E-Minders November 2014
In This Issue:
E-Minders is our monthly e-mail newsletter containing the latest developments and practical guidance for corporate & securities law practitioners.
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2015 Edition of Romanek's "Proxy Season Disclosure Treatise": Broc Romanek has wrapped up the 2015 Edition of the definitive guidance on the proxy season—Romanek's "Proxy Season Disclosure Treatise & Reporting Guide" - is done and it was just mailed to those that ordered it. You will want to order now so that you can get your copy as soon as it's done being printed. With over 1450 pages—spanning 32 chapters—you will need this practical guidance for the challenges ahead.
Popular "Romeo & Dye Section 16 Forms & Filings Handbook": Good news. Alan Dye have completed the 2014 edition of the popular "Section 16 Forms & Filings Handbook," with numerous new—and critical—samples included among the thousands of pages of samples. Remember that a new version of the Handbook comes along every 4 years or so—so those with the last edition have one that is dated. The last edition came out in 2009.
Act Now: If you don't try a '14 no-risk trial to the "Romeo & Dye Section 16 Annual Service," we will not be able to mail this invaluable resource to you now that it's done being printed. The Annual Service includes a copy of this new Handbook, as well as the annual Deskbook and Quarterly Updates.
1st Edition of Morrison & Romanek's "The Corporate Governance Treatise": Wrapping up a project that Randi Morrison & Broc Romanek feverishly commenced two years ago, we are happy to say the inaugural 2014 Edition of Morrison & Romanek's "The Corporate Governance Treatise" is finished being printed. You will want to order now so that you can get your copy as soon as it's being mailed to those that ordered it. With over 900 pages—including 212 checklists—this tome is the definition of being practical. You can return it any time within the first year and get a full refund if you don't find it of value.
Upcoming Webcasts on TheCorporateCounsel.net: Join us on November 5th for the webcast - "Reg D Offerings: What Is Happening Now" - during which McCarter & English's Joe Bartlett, Cohen Gresser's Bonnie Roe and Davis Wright's Joe Wallin will provide a "bring-down" of what's happening now in the Reg D area, including what are the open issues and how are practitioners handling them - as well as provide practical guidance about what you should be doing in this area.
And join us on January 14th for the webcast - "Governance Roadshows: In-House & Investor Perspectives" - during which Vanguard's Sarah Goller, BlackRock's Michelle Edkins, Morrow & Co's Bill Ultan and Global Governance Consulting's Susan Wolf will explain governance roadshows - including provide practice pointers about what works - and what doesn't.
And join us on January 20th for the always entertaining webcast - "Pat McGurn's Forecast for 2015 Proxy Season" - when Davis Polk's Ning Chiu and Gunster's Bob Lamm join Pat McGurn of ISS and the proxy season expert to recap what transpired during the 2014 proxy season and what to expect for 2015.
And join us on February 11th for the webcast - "Conflict Minerals: Tackling Your Next Form SD" - to hear our own Dave Lynn of Morrison & Foerster, Schulte Roth's Michael Littenberg, Elm Sustainability Partners' Lawrence Heim and Deloitte's Christine Robinson discuss what you should now be considering as you prepare your Form SD for 2015.
There is no cost for these webcasts if you are a member of TheCorporateCounsel.net. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up for this no-risk trial online, send us an email at firstname.lastname@example.org - or call us at 925.685.5111.
Upcoming Webcasts on CompensationStandards.com: Join us on January 15th for the webcast - "The Latest Developments: Your Upcoming Proxy Disclosures" - to hear Mark Borges of Compensia, Alan Dye of Hogan Lovells and Section16.net, Dave Lynn of CompensationStandards.com and Morrison & Foerster and Ron Mueller of Gibson Dunn discuss all the latest guidance about how to overhaul your upcoming disclosures in response to say-on-pay-including the latest SEC positions-and the other compensation components of Dodd-Frank, as well as how to handle the most difficult ongoing issues that many of us face.
And join us on January 28th for the webcast - "Executive Compensation Litigation: Proxy Disclosures " - to hear Pillsbury's Sarah Good, Shearman & Sterling's Doreen Lillenfeld and Winston & Strawn's Mike Melbinger as they drill down on how proxy disclosure-related lawsuits are faring and what you can do to avoid them.
No registration is necessary - and there is no cost - for these webcasts for CompensationStandards.com members. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up online, send us an email at email@example.com - or call us at 925.685.5111.
Upcoming Webcasts on DealLawyers.com: Join us on January 29th for the webcast - "Proxy Solicitation Tactics in M&A" - to hear Okapi Partners' Chuck Garske, Alliance Advisors' Waheed Hassan, Managing Director and Innisfree's Scott Winter discuss the latest techniques used to sway opinion and bring in the vote - including social media - as well as how traditional tactics have evolved.
And join us on February 5th for the webcast - "Rural/Metro II: Aiding & Abetting Breach Claims Now" - to hear Steve Haas of Hunton & Williams, Kevin Miller of Alston & Bird and Blake Rohrbacher of Richards Layton discuss the pair of decisions expected to have a dramatic impact on the viability of claims for aiding and abetting breaches of fiduciary duty in connection with M&A transactions.
No registration is necessary - and there is no cost - for these webcasts for DealLawyers.com members. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up online, send us an email at firstname.lastname@example.org - or call us at 925.685.5111.
Upcoming Webcast on Section16.net: Join us on January 27th for the webcast - "Alan Dye on the Latest Section 16 Developments" - to hear Alan Dye of Section16.net and Hogan Lovells discuss the most recent updates on Section 16, including new SEC Staff interpretations and Section 16(b) litigation.
Posted: Archive Video from the "Usable Proxy Workshop"
Last month, we co-hosted a "Usable Proxy Workshop" with Addison in NYC for a group of in-house folks. The panels were video-taped and we have now posted those video archives in our "Usable Disclosure" Practice Area. So you can check out those panels (which include speakers from the companies leading the charge for more usable disclosure, such as GE, Coca-Cola, Pru, Western Union, etc.), as well as the related course materials at your leisure.
The panel topics include:
- "What Investors Really Want to See In Your Proxy"
Checklist: How to Best Work With Design Firms
Recently, Broc posted this checklist about how to work with design firms that specialize in usable proxies. The checklist is filled with practice pointers from three in-house folks that have led the way making their proxy statements more usable. In addition, we just posted these two other related checklists:
Online Proxies: The Use of Tiles-Based Navigation
Recently, Broc received an email from Rich Andrews of EZOnlineDocuments reminding us of the growing use of "tiles" for online proxies to facilitate navigation in a growing mobile world. Tiles is a big boost to usability because if you open a PDF on a tablet or smart phone, there is no option to full-text search, etc. Probably the best way to explain "tiles" is to just show you. Here are examples from this year:
Clawbacks & The New Revenue Recognition Rules: On a Collision Course?
Here's something Broc blogged on CompensationStandards.com's "The Advisors Blog":
As companies are staffing & gearing up for the FASB/IASB's new revenue recognition rules, it dawned on me that folks in the accounting world might not be aware of the upcoming Dodd-Frank rulemaking on clawbacks. And those folks that live and breathe compensation might not be aware of the revenue recognition accounting changes that were adopted a few months back (but won't be effective until fiscal years beginning after 12/15/16).
The implementation of the new revenue recognition rules will create all sorts of opportunities to get it wrong - and it looks like they will coincide with mandatory no-fault clawbacks that have to be applied to a broader range of executives for a longer period of time for any restatement. Section 954 of Dodd-Frank is quite prescriptive so I don't know how the SEC will have much flexibility. Maybe in the implementation and grandfathering provisions. This convergence of forces may well make for a dandy of a sleeper in Dodd-Frank, years after it was enacted!
The upshot is that we may be living in a world where senior managers will be trying to persuade compensation committees to either have less performance-based compensation that is susceptible to a restatement - or to use metrics that are less susceptible. Stepping back from performance-based pay is not what shareholders want to see - so this likely will cause tension between companies and their shareholders.
It's ironic that a new accounting standard that will cause more opportunities for restatements will apparently come on board near in time with the Dodd-Frank "super-charged" clawbacks. These newer clawbacks will be super-charged because you don't need misconduct like under the Sarbanes-Oxley standard.
And the kicker to watch out for right now is that as more companies move to multi-year performance metric setting, there could be companies that are setting performance goals now for years that will be subject to both the new revenue recognition rules (no matter how they wind up getting interpreted) and the Dodd-Frank clawbacks.
The bottom line is that the new clawbacks will certainly up the ante in discussions among auditors, audit committees and management as to whether errors discovered in previously filed financials are material. As with any area of uncertainty, step with caution. Thanks to Steve Bochner of Wilson Sonsini for pointing this out!
ISS Announces QuickScore 3.0: Verify Your Data by November 14th
In mid-October, ISS announced that QuickScore 3.0 will be launched on November 24th for the 2015 proxy season (in other words, that's the first date the new governance ratings will be included in research reports). Ning Chiu highlights some of the changes from last year in this blog - also see this Wachtell Lipton memo and Gibson Dunn blog. Here's the home for QuickScore 3.0, where you can download the technical document - and here's the new QuickScore factors by region.
Companies will have from November 3rd to November 14th to verify the underlying raw data and submit updates and corrections through ISS's data review and verification site. As always, ratings are updated based on a company's public disclosures during the calendar year.
ISS: New Draft Approaches to Equity Plan & Independent Board Chair Proposals
In mid-October, ISS released a group of draft policy changes for comment - two of them relating to the US: a new "scorecard" approach to evaluating equity compensation plan proposals and independent board chair proposals. Here's what Ron Mueller & Beth Ising of Gibson Dunn have blogged about them:
Today, proxy advisory firm Institutional Shareholder Services Inc. ("ISS") provided additional information on its plans to implement a new "scorecard" approach to evaluating equity compensation plan proposals at U.S. shareholder meetings and requested comments on its proposed policy change. This is one of two significant proposals ISS announced today that would impact U.S. companies for the 2015 proxy season, with the other proposed policy change relating to voting recommendations on independent chair proposals (which we discuss here). Companies considering seeking shareholder approval of equity plans at shareholder meetings in 2015 should consider these proposed changes now to the extent they want ISS to recommend votes "For" the equity plan.
Current ISS Approach to Equity Plan Proposals
ISS's current approach uses a series of "pass/fail" tests. Specifically, ISS will recommend votes "Against" an equity plan if the total cost of the company's equity plans including the proposed new plan is "unreasonable," if the company's three-year burn-rate exceeds the applicable burn rate cap determined by ISS, if the company has a pay-for-performance "misalignment" or if the plan includes certain disfavored features (e.g., if the plan permits repricing or includes a liberal change of control definition).
Companies seeking shareholder approval of a new equity plan or an amendment to an existing plan can often independently determine compliance with each of these factors except for cost. ISS evaluates the cost of a company's plans using its proprietary shareholder value transfer (SVT) measure. ISS describes SVT as assessing "the amount of shareholders' equity flowing out of the company to employees and directors." ISS considers the SVT for a company's plans to be reasonable if it falls below the company-specific allowable cap as determined by ISS using benchmark SVT levels for each industry. Thus, companies often engage the consulting side of ISS to determine the SVT of their plans and the number of additional shares that ISS would support for the new or amended equity plan.
New ISS Approach to Equity Plan Proposals
ISS previously announced its intention to implement a new "scorecard" approach to evaluating equity plan proposals at U.S. shareholder meetings. Today ISS provided more insights with the publication of its proposed new Equity Plans policy, which details ISS's new Equity Plan Scorecard ("EPSC"). Under the proposed EPSC, ISS will determine its voting recommendations on equity plan proposals by determining an EPSC score for a company based on three broad categories of factors: (1) the total potential cost of the company's equity plans relative to its peers; (2) the proposed plan's features; and (3) the company's equity grant practices. ISS has indicated that these scorecard factors and their relative weightings would be keyed to company size and status, with different weightings applicable to companies in the following categories: S&P 500, Russell 3000 (excluding the S&P500), Non-Russell 3000, and Recent IPOs or Bankruptcy Emergent companies.
With respect to the three categories that factor into a company's EPSC score:
- Cost will continue to be evaluated on the basis of SVT in relation to peers. However, SVT will now be calculated for both (a) new shares requested, plus shares remaining for future grants, plus outstanding unvested and/or unexercised grants, and (b) only on new shares requested plus shares remaining for future grants.
- Plan features that will be evaluated under the EPSC include automatic single-triggered award vesting upon a change-in-control, discretionary vesting authority, liberal share recycling on various award types (which will no longer be a component of SVT), and minimum vesting periods for grants made under the plan, in each case as specified in the plan document itself rather than in practice through award agreements.
- With respect to company grant practices, ISS's proposed EPSC will consider a company's three-year burn rate relative to its peers (which will eliminate company "burn rate commitments" going forward), vesting requirements in the most recent CEO equity grants, the estimated duration of the plan (calculated based on the sum of shares remaining available and the new shares requested under the plan, divided by the average annual shares granted under the plan in the prior three years), the proportion of the CEO's most recent equity awards subject to performance vesting (as opposed to strictly time-based vesting), whether the company maintains a clawback policy, and whether the company has established post-exercise/vesting holding requirements.
Although ISS has stated that certain highly egregious plan features (such as the ability to reprice options without shareholder approval) will continue to result in an automatic negative voting recommendation regardless of other factors, overall the EPSC will result in voting recommendations based on a combination of the above factors. This means that ISS may recommend votes "For" an equity plan proposal where costs are nominally higher than a company's allowable cap when sufficient other positive plan features and company grant practices are present. Likewise, ISS may recommend votes "Against" an equity plan proposal even where costs are lower than a company's allowable cap if sufficient other negative plan features and company grant practices are present.
ISS has invited comments on its proposed policy, and has specifically asked for feedback on: (1) whether any factors outlined above should be more heavily weighted when evaluating equity plan proposals; and (2) whether stakeholders see any unintended consequences from shifting to a scorecard approach. Comments may be submitted on or before October 29, 2014 via email to email@example.com. For more information, here's the ISS release discussing the proposed revisions.
We expect that corporate commenters will focus on the nature and extent of flexibility in the EPSC approach around plan features and past grant practices. For example, we understand that under the proposed scorecard, a plan will gain credit if it contains minimum vesting provision (for example, a minimum three year pro-rata vesting requirement), although companies may want flexibility to grant some awards free of any such restrictions. Thus, companies may wish to provide input to ISS on situations in which such grant practices may be warranted and should not result in negative weighting under the scorecard.
With respect to the proposed EPSC's factors that take into account past grant practices, companies often propose new equity plans so that they can implement new grant practices in the future that were not feasible under their existing plans (for example, a company may wish to be able to implement a performance stock unit program, or increase the percentage of shares granted under such awards and correspondingly decrease its use of stock options). In those cases, overemphasis on past grant practices may be inappropriate. Thus, in order that ISS may consider such situations as it develops its EPSC methodology, companies may wish to provide comments to ISS regarding situations in which they have sought shareholder approval of a new plan so that they could implement new grant practices, as well as other situations in which past grant practices may not be indicative of future equity programs.
Companies that are developing new equity plans that they intend to submit for shareholder approval at their 2015 annual meetings may need to scramble to reflect ISS's EPSC factors in their proposed plan if they want ISS to recommend votes "For" the plan. For example, even if a company's SVT would not have exceeded ISS's limits under its current voting policy, a "liberal share counting provision" under which shares retained to pay taxes again become available for grant under the plan may now contribute to a negative ISS voting recommendation on the plan. Likewise, the proposed EPSC methodology will contribute to more plans containing restrictions on how quickly equity awards are permitted to vest. It is worth noting, however, as ISS observes in its request for comments, that even though ISS historically has recommended votes "Against" approximately 30% of equity plan proposals each year under existing its policy, no more than 10 plan proposals have actually failed in any recent year. Nevertheless, ISS's policies are based in part on feedback from its institutional shareholder clients, and thus companies will want to carefully consider the extent to which factors considered under the EPSC reflect emerging trends and shareholder-favored practices.
ISS's final 2015 proxy voting policies are expected to be released in November and typically apply to shareholder meetings held on or after February 1. We expect that ISS will soon offer a new consulting product to help companies and their advisors analyze equity plans under the proposed new EPSC.
New Corp Fin CDI: Using IP Addresses to Control Intrastate Offerings
As Steve Quinlivan notes in this blog, a new Corp Fin CDI 141.05 (Securities Act Rules) indicates that companies may use IP addresses to effectively limit their offers to particular states or territories to qualify for Rule 147's intrastate offering exemption:
In a new CDI, the SEC indicates it may be possible to use IP addresses to control internet communications so that offers are made only in one state and qualify for the intrastate exemption under Rule 147. In Securities Act Rules CDI 141.05, Corp Fin states:
"Issuers could implement technological measures to limit communications that are offers only to those persons whose Internet Protocol, or IP, address originates from a particular state or territory and prevent any offers to be made to persons whose IP address originates in other states or territories. Offers should include disclaimers and restrictive legends making it clear that the offering is limited to residents of the relevant state under applicable law. Issuers must comply with all other conditions of Rule 147, including that sales may only be made to residents of the same state as the issuer."
See also this Cooley blog, which addresses the practical implications of this CDI - i.e., the alleged difficulty in implementing these technological measures such that they serve as a reliable control.
Fee-Shifting Bylaws: Will The SEC Get Involved?
In her blog, Cooley's Cydney Posner notes how Professors John Coffee and Larry Hamermesh recently testified at the SEC's recent Investor Advisory Committee meeting about whether the SEC should get involved in the debate over fee-shifting bylaws. Here's an excerpt from Cydney's blog (and here's a blog from John himself about it):
What is Coffee's prescription for the SEC? Coffee suggests, unless the provision at issue expressly precluded application in cases involving the federal securities laws, that the SEC file amicus briefs in litigation arguing that these provisions are contrary to public policy as expressed in the federal securities laws and therefore any state law permitting them is preempted.
Meanwhile, Keith Bishop weighs in with a blog entitled "Why The SEC Should Stay Out Of The Fee-Shifting Charter Debate." In addition, MoFo's Bradley Berman blogs about how the SEC's Investor Advisory Committee recommended that the definition of "accredited investor" in Rule 501(a) undergo some significant changes...
Whistleblowers: How to Evaluate Hotline Providers
With whistleblowing such a hot topic, it's a good time to gain an in-house perspective on how to evaluate the many firms that assist companies to process whistleblower tips (we maintain a list of hotline providers in our "Whistleblowers" Practice Area). In this podcast, Joe Kolomyjec of Lionbridge Technologies addresses how to evaluate and select whistleblower hotline providers, including:
- Who within the company is involved with
evaluating & selecting a hotline provider?
Cybersecurity: Verizon Data Breach Investigations Report
With cybersecurity the hot topic - we have held two webcasts on the topic over the past month - it's worth taking a look at this 60-page Verizon Data Breach Investigations Report that was released last month. The Verizon report contains a host of useful information as it relies on over 63,000 incidents from 50 organizations for the analysis. Also check out our checklists related to incident response planning, disclosure practices and risk management - as well as a chart of state laws related to security breaches...
Survey Results: Ending Blackout Periods
1. Which factor is most important in allowing
a blackout period to end one day after an earnings release:
2. How many analysts covering the company is
considered sufficient to allow blackout period to end one day after an earnings
3. What average daily trading volume is considered sufficient to allow blackout period to end one day after an earnings release:
Take a moment to participate in our "Quick Survey on Whistleblower Policies & Procedures" and our "Quick Survey on Earnings Releases & Earnings Calls."
The Latest SEC Enforcement Stats
In mid-October, the SEC released the stats for the activities of its Enforcement Division for the agency's 2014 fiscal year, noting a "record" number of enforcement actions in 2014 involving a "wide range of misconduct" and including a "number of first-ever cases." As Kevin LaCroix blogs, important lessons can be learned. Here's an excerpt from Kevin's blog:
During FY 2014, the SEC filed 755 enforcement actions, which represented a 10% increase over the 686 enforcement actions filed in FY 2013. In FY 2014, the agency also obtained orders totaling $4.16 billion, compared to $3.4 billion in 2013. By way of comparison to the statistics for FY 2013 and FY 2014, in FY 2012 the agency filed 734 enforcement actions and obtained orders totaling $3.1 billion in disgorgement and penalties.
The agency identified at least two significant factors driving the increase in enforcement actions. The first was the agency's use of "new investigative approaches and the innovative use of data and analytic tools" and the second was the agency's expansion into a number of new areas based on "first time cases."
With respect to the use of data and analysis, the press release quotes SEC Chair Mary Jo White as saying that "the innovative use of technology - enhanced use of data and quantitative analysis - was instrumental in detecting misconduct and contributed to the Enforcement Division's success in bringing quality actions."
The kinds of "first-ever cases" identified in the press release included "actions involving the market access rule, the ‘pay-to-play' rule for investment advisers, an emergency action to halt a municipal bond offering, and an action for whistleblower retaliation."
The press release also quotes SEC Chair White as saying that "aggressive enforcement" will remain a "top priority" and quotes the head of the SEC Enforcement Division as saying that he expects "another year filled with high-impact enforcement actions." Going forward, the SEC Enforcement head said, the agency will "continue to bring its resources to bear across the entire spectrum of the financial industry." Ominously, for the clients of the readers of this blog, he noted that among other things the agency will focus on bringing "cases against gatekeepers."
SEC Commissioner Piwowar Doesn't Like "Broken Windows" Enforcement Policy
In this speech, SEC Commissioner Piwowar analyzes the agency's enforcement efforts - including noting that he's not in favor of the Commission's recent "broken windows" initiative including this quote: "If every rule is a priority, then no rule is a priority."
This DealBook column is interesting - covering a panel consisting of the SEC's Enforcement Director Andrew Ceresney and five of his predecessors. And this "Naked Capitalism" blog is entitled "Private Equity as the Latest Example of SEC Enforcement Cowardice?"...
Our New "Rule 10b5-1 Trading Plans Handbook"
Spanking brand new. By popular demand, this comprehensive "Rule 10b5-1 Trading Plans Handbook" covers a topic that many have requested. This one is a real gem - 72 pages of guidance.
Our New "SEC Enforcement Handbook"
Spanking brand new. By popular demand, this comprehensive "SEC Enforcement Handbook" covers a topic that many have requested - what to do if your company - or someone working there - is investigated by the SEC. This one is a real gem - 31 pages of guidance. For example, the first section is entitled "First Steps for Responding to an Enforcement Investigation." There is also a section about disclosure obligations relating to SEC enforcement actions...
More on "The Mentor Blog"
We continue to post new items daily on our blog - "The Mentor Blog" - for TheCorporateCounsel.net members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:
- Optimizing the Value of Internal Audit
People: Who's Doing What and Where
When Will the SEC's EDGAR Get Hacked? (Or Has It Already?)
About a decade ago, Broc blogged: "Personally, I am always amazed that there have not been any reported hacks of the EDGAR system - as that has to be one of the most popular targets of the hacking community, even for the youngsters for whom it's just a sport. It is easy to imagine the harm that could be caused by someone that hacked EDGAR (e.g. post a fake 8-K with some drastic news that is a market-mover)."
Broc imagines that if EDGAR had been hacked, the SEC would make an announcement - or at least the SEC's Inspector General would eventually mention it in one of their reports about the SEC's security systems. And of course, the company (or companies) impacted by a hacking episode would tell the investor community of the problem. Falsified numbers in financials filed on EDGAR would truly undermine confidence in the markets. So we're glad that there hasn't been any cybersecurity incidents of this nature so far...
The SEC's Long History of Laptop Security Issues
As picked up by this Fortune article, the SEC's Inspector General recently issued a report that over 200 of the agency's laptops could be missing. The SEC has 5525 laptops in total, with about half in DC. Here's an excerpt from the article:
The SEC's Office of Inspector General said it reviewed a statistical sample of 488 laptops assigned to the agency's headquarters and three regional offices to determine laptop accountability. Of those devices, 24 laptops couldn't be accounted for, while incorrect user information was listed for about 22% of the laptops and incorrect location information was found for 17% of the sample size.
This type of thing is not new news for the SEC. Problems with laptops dates back at least to this GAO report in 2005 through this SEC Inspector General report in 2012, as highlighted by this report about the federal government's sketchy track record with cybersecurity safeguards for critical infrastructure by Senator Tom Coburn...
This DealBook article really slams the performance of SEC Chair White after one year...
In Corp Fin, former Staffer Greg Belliston has moved in-house to work at Nu Skin Enterprises.
What's New on Our Websites
Among other new additions, during the last month we have:
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