price Schedule does not contain specific end uses. (APP1691.)
MicroBilt alleges that it sought, and secured, pricing for the information it obtained from
Chex based upon the product in which MicroBilt used the information. (MicroBilt Br. 10.) If
MicroBilt were to resell the information in whole form, the Debit Price Schedule would apply.
(!d. at 10-11.) If MicroBilt were to resell the information as a component of its new product, the

Merged Report, the Online Data Price Schedule, which was based upon the prices that Fair Isaac
had previously paid for Chex's information, would apply regardless of the end user. !d.
Chex alleges that the price would be driven by the identity of the end user that MicroBilt
supplied the information to, regardless of the product or form that MicroBilt sold the
information. (Chex Br. 14.) Specifically, the only times the pricing in the Online Data Pricing
Schedule would apply was when the end user that MicroBilt was supplying engaged in four
distinct activities: 1) Mortgage Origination, 2) Installment Origination, 3) Credit Card
Origination, and 4) Direct to Consumer Offerings. (Chex Br. 21-22.) Otherwise, the Debit
Pricing Schedule would apply. (/d.) The Bankruptcy Court substantially resolved this issue in
favor ofMicroBilt. (APP66-67.) A detailed discussion follows.

B.

MicroBilt's Alleged Default Under the Agreement

Following consummation of the Agreement, Chex sent a series of letters alleging that
MicroBilt was in breach of the Agreement and that it would seek to terminate the Agreement.
(APP43.) Specifically, on November 11, 2010, Chex notified MicroBilt that it was in default of
paragraphs 9, 19(a) and 20(c) of the Agreement due to MicroBilt's "failure to: [1] properly
validate, i.e. credential its end users, [2] provide Chex with end user account records in
accordance with the Chex data contribution policy, and [3] respond to Chex's audit request for
full credentialing files of certain debtor's end users." (ld.) During the course of the proceedings
5

before the Bankruptcy Court, Chex also alleged that MicroBilt was in default regarding a fourth
provision: paragraph 6( c) of the Agreement, which prohibits "use" of information provided by
Chex to end users not located in the United States. (Chex Br. 26; APP80-81; APP123-124.)
The Bankruptcy Court would eventually determine all of these issues in MicroBilt's
favor. First, although MicroBilt was in breach of the duty to provide credentialing information, it
was in a position to cure that default and was ordered to do so? (APP56-57.) Second, regarding
Chex's Data Contribution Policy, the Court found that MicroBilt only needed to provide "fraud
data" to Chex. (APP54-55.) MicroBilt had failed to provide such information but was in a
position to cure that default and was ordered to do so. Third, the Bankruptcy Court "excised" the
audit provision from the Agreement as "not economically significant" to the Parties and
determined that MicroBilt therefore could not be in default. (APP58-60.) Finally, the Bankruptcy
Court determined that MicroBilt was not in breach of Section 6(c) because no "information was
being supplied outside of the United States" and MicroBilt was not providing any data to a
Canadian customer. (APP123.) Rather, MicroBilt was providing the Canadian customer with an
"interpretation of the data." (Id.)

C.

Relevant Procedural History

MicroBilt filed for relief under Chapter 11 of the United States Bankruptcy Code (the
"Code") on March 18, 2011. Chex filed a "Motion to Compel Assumption/Rejection" of the
Agreement on April 5, 2011. (11-18143 Bankruptcy ECF No. 46.) MicroBilt responded with its
own "Motion to Assume" the Agreement on April 21, 2011. (11-18143 Bankruptcy ECF No.
67.) Following briefing on the matter, the Bankruptcy Court held a four day trial on January 2627, 2012, and February 2-3, 2012. (APP36.) The Bankruptcy Court rendered an oral decision on

3

Chex did not appeal this issue.
6

the assumption motions on April 18, 2012. (APP31.) That oral opinion was incorporated into a
written order on May 16, 2012. (APP20.)
Chex filed a motion for reconsideration of the April 18 Opinion on May 1, 2012. (1118143 Bankruptcy ECF No. 419.) That motion was also fully briefed and oral argument occurred
on May 21, 2012. (APP102.) Chex's Motion was denied. (APPlOO.) An order to that effect was
entered on July 7, 2012. (APP99-100.)
Chex filed a Notice of Appeal of the Bankruptcy Court's denial of its Motion to Compel
Assumption/Rejection on July 6, 2012. (ECF No. 1.)

D.

Issues on Appeal

Chex has appealed several issues resolved by the Bankruptcy Court. They are as follows:

1)

The Pricing Attachment- Chex appeals the Bankruptcy Court's factual

findings and legal conclusions regarding the pricing structure utilized in the Agreement. More
specifically, Chex states that the Bankruptcy Court's factual finding that the Parties intended that
the pricing structure to be applied would be driven by the product that MicroBilt sold, rather than
the end user type that MicroBilt was selling its Merged Report to, was clearly erroneous and
unsupported by the record. (Chex Br. 2.) Chex further disagrees with the Bankruptcy Court's
legal determination that, having found that the Parties sought to use the Online Data Price
Schedule anytime MicroBilt used Chex's information as part of the Merged Report, it was
required to insert new prices into the Agreement. (!d.)

2)

MicroBilt's Relationship with a Canadian Customer- Chex contends

that the Bankruptcy Court erred when it concluded that MicroBilt was not in default under the
Agreement even though MicroBilt was reselling "information" procured from Chex to Northway
Brokers, LTD ("Northway"), a Canadian customer, under Section 6(c) of the Agreement. (!d. at
3.) This issue includes both a legal and factual component. First, the Bankruptcy Court was
7

required to factually determine what was being sold to Northway. Second, it was required to
legally determine whether the product/information being sold to Northway breached the
Agreement. Chex contends both of the Bankruptcy Court's conclusions were erroneous. (/d.)

3)
-

The Bankruptcy Court's Conclusion Regarding the Audit Provision

Chex appeals the Bankruptcy Court's legal determination that the audit provision in Section

20 of the Agreement was not "economically significant" to the Parties and should be excised
from the Agreement. (ld.)

4)

The Bankruptcy Court's Conclusion Regarding Chex's Data

Contribution Policy- Chex appeals the Bankruptcy Court's determination that the Agreement
only required MicroBilt to provide "fraud data" associated with end user account records, rather
than provide the entire end user account record. (/d. at 3-4.)

IV.

Legal Standard for a Motion to Assume Executory Contract
Section 365(a) of the Bankruptcy Code (the "Code") states that a trustee "may assume or

reject any executory contract ... of the debtor." 11 U.S.C. § 365(a). Section 365 "allows the
trustee to maximize the value of the debtor's estate by assuming executory contracts . . . that
benefit the estate and rejecting those that do not." In re Fleming Cos., Inc., 499 F.3d 300, 304
(3d Cir. 2007) (citing Cinicola v. Scharffenberger, 248 F.3d 110, 119 (3d Cir. 2001)) (internal
quotation marks omitted). An executory contract may not be assumed until the debtor/trustee:
"(1) cures or provides adequate assurance that it will promptly cure the default; (2) compensates
or provides adequate assurance of prompt future compensation for actual pecuniary loss resulting
from the default; and (3) provides adequate assurance of future performance under the contract
or lease." In re Rickel Home Ctrs., Inc., 209 F.3d 291, 298 (3d Cir. 2000) (citing 11 U.S.C. §
365(b)(1)). A bankruptcy court authorizing assumptions of executory contracts must be sensitive
to the rights of the non-debtor contracting party and the policy requiring that the non-debtor
8

receive the full benefit of his bargain. In re Joshua Slocum Ltd., 922 F.2d 1081, 1091 (3d Cir.
1990).
Although "the bankruptcy court has discretion to excise or waive a bargained-for element
of a contract ... [,] the modification of a contracting party's rights is not to be taken lightly."

Fleming Cos., 499 F.3d at 305 (citing (quotation marks omitted); Joshua Slocum, 922 F.2d at
1091.

V.

Guiding Principles of Contract Interpretation
The Parties agree that Delaware law controls the interpretation of the Agreement. (See

Chex Br. 30; MicroBilt Br. 37.) A contract is "ambiguous" only when "the provisions in
controversy are reasonably or fairly susceptible of different interpretations or may have two or
more different meanings." Haft v. Dart Grp. Corp., 841 F. Supp. 549, 565 (D. Del. 1993)
(quoting Rhone-Poulenc v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992)). Any
judicial interpretation of the Agreement must seek to effectuate the mutual understanding of the
Parties at the time the Agreement was entered into and consistent with the terms of the
Agreement. See Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del.
1997) ("When the provisions in controversy are fairly susceptible of different interpretations or
may have two or more different meanings, there is ambiguity. Then the interpreting court must
look beyond the language of the contract to ascertain the parties' intentions."). When the
language of the Agreement is unambiguous, it is controlling. !d. "Delaware follows the wellestablished principle that in construing a contract a court cannot in effect rewrite it or supply
omitted provisions." Rockwell v. Rockwell, 681 A.2d 1017, 1021 (Del. 1996) (quoting Gertrude
L.Q. v. Stephen P.Q., 466 A.2d 1213, 1217 (Del. 1983)). It is not the duty of the Court to make a

better contract for the Parties than the express language of the Agreement provides. James v.

9

Getty Oil Co. (E. Operations), Inc., 472 A.2d 33, 39 (Del. Super. 1983) (citing Hajoca Corp. v.
Sec. Trust Co., 25 A.2d 378, 383 (Del. Super. 1942)).

VI.

Analysis
A.

The Bankruptcy Court's Pricing Structure Determinations are Reversed
1)

The Bankruptcy Court's Findings

Chex appeals the findings of the Bankruptcy Court regarding the pricing structure
contained in the Agreement. Critical to the Court's analysis of the issues presented on the appeal
is the applicable standard of review. As noted above, the Bankruptcy Court's factual
determinations are reviewed for "clear error" and its legal conclusions are reviewed de novo.

Blatstein, 260 B.R. at 705. Chex alleges that the "Bankruptcy Court Committed a Manifest Error
of Law When It Concluded that It Needed to Imply Prices into Attachment 1." (Chex Br. 31.)
Critical to the Bankruptcy Court's determination that it was required to insert pricing terms into
the Agreement were two erroneous factual conclusions: 1) that Chex sold two products to
MicroBilt, and 2) that the type of product MicroBilt used Chex's data in determined which
pricing structure applied. (APP66-67 .)
The Bankruptcy Court, in its April18 Opinion, found that:
To the extent MicroBilt utilizes and purchases debit reports, it is clear that, under
Attachment 1, the pricing in [the Debit Price Schedule] ... must apply. However,
to the extent MicroBilt is not purchasing that product, a debit report, the pricing
from [the Online Data Pricing Schedule] with respect to online data royalties
would apply and the Court finds that it's the parties' intent to utilize to the extent
possible the pricing table contained in [the Online Data Pricing Schedule].
(/d.)

This finding indicates that, at least for purposes of the April 18 Opinion, the Bankruptcy
Court thought the nature of the product sold to MicroBilt, rather than the end user, was the factor
which the Parties intended to determine pricing. Because the pricing schedule for the Online
10

Data Pricing Schedule did not include pricing for several types of end users, the Bankruptcy
Court was left "the unenviable task of supplying an omitted term to try to honor the parties'
reasonable expectation with respect" to the prices to be charged for the end users not specifically
listed in the Online Data Pricing Schedule. (APP67.) The Bankruptcy Court, pursuant to its
equitable powers, then determined the prices Chex was to charge MicroBilt when the end user
was a payday lender, collections agency, tenant screener or a lender offering unsecured loans.
(/d.)

The matter was explored more fully during oral argument on Chex's motion for
reconsideration4 of the April 18 Opinion. There, Chex and the Bankruptcy Court had the
following lengthy colloquy:

Chex: Your Honor ruled that where [MicroBilt] was purchasing debit report it
had to pay the price that was in [the Debit Price Schedule] ... [a]nd then if there
were other sales of other information ... it should be charged the pricing in [the
Online Data Price Schedule]. Your Honor, we think that Your Honor's ruling
would nullify [the Online Data Price Schedule] because we don't sell anything
other than debit report.

Bankruptcy Court: Well, let me ask a question, then ... [w]hen would [the
Online Data Price Schedule] come into play?

Chex: [The Online Data Price Schedule] would come into play specifically when
the debit report was utilized for those specific uses [ 1) Mortgage Origination,
2) Installment Origination, 3) Credit Card Origination, and 4) Direct to Consumer
Offerings] that were outlined in [the Online Data Price Schedule].

Bankruptcy Court: If what you're saying is [the Online Data Pricing Schedule]
still applies to debit report, ... why have it ... under a separate heading called
online data royalty? Why wouldn't it just be under [the Debit Price Schedule]?
Why are there two paragraphs?

4

The Court chooses to cite to the Motion for Reconsideration Hearing because it more clearly
evinces the factual and legal reasoning of the Bankruptcy Court, as opposed to the April 18
Opinion, which did not cite the record.
11

Chex: Well, Your Honor, I think that's addressed by even Your Honor's notation
[in the April 18 Opinion] that [the pricing structure in the Agreement] was
sloppily cut from the FICO contract and just dumped into this contract.

Bankruptcy Court: What end user ... would not qualify for [the Online Data
Pricing Schedule] but for [the Debit Price Schedule]? What type of user?
Chex: Any end user that was not otherwise a mortgage originator, a credit card
originator, or an installment loan originator [and we] ... would essentially write
out directed consumer offerings.

Bankruptcy Court: So, for clarification, Chex's position is that the [Online Data
Pricing Schedule] is not meant to apply to any of the uses ... that are reflected in
the general paragraph that appears under resale limitations, in other words,
telecommunications, payday lending, auto loans ... that would all be [covered by
the Debit Price Schedule]?
Chex: That's correct ... again, it's important because the debtor only purchases
debit report.

Chex: So really what we're left with is well, where does payday loan fall? ...
The only codes that debtor submitted were account review, debit/credit issuance,
collections. Your Honor ... those codes specifically track to a general usage of
the debit report and fall within [the Debit Price Schedule] .... With that, Your
Honor, there was really no need for Your Honor to undertake the unenviable
task[,] as Your Honor put it[,] to identify additional prices because the parties did
not forget to include pricing. In fact, Your Honor, Chex's position all along as
confirmed by Mr. Bjerke, [is that] where ... the debtor was purchasing a debit
report for those specific uses that are outlined in [the Online Data Pricing
Schedule], mortgage origination, installment loan origination, installment loan
origination, credit card issuance, that they would receive the reduced pricing.
Otherwise they received the pricing that is [in the Debit Price Schedule].

Bankruptcy Court: Does Chex sell consumer report information apart from debit
report?
Chex: It does not, Your Honor.

Bankruptcy Court: Then why is [the Online Data Pricing Schedule] there?
12

Chex: [T]hat's a very good question, Your Honor.

(APP107-110.)

Bankruptcy Court: [D]o other resellers purchase and resell the debit report in
total?
Chex: Yes. They all do.

Bankruptcy Court: Complete without any additions?
Chex: Oh, I don't know. We don't know Your Honor. That's ... really irrelevant
to us [as long as] it's used according to FCRA purposes -what they do with it
after they get it doesn't really matter to us other than to make sure it's being
priced the right way .... Again, if they're using it for a credit card issuance or a
mortgage origination or an installment loan and they properly code it to use that
way, they would get the pricing in [the Online Data Pricing Schedule]. Otherwise
they get the pricing in [the Debit Price Schedule] ....

(APP112.)

Bankruptcy Court: Let me ask another question.
Chex: Yes, Your Honor.

Bankruptcy Court: I think the parties and counsel could tell that I struggle with
reading these documents.
Chex: I appreciate that, Your Honor. We struggled with it unfortunately I think
longer than Your Honor.

Bankruptcy Court: Yes you have .... [W]hat is an online data request and how
does that differ from a debit report?
Chex: It- it doesn't, Your Honor. And unfortunately ... this was a situation
where [the Parties] cut a section of [the CHEX/FICO contract] that was written
differently than this resale agreement and dumped it into this resale agreement.
Your Honor, we've only ever sold debit report.

(APP113-14.)
The Bankruptcy Court also engaged in a colloquy with counsel for MicroBilt. MicroBilt
argued that the Bankruptcy Court's previous opinion, which found that it was MicroBilt's intent,
as well as the Parties', to utilize the Online Data Pricing Schedule once MicroBilt had begun
13

selling the Merged Report, was reasonable. (APP116, 55:17-56:23; APP117 59:21-60:9.) The
following is also telling:
Bankruptcy Court: And since ultimately the Court had to determine the intent
of the parties underlying the agreement, Chex's position is we sold debit report.
Debit report consists of online data attribute information. What MicroBilt did with
it, whether they sold it in toto or cherry picked certain items, [is] irrelevant to us
.... Why should they care? In going into that negotiation, why would they have
cared what you did with it?
MicroBilt: First no witness said that. Second, they should care because when we
reach our deal, we tell them we're buying the ... online data royalty. We're
paying more. We're going to put your information in the [Merged Report] which
has [other outside information and] judgments that we have to pay for ... [s]o
we're going to make a deal with you to get this better pricing so we make the
money that we want to make going forward.

MicroBilt: What they did was sign off on [the Agreement] and then sent many
emails [that] we point to [in] our papers. [Chex's internal emails say MicroBilt]
got this more favorable pricing. [Chex is] going to take a revenue hit. This is bad
news ...

MicroBilt: When [the product] leaves MicroBilt, that's what's crucial and that
was what the parties intend[ ed] would drive the pricing.

(APP118-APP119)
Regarding the issue of what motivated the Parties during the negotiation of the
Agreement, the following exchange occurred between the Bankruptcy Court and counsel for
Chex:
Bankruptcy Court: [A]s part of the negotiation [MicroBilt] went to Chex to say
we can't afford simply to pay for an entire report because we're purchasing other
information from other vendors and including this into our own report and we're
going to have increased volume and because of that volume we need to pay less.
Is that a reasonable interpretation of what went on?
Chex: Your Honor, it would be if there was any testimony of that fact.

14

Chex: What they told Chex was - and this is the testimony that is in the record.
We are going to buy FICO Expansion Score. We want to have the same pricing
that FICO has. And the testimony of Mr. Bjerke and Mr. Wilhelm was very clear
and consistent on that. Yes, if you're using it for the FICO reasons, the specific
reasons that are in the [Agreement], you can have that pricing, otherwise you pay
the other pricing [in the Debit Price Schedule].
(APP120, 71:7-72:15.)
Following the above excerpted colloquies, the Bankruptcy Court affirmed the findings in
its April18 Opinion and held the following:

Bankruptcy Court: [C]learly there are inconsistencies in the Court's view and
ambiguity making the agreement difficult to apply in an even and fair manner as
what the Court believes the intent of the parties were.

Bankruptcy Court: For the information resale agreement to make sense to the
Court, [the Online Data Pricing Schedule], must differ from the [Debit Price
Schedule] and must apply in different situations. The court reads this agreement
as being an agreement for the resale of information. Information is the product.
The product comes in two forms, a debit report and consumer report
information.
I understand Chex' s argument that debit report is a subset of consumer report
information. The only support for that lay in the fact that it's indented a few
spaces to the right under consumer report information. And frankly I'm not sure
of statutory interpretative support where we look to spacing as a canon - of any
type of construction.
It's to this Court clear that there are two different types of products that fall within
[the] information to be sold, a consumer report and a debit report with pricing for
the debit report reflected in [the Debit Price Schedule] and pricing for other
consumer report information in [the Online Data Pricing Schedule]. Other
[consumer report] information being online data that doesn't fall within the debit
report.

It is this Court's best effort to interpret this agreement consistent with the intent of

the parties that I reach this [conclusion]. Certainly, it makes no sense to the Court
for the online data royalty to be simply a subset of the debit report for that would
have been - that whole section would have been included in one section. There
would have been no need to break out the pricing into a debit report and an online
15

data royalty. The whole structure of the agreement would not make sense for there
to - for it to proceed along with the arguments suggested by Chex. I do not find
that this Court made any clear error of law or fact or that there is any manifest
error to correct in its prior decision.
For [the] sake of clarity I'll just reiterate ... the pricing for the debit report when
that product is sold without modification, addition, or change to an end user . . .
should be charged at the [rates in the Debit Price Schedule] per inquiry based on
volume. When that information is cherry picked and purchased and then
incorporated into a new product such as the [Merged Report] ... the pricing in the
[Online Data Pricing Schedule] will apply consistent with the Court's
determination of the past.
(APP122-APP123) (emphasis added).

2)

Discussion

The Bankruptcy Court was confronted with two choices regarding the intent behind the
drafting of the agreement. On one hand, Chex argued, and continues to argue, that the two
pricing structures existed so that additional end uses of its information could be priced according
to the prices it provided to Fair Issac. Essentially, once MicroBilt began to issue the Merged
Report, an expanded set of end uses would be available to MicroBilt and use of the debit report
information for those end uses would be priced accordingly.
On the other hand, MicroBilt argues that the Agreement was based upon a temporal
understanding of how MicroBilt would be using the information. At the time the Parties entered
into the Agreement, and the Merged Report was not yet being sold, the Debit Price Schedule
would apply. Once MicroBilt began selling the Merged Report, however, only the Online Data
Pricing Schedule would apply because, in MicroBilt' s opinion, that was the pricing schedule that
Fair Issac had obtained from Chex. 5 MicroBilt argued that, as the new purveyor of the FICO

5

During the Motion for Reconsideration Hearing counsel for MicroBilt indicated that some
small percentage of MicroBilt's customers continued to purchase debit report in the raw form,
not the Merged Report. (APP119, 63:18-24.) The price MicroBilt was obligated to pay in those
instances was not discussed at length.
16

Expansion via the Merged Report, it was entitled to those same rates and that the Parties agreed
to such.
Each proposed interpretation fails to fully mesh with the structure and terms of the
Agreement and the Pricing attachment. The Bankruptcy Court adopted MicroBilt's reasoning.
This conclusion was a finding of fact and the Court is bound to uphold that determination unless
it is clearly erroneous. The Court may not simply substitute its judgment in lieu of the
Bankruptcy Court. However, the Court must overturn a factual determination when it is "left
with the definite and firm conviction that a mistake has been committed." U.S. Gypsum Co., 333
U.S. at 395. This is one of those instances. After a thorough review of the record, including the
testimony before the Bankruptcy Court, the Court has concluded that the pricing terms in the
Online Data Pricing Schedule only apply when the end user is engaged in the activities listed in
the Online Data Pricing Schedule. All other activities not specifically enumerated in the Online
Data Pricing Schedule are covered by the Debit Price Schedule.
The Bankruptcy Court made several factual determinations in its April 18 Opinion that
need to be addressed. First, and as also discussed at length in the colloquy above, the Bankruptcy
Court concluded that Chex sold its product to MicroBilt in "two forms, a debit report and
consumer report information." (APP122, 81:3-5.) That conclusion is incorrect. Second, and
directly related to the first determination, the Bankruptcy Court concluded that the applicable
pricing schedule was determined by the eventual form in which MicroBilt sold the information it
purchased from Chex. (APP123, 83:6-84:6.) That conclusion was also incorrect.
Regarding the first conclusion-whether Chex sold two products to MicroBilt-recourse
beyond the face of the Agreement and Pricing Attachment is not required. Chex sold one product
to MicroBilt: Debit Report. The Pricing Attachment clearly indicates such. (See APP1691.)
There is no need to consult a statutory canon of construction to reasonably, and solely, infer from
17

the layout of the Pricing Attachment that the Debit Report was the sole product being sold due to
the way it was nested below the "Information" and "Consumer Report Information." This is
especially the case when the Pricing Attachment is read in conjunction and consistently with the
Memorandum and Agreement in general.
Regarding the second conclusion-that the Online Data Pricing Schedule would apply
once MicroBilt began selling the Merged Report-in sum, the four days of testimony heard by
the Bankruptcy Court did not support the conclusion that the Parties intended to have a new
pricing structure apply once MicroBilt began selling the Merged Report. Although the Pricing
Attachment has some level of ambiguity due to its admittedly poor drafting, there is little reason
evident in the Pricing Attachment to even inquire into the "intent" of the Parties. Simply stated,
if the Parties had intended for the pricing schedules to be temporally based (or, based upon
which product MicroBilt was selling, i.e. merely reselling debit report compared to selling the
Merged Report), there would have been some indication of such in the Agreement or Pricing
Attachment. The Agreement is devoid of anything that indicates that the product that MicroBilt
was selling would dictate the prices. Although, as noted by both parties, the Agreement allowed

for the resale of the information MicroBilt purchased from Chex to be resold in whole or
modified form, 6 there is simply nothing in the Agreement that indicated that the Parties intended
the form of that product to be dispositive of the pricing. In fact, the face of the Agreement and
Pricing Attachment much more clearly align, on their face, with Chex's proposed interpretation
of the documents: the Debit Price Schedule pricing would apply unless the specific end-users of
MicroBilt's product were using the Merged Report for 1) mortgage origination, 2) installment
loan origination, 3) credit card origination, or 4) direct to consumer offerings.

6

See APP1681 § 2(c).

18

Moreover, the presence of the reporting codes is persuasive evidence that the identity of
the end-user of Chex's information was dispositive of the pricing issue. Although the Parties,
both in their briefs and during oral argument, disputed the extent to which the existence of the
codes informed an analysis of which pricing structure applied, the Court believes Chex has the
stronger argument. Chex's Debit Report Cornrn Specs list five relevant codes: CZ (Credit Card
Issuance), DC (Debit/Credit Issuance), II (Installment Loan Issuance), MI (Mortgage Loan
Issuance), and TS (Tenant Screening). (APP2035-2036.) Those codes provide a method by
which MicroBilt can indicate the end-user of the Merged Report. In fact, three of those codes
correspond with uses listed in the Online Data Pricing Schedule. The other two codes, DC and
TS, seemingly cover uses covered in the Debit Price Schedule. The reasonable inference from
the presence of these codes, while not dispositive to the Court's ruling, is that they existed to
identify MicroBilt's end user of Chex's information for billing purposes. Furthermore, and
contrary to MicroBilt' s contentions otherwise, the Court does not find support in the record that
indicates the codes existed solely for purposes of determining that end uses of Chex's
information comported with the Fair Credit Reporting Act. Moreover, the record reveals that the
Parties were aware of the codes and used them to signify the end user to which MicroBilt was
reselling Chex's information. (See APP2316-2317.)
Accordingly, the Bankruptcy Court's determinations regarding the pricing structures are
reversed and the matter is remanded for proceedings consistent with these findings. The
Bankruptcy Court's decision to insert additional pricing terms into the Agreement is reversed as
moot in light of the Court's determination of this issue.

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B.

The Bankruptcy Court's Determination Regarding Northway is Reversed
1)

The Bankruptcy Court's Determination

Chex appeals the Bankruptcy Court's conclusion that MicroBilt had not breached Section
6(c) of the Agreement when it provided services to Northway, a customer located in Canada.
Section 6(c) states that MicroBilt:
[M]ay only provide the Information for use by End Users in markets located in
the fifty (50) states of the United States of America and its territories, and in no
event shall Information be provided, used, disclosed, transmitted, or accessed in
any other way outside of the fifty (50) states of the United States of America.
(APP1684 § 6(c).)
The Bankruptcy Court made the following finding in its April18 Opinion:
My understanding -- and I am accepting the debtor's position that there are no
products delivered outside of the Continental U.S .... I don't know factually. I
can't point to the record to determine if that's accurate or not. So, let me put that
aside and I'll be glad to address it ... at the follow-up hearing ....
(APP81:4-6, 14-17.)
The issue was further elaborated upon at the hearing for Chex' s Motion for
Reconsideration. There, the Bankruptcy Court held that:
I am opting against accepting Chex['s] reading of the contract [regarding the
Northway issue]. To the extent a score is given, a decision is given by Microbilt
to its customer and [no] information is being supplied outside of the United
States, then there is no breach of the underlying agreement. It is only if data is
being provided that has been purchased from Chex and that underlying data -- not
any interpretation of the data or analysis of the data is being sold to an end user,
there would be a breach of the underlying resale agreement.
(APP123 84:7-21.)
In essence, the Bankruptcy Court concluded that the Agreement only prohibited the sale
of the raw information supplied by Chex and not to a manipulated or massaged version of that
data. Because MicroBilt provided Northway with a score which was only based upon the

20

information it received from Chex, rather than passing along the raw data, the Bankruptcy Court
concluded that MicroBilt has not breached Section 6(c).

2)

The Parties' Positions

Chex argues that the Bankruptcy Court made a legal error when it concluded that Section
6(c) would only be breached when MicroBilt supplied Northway with raw information obtained
from Chex. Rather, Chex argues that "§ 6(c) of the Resale Agreement prohibits the use of
consumer information outside the United States of America, not the mere provision [of consumer
information]." (Chex Br. 44.) The use of that information, as part of the decision/score that
MicroBilt provides to Northway, is allegedly "a clear default of § 6(c) [of] the Resale
Agreement." (/d. at 45.)
MicroBilt contends that the only testimony adduced at trial indicated that Northway did
not gain any access to the information supplied by Chex and that "MicroBilt in effect delivers
'only a decision,' a 'yes or no,' to Northway Brokers." (MicroBilt Br. 44.) MicroBilt reads
Section 6(c) as only being breached when the information supplied by Chex, i.e. "whether a
customer has made good on a check, a customer's checking account history," is provided to
Northway. (/d. at 45.) Because no such access is afforded to Northway, Section 6(c) has
allegedly not been violated.

3)

Discussion

MicroBilt is in breach of Section 6(c). Although the trial testimony does state that
Northway is only provided with a yes/no answer regarding a credit decision it should make, that
yes/no decision is directly informed by Chex's information. Section 6(c) states that "in no event
shall Information be provided, used, disclosed, transmitted, or accessed in any other way outside
of the fifty (50) states of the United States of America." Chex's information was used as part of
the matrix of information relied upon by MicroBilt to generate the decision provided to
21

Northway. MicroBilt admitted as much during the trial. (APP404, 119:1-9.) An extended
analysis need not be performed. The express language of Section 6(c) is unambiguous and
MicroB ilt has breached it due to the fact that it uses Chex' s information as part of the mechanism
by which it supplies a decision to Northway. The contrary conclusion of the Bankruptcy Court is
reversed.

C.

The Bankruptcy Court's Decision Regarding Section 20(A) is Reversed
1)

The Bankruptcy Court's Determination

Section 20 of the Agreement is titled "Audit" and has three subsections. Subsection (a)
states, in relevant part, that MicroBilt was to retain a certain auditor to "conduct an annual audit
of [MicroBilt's] internal controls related to [MicroBilt's] compliance with the terms of [the]
Agreement, including, but not limited to, Sections: 1, 2, 4, 5, 6, 7, 8, 9, 10, 17, 19, 25 and 31
hereof." (APP1687.) Subsection (a) further states: "[t]he results of all audits submitted to Chex
must clearly indicate that [MicroBilt] is operating in compliance with the terms of the
Agreement, each specific instance of breach must be noted." (ld.) Subsection (b) relates to
suspension and/or termination of the Agreement for failure to comply with the Audit or its
findings. (ld.) Subsection (c) regards Chex's right to seek credentialing information from
MicroBilt about MicroBilt's "Sales Agents and/or End Users." (APP1688.)
The Bankruptcy Court, relying upon Fleming Companies and Joshua Slocum, supra,
determined that MicroBilt's breach of the audit requirement in Section 20(a) of the Agreement
was not "economically significant" or "integral to the bargain struck between the parties .... "
(APP59-60.) The Bankruptcy Court was especially concerned with the manner in which§ 20(a)
allowed for the "auditor to determine compliance or breach" of the Agreement. (APP60.) The
Bankruptcy Court stated that "it is not the role of the auditors to reach legal conclusions," as that

22

role belonged to the Court. (APP59.) As such, the Bankruptcy Court excised Section 20(a)'s
requirements going forward. (APP60.)

2)

The Parties' Positions

Chex maintains that Section 20(a) is material to the Agreement and was improperly
excised by the Bankruptcy Court. (Chex Br. 45.) That materiality, in Chex's opinion, is
demonstrated by the fact that "the requirement of an annual audit was specifically noted in the
Mandatory Material Terms [agreed to at the mediation], was specifically negotiated in the
[Memorandum], and was specifically negotiated in the [Agreement]." (/d. at 45-46.) Moreover,
Chex states that Mark Wilhelm's testimony demonstrates that Section 20(a) "was insisted upon
by Chex because of various concerns Chex had with [MicroBilt's] compliance with the [prior
agreement between the Parties]." (/d. at 46.) The conclusion of the Bankruptcy Court that
Section 20(a) was "not economically significant or material to Chex," in its opinion, was "not
supported by any citation to the record and has absolutely no factual basis." (Id at 47.) As such,
"the Bankruptcy Court's finding is clearly erroneous and the conclusion based thereon
[constituted] reversible error." (/d.)
MicroBilt disagrees with Chex's arguments and states that "the overwhelming evidence
at trial demonstrated that the provision at issue was neither material nor economically significant
to the bargain struck between Chex and MicroBilt." (MicroBilt Opp'n 46.) This is allegedly the
case because "Chex never objected to the audit submitted by MicroBilt in connection with the
year 2010 (which was from the same auditor and similarly did not contain a statement that
MicroBilt was not in breach of the Agreement), suggesting that, indeed, Chex did not see the
value in [Section 20(a)]." (MicroBilt Opp'n 47.) MicroBilt further argues that Section 20(a) has
no "value" because it "requires an accountant, who is neither a judge nor an attorney, to declare
whether a party is in breach of a contract." (/d.) Finally, MicroBilt considers Chex's attempt to

23

retain Section 20(a) as part of Chex's continuing efforts "to manufacture default on MicroBilt's
part." (/d.)

3)

Discussion

The Third Circuit has stated that a provision is "material" to a contract, and should not be
lightly excised by a bankruptcy court, when it "goes to the very essence of the contract, i.e., the
bargained for exchange." Joshua Slocum Ltd., 922 F.2d at 1092. "[M]ateriality and economic
significance" are implicated when the provision in question implicates an interest which would
affect a party's "fundamental [decision] to remain in or end a contractual relationship." /d. For
example, in Joshua Slocum, the provision at issue gave a landlord the right to terminate a lease if
the tenant was not generating revenue above a certain amount. /d. at 1084. The Third Circuit
found that this provision was improperly excised by the bankruptcy court because it "govem[ed]
occupancy." /d. at 1091. Excision of such a provision ran afoul of the policy that assumption of a
contract should not run roughshod over the rights of the non-debtor to receive "the full benefit of
his or her bargain" with the debtor. (/d.)
Similarly, in Fleming Companies, and based upon the rationale of Joshua Slocum, the
Third Circuit upheld a bankruptcy court's decision to deny a trustee's request to excise a
provision which required that the debtor (and its eventual assignee) supply groceries to the nondebtor from a certain location. Fleming Cos., 499 F.3d at 302. The Fleming Companies court
noted"§ 365's attempt to strike a balance between two sometimes competing interests, the right
of the contracting nondebtor to get the performance it bargained for and the right of the debtor's
creditors to get the benefit of the debtor's bargain." /d. at 306 (quoting In re Carlisle Homes,

Inc., 103 B.R. 524, 538 (Bankr. D.N.J. 1988)) (internal quotation marks omitted). It further
stated that economic materiality should not be the only issue considered by the bankruptcy court.
/d. "Rather, the focus is rightly placed on the importance of the term within the overall

24

bargained-for exchange; that is, whether the term is integral to the bargain struck between the
parties (its materiality) and whether performance of that term gives a party the full benefit of his
bargain (its economic significance)." Id. (citing Joshua Slocum, 922 F.2d at 1092.) The court
gave, as examples of terms and provisions which should not be excised, a "right of first refusal"
and a "time is of the essence clause." /d. (citing In re E-Z Convenience Stores, Inc., 289 B.R. 45,
51-52 (Bankr. M.D.N.C. 2003); In re New Breed Realty Enter. Inc., 278 B.R. 314, 324-25
(Bankr. E.D.N.Y. 2002)).
In the case at bar, and based upon the rationale of Joshua Slocum and Fleming

Companies and the facts presented during the trial in front of the Bankruptcy Court, the Court
concludes that Section 20(a) is material, economically significant and integral to Chex's benefit
of the bargain it struck with MicroBilt. The Court has concluded that, similar to the provisions
examined in Joshua Slocum and Fleming Companies, Section 20(a) directly impacted Chex's
decision to enter into the Agreement.
Several issues must be addressed. First, and contrary to MicroBilt's arguments otherwise,
Mark Wilhelm's testimony indicates that Chex viewed the audit provision as an important aspect
of its agreement to remain in a relationship with MicroBilt. (See APP527). The record does not
reveal any reason to doubt Mr. Wilhelm's credibility. Nor did the Bankruptcy Court indicate that
it doubted his credibility on this issue. Second, the fact that the auditor was responsible for
bringing any failings in MicroBilt's performance to Chex's attention, and alerting Chex to a
possible instance of breach, does not usurp the role of any court or judicial body. For example, it
would be implausible for anyone to state that Chex, acting alone and based upon its own
observations, would be barred from determining that MicroBilt was not performing pursuant to
the Agreement. There is no material difference when that observational capability is transferred
to an auditor. No legal determination flows from the audit. It is merely a tool for Chex to
25

determine if MicroBilt is performing under the Agreement. Third, Chex' s argument that the audit
provision was located in the Memorandum and Mandatory Material Terms is persuasive. The
Agreement contains a multitude of provisions, only some of which are reflected in the
Memorandum and Mandatory Material Terms. (See APP1753.) Inclusion of the audit provision
in those documents, which were directly negotiated during the Mediation, is a strong indication
that Chex viewed the audit provision as critical to its ability to obtain the benefit of its bargain.
The ruling of the Bankruptcy Court excising Section 20(a) is therefore reversed.

D.

The Bankruptcy Court's Conclusion Regarding Data Contribution is
Affirmed
1)

The Bankruptcy Court's Determination

Section 19(a) of the Agreement states:
To the extent possible, [MicroBilt] agrees to make available to Chex at mutually
agreeable time, but not less often than quarterly, and in a mutually agreeable
format, certain End User account records as specified in, and in accordance with
Chex's Data Contribution Policy.

Failure to contribute fraud data under this Agreement where it is technologically
possible for [MicroBilt] to do so shall be considered a material breach of the
Agreement and require thirty (30) days prior written notice by Chex, affording
[MicroBilt] an opportunity to cure during said period prior to termination, if any.
(APP1687, § 19(a) (emphasis added).)
The Bankruptcy Court determined that the "parties' intent as expressed in the
[Agreement], specifically [Section] 19(a), was that MicroBilt will contribute fraudulent check
data to Chex and not that MicroBilt will be required to provide its entire database or other dataor another form of data contribution." (APP52.) The Bankruptcy Court based this determination
on a finding that: "[t]here is no evidence before the [Bankruptcy Court] that the parties intended
that the data contribution policy could be modified [to require] MicroBilt to contribute its entire
26

proprietary database of consumer reports which contains information falling well outside of the
check-related [fraud] data." (APP54.) "Rather, the [Bankruptcy Court] agree[d] with the position
of MicroBilt that [Section 19(a)] could only have meant that when technology changes occur,
Chex could modify its data contribution policy to require MicroBilt to provide data in an updated
format compatible with those changes." (/d.) As such, the Bankruptcy Court held that "MicroBilt
is in breach for failure to provide the fraud data," which was clearly required under Section 19(a)
and ordered MicroBilt to cure such default within ninety (90) days. (/d.) It did not consider
MicroBilt in breach of a duty to supply end user account information. (APP55.)

2)

The Parties' Positions

Chex argues that the Bankruptcy Court erred when it concluded that "contribution of end
user account records was not within the parties' contemplation at the time of the execution of the
[Agreement]. In addition to being contrary to the express language of the [Agreement], such a
conclusion is contrary to the evidence." (Chex Br. 47-48.) Chex especially focuses on the fact
that Section 19(a) only speaks to "End User account records" and "not [MicroBilt's] 'entire
proprietary database;"' a distinction it argues the Bankruptcy Court conflated. (/d. at 48-49.)
MicroBilt asserts that the express language of Section 19(a) only requires the provision of fraud
data to Chex and "[i]t was not the parties' intent that the Data Contribution Policy could be
modified so as to require MicroBilt information falling well outside of check-related fraud data."
(MicroBilt Opp'n 48.)

3)

Discussion

Pursuant to the express terms of the Agreement, failure to provide fraud data would
clearly constitute a material breach. The Bankruptcy Court's determination in that regard, and its
instruction to cure such was, therefore, correct. Whether failure to contribute end user data would
constitute a breach is a closer question but one that the Court has concluded the Bankruptcy
27

Court determined correctly. As correctly framed by the Bankruptcy Court, the issue before the
Court is whether a transfer of end user data "was in the contemplation of the parties when
negotiating, whether it formed a part of the agreement, whether it was a material element of the
agreement, and whether the parties had the intent to require such data contribution apart from the
provision of fraud data." (APP52) (emphasis added). Mter a careful review of the record, the
Court is satisfied that the "End User account records" requirement was not materially significant
such that failure to provide such would constitute breach under the Agreement. Simply stated,
the express terms of Section 19(a), and manner in which it deems failure to contribute fraud data
as a "material breach" is, alone, sufficient to infer that provision of end user data was not an
integral aspect of the parties' intent when executing the Agreement. The decision of the
Bankruptcy Court in this regard is affirmed.
The Bankruptcy Court's April 18 Opinion and May 16 Order are AFFIRMED in part,
REVERSED in part and REMANDED for the reasons stated above.

MICHAEL A. SHI
UNITED STATES DISTRICT JUDGE

Dated: June 26, 2013

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