HomeMy WebLinkAbout99-3981 / 99-3542 / 97-5584 CivLOUIS J. CAPOZZI, JR.,
PLAINTIFF
LATSHA & CAPOZZI, P.C.,
KIMBER L. LATSHA,
GLENN R. DAVIS and
DOUGLAS C. YOHE,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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IN RE: DAMAGES
OPINION AND VERDICT
Bayley, J., December 22, 2003:--
Plaintiff, Louis J. Capozzi, Jr., an attorney, was a shareholder and employee of
the Cumberland County law firm of defendant, Latsha & Capozzi, P.C. Attorneys
Kimber L. Latsha, Glenn R. Davis and Douglas C. Yohe, were the other shareholders in
the firm. On June 6, 1997, after plaintiff overbilled clients of the firm and following a
period of other contentious disagreements, the firm notified him that his employment
would only be continued for an open probationary period subject to thirteen conditions.
Plaintiff did not accept the conditions and his employment terminated. On June 11,
1997, plaintiff started his own law firm, Capozzi Associates, in Harrisburg, Dauphin
County. Many of the clients of Latsha & Capozzi employed plaintiff's new firm.
Plaintiff instituted litigation to recover (1) the value of his stock in Latsha &
Capozzi as of June 6, 1997, and (2) money owed on a demand note the law firm gave
to him. Defendants filed a counterclaim seeking damages against plaintiff for his
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overbilling clients of the law firm.1 In response to plaintiff's claim to recover the value of
his stock in the law firm, defendants maintained that all of the shareholders of Latsha &
Capozzi had an oral agreement that if any shareholder left his employment, and then
competed with the firm, that shareholder would receive the amount of his capital
contribution for his stock, which was $5,000. Defendants counterclaim for recovery
from plaintiff for his proportional share of the money the firm returned to clients, for the
cost of identifying those clients, and for determining the amount of the overbillings. The
parties agreed to bifurcate the trial with respect to plaintiff's stock, with a jury
determining liability and the trial judge determining damages as to value if in excess of
$5,000. On November 1, 2000, a jury returned a verdict on liability answering "Yes" to
the following three questions:
(1) Are Latsha & Capozzi, P.C., Kimber L. Latsha, Glenn R. Davis and
Douglas C. Yohe liable to Louis J. Capozzi, Jr. for payment of the demand
note the law firm gave to Capozzi?
(2) Is Louis J. Capozzi, Jr., liable to Latsha & Capozzi, P.C., Kimber L.
Latsha, Glenn R. Davis and Douglas C. Yohe, as a shareholder for his
1 There are lawsuits at three captions in which the various claims of the parties are
interdispursed. On October 10, 1997, Louis Capozzi instituted a suit in this court at
97-5584. On December 12, 1997, Kimber Latsha, Glenn Davis and Douglas Yohe
instituted a multiple count complaint against Louis Capozzi in the United States District
Court for the Middle District of Pennsylvania. Capozzi filed a multiple count
counterclaim. Some of plaintiff's counts and some of the counts of the counterclaim
were transferred by the District Court to this court and are docketed at 99-3981. Other
counts by both parties were dismissed with prejudice. On June 10, 1999, Latsha,
Davis and Yohe instituted a suit in this court at 99-3542.
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proportional share of the money the law firm returned to clients who were
overbilled by him, and for the cost of identifying the clients and
determining the amounts of the overbillings?
(3) Did the shareholders of Latsha & Capozzi, P.C. have an oral
agreement with Louis J. Capozzi, Jr., that if a shareholder left the law
firm, and competed with the firm, that shareholder's stock would be valued
at his capital contribution?
On December 18, 2000, the court, after taking additional evidence on damages,
entered the following verdict:
(1) Louis J. Capozzi, Jr., is awarded principal in the amount of
$38,071.50 plus interest totaling $8,668.48 through December 18, 2000,
for a total of $46,683.98, against Latsha & Capozzi, P.C., Kimber L.
Latsha, Glenn R. Davis and Douglas C. Yohe, on the demand note as
found by the jury in Question Number 1.2
(2) Latsha and Capozzi, P.C., Kimber L. Latsha, Glenn R. Davis and
Douglas C. Yohe are awarded damages, and as a setoff, from Louis J.
Capozzi, Jr., of $14,140.78 for client refunds representing his proportional
share of the money the law firm returned to clients who were overbilled by
him, and auditing expenses of $5,679.02 representing the total cost of
identifying the clients and determining the amounts of the overbillings, for
a total of $19,819.80 as found by the jury in Question Number 2.
(3) Louis J. Capozzi, Jr., is awarded $5,000 against Latsha and Capozzi,
P.C., Kimber L. Latsha, Glenn R. Davis and Douglas C. Yohe, with legal
interest from June 6, 1997, for the value of his stock at his capital
contribution as found by the jury in Question Number 3.
2 The figures used in the verdict are as set forth in plaintiff's Exhibit
Number 1 at the hearing on damages. Two are incorrect. The principal
amount of the note as shown on plaintiff's Exhibit Number 2, in the jury
trial, was $38,017.50. When this figure is added to the interest of
$8,668.48, it totals $46,685.98.
Plaintiff and defendants filed motions for post-trial relief. Plaintiff maintained,
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inter alia, that the oral agreement found by the jury to have existed between the
shareholders of the law firm was unenforceable. In a written opinion in support of an
order of February 27, 2001,: we stated:
Implicit in the oral agreement of all of the shareholders of Latsha &
Capozzi, P.C., was that if a shareholder left the law firm, he would be paid
for his stock. The issue is what that shareholder would be paid, not
whether he would be paid.
Concluding that "the oral agreement between the shareholders is unenforceable to the
extent that it limits plaintiff to receiving $5,000 for the value of his stock in Latsha &
Capozzi, P.C.," the following order was entered:
(1) The motion of plaintiff for a judgment notwithstanding the verdict on
liability as to the value of his stock in Latsha & Capozzi, P.C., IS GRANTED.
Plaintiff is awarded a new trial on damages.
(2) The motion of the defendants, Kimber L. Latsha, Glenn R. Davis and
Douglas C. Yohe, for a judgment notwithstanding the verdict on their individual
liability on a demand promissory note, IS GRANTED.
(3) The verdict in favor of defendants against plaintiff in the
amount of $19,819.80, IS MOLDED to add legal interest at the rate of six
percent per annum from August 1, 1997.
On April 19, 2002, the order was affirmed by the Superior Court of
Pennsylvania. 797 A.2d 314 (Pa. Super. 2002). The court stated:
We... affirm the trial court's finding that Latsha & Capozzi's forfeiture for
competition clause is an unreasonable restraint on competition. Appellee
is entitled to a trial to determine the value of his stock in Latsha &
Capozzi, P.C. as of the date of his departure. (Emphasis added.)
On April 28, 2003, the Supreme Court of Pennsylvania denied a petition for
: 50 Cumberland L.J. 119 (2001).
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review. 821 A.2d 586 (Pa. 2003). On September 17, 2003, a non-jury trial was
conducted on the issue of damages. Post-trial briefs were filed on October 17, 2003.
Both sides presented the testimony of a certified public accountant: Robert Murphy for
plaintiff and James Smeltzer for defendants.
Latsha & Capozzi was incorporated on May 23, 1994. By the end of 1996, the
law firm had fifteen attorneys and gross revenue for that year of 2.6 million dollars.
Plaintiff drew an annual salary of $175,000. At the end of each year, any money
remaining after the payment of expenses was distributed to the shareholders, one-half
in proportion to their ownership interest and the other half in proportion to the amount
of each shareholder's individual billings during that year. When plaintiff's employment
with Latsha & Capozzi ended, he and Kimber Latsha each owned thirty-seven and one-
half percent of the stock, Douglas Yohe owned fifteen percent and Glenn Davis owned
ten percent. To value plaintiff's stock when he left the law firm, Robert Murphy
converted the financial data from its modified cash basis of accounting to an accrual
basis of accounting which is consistent with general accepted accounting principles.3
Adjusting the law firm's data to an accrual basis required:
3 During a single accounting period the accrual basis achieves a better matching of
revenue and related costs and provides a more comprehensive inclusion of all assets
and liabilities relevant to determining shareholder equity. Revenue is recognized when
the services are provided and expenses are recognized when incurred. In modified
cash basis accounting, revenue is recognized when cash is received for services
rendered and expenses are recognized when paid.
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(1) Establishing the equity under the modified cash basis as of May 31, 1997.4
(2) Adding to assets revenue earned but not yet received, primarily in the form
of accounts receivable and work performed but not billed (work in progress).
(3) Removing from liabilities prepaid expenses to the extent they related to
future periods.
(4) Adding to liabilities accounts payable and other expenses incurred but not
yet recorded.
Plaintiff, through the testimony of Robert Murphy, seeks damages of $425,328.
Defendants, through the testimony of James Smeltzer, maintain that the damages are
$75,304.5 In offering his opinion as to the value of plaintiff's stock, Smeltzer deducted
$128,459 based on his assessment of the economic consequences caused by
plaintiff's departure from and direct competition with Latsha & Capozzi. In support of
this calculation, defendants cite Howard v. Babcock, 863 P.2d 150 (California 1993),
the reasoning of which both this court and the Superior Court accepted in the liability
part of this case. In Howard, the Supreme Court of California concluded that an
4 Although plaintiff's employment terminated at the end of the first week in June, 1997,
May 31st was the closest date for which financial records were available. Any change
in financial condition as to the value of the stock approximately a week later was
nominal.
5 Smeltzer prepared a supplemental report, which was not produced until the day he
testified, that set the damages at $66,182. His original report set the damages at
$51 ,O52.
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agreement among lawyers that imposed a reasonable toll on departing partners who
then competed with the firm was enforceable. In the present case, we concluded, and
the Superior Court agreed, that restrictive covenants between attorneys that contain
reasonable provisions may be enforced if: (1
employment, (2) is reasonably necessary, (3)
the agreement relates to a contract of
is supported by adequate consideration,
and (4) the application of the agreement is reasonably limited in both time and
territory? The oral agreement between the shareholders of Latsha & Capozzi, that any
shareholder who left his employment and then competed with the firm would receive
the amount of his capital contribution for his stock, was held unenforceable because it
was not limited in time and territory. Unlike in Howard, no enforceable agreement
exists. Therefore, the defendants cannot reduce the amount they owe plaintiff for the
costs of his departure and competition with Latsha & Capozzi. Accordingly, we need
not determine if $128,459 fairly reflects the economic consequence of plaintiff leaving
and competing with Latsha & Capozzi.
James Smeltzer calculated the amount due plaintiff on the basis of thirty-five
percent stock ownership in Latsha & Capozzi rather than the thirty-seven and a half
percent of the stock plaintiff actually owned when his employment terminated. That
6 As stated in our opinion of February 27, 2001: "[w]e conclude as a matter of public
policy that in Pennsylvania, attorneys that are shareholders of the professional
corporation may enter into an enforceable agreement that reasonably prevalues the
stock of a departing shareholder who then competes with the law firm."
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calculation was based on his understanding that Glenn Davis had met certain levels of
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performance at the end of 1996 that warranted the increase of his stock from ten
percent to fifteen percent. That would decrease plaintiff's actual ownership by two and
a half percent. Plaintiff testified that Davis had not met performances bonuses
warranting an increase of his stock in 1997. More importantly, the shareholders never
increased Davis's stock ownership to fifteen percent or reduced plaintiff's stock to
thirty-five percent by the time plaintiff's employment terminated. As the Superior Court
has already stated, plaintiff "is entitled to a trial to determine the value of his stock in
Latsha & Capozzi, P.C., as of the date of his departure." Plaintiff owned thirty-seven
and one-half percent of the stock on the date of his departure. Smeltzer's valuation at
thirty-five percent is not supported by the evidence.
James Smeltzer concluded that a contingent fee due from HCF, Inc. of $203,319
was substantially earned by Latsha & Capozzi before plaintiff was terminated. In
accrual accounting once an agreement has been reached to settle a case and the
contingent fee can be calculated it is treated as an asset. Robert Murphy also
included the $203,319 as an asset for purposes of valuing plaintiff's stock.7 Smeltzer,
unlike Murphy, also included a contingent fee of $185,000 of a Latsha &
Capozzi client, IHS. IHS hired plaintiff to continue the case after he left Latsha &
7 In February, 1997, the parties to the HCF lawsuit agreed to settle for $1,016,595
which generated a contingent fee of $203,319 owing to Latsha & Capozzi. The
settlement proceeds did not reach HCF until about August 1, 1997. Latsha & Capozzi
then made competing claims for the fee, after which HCF interpleaded the $203.319
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Capozzi. Smeltzer made this calculation based on his understanding that the actual
contingent fee would be between $145,000 to $225,000; therefore, he used an average
of $185,000. Plaintiff testified that he has yet to receive a fee from IHS and that the
case still has not been settled. Obviously, the fee could not be calculated on June 6,
1997. Accordingly, we agree with plaintiff that under accrual basis accounting any
prospective fee from IHS cannot be used in a calculation of the value of plaintiff's
stock on the date of his termination.8
James Smeltzer concluded that there was no value in the fixed assets of Latsha
& Capozzi while Robert Murphy concluded that the assets had a value of $137,104
when plaintiff was terminated. Murphy's calculation represented furniture and
fixtures at an original cost of $89,496, with a net book value of $38,200, and office
into federal court.
8 On November 10, 2003, defendants filed a petition to reopen the record. They aver
that on or about October 23, 2003, they learned that plaintiff had negotiated a
"Stipulation of Settlement" in the IHS suit on August 28, 2003, before he testified on
September 17th. On December 22, 2003, the petition was dismissed. It makes no
difference if in fact a settlement agreement, by which a contingent fee may now finally
be calculated, was reached on August 28, 2003. Any such agreement by IHS that
chose Capozzi Associates as its attorney, would be six years and two months after
plaintiff's termination on June 6, 1997. Under accrual basis accounting, this contingent
fee cannot be used in a calculation of the value of plaintiff's stock on June 6, 1997
because it could not be fairly calculated on that date. To the extent that such evidence,
if true, would attack plaintiff's credibility, the relevance is not sufficient to reopen the
record. Plaintiff's credibility has already been diminished by the verdict of the jury
which determined, contrary to his testimony, that the shareholders of Latsha & Capozzi
had an oral agreement that if any shareholder left his employment, and then competed
with the firm, that shareholder would receive for his stock the amount of his capital
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contribution, which was $5,000.
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equipment at an original cost of $183,105 with a net book value of $98,904. ($38,200 +
$98,904 = $137,104). These are the figures actually reported by Latsha & Capozzi on
the firm's financial statement of June 30, 1997. We do not understand how Smeltzer
could conclude that the fixed assets of the law firm had no value as of June 6, 1997.
The firm was incorporated near the end of May, 1994. The total acquisition cost of the
fixed assets was $272,601. Of the amount, $143,754 was acquired prior to 1996,
$89,958 in 1996, and $38,889 in the first five months of 1997. Murphy used the best
evidence available to value the furniture and fixtures as of June 6, 1997, which was the
net book value of $137,104 set by the law firm less than a month after plaintiff's
termination. We agree with that valuation.
Both parties agree that there were accounts receivable billed as of the
termination of plaintiff, of $478,359.74. All of these fees were collected by the law firm.
At plaintiff's termination, the law firm had unbilled time for the entire month of May and
the beginning of June. James Smeltzer, after filing an initial report that failed to
account for the value of this work in progress, filed a supplemental report concluding
that the amount was $114,509. Robert Murphy concluded that the amount was
$252,000. The reason for the large discrepancy is that Smeltzer calculated the amount
only to May 21, 1997, while Murphy calculated the amount to plaintiff's termination.
Because plaintiff is entitled to the value of his stock as of his termination, Murphy's
calculations are supported by the evidence while Smeltzer's are not.
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In their brief, the individual defendants maintain, (1) that their law firm and not
them individually is liable to plaintiff for the value of his stock, and (2) plaintiff is not
entitled to prejudgment interest from his date of termination.9 On December 18, 2000,
the following verdict was entered:
Louis J. Capozzi, Jr., is awarded $5,000 against Latsha & Capozzi, P.C.,
Kimber L. Latsha, Glenn R. Davis and Douglas C. Yohe, with legal
interest from June 6, 1997, for the value of his stock...
On February 27, 2001, the following order was entered:
The motion of plaintiff for a judgment notwithstanding the verdict on
liability as to the value of his stock in Latsha & Capozzi, P.C., IS
GRANTEE). Plaintiff is awarded a new trial on damages. (Emphasis
added.)
On defendants' appeal, the order was affirmed by the Superior Court.
Defendants did not raise in their appeal any issue as to their individual liability or the
award of prejudgment interest. Accordingly, the remaining issue is the amount of the
judgment on the liability already found against the law firm and its shareholders with
interest from June 6, 1997. The verdict as to individual liability and prejudgment
9 These positions are in contrast to the position taken by the individual defendants in
their claim in which they and the law firm were awarded damages with prejudgment
interest for client refunds representing plaintiff's proportional share of the money the
law firm returned to clients who were overbilled by plaintiff ($14,140.78), and the
auditing expenses for identifying those clients and determining the amount of the
overbillings ($5,679.02).
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interest is final.1°
We have analyzed the major differences in the opinions of James Smeltzer and
Robert Murphy as to the value of plaintiff's stock on his termination. All of these
differences have been decided in favor of plaintiff. While there are other lesser
differences in the opinions of the two accountants, we find overall that the testimony of
Robert Murphy is more credible than James Smeltzer. The real reason for the great
disparity in the valuations of the two accountants can be gleaned from the argument in
defendants' post-hearing brief, which James Smeltzer erroneously bought into:
There is no question that the parties to the implied repurchase
agreement intended for a departing shareholder to share in the diminution
in the value of the firm, resulting from the competing shareholder's
erosion of the firm's client base and corresponding revenue stream while
the firm's fixed costs remained constant. In supplying a price term or
stock value for the implied stock repurchase agreement, this Court at a
minimum should take into account the loss in the value of the firm as
reasonably calculated by Defendants' expert. Accounting for the
economic reality of the loss in the firm's value in evaluating Capozzi's
stock is not a forfeiture. It is merely a reflection of the economic
consequences of the removal of that value from the LDY firm and
transferring it to the new Capozzi firm.
The LDY position on valuation fairly accounts for the economic
impact of Capozzi's departure on the firm and the value of his stock, but
also secures for Capozzi a total return of $66,182, which reflects a
substantial return on his stock purchase price of $5,000. It also prevents
Capozzi from securing a windfall from the IHS contingency fee, and by his
10 There are often disputes as to the amount due to which prejudgment interest is
applicable. The value of plaintiff's stock was ascertainable as of June 6, 1997. Unlike
disputes involving unliquidated damages, prejudgment interest is a matter of right not
discretion, measured from the date payment was due to the time of judgment.
Fernandez v. Levin, 519 Pa. 375 (1988).
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attempt to avoid any financial consequences associated with the loss in
the value of the firm caused by his departure. The adoption of the LDY
position on value will leave the parties much closer to the intent of their
original agreement, and causes no harm to Capozzi.
This is law not equity. It has already been determined that these attorneys had
no enforceable restrictive stock agreement. There can be no implied repurchase
agreement that has any bearing on the value of plaintiff's stock at his termination. The
clients of Latsha & Capozzi choice whether to remain with that firm, go to plaintiff's new
firm, or retain another firm. Plaintiff was an integral part in creating the value to the
stock of Latsha & Capozzi, P.C. While he wrongfully overbilled clients, for which he is
being held accountable for his proportional share of the fees and costs associated with
determining the fees, that is not relevant as to the value of his stock on the date of his
termination. Likewise, the other contentious differences between these attorneys that
resulted in plaintiff's termination are not relevant to that determination. Arguing that
plaintiff will receive a windfall from the IHS contingency fee is to ignore the principles of
accrual accounting applicable to the value of his stock on a date certain. As plaintiff
set forth in his post-trial brief:
Capozzi (and Latsha) began with very little except their ability, their
client contracts, and their willingness to work. They succeeded in
building a law firm, as the $2.6 million in annual billings reflect; similarly,
that firm allowed defendants to pay themselves more than $735,000 in
salaries and bonuses in 1997 .... Capozzi was a substantial creator of
that value. He left behind not merely Accounts Receivables and Work In
Progress, but office equipment (fixed assets -- $137,000), a substantial
quantity of cash ($252,000), and a finalized contingent fee ($203,000).
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Both experts place the value of the firm's equity as of departure at a
comparable amount -- $1.096 million according to plaintiff's expert and
$1.014 million according to defendants' expert. Capozzi seeks in this
proceeding his portion of the net assets he created and left behind on
June 6, 1997.
We agree with plaintiff. It is the value of the stock he owned on the date of his
termination to which he is legally entitled, no more and no less.
Plaintiff was awarded $38,071.50 plus interest of $8,668.48 through December
18, 2000, for a total of $46,685.98 against Latsha & Capozzi for the amount due on his
demand note. Defendants were awarded $14,140.78 against plaintiff for his
proportional share of his overbilling of clients plus $5,679.02 in costs toward
determining the amount of the overbilling. Legal interest was from August 1, 1997.
These verdicts are final. In connection with the matter now before us we find that the
value of plaintiff's thirty-seven and a half percent ownership in the stock of Latsha &
Capozzi was $425,328 as of the date of his termination.
For the foregoing reasons, the following order is entered.
VERDICT
AND NOW, this day of December, 2003, plaintiff, Louis J. Capozzi, Jr., is
awarded $425,328, with legal interest at six percent per annum from June 6, 1997, against
Latsha & Capozzi, P.C., Kimber L. Latsha, Glenn R. Davis and Douglas C. Yohe.
By the Court,
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Edgar B. Bayley, J.
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Robert B. Hoffman, Esquire
For Louis J. Capozzi, Jr.
Richard H. Wix, Esquire
For Latsha and Capozzi, P.C.
Kimber L. Latsha, Glenn R. Davis and
Douglas C. Yohe
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LOUIS J. CAPOZZI, JR.,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LATSHA & CAPOZZI, P.C.,
KIMBER L. LATSHA,
GLENN R. DAVIS and
DOUGLAS C. YOHE,
DEFENDANTS
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IN RE: DAMAGES
VERDICT
AND NOW, this
day of December, 2003, plaintiff, Louis J. Capozzi, Jr., is
awarded $425,328, with legal interest at six percent per annum from June 6, 1997, against
Latsha & Capozzi, P.C., Kimber L. Latsha, Glenn R. Davis and Douglas C. Yohe.
By the Court,
Edgar B. Bayley, J.
Robert B. Hoffman, Esquire
For Louis J. Capozzi, Jr.
Richard H. Wix, Esquire
For Latsha and Capozzi, P.C.
Kimber L. Latsha, Glenn R. Davis and
Douglas C. Yohe
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