Securities and Exchange Commission v. Tavella et al
MEMORANDUM AND ORDER granting 45 Motion for Default Judgment. The Commission's motion for a default judgment (Doc. No. 45) is granted on the foregoing terms. However, we defer entering judgment to afford the Commission an opportunity to supplement its submission as to the amount of prejudgment interest that should be disgorged. Such supplemental submission shall be due on January 23, 2015. (Signed by Judge Naomi Reice Buchwald on 1/6/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SECURITIES AND EXCHANGE COMMISSION,
MEMORANDUM AND ORDER
- against -
13 Civ. 4609 (NRB)
MAGDALENA TAVELLA, ANDRES HORACIO
FICICCHIA, GONZALO GARCIA BLAYA,
LUCIA MARIANA HERNANDO, CECILIA DE
LORENZO, ADRIANA ROSA BAGATTIN,
DANIELA PATRICIA GOLDMAN,
MARIANO PABLO FERRARI, MARIANO
GRACIARENA, and FERNANDO LOUREYRO,
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Securities and Exchange Commission (the “SEC” or
the “Commission”) moves for entry of default judgment against
Blaya, Lucia Mariana Hernando, Cecilia De Lorenzo, Adriana Rosa
Bagattin, Daniela Patricia Goldman, and Mariano Pablo Ferrari
While we are persuaded that the
judgment, we disagree in part with the Commission’s proposed
We write principally to explain this disagreement.
The complaint calls these eight parties the “Selling
Compl. ¶ 1.
Two others, Mariana Graciarena and
Fernando Loureyro, have settled with the Commission. We ignore
Graciarena and Loureyo herein except to emphasize that this
opinion contains no findings or conclusions as to them.
The Biozoom Scheme
The factual allegations of the complaint, which we describe
here insofar as they are relevant, revolve around a penny-stock
company called Biozoom, whose shares were traded on the Overthe-Counter Bulletin Board.
Compl. ¶¶ 1, 113.
Biozoom was incorporated in Nevada in 2007 as Entertainment
Arts, Inc. (“Entertainment Art”).
Id. ¶ 27.
originally represented that it was in the business of designing
and marketing leather bags.
Its stock was divided among
three corporate officers and thirty-four outside investors.
In May 2009, Entertainment Art disclosed that the
three officers had sold their holdings to a Belize entity called
disclosed, Medford Financial actually purchased all of the stock
Id. ¶¶ 32-33.
In October 2012, Medford Financial announced that it had
sold 39,600,000 shares of Entertainment Art stock to Le Mond
Capital, a British Virgin Islands entity.
Id. ¶¶ 35-36.
fact, Le Mond Capital purchased all 59,730,000 shares.
Le Mond Capital is owned by Sara Deutsch, who is not a
party to this action.
Id. ¶ 38.
Deutsch was appointed as
Principal Executive Officer, Treasurer, Chief Financial Officer,
Secretary, . . . and Director.”
Deutsch also is or was a
restaurant in Buenos Aires, Argentina.
Id. ¶ 39.
Defendants are eight residents of Buenos Aires.
Id. ¶¶ 14-
In January to May 2013, each defendant separately opened an
account at one of two United States broker-dealers, and they
deposited a combined total of 15,685,000 shares of Entertainment
Art stock in those accounts.
89, 95, 101.
Id. ¶¶ 46-47, 57, 64, 70, 77, 83,
Each defendant represented to the broker-dealers
that he or she had acquired the shares in November 2012 through
March 2013 in private transactions with individuals who either
were among the thirty-four original outside investors or had
shares years earlier.
Id. ¶¶ 32, 54-56, 61-63, 67-69, 74-76,
80-82, 86-88, 92-94, 98-100.
Defendants also represented that
they had paid amounts ranging from $5,445 to $31,050 each, and
totaling $84,260, for these shares.
Id. ¶¶ 54, 56, 62, 68, 75,
81, 87, 93, 99.
In March and April 2013, Entertainment Art changed its name
to Biozoom and announced that, following a transaction involving
the acquisition of patents and other intellectual property, it
was now in the biomedical industry.
Id. ¶¶ 40-41, 45.
Deutsch remained a director, but not an officer, of Biozoom.
Id. ¶ 42.
On May 22, 2013, Biozoom and other entities began to
campaign caused a dramatic increase in Biozoom’s stock price,
which peaked at over $4 per share.
Id. ¶ 6.
Also beginning in May 2013, defendants began to sell their
shares in transactions that were neither registered with the SEC
nor exempt from the registration requirement of the Securities
Act of 1933 (the “1933 Act”).
Id. ¶¶ 107, 111.
Between May 16
and June 19, defendants used emails and instant messages to
instruct their U.S. broker-dealers to sell 14,078,406 shares for
approximately $15,990,000 abroad.
(“almost $17 million”).
Id. ¶ 109; but see id. ¶ 1
On June 25, the Commission issued an
Paragraph 107 of the complaint alleges that the total
proceeds were $33,997,152, but it is followed by a table
containing line items for each defendant’s “[p]roceeds” totaling
$33,421,062. This discrepancy corresponds to the two manners in
which the proceeds of four defendants can be calculated, as
described in Part II.C.2 below. As we explain there, the lower
calculation of these defendants’ proceeds is correct for present
order suspending trading in Biozoom stock.
Id. ¶ 109; see SEC
Release No. 34-69841 (June 25, 2013).
On July 3, 2013, the Commission commenced this action, and
we granted the Commission’s ex parte application for a temporary
restraining order that included a freeze of defendants’ Biozoom
shares and proceeds from the sales of Biozoom shares.
16, defendants having retained McLaughlin & Stern, LLP, a New
preliminary injunction including a revised version of the asset
We so-ordered the preliminary injunction on July 17,
and we ordered defendants to answer or otherwise respond to the
complaint by August 26.
On September 11, 2013, McLaughlin & Stern moved to withdraw
as counsel for reasons described in an ex parte submission.
Court granted the motion, which the Commission did not oppose.
On December 17, 2013, we signed a scheduling order directing
defendants to answer or otherwise respond to the complaint by
February 3, 2014.
This order provided that “[f]ailure to answer
or otherwise respond to the complaint by that date may result in
February 3, 2014, Brafman & Associates, another New York law
firm, appeared on behalf of defendants and applied for a further
thirty-day extension, which we granted.
However, on March 14,
2014, Brafman & Associates applied to withdraw as counsel.
granted this application, which the Commission did not oppose.
On May 15, 2014, the Clerk of Court certified defendants’
default pursuant to Fed. R. Civ. P. 55(a), and on June 4, 2014,
the SEC filed the instant motion.
The Commission served the
motion papers on defendants in a manner consistent with the July
16, 2013 stipulation.
In June and July 2014, we engaged in correspondence with
Prada requested leave for some defendants
to “respond Pro Seo [sic] to the Commission’s Complaint, via the
expertise of Mr. Juan Ignacio Prada, our Argentinian counsel
since [defendants] are unable to retain proper US counsel due to
lack of funds.”
We responded that “[t]here is no mechanism
available that would enable a party to be represented in a U.S.
action by foreign counsel while simultaneously appearing pro se.
replied that “[n]otwithstanding there is no mechanism available
to be represented by a foreign counsel, the defendants would
like to bring before the court all the documents regarding the
If this is available, please let us
know and the defendants will send them.”
We responded that
“there is no prohibition on individual defendants appearing pro
se -- i.e. representing themselves -- and, in that capacity,
making submissions to the Court.”
Subsequently, the Commission
served a copy of its motion papers on Prada.
We have not since heard from defendants or anyone on their
Rule 55 of the Federal Rules of Civil Procedure permits the
entry of a default judgment against a party who “has failed to
plead or otherwise defend.”
Fed. R. Civ. P. 55(a).
although two New York law firms appeared for defendants, both
firms were permitted to withdraw.
Defendants have failed to
answer or otherwise response to the complaint, even though the
deadline to answer, having been extended multiple times, lapsed
December 17, 2013 order that failure to defend “may result in
entry of a default judgment,” and in July 2014, we informed
Defendants’ prolonged inaction warrants imposition
of a default judgment.
complaint’s well-pleaded allegations of liability, but not of
the amount of damages.
Greyhound Exhibitgroup, Inc. v. E.L.U.L.
complaint, except those relating to damages.”
Au Bon Pain Corp.
v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).
must independently establish the damages and other relief to be
awarded on the basis of sufficient evidence.
Cement & Concrete
Workers Dist. Council Welfare Fund v. Metro Found. Contractors
Inc., 699 F.3d 230, 234 (2d Cir. 2012) (“Cement Workers”); SEC
v. Mgmt. Dynamics, Inc., 515 F.2d 801, 814 (2d Cir. 1975).
To make the necessary findings upon default, a court may
“determine the amount of damages,” or “investigate any other
Fed. R. Civ. P. 55(b)(2)(A), (B), (D).
However, it is
within a court’s discretion to “determine there is sufficient
evidence . . . based . . . upon a review of detailed affidavits
and documentary evidence.”
Cement Workers, 699 F.3d at 234.
Here, the SEC has submitted the detailed declaration of
fully detail defendants’ trading activity.
As this submission
adequately supports the remedies we will impose, there is no
need for an evidentiary hearing.
However, as discussed in Part
II.C.3 below, we delay the entry of final judgment to permit the
Commission an opportunity to supplement its presentation as to
the subject of prejudgment interest.
The facts established by defendants’ default support the
conclusion that defendants violated Section 5 of the 1933 Act.
Section 5 “requires that securities be registered with the SEC
before any person may sell or offer to sell such securities.”
SEC v. Cavanagh, 445 F.3d 105, 111 (2d Cir. 2006) (“Cavanagh
II”); see 15 U.S.C. § 77e.
“To state a cause of action under
Section 5, one must show (1) lack of a registration statement as
communication and the mails in connection with the offer or
Cavanagh II, 445 F.3d at 111 n.13 (internal quotation
Although some securities sales are exempt from
the Section 5 registration requirement, “[o]nce a prima facie
case has been made, the defendant bears the burden of proving
the applicability of an exemption.”
Id. (citing SEC v. Ralston
Purina Co., 346 U.S. 119, 126 (1953)).
Furthermore, “Section 5
imposes strict liability on offerors and sellers of unregistered
securities regardless of any degree of fault, negligence, or
intent on the seller’s part.”
SEC v. Bronson, 14 F. Supp. 3d
402, 408 (S.D.N.Y. 2014) (internal quotation marks omitted).
In May and June 2013, defendants used international emails
Thus, the SEC has made out a prima
facie case that defendants violated Section 5.
not made any effort to show the applicability of an exemption
from the registration requirement, and we are not aware of any
Thus, defendants violated Section 5.
disgorgement of prejudgment interest on those proceeds; and (4)
We address each remedy in turn.
Section 20(b) of the 1933 Act expressly authorizes the SEC
to seek an order enjoining “acts or practices which constitute
or will constitute a violation of the provisions of this [Act].”
15 U.S.C. § 77t(b).
The basis for ordering such an injunction
illegal securities conduct.”
SEC v. Cavanagh, 155 F.3d 129, 135
(2d Cir. 1998) (“Cavanagh I”).
To determine whether the SEC has
established this substantial likelihood, a court is to consider
the following factors:
the fact that the defendant has been found liable for
illegal conduct; the degree of scienter involved;
whether the infraction is an “isolated occurrence;”
whether defendant continues to maintain that his past
conduct was blameless; and whether, because of his
professional occupation, the defendant might be in a
position where future violations could be anticipated.
Id. (quoting SEC v. Commonwealth Chem. Secs., Inc., 574 F.2d 90,
100 (2d Cir. 1978)).
A permanent injunction is “particularly
within the court’s discretion where a violation was founded on
systematic wrongdoing, rather than an isolated occurrence.”
v. First Jersey Secs., Inc., 101 F.3d 1450, 1477 (2d Cir. 1996)
(“First Jersey”) (internal quotation marks omitted).
The relevant factors amply support a permanent injunction.
Defendants displayed scienter by falsely representing to their
Entertainment Art stock from individual investors.
engaged in parallel conduct strongly supports the inference that
they were engaged in coordinated wrongdoing.
are all too vulnerable to market manipulation of the type that
evidently took place here.
Thus, we will not hesitate to grant
the injunction proposed by the Commission.4
Disgorgement of Illegal Proceeds
remedy securities law violations by depriving violators of the
fruits of their illegal conduct,” SEC v. Contorinis, 743 F.3d
. . . in securities enforcement actions,” Cavanagh II, 445 F.3d
Indeed, “[t]he deterrent effect of an SEC enforcement
action would be greatly undermined if securities law violators
were not required to disgorge illicit profits.”
SEC v. Manor
Nursing Ctrs., Inc., 458 F.2d 1082, 1104 (2d Cir. 1972).
approximation of profits causally connected to the violation’;
‘any risk of uncertainty [in calculating disgorgement] should
First Jersey, 101 F.3d at 1475 (quoting SEC v.
Patel, 61 F.3d 137, 139-40 (2d Cir. 1995)).
the disgorgement “remedy is remedial rather than punitive, the
court may not order disgorgement above” “the amount of money
The same reasons justify the proposed order permanently
barring defendants from participating in an offering of penny
stock. See 15 U.S.C. § 77t(g).
acquired through wrongdoing . . . plus interest.”
445 F.3d at 116 & n.25.
prevent defendants from profiting from their violations of the
A reasonable approximation of the amount to be
defendant obtained for his or her shares and the amount that
that defendant stated that he or she paid for them.
The Commission has provided ample evidence of defendants’
We have carefully reviewed the Sachar Declaration and
We concur in the Commission’s calculation of the
Tavella, which correspond to the complaint’s allegations.
Sachar Decl. ¶¶ 27, 29, 30, 32, 33, 35, 36, 38 & Exs. 12-19;
Compl. ¶¶ 81, 87, 93, 99, 107.
In contrast, the disgorgement amounts that the Commission
proposes for the other defendants exceed those defendants’ true
net proceeds as reflected in the Commission’s exhibits.
we note a $15 error in the Commission’s transcription of the
amount Blaya reported paying for his shares.
Decl. ¶ 18, with id. Ex. 6, at 1.5
More significantly, as to
exhibits demonstrate that their actual proceeds were lower due
to commissions and fees paid on the trades.
Decl. ¶¶ 17, 20, 23, 26, with id. Exs. 5, 7, 9, 11.
figures, which we have recalculated on the basis of the actual
amounts deposited in those four defendants’ brokerage accounts,
allegations as to those defendants’ “[p]roceeds.”
Compl. ¶ 107.
calculation, since “[a] default judgment must not . . . exceed
in amount what is demanded in the pleadings.”
Fed. R. Civ. P.
following amounts of principal:
Tavella, $3,107,819; Ficicchia,
$1,948,339; Blaya, $3,008,200; Hernando, $5,042,771; De Lorenzo,
The complaint alleges the proper purchase price, which is
$6,765. Compl. ¶ 62.
6 Our method for recalculating the proceeds of Ficicchia,
Blaya, De Lorenzo, and Hernando is also consistent with the
method by which the SEC staff appears to have calculated the
proceeds of Goldman, Baggatin, Ferrari, and Tavella, as
reflected in both the complaint and the Sachar Declaration.
Disgorgement of Prejudgment Interest
disgorgement of prejudgment interest on the principal amount to
be disgorged, so as to “to deprive the wrongdoer of the benefit
Contorinis, 743 F.3d at 308.
As a general matter,
the Second Circuit has approved the calculation of prejudgment
interest at the IRS underpayment rate, which “reflects what it
would have cost to borrow the money from the government and
defendant derived from its [illegal conduct].”
101 F.3d at 1476.
Last year, in an opinion not cited in the Commission’s
disgorgement of prejudgment interest as to funds frozen at the
SEC v. Razmilovic, 738 F.3d 14, 36-38 (2d
Cir. 2013) (“Razmilovic”), cert. denied, 134 S. Ct. 1564 (2014).
award of prejudgment interest at the IRS underpayment rate, see
SEC v. Razmilovic, 822 F. Supp. 2d 234, 279 (E.D.N.Y. 2011), on
the ground that the government had caused some of his funds in a
foreign account to be frozen in anticipation of forfeiture in a
defendant’s argument, explaining as follows:
[I]t is within the discretion of a court to award
prejudgment interest on the disgorgement amount for
the period during which a defendant had the use of his
illegal profits, see, e.g., First Jersey, 101 F.3d at
However, where, as here, the defendant has
had some or all of his assets frozen at the behest of
the government in connection with the enforcement
action, an award of prejudgment interest relating to
those funds would be inappropriate with respect to the
period covered by the freeze order, for the defendant
has already, for that period, been denied the use of
those assets. In such a case, after a final order of
presumably be turned over to the government in
complete or partial satisfaction of the disgorgement
order, along with any interest that has accrued on
them during the freeze period. In that circumstance,
the remedial purpose of prejudgment interest would
already have been served with respect to the period of
prejudgment interest on the entire disgorgement amount
including the earlier frozen amount would, for the
freeze period, deprive him twice of interest on the
portion of the disgorgement award that is satisfied by
the frozen assets.
738 F.3d at 36-37 (emphases added).7
We interpret Razmilovic to mean that when a defendant’s
funds have been frozen in connection with an enforcement action,
The Razmilovic court remanded to permit the government to
clarify whether the frozen funds would be applied to the
disgorgement order, in which case prejudgment interest would not
be allowed, or would remain frozen in connection with the
criminal charges pending against the defendant, in which case
prejudgment interest on non-frozen funds would be allowed. 738
F.3d at 37-38. But here, there is no question that the frozen
funds are those subject to disgorgement.
interest at the IRS underpayment rate.
As noted earlier, that
. . .
possession of the defendant’s ill-gotten gains, First Jersey,
101 F.3d at 1476; but where a defendant’s funds are frozen, if
Razmilovic also recognizes that frozen funds “turned over to the
interest that has accrued on them during the freeze period.”
738 F.3d at 36.
Otherwise, a defendant might perversely benefit
from the asset freeze by pocketing accumulated returns on the
from July 1, 2013.
See Sachar Decl. ¶¶ 39-46 & Exs. 20-27.
However, we ordered a worldwide freeze on defendants’ relevant
Similarly, in the Rules of Practice applicable to its own
proceedings, the SEC recognizes that the IRS underpayment rate
may be inappropriate for funds secured in anticipation of
See 17 C.F.R. § 201.600(b) (Although “[i]nterest
on the sum to be disgorged shall be computed at the [IRS]
underpayment rate of interest,” “[t]he Commission or the hearing
officer may, by order, specify a lower rate of prejudgment
interest as to any funds which the respondent has placed in an
escrow . . . .”).
assets in our orders of July 3 and 17, 2013.9
While it is
possible that our freeze orders have been violated, the SEC does
not provide any evidence of such violation.
Nor does the SEC
offer any information as to the actual returns, if any, that
have accumulated on the frozen assets.
On the current record,
in light of Razmilovic, we could merely order disgorgement of
any actual returns on the frozen assets, without specifying the
amount of such returns.
Commission an opportunity to establish the actual amount of the
returns, if any, that have accumulated on the frozen assets.
the Commission does so, we will be inclined to incorporate those
amounts in our final judgment.
Alternatively, if the Commission
can show that defendants have violated the asset freeze as to
any of the funds subject to that freeze, the Commission may
renew its request for disgorgement of prejudgment interest as to
those funds at the IRS underpayment rate.
Section 20(d) of the Securities Act provides that, in an
enforcement action brought by the Commission, “the court shall
After filing the instant motion, the Commission informed
us by letter that authorities in Belize and Cyprus have also
ordered defendants’ assets within those countries to be frozen.
Doc. No. 52, at 2.
have jurisdiction to impose, upon a proper showing, a civil
penalty to be paid by the person who committed such violation.”
15 U.S.C. § 77t(d)(1).
Section 20(d) “authorizes three tiers of
monetary penalties for statutory violations.”
F.3d at 38.
Each of the three tiers “provides that, for each
violation, the amount of penalty ‘shall not exceed the greater
of’ a specified monetary amount or the defendant’s ‘gross amount
defendant for the first, second, and third tiers, respectively,
are $[7,500], $[80,000], and $[160,000],” id. (quoting 15 U.S.C.
third, most serious tier, requires a showing that “the violation
. . .
violation directly or indirectly resulted in substantial losses
or created a significant risk of substantial losses to other
15 U.S.C. § 77t(d)(2)(C)(I)-(II).
Subject only to the applicable maximum, “[t]he amount of
the penalty shall be determined by the court in light of the
facts and circumstances.”
15 U.S.C. § 77t(d)(2)(A).
“[b]eyond setting maximum penalties, the statute leave[s] ‘the
actual amount of the penalty . . . up to the discretion of the
Razmilovic, 738 F.3d at 38 (quoting SEC v.
Kern, 425 F.3d 143, 153 (2d Cir. 2005)).
“In determining whether civil penalties should be imposed,
and the[ir] amount,” SEC v. Wyly, --- F. Supp. 3d. ---, ---,
2014 WL 4792229, at *4 (S.D.N.Y. 2014) (internal quotation marks
omitted), courts in this District have
look[ed] to a number of factors, including (1) the
egregiousness of the defendant’s conduct; (2) the
degree of the defendant’s scienter; (3) whether the
defendant’s conduct created substantial losses or the
risk of substantial losses to other persons; (4)
whether the defendant’s conduct was isolated or
recurrent; and (5) whether the penalty should be
reduced due to the defendant’s demonstrated current
and future financial conduction.
Id. (quoting SEC v. Opulentica, LLC, 479 F. Supp. 2d 319, 331
(S.D.N.Y. 2007) (“Opulentica”)).
But although “these factors
are helpful in characterizing a particular defendant’s actions,
. . . each case ‘has its own particular facts and circumstances
Opulentica, 479 F. Supp. 2d at 331 (quoting SEC v. Moran, 944 F.
Supp. 286, 297 (S.D.N.Y. 1996)).
Here, “the Commission seeks to impose a penalty against
each of the [defendants] equal to his or her gross pecuniary
gain from the sale of Biozoom shares, i.e., the disgorgement
amount for each [defendant].”
Br. at 14.
In other words, the
Commission seeks civil penalties in the maximum amounts allowed
by statute, which range from approximately $2.0 million to $6.2
million per defendant.
The Commission’s brief makes no case-
these proposed penalties.
Instead, the Commission states only
that “[c]ourts have routinely imposed civil penalties equal to
the gross amount of a defendant’s pecuniary gain,” Br. at 14,10
and that “[a] penalty is appropriate given the massive selling
of shares in an unregistered distribution of securities -- an
[Biozoom] stock were unaware when they made their investment
decisions,” Br. at 14-15.
Such cursory presentation is scarcely
adequate for a law enforcement agency seeking to invoke the
defendants’ illegal conduct.
Yet the Commission’s submission
leaves us with many unanswered questions.
Beyond the bare facts
pertaining to defendants’ deposits and sales of Biozoom stock,
practically the only thing we know about defendants is their
Perhaps tellingly, this statement is supported only by
out-of-circuit decisions, whose persuasive value is undermined
by the lack of any attempt to demonstrate their factual
similarity to this case.
11 In opening their brokerage accounts, defendants reported
the following professions:
Ficicchia, “Self-employed music
producer”; Blaya, “Music producer-stock investments”; Hernando,
Most importantly, we do not know what defendants’ role in the
Biozoom scheme was.
Did defendants orchestrate that scheme, or
was Sara Deutsch or some other master pulling their strings?
Did defendants personally participate in the campaign to promote
Biozoom to unwary investors?
Were defendants the profiteers or
Answers to these questions would have illuminated
this otherwise obscure portrait.
discussed, defendants’ illegal conduct was undertaken with some
substantial collective losses to investors.
The amount of money
acquired through the Biozoom scheme further justifies a penalty
in an amount that Congress and the Commission, in the exercise
of its rulemaking authority, have deemed weighty.
And we will
not reward defendants for their decision to default and thus to
deprive the Commission of an opportunity to take discovery into
their roles in the scheme.
However, we decline to assess the
maximum penalties, on top of disgorgement, in the absence of a
Accordingly, we award civil penalties
in the amount of $160,000 against each defendant.
political, intellectual property, and patent law”; Bagattin,
“Retired Teacher”; Ferrari, “Sales and Marketing”; Goldman,
“Delicatessen owner.” Compl. ¶ 48. As noted above, Tavella is
also part owner, with Sara Deutsch, of a restaurant. Id. ¶ 39.
interest that should be disgorged.
Such supplemental submission
shall be due on January 23, 2015.
New York, New York
January 6, 2015
~/) / ---~·
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
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