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UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW JERSEY
COR CLEARING, LLC, a Delaware limited
liability company,

Applicant,
vs.
E-TRADE CLEARING LLC,

Respondent.

) Case No. 2:15-cv)


)
)
) APPLICANTS REPLY IN SUPPORT
)
OF MOTION TO COMPEL
) PRODUCTION OF DOCUMENTS AND
)
THINGS IN RESPONSE TO
)
SUBPOENA
)
)
)
)
)
)

COMES NOW Applicant COR Clearing, LLC (COR Clearing) and hereby files this
reply in support of its motion for an order compelling E-Trade Clearing LLC (E-Trade) to
produce documents and things responsive to COR Clearings subpoena.
I.

INTRODUCTION

COR Clearing has been grievously and unjustifiably harmednearly $4 million was
wrongly taken from its accounts and erroneously distributed to brokers and their customers. COR
Clearing has filed a suit to remedy the harm done to it. E-Trade received, froze, and then
unjustifiably released

of these wrongly credited funds to its customers.

E-Trade thus has information relating to both the identity of individuals who received COR
Clearings funds and information relating to E-Trades own decision to freeze and release COR
Clearings money. This information is highly relevant to the lawsuit and was properly requested
by COR Clearing through its validly issued subpoena, a subpoena ignored by E-Trade and which
is the subject to COR Clearings motion to compel.

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E-Trades opposition does nothing to change the facts fundamental to the resolution of this
Motion: (1) COR Clearing served a valid subpoena on E-Trade; (2) the subpoenas requests were
narrowly tailored to seek only highly relevant information going to the heart of COR Clearings
claims in its pending case in the United States District Court for the District of Nebraska; and
(3) despite being aware of the underlying litigation and questions as to the validity of the
it was credited, and despite multiple letters from undersigned counsel, E-Trade
ignored the subpoena until well after the response date lapsed and contacted COR Clearings
counsel only after the instant motion was filed. On these facts, the motion to compel compliance
with the subpoena should be granted.
E-Trades arguments in its opposition are smokescreens that do not withstand close
inspection. E-Trade contends that it has negotiated with COR Clearing in good faith, but E-Trade
utterly ignored the subpoenaforcing COR Clearing to file this motionand it has yet to make
any substantive offer of compromise to resolve the subpoena. E-Trade contends that the subpoena
is overbroad, but, unlike the subpoenaed parties in cases cited by E-Trade, E-Trade has not
submitted a single affidavit that would substantiate its counsels bare assertion that the subpoena
is overbroad or would impose any kind of undue burden on E-Trade. The reason for that is simple:
the subpoena is not overbroad. A cursory review of the subpoenas requests in light of the
allegations made in COR Clearings complaint make plain that the subpoena is narrowly tailored,
seeking only discrete, easily identifiable documents, which are highly relevant to the underlying
litigation. Indeed, COR Clearing has issued nearly identical subpoenas to several other third
parties and they have already produced or are in the process of producing such documents to COR
Clearing.

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Ultimately, E-Trade has no basis for its blatant refusal to produce documents responsive to
COR Clearings lawfully issued subpoena. Any objection E-Trade may have had to the subpoena
has been waived and there are no extraordinary circumstances that would allow E-Trade to object
to the subpoena at this point. Even if E-Trade had not waived its objections, it has not and cannot
establish that the subpoena is overbroad or exceeds the bounds of fair discovery. Accordingly,
E-Trade should be compelled to comply with the lawfully issued subpoena.
II.

E-TRADE OVERSTATES ITS EFFORTS AT COMPROMISE

E-Trade acknowledges, as it must, that it was served with the subpoena at issue on
December 8, 2015. Despite this, E-Trade, a sophisticated entity who had been made aware of the
claims in the litigation numerous times before the service of the subpoena, did nothing. It did not
serve any objections to the subpoena or seek to quash the subpoena, nor did it contact COR
Clearing to discuss any concerns it may have had regarding the scope of the subpoena or to request
additional time to respond. In light of E-Trades disregard of the lawfully issued subpoena (as
well as E-Trades failure to acknowledge earlier letters from COR Clearing informing E-Trade of
the pending underlying proceeding and notifying E-Trade that its customers had received improper
due bill payments and were thus holding money belonging to COR Clearing), on December 31,
2015well after the deadline for complying with the subpoena or for objecting thereto had
passedCOR Clearing filed the instant motion to compel E-Trades compliance with the
subpoena. These facts are undisputed.
E-Trade attempts to mitigate its disregard of the lawfully issued subpoena by asserting in
its opposition that since contacting COR Clearing in mid-January, it has acted in good faith to
negotiate a compromise for the production of at least some much narrower portion of the nonconfidential information sought. (Dkt. No. 9 at pp. 1 & 3). First, it is undisputed that it was not

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until mid-January, after being served with COR Clearings motion to compel, that E-Trade finally
reached out to COR Clearing.
Second, and importantly, these arguments vastly overstate the discussion between the
parties. While COR Clearing has made a substantive effort at compromise, E-Trade has both
ignored that offer and has yet to make any substantive production or written (or specific) offer of
compromise. (Declaration of Michael Hilgers, attached as Exhibit 1, at 5). The only substantive
written offer at compromise has been made by COR Clearing, an offer which E-Trade has ignored.
On January 15, 2016, just a day or so after being contacted by E-Trade, COR Clearing promptly
reached out to E-Trade, detailing key categories of information it was seeking in an effort to reach
an agreement so as to avoid burdening the Court with unnecessary motion practice. A copy of that
e-mail, as well as the webpage referenced therein, is attached as Exhibit 2. E-Trade ignored the
email.
For its part, E-Trade has neither agreed to produce any documents outlined in that e-mail
nor otherwise provided a written (or specific) counteroffer. While it is true that E-Trade has
suggested that compromise may be possible on parts of the subpoena, E-Trade has yet to make any
specific offer for COR Clearing to evaluate. Indeed, since filing the opposition brief, E-Trade has
made no known attempt to offer any proposed compromise to COR Clearing or otherwise contact
COR Clearing regarding the subpoena. (Hilgers Decl. 6). 1 While COR Clearing has been ready,
willing, and able to negotiate some resolution to the subpoena, E-Trades failure to respond to the
subpoena in the first instance, its failure to respond to COR Clearings attempts at compromise,

Moreover, even if the parties are able to reach an agreement as to certain categories of documents,
E-Trade has made it clear that absent a Court order, it will not produce information that will allow
COR Clearing to identify the customers owning Calissio stock who are the unjust recipients of
dividends that have been wrongfully debited against COR Clearings accounts. (Id.).

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and its own failure to either produce any documents or provide a specific offer of compromise,
greatly undermine its argument that it has substantively worked to narrow the dispute before the
Court.
Thus, despite COR Clearings month-old effort at compromise, it appears that the subpoena
can be enforced only through an Order of the Court.
III.

ARGUMENT AND AUTHORITIES

A. E-Trade Has Waived All Objections To The Subpoena


E-Trade acknowledges, as it must, that when a company is served with a subpoena, it must
either produce the information requested by the date set forth in the subpoena, or it must take some
act to resist the subpoenaeither serving objections, moving to quash, or moving for a protective
orderwithin the earlier of 14 days after service or the time for compliance. See Fed. R. Civ. P.
45(d)(2), 45(d)(3), 45(e); see, e.g., Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 412 (S.D.N.Y.
2000). E-Trade further acknowledges the well-established rule that if a company fails to take
action to resist the subpoena within the 14-day period, all its objections to the subpoena are waived,
including objections as to privilege. Id.; Carey v. Air Cargo Assoc., Inc., Nos. M18-302, 09-2353,
2011 WL 446654, at *3 (S.D.N.Y. Feb. 7, 2011).
E-Trade, however, hangs its entire opposition to COR Clearings motion to compel on a
narrow exception to the rule that any objection not timely asserted is waived. Specifically, relying
on Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44 (S.D.N.Y. 1996), E-Trade asserts:
The federal courts recognize an exception to this rule where: (1) the subpoena is overbroad on
its face and exceeds the bounds of fair discovery, (2) the subpoenaed witness is a non-party acting
in good faith, and (3) counsel for witness and counsel for the subpoenaing party were in contact
concerning the witness compliance prior to the time the witness challenged the legal basis for the

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subpoena. (Dkt. No. 9 at p. 2 (quoting Concord Boat, 169 F.R.D. at 48)). E-Trade, however,
cannot show that even one of these three requirements set forth in Concord Boats is met, much
less all three.
1. On its face, the subpoena is not overbroadit is tailored to the discovery of highly
relevant documents.
First, in stark contrast to the subpoena at issue in Concord Boat, the subpoena at issue here
is not overbroad on its face and does not exceed the bounds of fair discovery. The subpoena
consists of eight requests, each of which seeks information directly relevant to the underlying
litigation.
In contrast to the subpoena at issue in Concord Boat, the first four requests do not seek a
comprehensive document production as to any subject matter, but instead seek only documents
sufficient to identify discrete sets of information. Request No. 1 seeks documents sufficient to
identify the individuals or entities to which E-Trade sold or transferred Calissio stock between
June 30, 2015 and August 19, 2015 and Request No. 2 seeks documents sufficient to show
specific information about the identified individuals and their transactions (for example, the date
and amount of each such sale or transfer and the issue date of the shares). (Dkt. No. 1-2 at p. 9).
As explained in COR Clearings opening brief (and as more fully set forth in COR Clearings
Complaint in the underlying litigation, which is attached as Exhibit B to COR Clearings Motion),
this limited 51-day period is tied directly to the period in which the fraudulent activity took place.
Calissio announced that a dividend was to be paid to holders of outstanding Calissio shares as of
close of business on June 30, 2015 (the record date) and the shareholders who were to receive
the dividends were those that owned the shares as of August 19, 2015. In between these dates,
Calissio discretely issued hundreds of millions of new shares of common stock (approximately
four times the number outstanding as of the record date) and bought back a large portion of those

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shares. Calissio recognized that while these new shares (which account for some 80% of Calissio
shares) were not eligible for the dividend, the DTCC would assess and pay (and ultimately did
assess and pay) due bills on all shares of Calissio stock. The result was a massive error that took
money belonging to COR Clearing and others out of their accounts and paid it into the accounts
of those holding Calissio stock as of August 19, 2015. (Dkt. No. 1-1 at pp. 3-4). On their face,
Request Nos. 1 and 2 are narrowly tailored to identifying those individuals who sold or transferred
Calissio stock during this 51-day window in which the fraudulent activity took place.
Request Nos. 3 and 4 are similarly narrow. These two requests are directed to identifying
those individuals and entities who wrongfully benefited from the fraudulent scheme. Specifically,
Request No. 3 seeks documents sufficient to identify the E-Trade customers who received any
transfer, payment, debit, or credit relating to their ownership, possession or control of Calissio
stock and Request No. 4 seeks documents sufficient to show specific information about the
identified individuals and their Calissio transactions (for example, the date and amount of the
payments they received). (Dkt. No. 1-2 at p. 10). These requests are central to allowing COR
Clearing to identify those customers of E-Trade who received Calissio dividends to which they
were not entitled (dividends that have been wrongfully debited from COR Clearings accounts). 2
Request Nos. 6 and 7 specifically relate to E-Trades handling of the dividends at issue in
the underlying dispute. On October 20, 2015 and again on November 12, 2015, COR Clearing
sent E-Trade letters placing it on notice of the underlying dispute and of the fact that E-Trade (on
behalf of its customers) had been improperly credited with due bill payments (e.g., funds to pay

To the extent that E-Trade asserts in its opposition that Request Nos. 3 and 4 are overbroad in
that they could be construed to encompass individuals who received payments relating to their
ownership of Calissio stock prior to the alleged fraud, COR Clearing does not seek information
relating to dividends paid by Calissio prior to the time period described in the Complaint.

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its customers Calissio dividends to which its customers were not entitled). (Dkt. No. 1-6; Dkt.
No. 1-7). Among other things, COR Clearing requested that E-Trade freeze any amounts credited
to its customers by DTCC as part of the purchase of shares of Calissio and assist COR Clearing in
the return of the due bill payments that were wrongfully credited to E-Trade. (Dkt. No. 1-6; Dkt.
No. 1-7). While E-Trade initially held the dividends allocations, it ultimately elected to release
the hold on the dividends in early December 2015 and to make the funds available to its
customers. 3 (See Ex. 2 at p. 2 (E-Trades response to customer inquiry regarding Calissio
dividends)). Request No. 6 seeks all documents concerning E-Trades decision to hold dividend
allocations purportedly paid by Calissio and Request No. 7 seeks all documents concerning ETrades decision to release the hold on dividend allocations purportedly paid by Calissio,
It is disingenuous for E-Trade to assert that its communications and documents relating to
the very dividend payments that are at issue in the underlying dispute are not relevant. E-Trade
was wrongly credited

with funds debited from COR Clearings accounts. E-Trade

froze those funds and then E-Trade ultimately, inexplicably, and wrongly determined that it would
distribute the

to its customerscustomers who had no right to the money in the first

instance. Information concerning these actions and decisions is highly relevant to COR Clearings
claims and highly relevant to COR Clearings efforts to recoup funds that flowed to E-Trade.
Nor can E-Trade plausibly assert that the use of the phrase [a]ll documents somehow
renders Requests No. 6 and 7 overbroad; the decisions to hold and then release the dividend
allocations were made in late 2015. Accordingly, there is a very limit period of time in which
documents responsive to these requests could have been created.

Ironically, it was E-Trades decision to release the funds to its customers that necessitates the
identification of those customers.
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Finally, while Request Nos. 5 and 8 are broader than the other requests in that they seek all
communications and documents E-Trade may have concerning Calissio, its president Adam
Carter, its transfer agent Signature, Calissio stock, Calissio dividends, and the payment of due bills

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related to Calissio, as well as those communications and documents E-Trade may have regarding
the underlying lawsuit, COR Clearing and Alpine (another clearing and settlement firm that, like
COR Clearing, was a victim of Calissios fraud), the relevancy of these documents to the
underlying dispute is clear. The underlying suit alleges that Defendants Calissio, Carter, and
Signature engaged in a fraudulent scheme utilizing Calissio stock and an inefficiency in the stock
dividend payment system, which allowed them to defraud COR Clearing (and others, such as
Alpine) out of millions of dollars.
E-Trade argues that these two requests could also reach documents that are not relevant to
the underlying fraud (for example, documents that predate the fraudulent scheme) and attempts to
analogize these requests to those found overbroad in Concord Boat. E-Trade, however, ignores a
number of critical distinctions between its situation and that in Concord Boat. Importantly, in
Concord Boat, the subpoenaed party, Merrill Lynch, had submitted an affidavit establishing that
responding to the subpoena would be unduly burdensome as it sought documents relating to a
multinational corporation for whom Merrill Lynch had an extensive relationship (having acted as
its investment banker and financial advisor for more than 20 years), including documents relating
to numerous transactions that had no relationship to the underlying dispute. Concord Boat, 169
F.R.D. at 49-50. By contrast, E-Trade has submitted no affidavit or other evidence that would
suggest responding to Request Nos. 5 or 8 would impose any burden on E-Trade. E-Trade does
not contend that it has ongoing business relationship with Calissio, COR Clearing or Alpine and it
has not averred that it is in possession of any quantity of documents that are responsive to these
requests but not relevant to the underlying dispute. That said, had E-Trade simply contacted COR
Clearing (instead of ignoring the subpoena), COR Clearing would have limited these requests to
seek only those communications or documents that were created or exchanged on or after June 1,

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2015 (when Calissio announced the buyback program that allowed it to perpetuate the fraud) and
remains amendable to this modification.
In sum, E-Trade has not and cannot show that the subpoena is overbroad on its face and
exceeds the bounds of fair discovery as required by Concord Boat.
2. E-Trade is not an innocent bystander to the dispute as it knowingly and intentionally
distributed to its customers nearly
in frozen funds which had been
wrongly debited from COR Clearing.
Second, setting aside the issue of overbreadth, E-Trade does not fall within the limited
exception set forth in Concord Boat as E-Trade is not simply an innocent bystander in this dispute
acting in good faith. While E-Trade is not presently a named party in the underlying dispute, it is
far from an innocent bystander with no interest in the outcome of the underlying litigation.
Concord Boat, 169 F.R.D. at 52. As explained above, E-Trade had actual notice of the fraud.
While E-Trade temporarily placed a hold on the dividend payments to its customersincluding
funds wrongly taken from COR Clearings accountsE-Trade ultimately elected to release the
hold on the dividend payments. E-Trade thus distributed to its customers funds wrongfully drawn
from accounts at COR Clearing and Alpine. At the time it released the hold, E-Trade was well
aware of Calissios fraud, that holders of Calissio stock were not entitled to the dividend, and that
its release of the hold would directly hinder COR Clearing from recovering funds wrongfully
debited from its account. E-Trade is at the center of COR Clearings efforts to remedy the harm
done to it by the fraud, and its non-compliance with the subpoena effectively perpetuates that fraud.
3. E-Trade did not act at all before the motion to compel was filed and has yet to make
any specific offer of compromise.
Third, E-Trade also does not fall within the limited exception outlined in Concord Boat for
yet another independent reason: E-Trades counsel made no effort whatsoever to contact COR
Clearings counsel regarding compliance with the subpoena prior to the present motion being

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brought. While the subpoenaed party in Concord Boat reached out to the other side in an attempt
to reach an agreement as to the scope of the disputed requests and to resolve the concerns it had
regarding the subpoenas breadth (the parties had actively negotiated both the scope of the
subpoena as well as multiple extensions of the response date), E-Trade did none of these things.
See Concord Boat, 169 F.R.D. at 46, 52. Instead, E-Trade simply ignored the subpoena. It ignored
COR Clearings letters. It did not voice any concerns regarding the scope of any request. It did
not offer to compromise. It was not until after COR Clearing was forced to file the instant motion
to seek to compel E-Trades compliance with the subpoena that E-Trade finally contacted COR
Clearings counsel. Even then, E-Trade has not committed to any substantive production. (Hilgers
Decl. 5-6). Simply put, in Concord Boat the subpoenaed party made a number of good faith
efforts to respond to the subpoena before Federal Rule 45s objection deadline passed; here, ETrade made no effort to contact COR Clearing until after the deadline passed and the motion to
compel was filed. Indeed, while E-Trade has suggested that it has negotiated in good faith, it has
not (a) made a substantive proposal for production of documents or (b) communicated with COR
Clearings counsel since filing its opposition brief.
In sum, this case does not come close to meeting the type of unusual circumstances that
would warrant an exception to the rule that the failure to timely object to a subpoena results in a
waiver of all objections. Accordingly, E-Trade has waived any objections it may have had to COR
Clearings subpoena and this Court should issue an order compelling E-Trade to produce all
documents in its custody, possession, or control that are responsive to the subpoena.
B. There Is No Basis For Quashing The Subpoena
Even assuming arguendo that E-Trade had not waived its objections to the subpoena and
couldat this late stageseek to quash the subpoena, its opposition does not come close to

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meeting its burden to establish that the subpoena should be quashed. While Federal Rule of Civil
Procedure 45(d)(3)(A) requires a Court, on a timely motion, to modify or quash a subpoena that
subjects a person to undue burden, E-Trade has not submitted a single affidavit or any other
evidence that would support an assertion that responding to the subpoena would impose any undue
burden on E-Trade. As set forth above, the subpoena seeks documents that are highly relevant to
the underlying litigation, including documents that will allow COR Clearing to identify those that
have been unjustly enriched by the fraudulent scheme. E-Trade, by contrast, has submitted nothing
that suggests responding to the subpoena would impose any significant burden on E-Trades
resources, much less an undue burden.
While E-Trades opposition also assert that the subpoena is somehow unfair as it requires
the production of confidential information, there is already a protective order in place in the
underlying litigation, pursuant to which E-Trade can designate appropriate documents as
confidential or highly confidential. Moreover, the only purportedly confidential information that
E-Trade identifies with any specificity in its opposition is customer information. The customer
information sought by the subpoena, however, is quite narrow (and has already been produced by
several other third-parties, who are similarly situated to E-Trade and recognize its relevance to the
underlying dispute). Specifically, the customer information sought is limited to basic information
identifying the customers who traded in Calissio during the pertinent period or who were
beneficiaries of the fraud and to information pertaining to these customers Calissio stock,
dividends and trades. The subpoena does not seek overall account balances and it does not seek
any information about any other stock these customers may own, or any other aspect of their
portfolios. Moreover, the identifying information sought includes basic information such as name,
residential contact information, and business contact information; it does not seek information that

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is likely to be sensitive (such as social security numbers or financial information unrelated to


Calissio trades). In fact, the sole case E-Trade cites for the proposition that individuals may have
a privacy interest in personally-identifiable informationHardie v. National Collegiate Athletic
Association, No. 2013 WL 6121885, at *3-4 (S.D. Cal. 2013)explicitly recognized that
information such as names, addresses and phones numbers are not particularly sensitive and
compelled the production of such personal information as it found the information was relevant to
the litigation.
E-Trades opposition does not cite any case in which a Court has allowed a party to
withhold the type of information sought here, nor does it cite any statute that would justify
E-Trades continued refusal to produce customer information. While E-Trades opposition asserts
that customer information is protected by Securities and Exchange Commission Regulation S-P
and its own privacy policy, this is a red herring, as it fails to mention that neither Regulation S-P,
nor E-Trades privacy policy, prevent disclosure where, as here, the information is sought pursuant
to a lawfully issued subpoena. See, e.g., 17 C.F.R. 248.15(a)(7). In fact, the privacy policy on
E-Trades website (a copy of which is attached hereto as Exhibit 5) explicitly acknowledges that
personal information may disclosed by E-Trade to non-affiliated third parties as permitted or
required by law. Given the scope of the customer information being sought and its relevance to
the underlying suit, there is no valid basis for E-Trades refusal to produce this information.
In short, even if E-Trade had not waived its objections to the subpoena it has not (and
cannot) establish any basis for this Court to quash the subpoena.

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IV.

CONCLUSION

For the foregoing reasons, COR Clearing respectfully requests that the Court issue an order
compelling E-Trade to produce all documents in its custody, possession, or control that are
responsive to COR Clearings Subpoena, including all communications (i.e., privileged and nonprivileged) responsive to the subpoena from the following custodians:
, and any other custodian that has
information responsive to the subpoena. Finally, COR Clearing respectfully requests that the
Court award COR Clearing its fees incurred in pursuing this Motion, and award such further relief
as to which COR Clearing might be entitled.

Dated: February 17, 2016

Respectfully submitted,
By: s/ Robert P. Gammel
Robert P. Gammel
Law Offices of Jan Meyer & Associates, P.C.
1029 Teaneck Road, 2nd Flr.
Teaneck, New Jersey 07666
rgammel@janmeyerlaw.com
(201) 862-9500
LOCAL COUNSEL TO APPLICANT
COR CLEARING, LLC
By: s/ _Michael T. Hilgers_________
Michael T. Hilgers
Andrew R. Graben
HILGERS GRABEN PLLC
14301 FNB Parkway, Suite 100
Omaha, NE 68154
Telephone: 402.218.2106
Facsimile: 877.437.5755
mhilgers@goberhilgers.com
agraben@goberhilgers.com
ATTORNEYS FOR PLAINTIFF COR
CLEARING, LLC

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