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February 8, 2009, Alert No. 1,894.
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RIM, Officers, and Directors Settle with OSC on Option Backdating

2/5. The Ontario Securities Commission (OSC) announced in a release that it has "approved a settlement agreement entered into by Staff of the Commission and Research In Motion Limited, James Balsillie, Mike Lazaridis, Dennis Kavelman, Angelo Loberto, Kendall Cork, Douglas Wright, James Estill, and Douglas Fregin".

These individuals are current or former officers, directors, and/or founders of Research in Motion (RIM), maker of Blackberry products.

This Settlement Agreement [39 pages in PDF] states that it pertains to "stock options granting practices at RIM which, over a ten year period from December 1996 to July 2006 ..., were inconsistent with the terms of RIM's stock option plan and with RIM’s public disclosure".

This included the "practice of pricing an option at a date earlier than the grant date permitted by a stock option plan when the market price of the shares was lower than it was on the actual grant date".

It also included "the practice of altering an option’s exercise price by changing the purported grant date from the date the option was actually granted to a later date, or reissuing options at a later date and cancelling an earlier grant, when the market price of the underlying stock is lower."

The agreement further states that the "benefit resulting from the Incorrect Dating Practices for all employees was approximately $66 million, of which approximately $33 million has not been reimbursed or repaid to RIM or otherwise forfeited or cancelled".

The agreement states that "Balsillie, Lazaridis and Kavelman undertake to contribute $38.3 million (which includes interest of $5.3 million) to RIM in respect of the outstanding benefit arising from incorrectly priced stock options granted to all employees from 1996 to 2006." (Parentheses in original. Amounts are in Canadian Dollars.)

Also, "Balsillie, Lazaridis and Kavelman undertake to contribute $44.8 million to RIM to defray costs incurred by RIM in the investigation and remediation of stock options granting practices and related governance practices at RIM, which will be reduced by $15 million as credit for amounts already paid by Balsillie and Lazaridis in respect of costs incurred."

Finally, the agreement provides for penalties to be paid to the OSC totaling $9 Million.

RIM stated in a release that it has "made an offer of settlement" to the U.S. Securities and Exchange Commission (SEC) "to resolve the SEC's separate investigation".

It adds that "RIM has been informed that Messrs. Balsillie, Lazaridis, Kavelman and Loberto have similarly made offers of settlement. The proposed settlements are subject to approval by the Commissioners of the SEC. The staff of the SEC's Division of Enforcement ("SEC Staff") has agreed to recommend that the Commissioners approve the proposed settlements".

4th Circuit Issues Opinion in NTP v. RIM FOIA Case

1/28. The U.S. Court of Appeals (4thCir) issued its opinion [40 pages in PDF] in Rein v. USPTO, a Freedom of Information Act (FOIA) regarding records related to the patent litigation between NTP, Inc. and Research In Motion Ltd. (RIM).

This opinion sets precedent for FOIA procedure in the context of USPTO patent reexaminations. It addresses what should be in the USPTO Vaughn indices to support its claims of exemptions, such as deliberative process or attorney client privilege. The Court of Appeals also addressed various FOIA exemptions in the context of USPTO reexaminations. The FOIA is codified at 5 U.S.C. § 552.

In the end, the Court of Appeals faulted the USPTO for failure to provide in Vaughn indices documents' authors or recipients, and "salient information by which the district court can independently assess the asserted privilege". Without these, the District Court could not assess the claimed exemptions.

Bert Rein is a name partner in the Washington DC law firm of Wiley Rein. The other plaintiff, Hunton & Williams (HW), is a law firm. They represent NTP in the patent litigation. Rein and HW each requested documents regarding the USPTO's reexamination of NTP patents. The USPTO produced some documents, but withheld others, asserting exemptions from disclosure.

Rein and HW filed complaints, which were consolidated in the U.S. District Court (EDVa), against the USPTO, alleging violation of the FOIA, in connection with its alleged withholding of documents.

The District Court granted summary judgment to the U.S. Patent and Trademark Office (USPTO). It held that the USPTO conducted an adequate search, and that the withheld or redacted items were "predecisional" and "deliberative", and thus exempt under 5 U.S.C. § 552(b)(5).

The Court of Appeals affirmed in part and reversed in part. It affirmed the summary judgment as to the adequacy of the USPTO's search, but found that "some of the Vaughn index entries were insufficient to permit the district court, or this Court, to properly assess the Agencies' claimed exemptions from FOIA disclosure", and hence, reversed in part.

This case is Bert Rein and Hunton & Williams v. USPTO, U.S. Court of Appeals for the 4th Circuit, App. Ct. No. 07-1738, an appeal from the U.S. District Court for the Eastern District of Virginia, D.C. No. 1:06-cv-00615-CMH, Judge Claude Hilton presiding. Judge Agee wrote the opinion of the Court of Appeals, in which Judges Wilkinson and John Copenhaver (USDC/SDWV) joined.

McAfee Reports that Economic Downturn Creates Perfect Storm of IT Security Risks

1/29. McAfee released a report [36 pages in PDF] titled "Unsecured Economies: Protecting Vital Information". It is subtitled "The first global study highlighting the vulnerability of the world’s intellectual property and sensitive information". It is available for download, for free, with registration.

This report finds that "The global economic crisis is poised to create a perfect information security risk storm, as increased pressures on firms to reduce spending and cut staffing lead to more porous defenses and increased opportunities for cybercriminals."

It elaborates that "Insider threats will still be a concern, and mass layoffs will incite a percentage of previously loyal employees to look at criminal activity. These economic realities could tempt an increasing number of financially strapped and laid-off employees to use their corporate data access to steal vital information."

It adds that "Data thefts by insiders tend to have greater financial impact given the higher level of data access."

"The insiders who steal data do so in some cases for financial gain, but for others, it's a way to improve their job opportunities with the competition." The report also states that "They may also start companies of their own with the insight they gain."

The report also finds that "Cyberthieves have moved beyond basic hacking and stealing of credit card data and personal credentials. An emerging target is intellectual property."

"Pakistan, China and Russia, in that order, were also perceived to have the worst reputations for pursuing or investigating security incidents. Respondents cited corruption among law enforcement and the legal systems as well as poor skills among law enforcement as top reasons for the reputation rating."

Microsoft's Ballmer Addresses Democratic Caucus

2/6. Microsoft CEO Steve Ballmer gave a speech on economics, technology and policy on February 6, 2009. He spoke at the House Democratic Caucus retreat in Williamsburg, Virginia, held on February 5-7, 2009.

He addressed the recent and future role of information technology in the world economy. He also addressed business cycles, with frequent reference to the nature and causes of business downturns in the last two centuries.

He supports a legislative stimulus package. He advocated a reduction of private debt relative to gross domestic product (GDP). He urged the federal government to spend more on research and development spending, improving math and science education, and healthcare IT.

Steve BallmerBallmer (at right) said that "incredible global growth" in the past 25 years has come from "innovation, globalization, and debt". He praised the first two, but that said that there is now too much debt.

He said that "three things need to happen. First, the economy must be deleveraged. Private debt as a percentage of GDP has to be reduced. Restoring health to the nation's financial system is a fundamental part of this."

Second, "confidence must be restored. The stimulus package, in my opinion, is vital."

Third, "America really has to return to growth that's built on innovation and productivity, rather than leverage and private debt."

Education Spending. He said that "the time has come when we need to renew our innovation capacity". He continued that "it's people who turn ideas into positive and productive innovation. And in today's knowledge-driven world, innovation will depend on people who are actually technologically sophisticated, have strong critical thinking skills, have expertise in math and science and engineering.

This, said Ballmer, "means investment in education is critical, and I'm really encouraged by the very heavy emphasis on education that's in the stimulus package". 

He added that "We really need to transform math and science education in America. We need to improve teacher training, teacher quality."

He also said that "For those who are already in the workforce, we need programs that provide ongoing education and training, so they can be successful in this knowledge-based economy. For those who are unemployed, we need new technical skills training to give those people a start back up the economic ladder. And we are going to need lifelong learning programs to keep people fresh, as innovation and technology continues to power the economy."

Research Spending. Ballmer said that "we need greater government investment in our nation's science and technology infrastructure ... Science and technology is the backbone for productivity and innovation".

He lamented that "Government investment in science and engineering as a percentage of GDP is half, in this country, what it was in 1970".

"We need to pursue breakthroughs over the coming years in green technology, alternative energy, bioengineering, parallel computing, quantum computing.  Without greater government investment in the basic research, there is a danger that important advances will happen in other countries."

He continued that "This is truly I think not only an issue of competitiveness, but also in a sense of national security. Companies like ours and others can do our fair share in terms of funding of basic research, but government needs to take the lead."

He did not address the R&D tax credit.

Healthcare IT Spending. He next said that "government should invest ... in information technology to help transform healthcare. We deliver information technology that we think can help create a connected health system that delivers predictive, preventive, and personalized care, a system that I think can improve the health of Americans and reduce the cost of health care in this country."

Broadband Spending. Ballmer said little about broadband.

He said "There's always broadband. My number one encouragement to you is start with government itself. Every school, every hospital, every government building, is it wired, have we funded that infrastructure; very important."

While Ballmer said that "globalization" has been one of the causes of economic growth in recent decades, he did not aggravate his Democratic audience by elaborating upon free trade or free trade agreements.

People and Appointments

2/6. David Becker was named General Counsel and Senior Policy Director of the Securities and Exchange Commission's (SEC), effective later this month. He is a partner in the Washington DC office of the law firm of Cleary Gottlieb. He was General Counsel of the SEC from January 2000 to May 2002. See, SEC release.

2/4. Mark Shepherd died. He joined Texas Instruments' (TI) predecessor company as an engineer in 1948. TI named him Chief Engineer in 1953. He was the Chairman from 1976 through 1988. See, TI release and Dallas Morning News obituary.

2/3. Edward Fitzpatrick, Motorola's SVP and Corporate Controller, has been named to the additional role of acting Chief Financial Officer. He replaces Paul Liska. Motorola stated in a release that it "has initiated a search to identify a replacement".

1/27. Mark Papermaster will join Apple as SVP of Devices Hardware Engineering, on April 24, 2009. This will put him in charge of Apple's iPod and iPhone teams. Apple stated in a release that he "comes to Apple from IBM" and that "The litigation between IBM and Mark Papermaster has been resolved."

More News

2/7. The Senate met on Friday, February 6, and Saturday, February 7, 2009. It continued its consideration of HR 1 [LOC | WW], a huge spending bill, the proponents of which describe as a "stimulus". The Senate will continue with HR 1 on Monday, February 9.

2/6. Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "In an economy where companies' assets are becoming more and more ideas-based, the basic science research to generate these new ideas is critical. Having more federal basic research that can eventually help companies generate uses for that science and products is an economic stimulus measure with tangible economic rewards".

2/5. Anna Gomez, who was named Deputy Administrator of the National Telecommunications and Information Administration (NTIA) on February 4, 2009, and hence, is acting head of the NTIA, stated in a release [PDF] that "The DTV Delay Act is good for the American people. It acknowledges the need for more time so we can give the American consumers the assistance they need to acquire coupons and the importance of giving the public safety community access to additional spectrum to improve communications ... If NTIA receives additional budget authority for the TV Converter Box Coupon Program, our first priority will be to provide coupons for those households currently on the waiting list, as well as maximize further distribution of coupons." Such funding is in HR 1 [LOC | WW].

2/6. Securities and Exchange Commissioner (SEC) Commissioner Luis Aguilar gave a speech in Washington DC in which he stated that "the SEC's budget having been held to flat or declining dollars for the past four years" is "limiting technological development" at the SEC.

2/6. The Federal Trade Commission (FTC) published a paper [52 pages in PDF] titled "Merger Efficiencies at the Federal Trade Commission: 1997-2007". The authors are the FTC's Malcolm Coate and Andrew Heimert. The paper notes that "The analyses and conclusions contained in this paper are those of the authors" rather than the FTC.

2/5. The World Trade Organization (WTO) and Cambridge University Press (CUP) co-published a book titled "Opening Markets for Trade in Services: Countries and Sectors in Bilateral and WTO Negotiations". It is a collection of essays edited by Juan Marchetti and Martin Roy. The 784 page book is on sale at a WTO web page and a CUP web page. It includes a 33 page article titled "Telecommunications: can trade agreements keep up with technology?", by Lee Tuthill and Laura Sherman.

In This Issue

This issue contains the following items:
 • RIM, Officers, and Directors Settle with OSC on Option Backdating
 • 4th Circuit Issues Opinion in NTP v. RIM FOIA Case
 • McAfee Reports that Economic Downturn Creates Perfect Storm of IT Security Risks
 • Microsoft's Ballmer Addresses Democratic Caucus

Washington Tech Calendar
New items are highlighted in red.
Monday, February 9

The House will meet at 2:00 PM for legislative business. Votes will be postponed until 6:30 PM. The House will consider several non-technology related items under suspension of the rules. See, Rep. Hoyer's schedule for week of February 9.

The Senate will meet at 1:00 PM. It will resume consideration of HR 1 [LOC | WW], a huge spending bill.

9:00 AM - 4:30 PM. Day one of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

11:00 AM. Sen. Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee (SJC), will give a speech titled "Restoring Trust in the Justice System: The Senate Judiciary Committee's Agenda in the 111th Congress". A SJC notice states that "Reporters interested in attending the symposium must RSVP to Rachel Pugh" at 202-687-4328 or rmp47 at georgetown dot edu. Location: Georgetown University, Bunn Intercultural Center Auditorium, 37th & O Streets, NW.

11:00 AM - 12:00 NOON. The Heritage Foundation and the Border Trade Alliance will host an event titled "Facilitating Trade and Travel at America's Ports of Entry". The speakers will be Lurita Doan, Ron Reinas, and Ronald Utt (Heritage). See, notice. Location: Heritage, 214 Massachusetts Ave., NE.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) Annual Seminar Committee will host a brown bag lunch for planning purposes. Location: Wilkinson Barker Knauer, 2300 N St., NW.

12:15 PM. The Federal Communications Bar Association's (FCBA) Homeland Security / Emergency Communications Committee will host a brown bag lunch titled "Public Safety Issues to Watch in 2009". The speakers will be Brian Fontes (National Emergency Number Association) and Bob Gurss (Association of Public-Safety Communications Officials International). RSVP to Marianne Trana at 202-419-2476 or marianne dot trana at hklaw dot com. Location: Holland & Knight, 2099 Pennsylvania Ave., NW.

11:59 PM. Deadline for broadcasters who want to terminate analog broadcasts on February 17, 2009, to submit notices to the Federal Communications Commission (FCC). See, FCC public notice [9 pages in PDF] and story titled "FCC Announces Procedures for Terminating Analog Service Prior to June 12" in TLJ Daily E-Mail Alert No. 1,893, February 6, 2009.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Second Further Notice of Proposed Rule Making (2ndFNPRM) regarding rules to protect AM stations from the potential effects of nearby tower construction. The FCC adopted this 2ndFNPRM on September 24, 2008, and released the text [28 pages in PDF] on September 26, 2008. It is FCC 08-228 in MM Docket No. 93-177. See, notice in the Federal Register, December 11, 2008, Vol. 73, No. 239, at Pages 75376-75381.

Deadline to submit comments to the Federal Trade Commission (FTC) in advance of its event titled "Town Hall", regarding "Digital Rights Management Technologies", to be held on March 25, 2009, in Seattle, Washington. See, notice and online comment form and event web site.

Tuesday, February 10

The House will meet at 12:30 PM for morning hour, and at 2:00 PM for legislative business. The House is scheduled to consider numerous items under suspension of the rules on February 10 or later, including HR 554 [LOC | WW], the "National Nanotechnology Initiative Amendments Act of 2009". See, Rep. Hoyer's schedule for week of February 9.

8:00 - 10:00 AM. The BroadbandCensus dot com [http colon slash slash broadbandcensus dot com] will host a breakfast event titled "The Role of Wireless Frequencies in Widespread Broadband Deployment". The speakers will be John Kneuer, John Muleta (M2Z Networks), Steve Sharkey (Motorola), Don Brittingham (Verizon), and Tom DeRiggi (Rapid DSL & Wireless). For more information, contact Drew Clark at drew at broadbandcensus dot com or 202-580-8196. Breakfast begins at 8:00 AM. The program begins at 8:40 AM. The price to attend these monthly events is $45. These events are open to the public. Location: Old Ebbitt Grill, 675 15th St., NW.

9:00 AM - 4:30 PM. Day two of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

10:00 AM. The Senate Judiciary Committee (SJC) will hold a hearing on the nominations of Elena Kagan to be Solicitor General, and Thomas Perrelli to be Associate Attorney General. See, notice. Location: Room 226, Dirksen Building.

12:00 NOON. The Cato Institute will host a panel discussion titled "A Service to the Economy: The Importance of Free Trade in Services". The speakers will be Bob Vastine (U.S. Coalition of Services Industries), Christine Bliss (Assistant U.S. Trade Representative for Services and Investment), Aaditya Mattoo (World Bank), and Sallie James (Cato). The Cato Institute will webcast this event. Lunch will be served after the program. This event is free and open to the public. See notice. Location: Cato, 1000 Massachusetts Ave., NW.

12:15 PM - 1:30 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "DTV Transition, Now or Later: Final Mechanics from Here to the End". See, notice and registration page. Location: National Association of Broadcasters, 1771 N St., NW.

2:30 - 4:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Broadband's Role in the Economy and the Stimulus Package". The speakers will be Robert Hahn (AEI), Robert Crandall (Brookings Institution), Michael Katz (New York University), Robert Shapiro (Sonecon), and Gigi Sohn (Public Knowledge). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

Wednesday, February 11

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

Day one of a two day conference hosted by the Federal Trade Commission (FTC) titled "The Evolving IP Marketplace: Patent Remedies". See, release and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 4:30 PM. Day three of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

10:00 AM - 12:00 NOON. The House Science Committee (HSC) will hold a hearing titled "Electronic Waste: Investing in Research and Innovation to Reuse, Reduce, and Recycle". The witnesses will be Valerie Thomas (Georgia Institute of Technology), Jeff Omelchuck (Green Electronics Council), and Paul Anastas (Yale University). See, notice. For more information, contact 202-225-6375. The HSC will webcast this event. Location: Room 2318, Rayburn Building.

10:00 AM. Federal Communications Commission (FCC) Chairman Michael Copps will host an event titled "first news briefing with reporters covering the FCC". Location: FCC, 8th floor, conference room 1.

4:00 - 5:00 PM. The Information Technology and Innovation Foundation (ITIF) will host an event titled "The Korean Strategy for Green Technology Development and Role of IT". The speakers will be Suk Joon Kim, President of the Korean Science and Technology Policy Institute (STEPI), and Jung Hyup, Senior Research at the STEPI. See, notice. Location: ITIF, Suite 200, 1250 Eye St., NW.

Thursday, February 12

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

200th anniversary of the birth of former President Abraham Lincoln. (This is not a federal holiday.)

Day two of a two day conference hosted by the Federal Trade Commission (FTC) titled "The Evolving IP Marketplace: Patent Remedies". See, release and agenda [PDF]. Location: FTC Conference Center, 601 New Jersey Ave., NW.

9:00 AM - 4:30 PM. Day four of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

9:00 AM - 12:30 PM. The U.S. Patent and Trademark Office (USPTO) will hold a roundtable on regarding whether or not to adopt some form of deferred examination for patent applications. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Pages 4946-4947. Location: USPTO, Madison Auditorium, Madison Building, 600 Dulany St., Alexandria, VA.

9:00 AM - 12:00 NOON. The U.S. Chamber of Commerce will host an event titled "Day Without Space". It will focus on "the economic and national security ramifications if our space assets were compromised for a period of time". The keynote speaker will be General James Cartwright, Vice Chairman of the Joint Chiefs of Staff. For more information, contact David Logsdon dlogsdon at uschamber dot com or 202-463-5479. Location: Chamber, 1615 H St.,  NW.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing on the nominations of John Holdren to be Director of the Office of Science and Technology Policy (OSTP) in the Executive Office of the President, and Jane Lubchenco to be head of the National Oceanic and Atmospheric Administration (NOAA). See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a business meeting to adopt rules for the 111th Congress. See, notice. Location: Room 253, Russell Building.

10:00 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing titled "Structuring National Security and Homeland Security at the White House". See, notice. Location: Room 342, Dirksen Building.

11:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Commercial and Administrative Law will hold a hearing titled "Libel Tourism". See, stories titled "New York Senate Passes Libel Terrorism Protection Act" in TLJ Daily E-Mail Alert No. 1,725, March 3, 2008, "Rep. King Introduces Free Speech Protection Act" in TLJ Daily E-Mail Alert No. 1,756, April 29, 2009, and "Sens. Specter and Lieberman Introduce Bill Regarding Foreign Forum Shopping Libel Actions" in TLJ Daily E-Mail Alert No. 1,765, May 13, 2008. See also, HR 5814 [LOC | WW] and S 2977 [LOC | WW], in the 110th Congress, both titled the "Free Speech Protection Act of 2008".The HJC will webcast this hearing. Location: Room 2141, Rayburn Building.

Deadline to submit comments to the Federal Trade Commission (FTC) in response to its "Interim final rules with request for comment" regarding its administrative adjudications. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1803-1836. See also, story titled "FTC Writes Rules to Bolster Power of Antitrust Regulators" in TLJ Daily E-Mail Alert No. 1,882, January 13, 2008.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its notice of proposed rulemaking (NPRM) regarding application of the closed captioning rules to digital broadcasting, specifically to broadcasters that choose to use their digital allotment to multicast several streams of programming. The FCC adopted this item on November 3, 2008, and released the text [57 pages in PDF] on November 7, 2008. It is FCC 08-255 in CG Docket No. 05-231. See, notice in the Federal Register, January 13, 2009, Vol. 74, No. 8, at Pages 1654-1661.

Friday, February 13

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of February 9.

9:00 AM - 4:30 PM. Day five of a five day meeting of the Federal Aviation Administration's (FAA) RTCA Special Committee 159: Global Positioning System. See, notice in the Federal Register, January 28, 2009, Vol. 74, No. 17, at Page 5024. Location: RTCA, Inc., Suite 805, 1828 L St., NW.

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