What are the Real Issues in the Sofia Vergara Embryo Lawsuits

How Have the Cases in Other States Been Coming Out? What are the Rules?

Sofia Vergara, one of the most beautiful women in the world and one of the highest paid women in television[1] was engaged until 2014 to Nick Loeb, the son of a diplomat and philanthropist, great grand-nephew of former New York governor and banking heir Herbert H. Lehman, and cousin of the heir to the Seagram fortune, who admitted that even she thought he was a “dorky guy”.

 

 

 

 

 

They wanted children but she wanted a surrogate to carry the pregnancy to term, so they went through IVF treatment. The first time, one implantation failed, and the surrogate miscarried. They went for a second egg retrieval, resulting in two female embryos,[2] which were cryogenically frozen. After they split up, he wanted the embryos to implant in a surrogate mother, which she refused to allow. Each time she had undergone IVF treatment, they both signed consent forms at the IVF facility which did not specifically say what would happen if they separated, which is required by California law,[3]  but they did say that they would only be implanted if both of them agreed to it.

Why Drag This Through the Courts?

Her lawyers say that Loeb is just trying to keep himself in the public eye, that he had always used her celebrity status to promote his hot dog condiment business[4], and that if he really wanted a family, he should hire a surrogate and an egg donor without unnecessary legal battles. He says that his position is not just about saving lives; it is also about being pro-parent. However, these cases are not really right to life cases, because the chance of successful implantation of viable frozen embryos is a subject of scientific debate, but from a 40 year old egg donor, probably somewhere in the range of around 30% to 40%[5]

Loeb’s Two Previous Girlfriends Who Had Abortions

In the second case Loeb brought against Vergara in California, her lawyers asked to question two previous girlfriends who had aborted pregnancies fathered by Loeb, to try to show that his pro-parent beliefs were not as sincere as he claimed. Vergara won on this issue, and the California judge ordered Loeb to tell her the names of the two prior girlfriends, and also ruled that Vergara’s lawyers could question them under oath. Loeb publicly said he would go to jail before he revealed their names, and apparently abandoned the lawsuit rather so he would not have to obey the judge’s order.

A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects? 

What are the Rules?

There is no federal law in this area, so it depends on what state you live in. Most courts will generally follow the directives on the forms the couple signed at the IVF center, however, the result might have been different if Loeb and Vergara had been married, because they lived in California, a community property state. Embryos clearly are viewed as property in New York, and in a New York case[6] very similar to this one, the wife was denied the right to thaw the embryos over the husband’s objection, based upon the form she had signed. Read More

Sofia Vergara Gets Cajun Justice

Louisiana law, unlike any other state, has a specific law giving embryos rights as legal persons[9], and the judges will resolve any disputes between the “parents” about the embryo in the best interests of the embryo[10], in the same way that judges in all other states decide custody cases in the best interests of the child. For this reason, Loeb filed  another lawsuit in the names of the embryos only, against Vergara in Lousiana state court, and Vergara transferred[11]  the case to the federal court in Lousiana. “Diversity Jurisdiction” in federal court means that the lawsuit is between citizens of different states, and the amount in dispute is greater than $75,000. No federal judge can decide any case without first finding that there is federal jurisdiction, so to decide this, the judge had to decide if the embryos were citizens, even though they were created in a state that did not give them legal status. First, no one knows if embryos can be “citizens” for federal jurisdictional purposes, and no one, let alone a judge, has ever placed a dollar value on an embryo, so how could a judge possibly fix a value in a court case?  The case also presented constitutional questions concerning procreation rights, and whether federal law “preempts” (takes precedence over) the Louisiana state laws giving rights to embryos from artificial insemination, because under Louisiana law embryos cannot be intentionally destroyed. The judge observed that all these difficult questions could be avoided by first deciding whether Sofia Vergara could be sued in the state of Louisiana at all in the first place. Any court, state or federal, needs some specific basis to make anyone answer and defend a lawsuit in any state where they don’t live or have a business[12]. This rule is called personal jurisdiction, and this is what gives the court legal power over anyone who is being sued. In this case, Sofia Vergara lived in California and had the IVF treatment which created the embryos there, she had never lived in Louisiana, she had only made a movie there and rented a house there for a few months. Even if she had, as Loeb claimed, had some conversations with him about the embryos there and that they had planned to live there in the future, that would not be enough to force her to defend any lawsuit in Louisiana. Read More

How Have the Cases in Other States Been Coming Out?

At the end of the day, in almost all of the reported cases in the country, judges have honored the choices the couple made on the forms they signed at the in vitro facilities at the time, but the courts are very reluctant to make someone become a parent against their wishes. The Supreme Judicial Court of Massachusetts has said that even if the signed forms required one of the parties to become a parent against their will, this could not be enforced because it would be against public policy[14].Read More

The result might have been different in the Sofia Vergara case if Loeb had been able show that it was biologically impossible for him to father another child, but we will never know.

[1] Besides earning $325,000 per episode for “Modern Family”, she does extremely lucrative endorsements. A selfie posted on her social media account was used without her permission in an advertisement, which prompted a $15M lawsuit, alleging that this is what she normally gets for an endorsement. While the amount of the settlement against Venus Legacy in March, 2017 was confidential, it was certainly a respectable sum.

[2] “Embryo” is a technical misnomer in these cases. These are actually fertilized ovum, which are more accurately referred to as pre-embryos which can develop into embryos if successfully implanted in a female uterus.

More Footnotes, Read More

What Are Wage Theft Lawsuits in the Restaurant Industry?

Author:by sdhans

A number of wage theft lawsuits and settlements have been occurring during the past five years. However, they haven’t received as much media attention as restaurant workers’ fight for higher minimum wages.

As a restaurant owner, you should be aware of what wage theft is and the ways it can occur. Ensure your restaurant managers aren’t engaging in wage theft activities.

Examples of Wage Theft and Related Lawsuits

Large chain restaurants have been subject to lawsuits for reducing hours, not paying proper wages for side work and for misappropriating tips.

Requiring workers to work off the clock is not legal but some chain restaurants have been settling claims that allege they’ve been doing this. The Huffington Post reported about several well-known restaurant chains that settled or paid huge sums in wage theft lawsuits.

 

Ruby Tuesday settled a case for $3 million in 2014. The restaurant avoided paying bartenders and servers overtime by having them do checklists before or after clocking in for work. They also shaved hour totals down to 40 hours/week when workers went over 40 hours.

Outback Steakhouses settled a $3 million lawsuit to workers claiming that the restaurant required workers to complete pre-shift work before clocking in.

A Papa John’s New York franchise had to pay more than $2 million in overtime rates under the order of New York State Attorney General Eric Schneiderman for rounding down hours worked to the whole number to avoid paying overtime, and for paying workers the “tipped minimum wage” when they mainly did un-tipped work and for not reimbursing employees for the purchase and maintenance costs of bicycles used in deliveries.

Red Robin Restaurants in Pennsylvania paid $1.3 million for requiring tipped workers to share tips with kitchen expeditors when the restaurant was taking tip credits and not paying servers a full minimum wage. Kitchen expeditors had no contact with customers and did not qualify to be paid as tipped workers.

What Are Wage Theft Lawsuits in the Restaurant Industry?

Johnny Rockets had to pay 55 servers more than $570,000 under order of the Department of Labor (DOL) because they required servers to share tips with cooks and dishwashers.

Fourteen TGI Fridays servers received $485,000 to settle claims for having to spend more than 20 percent of their work time doing side work instead of directly relating to customers, which violates the 80/20 rule for tipped employees. Part of this settlement amount was also due to being forced to work off the clock.

Are You Concerned About Wage Theft?

If so, get legal advice as soon as possible. Stephen Hans & Associates is an employment law defense firm and can advise the best course of action for you to take as an employer

Hurricane Irma | How Vital Buses Are Before and After Hurricanes

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Florida Governor Rick Scott issued an executive order declaring a state of emergency in all 67 counties within the State of Florida, due to Hurricane Irma. He also requested that President Trump declare a pre-landfall emergency for the State of Florida in order to prepare federal government sources and assistance.

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How Serious is Hurricane Irma?

Governor Rick Scott announced on his website  that Friday morning, 7,000 National Guard will report for duty. Over the weekend, more National Guard members will be activated, if necessary. In addition to the National Guard, 13 helicopters and more tan 1,000 tactical high-wheeled trucks are on standby. The North Carolina National Guard and other nearby states are ready to assist with evacuating the Florida Keys. In fact, if necessary, there are an estimated 30,000 troops, 4,000 trucks, and 100 helicopters along with Aero-Evacuation crews ready to support people in Florida as needed.

Florida Keys Evacuation Beginning

Mandatory evacuation orders for tourists in the Florida Keys begin Wednesday, September 6. However, people are being urged to leave as soon as possible and that includes tourists and residents. The National Hurricane Center (NCC) is warning about “life threatening wind, storm surge and rainfall hazards for U.S. territories in the Caribbean.”

Many Florida schools and universities are closing Wednesday, September 6.

Why Buses Are Safer and Better for Evacuation

Roads are sure to be congested, if for no other reason than Florida has only a few major highways that head north in the state. Given the fact that a motor coach can take as many as 50 cars off the road, less congestion will occur with people evacuating by bus.

In addition, statistics show that charter buses are the safest form of ground transportation in the country. With a trained, professional driver at the wheel, there are fewer chances of accidents. Highways jam up and gridlock occurs when accidents take place. Avoiding accidents during hurricane evacuation is vital for everyone to make it out safely.

Another factor to consider is that buses are greener than any other type of ground transportation, leaving less of a carbon footprint than even hybrid cars. Evidences of global warming are already occurring. Increasingly severe hurricanes, droughts, tropical storms and other severe weather are effects that scientists have warned about regarding global warning. Irma has been named a Category 5 Hurricane and is one of the strongest ever recorded in the Atlantic Ocean.

It’s reassuring to have your friends, family and loved ones all together on one bus charter. You hear about people getting separated during disasters and can only imagine how stressful that can be.

Plan ahead and charter your bus as soon as possible so you can leave safely together.

Dangers of Flooding Caused by Hurricanes and Tropical Storms

According to the Chicago Tribune, a new study in relation to hurricanes and tropical storms revealed that inland flooding caused more deaths in the U.S. than strong winds, storm surge or tornadoes. The study covered a period between 1970 and 1999.

It showed that out of the 600 people who died in hurricanes, tropical storms and tropical depressions during this time period, 59 percent drowned or were killed from a trauma related to inland flooding. This statistic didn’t include electrocution by fallen or hidden power lines. In fact, 150 people died in motor vehicles as waters rose. The statistics indicated that 63 percent of fatalities occurred in inland counties, 27 percent died in coastal counties and 11 percent were killed offshore.

Buses Are Also Vital for Returning Home After a Hurricane

Evacuating safely is important, but so is returning home. You must be careful returning after a hurricane, especially when flooding is an issue. When you rely on a charter bus to bring you back, you can be sure the driver has detailed information regarding which roadways are safe, which are flooded and the best route to travel. After all, the driver has a whole company behind him and dispatchers who relay vital information.

As far as economical travel, you can’t beat a charter bus. Charter bus rates are reasonable, and with everyone chipping in, it brings down costs. Plus, you don’t have to worry about finding gas, filling your vehicle, checking tires or any of the other tasks involved with driving your own truck or car.

Hurricanes are already stressful events, why not take away some of the stress by putting you and your family in the hands of a professional who’s extensively trained for safety and a vehicle that’s safer and greener than your own?

Reserve Your Charter Today

Reserve ahead and put your worries to rest. You can make reservations online the fast and easy way. But if you need questions answered or want to check out discounts, call 1-888-340-9122. We’re always available to help.

Why Does the Workers’ Compensation Board Schedule a Hearing?

Will There Always Be a Workers’ Compensation Hearing?

New York City | Queens | Brooklyn | Bronx Workers’ Compensation Lawyers

So you have been injured in a workplace accident and you’ve prepared and filed a claim for workers’ compensation. Will you be required to attend a hearing before the Workers’ Compensation Board? If not, what is the purpose of a hearing and why are they scheduled?

As a general rule, if your claim is approved, there’s no need for a hearing. However, if there’s a dispute regarding how much should be paid, the Board may schedule a hearing to review average weekly wage and verify the benefits payment. In addition, if your initial application for benefits is approved, but there’s a later dispute regarding whether you are ready to return to work, the Board may call a hearing.

Of course, if your employer or the insurance company decides to challenge your claim, arguing that you weren’t hurt at work, that your injury did not include a specific body part, or that your injury doesn’t prevent you from working. The company doctor may conclude that your injuries are not sufficient to keep you from doing your job. These are all situations where the Board may require a hearing.

It’s extremely critical that you don’t attend a Workers’ Compensation Board hearing without legal counsel. Your employer will likely have attorneys present. In addition, the judge simply won’t have time to explain all the nuances of the law to you.

 

Why Does the New York Workers’ Compensation Board Schedule a Hearing?

Pyrros & Serres LLPQueens | NYC | Brooklyn | Bronx Workers’ Compensation Attorneys

Retired NYPD detective sues LGBT Network for alleged smear campaign

Author Posted FIOS 1, Cecilia Dowd , Aug 9, 2017, 7:15 pm, Aug 9, 2017, 7:20 pm

Tom Verni says he has been a target since he had a falling out with the organization. Verni’s attorney Anthony Colleuluori says what it comes down to is fraud.

Retired NYPD detective sues LGBT Network for alleged smear campaign _ Verizon FiOS1 News – Long Island

 

Media commentator and retired NYPD detective, Tom Verni, is suing a local LGBT organization for allegedly creating a Twitter page with his images with tweets that suggest that he sexually molests underage boys.

He is now suing the Woodbury-based LGBT Network, its CEO David Kilmnick, and others for $5 million.

Verni says things first went south at the end of 2014 when Kilmnick and Verni had a disagreement on Facebook over police turning their backs on the mayor at a slain officer’s funeral and Verni was unfriended.

“As a result of that Facebook dust up that we had, that’s when people started coming forward and messaging me saying, ‘hey, do you know what’s going on over there at the LGBT Network?’” Verni said.

Raiser-and-kenniff-Thomas-A-Kenniff

Contact Anthony Colleluori, Criminal Defense Attorney at Raiser & Kenniff, P.C.

 

Raiser Kenniff

Experienced trial attorney with a reputation for winning

Anthony J. Colleluori, a well known New York and Long Island trial and appellate lawyer, has practiced for over 20 years, focusing his practice on Criminal Law; First Amendment & Obscenity; Constitutional Law & Civil Rights; Civil RICO and Federal False Claims Act cases.

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The Confidentiality Clause – The Abuse That Keeps on Giving

Author: Bill Cafaro

The First Amendment guarantees us the right to free speech, but unfortunately, it is generally legal to force employees (or anyone else) to sign this away. Businesses do this by making people sign confidentiality clauses to get hired, to keep their jobs, or to get their settlement after any employment dispute or lawsuit. Confidentiality agreements prevent the Employee from talking about anything the Company doesn’t want discussed, and always include the amount of the settlement. Read More

What’s So Bad About These Agreements? Shouldn’t Business Owners Have a Right to Some Privacy?

Businesses legitimately need non-disclosure agreements to protect their trade secrets and other vital information from their competition. Unfortunately, they can also be used to conceal systemic violations of laws and regulations, patterns of discriminatory conduct, or sexual harassment.  In those situations, offensive and illegal behavior can continue and flourish.  For example, Fox News used these clauses as a curtain to keep a culture of sexual harassment out of public view for over a decade, allowing Roger Ailes to rack up $45 Million in payouts for sexual harassment claims, and Bill O’Reilly another $13M. Because his victims had to sign confidentiality and non-disparagement clauses as part of their settlements, Ailes continued victimizing women in complete privacy. Ailes was probably able to remove many panties off that would otherwise have stayed on if these clauses were illegal. But for the most part, they are perfectly legal under federal law[1], and with a Republican Congress and President Trump in the White House, this will not change anytime soon.

In fact, President Trump loves these clauses so much that everyone who volunteered for his campaign had to sign one prohibiting them from saying anything bad about Trump, his family or his businesses forever, and it also required the volunteers to prevent their employees (if they had them) from doing so. It also prohibited them from campaigning for any other presidential candidate until 2024, even if Trump had had not gotten the nomination.Read More

Is This Problem Limited to the Employment Context?

 

 

 

No. For many years, the Catholic Church settled claims brought against pedophile priests using these same exact clauses, and it still does. The Diocese would transfer the pedophile priest to another distant parish, the family would sign a confidentiality and non-disparagement clause as part of the settlement, and the priest continued to prey upon different children while the risk remained hidden from their parents.

What Happens When You Break a Confidentiality or Non-Disparagement Agreement (“NDA”)?

What Protections Are There Against This Under Existing Law? Read More

Is Anything About These Clauses Good for Employees? Read More

How Did Dennis Rodman Make New Confidentiality Clause Law?

On January 15, 1997, while scrambling for the ball in a game against the Minnesota Timberwolves, Rodman fell into a group of photographers on the sidelines. When he got up, he did the only reasonable thing – he kicked one of them in groin. Read More

Over the last six years, Mr. Cafaro has applied his litigation skills toward representing employees aggressively in overtime and discrimination cases. He has represented hundreds of workers successfully in individual wage and hour cases, including class and collective actions. He also litigates discrimination cases in both the federal and state courts.

Fluency in Spanish helps Mr. Cafaro to communicate with clients in their native language.

Race Discrimination Lawsuit: Rosebud Restaurants Settled, Paying $1.9 Million

Author:Law Offices of Stephen D. Hans & Associates

In a race discrimination lawsuit, the EEOC sued Rosebud Restaurants and parties settled for the amount of $1.9 million.

The EEOC brought a lawsuit against Rosebud, which operates 13 Italian restaurants in Chicago and nearby suburbs.  The restaurants were not hiring African Americans, and restaurant managers and the Rosebud owner Alex Dana used racial slurs when referring to African Americans. Read More

Before taking legal action, the EEOC first attempted to use its conciliation process to resolve the issue. When a settlement could not be reached, it filed a lawsuit for racial discrimination in hiring based on Title VII of the Civil Rights Act of 1964.

Outcome of the Race Discrimination Lawsuit

Details of the settlement include:

  • African American applicants who were denied jobs will receive $1.9 million from Rosebud.
  • Rosebud now has hiring goals for qualified African American job applicants, including that 11% of future employees will be black.
  • The settlement decree prohibits Rosebud from engaging in future racial discrimination or retaliation
  • Rosebud must recruit African American applicants
  • Rosebud must train managers and employees against race discrimination and retaliation
  • For four years, Rosebud must periodically submit reports to the EEOC that show compliance with the settlement decree’s terms
  • Rosebud must post notices that inform employees about the decree’s terms

The parties were able to resolve the lawsuit through lengthy negotiations. The negotiations occurred prior to depositions and significant pre-trial motions that could have resulted in considerable litigation costs. Read More

Your Rights When You Submit to a Medical Examination

Queens |NYC| Brooklyn |Bronx Workers’ Compensation Attorneys

Author:Pyrros & Serres

Your Rights during a Workers’ Compensation Medical Examination

Under New York’s workers’ compensation laws, when you have suffered a work-related injury and seek workers’ compensation benefits, your employer has the right to require that you be examined by a licensed physician chosen by the company or the workers’ compensation insurance provider. Theoretically, it’s an “independent” examination, designed to objectively determine whether your injury prevents you from working. In reality, though, they’ll look for any way to reject your claim, so that your employer and the workers’ compensation insurer minimize their financial losses.

Read More:

 

Your Rights during a Workers’ Compensation Medical Exam

Experienced Queens |NYC | Brooklyn | Bronx Workers’ Compensation Attorneys

At Pyrros & Serres LLP, we handle all matters related to workers’ compensation and Social Security disability claims for people in the Bronx, Brooklyn, Queens and across the greater New York City metropolitan area. Because of our reputation for effective advocacy, many of our new clients come to us as referrals from clients and other lawyers.

To learn more about the full scope of our practice, see our practice area overview page.

Pyrros & Serres LLP

Queens | NYC | Brooklyn | Bronx Workers’ Compensation Attorneys

Distracted Driving : Apps to Keep Driver’s Safe

Milo Yiannopoulos Sues Simon & Schuster – Bet They Wish They Had a Morals Clause, but What’s a Morals Clause?

by  | Jul 11, 2017 |

According to the lawsuit he filed on Friday, July 7, 2017, Simon & Schuster refused to publish his most recent book, Dangerous, because of allegations that public statements he made condoned pedophilia[1].

 What’s a “Morals Clause”

It’s a provision routinely included in contracts for celebrity endorsers, professional athletes, newscasters, TV actors, and various other people whose effectiveness and/or salability depends upon the public’s perception of them. Going back to 1972, Marilyn Chambers, the fresh faced young mother holding the infant on the Ivory Snow detergent box  starred in Behind the Green Door, which was considered extremely hard core pornography at that time. This was obviously at odds with the pure and wholesome image Proctor & Gamble wanted the public to associate with its product. Typically, morals clauses allow the company to cancel the contract if the individual is charged with or convicted of a serious crime or conduct which is immoral or widely viewed by the public as reprehensible.Can’t Simon & Schuster Refuse to Publish any Book? Read More

 What Will the Main Issues be in Milo’s Case?

From Fatty Arbuckle to The House Un-American Activities Committee to Charlie Sheen to Brian Williams – How did Morals Clauses Come About and How Have They Been Used[3]?

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Morals Clauses started in 1921 when Roscoe “Fatty” Arbuckle, a very famous silent film star at that time, was arrested and charged with the rape and murder of a young starlet who had been found in his hotel room.  Although the evidence against him was slim and he was found not guilty of all charges, the sensational “yellow journalism” of the day convicted him in the court of public opinion. Widespread outrage at “Hollywood Immorality” prompted the entertainment industry to use Morals Clauses in every contract to protect them from having to continue to pay stars who stepped in scandal, as well as to appease their audiences.

Thirty years later, the House Un-American Activities Committee, at the height of the Cold War in the early 1950s, investigated alleged Communist infiltration of the motion picture industry.

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The next big splash in this area was Charlie Sheen’s contract for Two and a Half Men, which had a very weak Morals Clause,requiring commision of a felony offense involving moral turpitude. This put Warner Bros. TV on shaky legal ground for firing him despite his clearly outrageous behavior, and they had to fall back on the argument that his cocaine use impaired his ability to adequately perform. Sheen sued for $100M, and although the settlement was confidential, it was clearly substantial.

Fast forward to 2015, when Brian Williams, who had just signed a $10M contract with NBC, publicly gave several variations of a false account of a March 2003 helicopter ride during the U.S. invasion of Iraq which he was forced to take back and apologize. His credibility with the public plummeted, and NBC, which could clearly have terminated his contract based on an ironclad Morals Clause in his contract, decided on a six month unpaid suspension instead.

The long and short of this is that every contract is different, and the outcome in each situation is, and will continue to be, determined based on the wording the parties agreed upon when they sat down with their lawyers and made their deal.

[1] As everyone who follows Milo Yiannopoulos knows, he is openly gay, vigorously denies that he has ever advocated pedophilia, and claims that his widely publicized remarks which led to his departure from Breitbart News referred favorably to a relationship he had with a man who was 29 when he was 17. 16 was the legal age of consent in the UK, where this took place. Milo also posted a statement on his Facebook page (which is attached to his complaint as Ex. “I”) denying that his public remarks ever condoned pedophilia. Whether Milo’s remarks expressed approval of pedophilia or not is a question which is not addressed here; it is merely assumed that Milo made public statements which were very heavily criticized.

[2] The NFL contract, for example, allows the club to terminate the player, “if, at any time, in the sole judgment of the Club,….[the] player has engaged in personal conduct reasonably judged by the Club to adversely affect or reflect on the Club.” , http://static.nfl.com/static/content/public/image/cba/nfl-cba-2006-2012.pdf ¶ 11, p. 252.

[3] For an excellent history of the law in this area, see, Morals Clauses, Past, Present and Future, Caroline Epstein, NYU Journal of Intellectual Property and Entertainment Law, Vol. 5, No. 1.

[4] Twentieth Century-Fox Film Corp. v. Lardner, 216 F.2d 844, (9th Cir. 1954); Scott v. RKO Radio Pictures, Inc., 240 F.2d 87, (9th Cir. 1957)

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