Federal Housing Finance Agency v. Merrill Lynch & Co., Inc. et al
Filing
135
OPINION AND ORDER: The defendants' September 7 motions to dismiss are granted with respect to the plaintiff's claims of owner-occupancy and LTV-ratio fraud and denied in all other respects. (Signed by Judge Denise L. Cote on 11/8/2012) (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------X
:
FEDERAL HOUSING FINANCE AGENCY, etc.,
:
:
Plaintiff,
:
-v:
:
MERRILL LYNCH & CO., et al.,
:
:
Defendants.
:
:
------------------------------------------X
11 Civ. 6202 (DLC)
APPEARANCES:
For Plaintiff Federal Housing Finance Agency:
Philippe Z. Selendy
Kathleen M. Sullivan
Adam M. Abensohn
Jordan A. Goldstein
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010-1601
For Defendants Merrill Lynch & Co., Inc.; MLPF&S
Inc.; Merrill Lynch Mortgage Lending, Inc.;
Merrill Lynch Mortgage Capital, Inc.; First
Franklin Financial Corp.; Merrill Lynch Mortgage
Investors, Inc.; Merrill Lynch Government
Securities, Inc.
Brendan v. Sullivan, Jr.
David S. Blatt
Edward J. Bennett
Williams & Connolly LLP
725 Twelfth Street, N.W.
Washington, DC 20005
For Defendants Donald C. Han, Matthew
Whalen, Brian T. Sullivan, Michael M.
McGovern, Donald J. Puglisi, and Paul Park:
Daniel C. Zinman
Neil S. Binder
Richards Kibbe & Orbe LLP
One World Financial Center
New York, New York 10281-1003
OPINION & ORDER
DENISE COTE, District Judge:
This is one of sixteen actions currently before this Court
in which the Federal Housing Finance Agency (“FHFA” or “the
Agency”), as conservator for Fannie Mae and Freddie Mac
(together, the “Government Sponsored Enterprises” or “GSEs”),
alleges misconduct on the part of the nation’s largest financial
institutions in connection with the offer and sale of certain
mortgage-backed securities purchased by the GSEs in the period
between 2005 and 2007.1
As amended, the complaints in each of
the FHFA actions assert that the Offering Documents used to
market and sell Residential Mortgage-Backed Securities (“RMBS”)
to the GSEs during the relevant period contained material
misstatements or omissions with respect to the owner-occupancy
1
The sixteen cases are: FHFA v. UBS Americas, Inc., et al., 11
Civ. 5201 (DLC); FHFA v. JPMorgan Chase & Co., et al., 11 Civ.
6188 (DLC); FHFA v. HSBC North America Holdings, Inc., et al.,
11 Civ. 6189 (DLC); FHFA v. Barclays Bank PLC, et al., 11 Civ
6190 (DLC); FHFA v. Deutsche Bank AG, et al., 11 Civ. 6192
(DLC); FHFA v. First Horizon National Corp., et al., 11 Civ 6193
(DLC); FHFA v. Bank of America Corp., et al., 11 Civ. 6195
(DLC); FHFA v. Citigroup Inc., et al., 11 Civ. 6196 (DLC); FHFA
v. Goldman, Sachs & Co., et al., 11 Civ. 6198 (DLC); FHFA v.
Credit Suisse Holdings (USA), Inc., et al., 11 Civ. 6200 (DLC);
FHFA v. Nomura Holding America, Inc., et al., 11 Civ. 6201
(DLC); FHFA v. Merrill Lynch & Co., Inc., et al., 11 Civ. 6202
(DLC); FHFA v. SG Americas, Inc., et al., 11 Civ. 6203 (DLC);
FHFA v. Morgan Stanley, et al., 11 Civ. 6739 (DLC); FHFA v. Ally
Financial Inc., et al., 11 Civ. 7010 (DLC); FHFA v. General
Electric Co., et al, 11 Civ. 7048 (DLC). The FHFA has also
brought two similar actions, which are pending in federal courts
in California and Connecticut. See FHFA v. Countrywide
Financial Corp., et al., No. 12 Civ. 1059 (MRP) (C.D. Cal.);
FHFA v. Royal Bank of Scotland, No. 11 Civ. 1383 (AWT) (D.
Conn).
2
status, loan-to-value (“LTV”) ratio, and underwriting standards
that characterized the underlying mortgages.2
On the basis of
these allegations, the complaints assert claims under Sections
11, 12(a)(2), and 15 of the Securities Act of 1933, 15 U.S.C.
§§ 77k, l(a)(2), o; the Virginia Securities Act, VA Code Ann.
§ 13.1-522(A)(ii), (C); and the District of Columbia Securities
Act, D.C. Code § 31-5606.05(a)(1)(B), (c).
In six of the cases,
including this one, the Agency has also asserted claims of fraud
and aiding and abetting fraud under the common law of New York
State against certain entity defendants (the “Fraud Claim
Cases”).
As pleaded, these fraud claims attach to each of the
categories of misstatements upon which the plaintiff’s
securities law claims are based.
The Court has already issued three Opinions addressing
motions to dismiss in two other cases brought by the FHFA:
2
The Amended Complaint pleads defendants’ statements regarding
the credit ratings of the Certificates as a separate category of
misstatement under the Securities Act and, in the cases with
fraud claims, fraudulent representation. Certain defendants in
this litigation have argued that the ratings are the opinions of
the credit rating agencies and that the failure to allege
subjective falsity on their part is fatal to the plaintiff’s
claims in this regard. See UBS I, 858 F. Supp. 2d at 325-27.
This argument mistakes the plaintiff’s claim, which is not that
the ratings themselves were false. FHFA challenges
representations in the Offering Materials that the reported
credit rating related to the actual loan collateral for the
securitization. The Amended Complaint alleges that the ratings
were inflated and did not in fact apply to that collateral,
since the defendants provided the ratings agencies incorrect
data regarding the loan population.
3
Federal Housing Finance Agency v. UBS Americas, Inc. et al., 858
F. Supp. 2d 306 (S.D.N.Y. 2012) (“UBS I”); Federal Housing
Finance Agency v. UBS Americas, Inc., et al., No. 11 Civ. 5201
(DLC), 2012 WL 2400263 (S.D.N.Y. June 26, 2012) (“UBS II”); and
Federal Housing Finance Agency v. JPMorgan Chase & Co., et al.,
11 Civ. 7188 (DLC), 2012 WL 5395646 (S.D.N.Y. Nov. 5, 2012)
(“Chase”).
Familiarity with those Opinions is assumed; all
capitalized terms have the meanings previously assigned to them.
Following this Court’s decision of the motion to dismiss in
FHFA v. UBS, discovery began in all of the coordinated cases.
Pursuant to a June 14 Pretrial Scheduling Order, briefing of
defendants’ motions to dismiss in the remaining fifteen cases
has occurred in two phases, with the motions in this case and
the other Fraud Claim Cases becoming fully submitted on October
11, 2012.
The motions in the remaining nine cases are scheduled
to be fully submitted November 9, 2012.
Depositions are to
begin in all cases in January 2013, and all fact and expert
discovery in this matter, 11 Civ. 6202 (DLC), must be concluded
by December 6, 2013.
Trial in this matter is scheduled to begin
on June 2, 2014.
DISCUSSION
This case concerns 88 RMBS Certificates purchased by the
GSEs between September 2005 and October 2007.
4
The Certificates
correspond to 72 independent securitizations, each offered for
sale pursuant to one of ten shelf registration statements.
lead defendant is Merrill Lynch & Co. (“Merrill”).
The
Various
corporate and individual affiliates of Merrill are also
defendants, including individual defendant Donald C. Han, who
served as the Treasurer of Merrill Lynch Mortgage Investors, the
depositor for 62 of the 72 securitizations.
Merrill affiliates
also sponsored 60 of the 72 securitizations and served as lead
underwriter for all of them.
Pursuant to the June 14 Pretrial Scheduling Order, the
defendants jointly moved to dismiss the Amended Complaint on
July 13, 2012 (the “Joint Motion”).
Defendant Han filed a
separate motion to dismiss, which concerned only the claims
against him.
The motions were briefed and became fully
submitted on October 10, 2012.
The Joint Motion presses several arguments that have been
addressed in this Court’s previous Opinions in this litigation,
taking particular aim at the adequacy of the Agency’s fraud
allegations.
The Court hereby adopts by reference the reasoning
and, to the extent they are relevant here, the rulings of those
prior Opinions.3
3
In particular, defendants’ argument regarding the adequacy of
certain of the plaintiff’s control-person allegations was fully
addressed by the Court’s decision in UBS I. See 858 F. Supp. 2d
at 333.
5
As in Chase, the motion to dismiss argues that the FHFA’s
scienter allegations are insufficient to support its fraud
claims.
These defendants’ footprint in the mortgage-backed
securities market differed somewhat from that of the defendants
in Chase.
Despite this fact and the different allegations that
flow from it, however, the Amended Complaint fails and survives
in similar fashions.
As in Chase, the facts alleged in the
Amended Complaint are sufficient to plead fraud with respect to
the Offering Materials’ representations regarding mortgageunderwriting standards.
With respect to the scienter component
of FHFA’s fraud claims based on LTV and owner-occupancy
information, however, the Amended Complaint relies entirely on
the disparity between the statistics reported by the defendants
and the results of the Agency’s own analysis.
As explained in
Chase, when properly corroborated, such disparities may be
sufficient to allege recklessness in support of a fraud claim.
But mere negligence in conducting due diligence is not
equivalent to reckless disregard of the truth.
5395646, at **12-13.
Chase, 2012 WL
Without additional support, the
disparities pointed to by FHFA are insufficient to allege
The Joint Motion also makes several arguments in the margin
that are not addressed by this Opinion. As noted in Chase, 2012
WL 5395646, at *18 n.18, it is well established that “issues
adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.” Tolbert
v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001). The defendants
remain free to raise these arguments on summary judgment.
6
fraudulent intent with the specificity required by Rules 8(a)
and 9(b), Fed. R. Civ. P.
Accordingly, the defendants’ motion
to dismiss is granted with respect to the plaintiff’s fraud
claims based on LTV and owner-occupancy reporting.4
The defendants also raise several arguments that were not
fully addressed by this Court’s prior Opinions.
These arguments
will be addressed in turn.
I.
Allegations Against Defendant Han
Defendant Han’s effort to obtain dismissal of the FHFA’s
allegations against him likewise fails.
The Amended Complaint
alleges that on August 5, 2005, defendant Merrill Lynch Mortgage
Investors (“MLMI”) filed a shelf registration statement -- SEC
File Number 333-127233 -- that Han signed, listing his title as
“Treasurer” (the “Initial Registration Statement”).
Twelve days
later MLMI filed an amended shelf registration statement under
the same file number that omitted Han’s name and listed Brian
Sullivan, also a defendant in this action, as “Treasurer” (the
“Amended Registration Statement”).
4
Eighteen of the GSE
Defendants also argue that Amended Complaint fails to give rise
to a strong inference of scienter with respect to the
plaintiff’s claims of credit-rating fraud. But given the
allegation that defendants provided the same false information
to the ratings agencies that they included in the Offering
Materials, allegations tending to show recklessness with respect
to the one support a similar inference with respect to the
other. Thus, plaintiff’s allegations of credit-rating fraud
survive insofar as they rely on the defendants’ provision of
false information regarding underwriting standards to the
ratings agencies.
7
Certificates at issue in this case were marketed using
Prospectus Supplements associated with SEC File Number 333127233.
FHFA asserts claims against Han as a maker of false
statements in the Prospectus Supplements pursuant to Section 11
and as a control-person pursuant to Section 15 and equivalent
state-law provisions.
Han argues that the Initial Registration Statement never
became effective and that, consequently, his signature cannot
support the plaintiff’s Section 11 and control-person
allegations with regard to the 18 GSE Certificates, which he
claims were issued pursuant to only the Amended Shelf
Registration Statement.
Section 11 provides that “every person
who signed the registration statement” is liable for material
misstatements or omissions contained therein.
§ 77k(a)(1).
15 U.S.C.
The presence of an individual’s signature on an
SEC filing is also sufficient to allege control under the
federal securities laws.
See In re Worldcom, Inc. Sec. Litig.,
294 F. Supp. 2d 392, 419 (S.D.N.Y. 2003).
The Securities Act and relevant SEC authority establish
that the Initial Registration Statement remained in effect even
after the filing of the amendment and that, accordingly, FHFA’s
claims against Han may proceed.
The statute imposes liability
for any material misstatements contained in “any part of the
registration statement,” 15 U.S.C. § 77k(a), and defines
8
“registration statement” to mean “the statement provided for in
section 77f of this title, and includes any amendment thereto
and any report, document, or memorandum filed as part of such
statement or incorporated therein by reference.”
§ 77k(a).
15 USC
Section 77f of Title 15, in turn, concerns the
procedures and fees associated with the filing of an initial
registration statement and only addresses the issue of amendment
in passing.
See 15 U.S.C. §§ 77f(c) & (e)(1).
Moreover, SEC
regulations prescribe a particular procedure whereby a
registrant may withdraw “any registration statement or any
amendment or exhibit thereto.”
17 C.F.R. § 230.477.
The use of
the disjunctive indicates that an amendment may be withdrawn
while leaving intact the underlying, initial registration
statement.
See Columbia Gen. Inv. Corp. v. SEC, 265 F.2d 559,
565 (5th Cir. 1959) (rejecting the argument that “with the
filing of the amendment, the original filing evaporates”).
Indeed, the same regulation separately provides for “withdrawal
of an entire registration statement . . . before the effective
date of the registration statement.”
17 C.F.R. § 230.477.
But
Han does not assert that Merrill followed this procedure with
respect to the registration statement that he signed.
His
motion to dismiss is therefore denied.
Han’s argument relies exclusively on SEC Item 512 and cases
interpreting it.
The regulation provides, in relevant part:
9
[F]or the purpose of determining any liability under
the Securities Act of 1933, each . . . post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering
thereof.
17 C.F.R. § 229.512(a)(2).
As the above-quoted language makes
clear, however, Item 512 concerns post-effective amendments, not
pre-effective amendments like the one at issue here.
In any
case, the regulation does not purport to address the issue of
whether the filing of an amended registration statement negates
the original filing.
Rather, as previously explained in this
litigation, the purpose of the quoted language is to make clear
that post-effective disclosures “restart the clock on Section 11
claims,” and avoid a scenario in which “‘purchasers who acquired
securities in a shelf offering more than three years after the
initial registration would find their § 11 claims barred by the
time limits of § 13, even if they bought the securities in
reliance on a fraudulent, post-effective amendment to the
registration.’”
UBS II, 2012 WL 2400263, at **3-4 (quoting
Finkel v. Stratton Corp., 962 F.2d 169, 174 (2d Cir. 1992)).
II.
District of Columbia Blue Sky Claims
The defendants also assert that, in contradistinction to
the Securities Act, the District of Columbia’s Blue Sky statute
requires a plaintiff to allege some element of reliance, even
for simple misstatement claims.
The statute provides:
10
A person shall be civilly liable to another person who
buys a security if the person . . . [o]ffers or sells
a security by means of an untrue statement of a
material fact or an omission to state a material fact
necessary in order to make the statement made, in the
light of the circumstances under which made, not
misleading, the buyer does not know of the untruth or
omission and the offeror or seller does not sustain
the burden of proof that the offeror or seller did not
know, and in the exercise of reasonable care could not
have known, of the untruth or omission.
D.C. Code § 31-5606.05(a)(1)(B).
Nothing in the statute suggests that a plaintiff’s reliance
on a false statement is an element of the claim.
Moreover,
courts interpret this provision in accordance with the case law
interpreting Section 12(a)(2) of the Securities Act.
See, e.g.,
Hite v. Leeds Weld Equity Partners, 429 F. Supp. 2d 110, 114
(D.D.C. 2006).
That provision does not require a showing of
reliance, Rombach v. Chang, 355 F.3d 164, 169 n.4 (2d Cir.
2004), and defendants do not suggest otherwise.
The only authority the defendants cite for their argument
that a showing of reliance is necessary under the D.C. statute
is Price v. Griffin, 359 A.2d 582, 588 (D.C. 1976).
But,
according to Westlaw, this holding of Price has never been
reaffirmed or relied upon by any other court.
That is perhaps
not surprising given that the decision concerned a version of
the D.C. Securities Act that was explicitly repealed in 2000.
Securities Act of 2000 at § 804(a), D.C. Law 13-203, 47 DCR
7837.
11
IV.
Remedies
Finally, defendants argue that FHFA’s demands for
rescission and punitive damages are improper and should be
stricken.
Neither of these arguments has merit.
A. Rescission
Defendants argue that notwithstanding the Court’s earlier
ruling that these claims are timely under the Securities Act and
HERA, the plaintiff’s demand for rescission must be stricken
because it was not made within a reasonable time of the purchase
of the securities.
With the exception of its Section 11 claim,
the plaintiff explicitly seeks rescission on each of its claims.
The standard for awarding such relief, however, may vary
depending on whether the source of the right is statutory.
The Securities Act provides that, subject to certain
exceptions, any person who violates Section 12(a)(2)
shall be liable . . . to the person purchasing such
security from him, who may sue . . . to recover the
consideration paid for such security with interest
thereon, less the amount of any income received
thereon, upon tender of such security, or for damages
if he no longer owns the security.
15 U.S.C. § 77l(a) (emphasis supplied).
The Blue Sky statutes
contain substantially identical provisions.
See D.C. Code § 31-
5606.05(b)(1)(A); VA Code Ann. § 13.1-522(A).
As should be
plain from the statutory language, where a Section 12(a)(2)
plaintiff continues to own the securities in question, her only
12
remedy is to tender the security for repurchase by the seller.
Commercial Union Assur. Co., plc v. Miliken, 17 F.3d 608, 615
(2d Cir. 1994).
Although the Securities Act does not use the
term, courts generally refer to this remedy as rescission.
e.g., id.
See,
Whether this characterization necessarily implies
that the Securities Act remedy is subject to the same equitable
defenses that would be available to a plaintiff’s demand for
rescission in a breach-of-contract action is open to debate,
however.
Unlike a breach-of-contract plaintiff, a Securities Act
plaintiff’s right to rescission is statutorily grounded and does
not spring from the inherent discretion of the court to fashion
equitable remedies.
Cf. In re Cathedral of the Incarnation in
Diocese of Long Island, 99 F.3d 66, 69 (2d Cir. 1996) (“[C]ourts
have some discretion to withhold equitable remedies but no
discretion to withhold a remedy required by common law.”).
Indeed, in amending the Truth in Lending Act to impose a threeyear limitation on consumers’ statutory rescission rights,
Congress arguably recognized the inapplicability of delay-based
equitable defenses where rescission is provided by statute.
See
15 U.S.C. § 1635(f); see also Hearing on S. 1630 and S. 914
Before the Subcomm. on Consumer Credit of the S. Comm. on
Banking, Housing and Urban Affairs, 93rd Cong. 433 (1973)
(statement of the United States Savings & Loan League) (noting
13
that pre-amendment law did “not place a reasonable time limit
during which the right of rescission can be exercised”).
The Supreme Court has also remarked that, under the
remedial provisions of Section 12, the purchaser of securities
“may keep his securities and reap his profit if the securities
perform well during the [one year statute of limitations], but
rescind the sale if they do not.”
637 n.13 (1988).
Pinter v. Dahl, 486 U.S. 622,
The same opinion cited approvingly one
commentator’s observation that Section 12 “is silent as to
possible time limits on the buyer's conduct after discovery of
the false statement,” and his conclusion that “there being
nothing in the section to the contrary, the buyer may do what he
pleases so long as he brings suit within the stipulated
[limitations] period.”
Harry Shulman, Civil Liability and the
Securities Act, 43 Yale L.J. 227, 246-47 (1933) (cited in
Pinter, 486 U.S. at 637 n.13).
Moreover, given that the Securities Act makes statutory
rescission the exclusive remedy for a Section 12(a)(2) plaintiff
who continues to hold the security, it would arguably be absurd
to interpret the statute to admit of delay-based defenses to
rescission where the plaintiff’s underlying action remains
timely.
See 3 William Blackstone, Commentaries *23 (“[I]t is a
general and indisputable rule, that where there is a legal
14
right, there is also a legal remedy . . . whenever that right is
invaded.”).
Defendants note, however, that at least one district court
in this Circuit has concluded that a Securities Act plaintiff
may be found to have forfeited her right to rescission where the
demand was made after a period of unreasonable delay.
Gannett Co.
See
v. Register Pub’g Co., 428 F. Supp. 818, 827 (D.
Conn. 1977) (construing Section 10(b) of the Exchange Act and
Sections 12(2) and 17 of the Securities Act).
It is well
established in this Circuit that an “unreasonable delay” defense
may be asserted in response to a contract plaintiff’s rescission
demand, see Ballow Brasted O’Brien & Rustin P.C. v. Logan, 435
F.3d 235, 240 (2d Cir. 2006), and at least one Court of Appeals
has applied the rule to a demand for relief under the implied
cause of action provided by Section 10(b) of the Exchange Act.
See Occidental Life Ins. Co. v. Pat Ryan & Assocs., Inc., 496
F.2d 1255, 1268 (4th Cir. 1974).
But defendants have pointed to
no appellate authority that applies the rule where rescission is
available by operation of statute.
One potentially relevant
authority is Straley v. Universal Uranium & Milling Corp., 289
F.2d 370 (9th Cir. 1961).
In that case, the Court of Appeals
for the Ninth Circuit held that although equitable defenses such
as laches are not available to defeat a plaintiff’s right to
rescission under Section 12(a)(2), defenses such as waiver and
15
estoppel may be.
Id. at 373-74.
Straley, however, is not
controlling in this Circuit, and its continued vitality is
questionable in light of the Supreme Court’s intervening
statements in Pinter.
A defendant may certainly interpose a defense of delay to a
demand for rescission based on common law fraud.
The defendants
have not, however, established that the plaintiff’s delay in
demanding rescission in this case was unreasonable.
Their
arguments largely rehash those that they and other defendants
have made throughout this litigation regarding the plaintiff’s
failure to bring these cases earlier.
But as has been noted in
previous Opinions, the plaintiff’s failure to bring these cases
earlier can be explained by a number of factors, among them the
desire to investigate fully prior to filing suit.
Given the
complexity of these cases and the resources of the parties, it
certainly could not be said that any delay was unreasonable as a
matter of law.
B.
Punitive Damages
The defendants’ argument that the punitive damages claim
must be stricken does not require extended discussion.
New York
law, which governs the plaintiff’s fraud claims, provides that
punitive damages are permitted only where the plaintiff can
demonstrate exceptional misconduct, “as when the wrongdoer has
acted maliciously, wantonly, or with a recklessness that
16
betokens an improper motive or vindictiveness or has engaged in
outrageous or oppressive intentional misconduct or with reckless
or wanton disregard of safety or rights.”
Ross v. Louise Wise
Services, Inc., 868 N.E.2d 189, 196 (N.Y. 2007) (citation
omitted).
This requirement derives from the fact that the
purpose of punitive damages is “not to remedy private wrongs but
to vindicate public rights.”
Roncanova v. Equitable Life Assur.
Soc. of U.S., 634 N.E.2d 940, 943 (N.Y. 1994).
The Amended Complaint adequately supports its demand for
punitive damages.
FHFA alleges that the defendants acted
recklessly by seeking to profit from ever more risky mortgage
lending while, at the same time, passing on the risk (and
ultimately the losses) associated with these practices to the
public via their sale of securities to Fannie Mae and Freddie
Mac.5
FHFA further maintains that the defendants’ practices in
this regard contributed to a housing crisis that spurred the
most severe economic downturn this country has experienced since
the Great Depression.
These allegations are sufficient to
support the plaintiff’s demand for punitive damages.
5
Defendants strenuously resist any effort to equate Fannie Mae
and Freddie Mac with the “general public,” but the GSEs’
importance to the American economy and their quasi-governmental
status is well established. Indeed, Merrill Lynch itself
maintained a unit named “Merrill Lynch Government Securities,
Inc.,” that sold all but one of the Certificates at issue to
Fannie Mae.
17
CONCLUSION
The defendants' September 7 motions to dismiss are granted
with respect to the plaintiff's claims of owner-occupancy and
LTV-ratio fraud and denied in all other respects.
SO ORDERED:
Dated:
New York, New York
November 8, 2012
United
18
Judge
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