Articles Posted in Class-Action

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The Best junk text and TCPA lawyers near Chicago and River ForestFor decades, calling customers, or potential customers, about a promotion was standard practice for most companies. Of course, many consumers found this to be annoying, but it was never overtly harmful. That changed with the advent of cell phones and prepaid plans. When landlines were the norm, the caller paid for the call. Now, cell phone users pay for the calls and text messages that they receive. As a result, legislators came up with the Telephone Consumer Protection Act (TCPA) to prevent companies from taking advantage of consumers by making them pay for promotional calls and texts. Under the act, companies are forbidden from making calls or texts to consumer phone numbers without the consumers’ express consent, except in the case of an emergency.

The Los Angeles basketball team, the Clippers, have recently settled a class action lawsuit for allegedly violating the TCPA. According to the lawsuit, fans of the California-based basketball team allegedly received promotional texts via autodialers from the Clippers without the required authorization. Rather than facing a long, drawn-out battle in court, which could be very costly and time-consuming, the Clippers and the class of plaintiffs have agreed to settle the case. Continue reading

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TCPA lawyers and attorneys near Chicago and WaukeganWith American legislature changing on a daily basis, it is not surprising to find that many of the laws out there contradict each other and courts are often called upon to determine which statute takes precedence. Such was the case in a recent lawsuit involving auto-calls made on behalf of State Farm.

In May 2007, Clara Betancourt applied for a car insurance policy with State Farm Mutual Automobile Insurance Company. While she was applying for the car insurance policy, a State Farm agent asked her if she would like to pay using a State Farm credit card. Betancourt agreed and the agent used the information provided by Betancourt for the car insurance application to apply for the credit card on Betancourt’s behalf. Betancourt provided the agent with her home phone number, her cell phone number, and her work phone number.

Betancourt testified that she provided these phone numbers to State Farm as emergency contact information to be used only “for an emergency or something serious.”

The three phone numbers that Betancourt provided all belonged to Fredy Osorio, with whom she has lived for many years and with whom she has a son.

When Betancourt failed to make a timely payment of the minimum balance on her credit card in November 2010, State Farm authorized FMS Inc., a collection agency, to attempt to collect the debt. State Farm provided FMS with Betancourt’s phone numbers and FMS proceeded to make 327 auto-dialed calls to these phone numbers in a six-month period. State Farm alleges that at no time did anyone answering the phone say that the number did not belong to Betancourt. By contrast, Osorio testified that he told State Farm agents to “Please stop calling” on two occasions. Continue reading

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Chicago class action defense attorneys near Oak Brook and Oak ParkCompanies need investors to fund the company’s progress. As a result, in the same way that companies try to play up the positive attributes of a product they are trying to sell, while leaving out the negative, so companies often paint themselves in a better light to try to attract shareholders. However, because shareholders are investing their money (rather than giving it away), companies maintain certain obligations to their shareholders.

When a company fails to hold up their end of the deal in treating fairly with their shareholders, investors have the option of suing the company for damages. When multiple shareholders are wronged, they can file as a class action, giving them greater leverage in the courts. Companies have long looked for ways to put a stop to class actions before they can attain class certification. Now it looks like they have finally gotten a foothold, but how significant that foothold is, remains to be seen.

A group of shareholders of Halliburton Co. filed a class action securities lawsuit against the company, alleging that Halliburton misled investors about cost overruns, its exposure to asbestos liabilities, and the benefits of its 1998 merger with Dresser Industries Inc. According to the lawsuit, by providing false information (or failing to reveal crucial information), Halliburton allegedly caused prices of its shares to increase artificially. Continue reading

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Class Action Against NFL

Class Action Against NFL

When considering filing a lawsuit against a company or individual, it is advisable to first make sure that you have a strong case. The first things to check are that you are covered under the relevant law and that you have a valid claim for loss of a certain monetary value. It is important to note that deciding not to buy something because the price was too high does not constitute a loss.

Ben Hoch-Parker disagrees. He and Josh Finkelman filed a class action lawsuit against the National Football League for allegedly violating the New Jersey Consumer Fraud Act (NJCFA). The lawsuit alleges that the NFL withholds 99% of its Super Bowl tickets from the general public. According to the lawsuit, the NFL gives 75% of the big game tickets to the 32 NFL teams. Five percent goes to the host team, 17.5% to each team that is represented in the Super Bowl, and the remaining 29 teams each get 1.2% of the tickets. Another 25% of the game tickets are then allegedly given to broadcast networks, media sponsors, the host committee, and other insiders.

Once the NFL’s member clubs have their tickets, the NFL allegedly places no restrictions on the sale of those tickets, allowing the NFL franchises to auction off their ticket allotments to the highest bidding ticket broker. The lawsuit alleges that, “The broker then sells the tickets for exorbitant amounts on the secondary market.”

The lawsuit is filing a claim for this allegedly illegal practice because the NJCFA states that at least 95% of tickets must be sold to the general public. Instead, the lawsuit alleges, every year, the NFL prints “tens of thousands of Super Bowl tickets, yet it only allocates a meager one percent of these tickets for release to the general public through a lottery system, forcing all other fans into a secondary market for the tickets where they must pay substantially more than the ticket’s face value to attend one of the most popular and iconic sports events of the year.” Continue reading

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Once a mistake in the engineering of a car is made known, the maker of the vehicle has a responsibility to fix the mistake. However, to try to remedy the mistake in new cars, without recalling old cars with the defect, is illegal, and in some cases, potentially fatal. This was allegedly the case with General Motors (G.M.) when it realized that the ignition switch in more than 2 million of its cars was faulty. The car company worked with Delphi, the supplier that made the part, to redesign the part so that the flaw was fixed, but neither party allegedly bothered to alert the public to the flaw, which existed in millions of cars which had already been sold.

When Brooke Melton’s Cobalt suddenly shut off, causing her fatal accident in 2010, her family sued G.M. and Mark Hood was hired to investigate the accident. Hood photographed, X-rayed, and disassembled the ignition switch in his attempt to figure out how the engine suddenly shut off. Then he bought a replacement part at a local GM dealership.

Although the replacement switch that Hood bought had the same identification number as the old switch, it contained significant differences. A tiny metal plunger was not included in the replacement part and the switch’s spring was more compressed. According to Hood, there was also a difference in the amount of force needed to turn the engine on and off.
As Hood’s investigation progressed, he realized that both GM and Delphi had realized the mistake and changed the part some time in 2006 or early 2007. The new part made it less likely that the driver could bump the ignition key, causing the car to cut off power to the engine and deactivate the airbags.

Lance Cooper, the attorney representing the Melton family in the lawsuit, confronted Raymond DeGiorgio, the head switch engineer on the Cobalt, with the differences between the two switches. DeGiorgio acknowledged the differences between the two parts, but said that he could not explain why the new part had not been given a different identification number.
“I was not aware of the detent plunger switch change,” he testified in his deposition. “We certainly did not approve a detent plunger switch change.”

However, the paper trail tells a different story. In the federal filings for the recent recall of certain G.M. vehicles containing the defect, G.M. confessed than an engineer (whom they did not name) had in fact signed a document in April of 2006 which approved design changes in the switch. Government investigators have since requested that G.M. provide all documents related to the switch change and who within the company approved it.

Since Hood’s discovery of the allegedly clandestine part change, G.M. has issued a worldwide recall of 2.6 million vehicles, including Cobalts, Pontiacs, and Saturns. G.M. has said that it will replace the old part with the new one at no cost to vehicle owners. In the mean time, the company’s website contains a video which assures consumers that the old switches are still supposedly safe, so long as nothing is attached to the ignition key. A reported 13 deaths have occurred as a result of the faulty switches.

G.M. settled the lawsuit with the Melton family, but it is now facing a class-action lawsuit which consists of all owners of vehicles included in the recall. The research into the faulty part conducted by Hood will likely also play a role in that lawsuit.

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Class actions have a number of hurdles to clear before they can attain certification. Those hurdles frequently include the arbitration agreements which companies have grown increasingly fond of including in their contracts. An arbitration agreement is a provision in a contract which states that any dispute between the parties must be settled in arbitration. This usually works in favor of the company as the arbitrator is usually chosen and paid for by the company, and is therefore frequently biased in favor of the company. It also prohibits class actions, which prevents many individuals with small claims from seeking redress, as the cost of arbitration is likely to exceed their claim.

Defendants in class action lawsuits frequently try to force arbitration. Rapid Cash, a loan company, is currently facing a class action lawsuit which alleges that borrowers were subjected to default judgments by the company. Attorney J. Randall Jones is representing the plaintiffs in the class and argues that Rapid Cash waived its ability to require arbitration, and as a result, the case belongs in the district court. Rapid Cash denies that it ever waived that ability and continues to argue that the case should be heard in arbitration.

If Jones succeeds in keeping the case in the district court and obtaining class certification, the class could include almost 16,000 borrowers who were allegedly subjected to default judgment. The class alleges that Rapid Cash failed to provide the required legal notice before subjecting them to default judgment.

One of the defendants included in the lawsuit is On Scene Mediations, a company that Rapid Cash uses to enter default judgments against borrowers. Dan Polsenberg, an attorney representing Rapid Cash, says that the loan company is also unhappy with the conduct of On Scene Mediations and is willing to work with borrowers who claimed nonservice.
However, Rapid Cash claims that borrowers who were wrongfully subjected to default judgments have another legal remedy, which is to go to Justice Court to ask to have the default judgments set aside.

The company also objects to the size of the class, arguing that the parameters for members to become a part of the class are too broad. In addition to 460 borrowers who allegedly never received a notice, the class also includes 7,000 borrowers who were sent letters but never responded, and 8,000 who were sent letters which were returned as undeliverable.
Barbara Buckley, the executive director of the Legal Aid Center, said in a statement why it is so important for plaintiffs to be able to file claims as a class action. “When there are cases of just widespread fraud, it is virtually impossible to have 16,000 separate actions. And having the ability to have one judge decide for one case what the proper recourse is; in some cases it’s the only way for consumers to get relief.”

Jones said that, if the class does not get certified, only a small fraction of the plaintiffs will be able to get any relief. He pointed out that “These people are the most vulnerable in our society in terms of economic fraud and taking advantage of people in the financial arena. … You’re dealing with a constituency that doesn’t have a whole lot of options. So you need this process or else these people really won’t get any kind of remedy.”

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By now, many people are aware that the things they post online are public. However, most of us still expect the private messages that we send back and forth over the internet to maintain a certain level of privacy. Facebook allegedly violated this right by intercepting private messages which were exchanged via the social media site. According to the complaint, Facebook allegedly scanned private messages which contained URLs “for purposes including but not limited to data mining and user profiling.” The lawsuit was filed by two Facebook users who sent messages via the social networking site which contained URLs. The plaintiffs allege that Facebook’s practice of scanning private messages and sharing the information it finds violates the Electronic Consumer Protection Act, California’s Invasion of Privacy Act, and the California Unfair Competition Law.

The complaint points to the fact that “Facebook touts the privacy of its messaging function as ‘unprecedented’ in terms of user control and the prevention of unwanted contact.” Contrary to this representation, the lawsuit alleges that “When a user composes a Facebook message and includes a link to a third party website (a “URL”), the Company scans the content of the Facebook message, follows the enclosed link, and searches for information to profile the message-sender’s web activity. The lawsuit further asserts that Facebook does not do this for the purpose of facilitating the transmission of the messages, but uses the information for its own profit by sharing it with third parties, such as advertisers, marketers, and other collectors of data.

The lawsuit alleges that Facebook’s practice of representing its messages as private, while violating that privacy, is especially harmful because users who are led to believe that their communications are private are likely to share information that they would not otherwise provide. This gives Facebook an advantage over their competitors in acquiring information about its users.

To demonstrate how profitable this profiling and data sharing is for Facebook, the complaint noted that, in 2011, the social media company earned $2.7 billion through targeted advertising sales.

The complaint goes on to state that a recent study, conducted at the University of Cambridge, found that “highly sensitive personal attributes,” such as sexual orientation, ethnicity, religious views, personality traits, intelligence, use of addictive substances, parental separation, age and gender were predictable with high degrees of success just from what people liked online. Thus racial discrimination could be applied to prevent some candidates from seeing loans that might be advantageous to them, and housing renters and sellers could potentially use big data to discriminate based on gender, all while circumventing the fair housing laws.”

The suit was filed in the Northern District of California on behalf of all U.S. users who have sent or received private messages that included a URL in the message. The lawsuit is seeking class certification, an injunction against Facebook to cease their practice of scanning private messages for URLs, and statutory damages, including $100 for each day that Facebook violated the Electronic Communications Act, for each class member. Although the plaintiffs do not yet know how many people are eligible to participate in the class, they do believe that, once all of the damages for the class members are totaled, they will exceed $5,000,000.

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Two recent class action lawsuits in California have provided a reminder that it is always a good idea to read the fine print before signing a contract. The lawsuits were both trying to bring claims under the Telephone Consumer Protection Act (TCPA) in California district courts, rather than in arbitration as laid out by the contracts the consumers had signed. The TCPA puts limits on the types of calls that companies can make to consumers’ cell phones.

In the first case, the plaintiff, Miguel Mendoza, had obtained a payday loan from Speedy Cash. When he failed to repay the debt, Mendoza began receiving calls from Ad Astra on his cell phone. Mendoza alleged that, when he did not answer these calls, Ad Astra left “voicemail messages using a pre-recorded or artificial voice.” Mendoza alleged that this violated the TCPA and so he filed a class action lawsuit in the Central District of California against Ad Astra, despite having signed a contract in which he waived his right to pursue a class action and agreed to settle any claims in arbitration.

The arbitration clause that Mendoza signed covered a wide variety of claims, including “any claim, dispute or controversy between you and us (or related parties) that arises from or relates in any way to this Agreement.”

Mendoza did not dispute the fact that he signed this arbitration agreement, but he did come up with three arguments for why the court should hold the arbitration clause unconscionable. The first is that Ad Astra allegedly lacked the standing to enforce an agreement that Mendoza had signed with Speedy Cash. Ad Astra was an agent of Speedy Cash though, thereby making it a “related party” under to the agreement.

Second, Mendoza argued that his claim was not covered by the arbitration agreement, since he was not alleging monetary damage as a result of Ad Astra’s alleged violation of the TCPA. However, the arbitration agreement defined “Claim” under “the broadest possible meaning and includes … claims based on any … statute[.]” The agreement also specifically included claims arising out of debt collection activities.

Mendoza’s third argument stated that the arbitration clause was unconscionable. The court failed to agree though, pointing out that the contract, “gave plaintiff the unilateral right to reject arbitration at any time within 30 days of signing the contract.” Because Mendoza was given this chance to opt out of the arbitration agreement without affection the services he received from Speedy Cash, the court found that the arbitration agreement was enforceable under California law.
A similar class action lawsuit was filed in the Southern District of California wherein the plaintiff, David Sherman, had bought a used car from Rancho Chrysler Jeep Dodge in 2010. In 2013, Chrysler allegedly violated the TCPA by leaving a prerecorded message on Sherman’s voicemail, stating that it was the anniversary of his auto purchase and time for “another status review of your ownership experience.”

When he bought the car, Sherman signed a “Retail Installment Sales Contract” which included an arbitration clause. Like Speedy Cash’s arbitration agreement, Chrysler’s contract was very broad, covering “Any claim or dispute, whether in contract, tort, statute, or otherwise … shall at your or our election, be resolved by neutral, binding arbitration and not by a court action.”
Like Mendoza, Sherman also presented three arguments as to why his lawsuit should not be forced into arbitration. Sherman’s arguments included: 1) that there was no evidence that Sherman had read the arbitration clause, despite the fact that he had signed the contract, which specifically stated “YOU ACKNOWLEDGE THAT YOU HAVE READ BOTH SIDES OF THIS CONTRACT, INCLUDING THE ARBITRATION CLAUSE ON THE REVERSE SIDE, BEFORE SIGNING BELOW”; 2) that the arbitration clause is unconscionable; and 3) that the clause does not cover the dispute at issue.

Given the very broad terms covered under the arbitration agreement and the fact that Sherman signed the contract, the court rejected these arguments.

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While the law has struggled to catch up with the swift progression of technology in recent years, particularly the increase in internet use, many companies have taken advantage of the ease of acquiring consumers’ information. It is easier than ever for companies to gain access to an individual’s credit card information. Many companies make deals with each other to share this information, despite the fact that such agreements are illegal.

Many laws, though, remain relevant regardless of whether the transaction took place online or in person. This was demonstrated in one recent class action lawsuit against an online marketing company. The named plaintiffs filed their class action lawsuit against a company which performs background checks. The plaintiffs noticed that regular monthly charges appeared on their credit card for a report which they allege they did not intend to buy. The company performing the background checks said that the consumers were misled into purchasing the subscription of the online marketing company. As a result, the marketing company was added as a third defendant.

The background check company provided space on its website for the marketing company and used a “data pass” method of sharing credit card information which is now allegedly illegal. The marketing company used that shared information to enroll customers in free trial subscription offers which were then converted into a monthly billed subscription.

The marketing company moved to force the lawsuit into arbitration.

The district court ruled that the consumers had entered into a contract with the marketing company, but the court denied the motion to force arbitration.

The plaintiffs appealed and the case went to the Ninth Circuit Court of Appeals. The appellate court noted that, under Washington law, a contract requires mutual assent to its essential terms in order to be considered legally binding. Those essential terms include the names of the parties involved in the contract. The appellate court found that the web page which the consumers used to buy the subscription service did not sufficiently identify the marketing company as the party making the contract with the consumers. The appellate court also remained skeptical as to whether providing an email address and clicking a “yes” button is sufficient to agree to a contract. Such clicks are still new enough that many courts don’t quite know how to handle them.

The appellate court also denied the marketing company’s motion to force the case into arbitration. The court decided that, since the arbitration provision was on another hyperlink which the consumers did not click on, no valid arbitration agreement took place.

Arbitration agreements have grown increasingly popular with companies in recent years. Consumers and employees alike are both being asked to sign more and more contracts containing arbitration agreements. These agreements tend to favor the company over the individual as they make class actions impossible and the arbitrator is often chosen and paid for by the company. The higher courts have upheld many arbitration agreements in recent years, but not all of the appellate courts have been as favorable to the agreements. Many have been found to be unenforceable and the likelihood of such a finding can only increase if the consumer never even saw the arbitration agreement.

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When the Supreme Court agrees to hear a case, the decision that the Court reaches in that case can have long-standing consequences for future rulings in similar cases made by courts all over the country. In recent years, class action lawsuits have been particularly contentious in the courts. In order to attain class certification, a class of plaintiffs is generally required to fulfill four requirements:

1. The class must be large enough to justify combining all of the claims into one lawsuit, generally, this means at least 100 class members;
2. The class must have questions of law or fact in common;
3. The claims of the representative parties must be sufficiently similar to the claims of the rest of the class; and
4. The representative parties must fairly and adequately protect the interests of the class.

Despite these clear requirements, various courts have ruled to certify classes of plaintiffs while other courts have denied certification based on a lack of ability to fulfill the above requirements.
Securities class actions in particular have faced an increasing number of challenges in recent years, leaving shareholders who have been the victims of fraud with little or not outlet for redress.

Halliburton Co. v. Erica P. John Fund

In this case, investors filed a lawsuit against the publicly traded energy company by claiming that it misled them about key information, including its liability in a recent asbestos investigation. The investors allege that such misinformation affected the company’s stock prices and ultimately harmed the company’s shareholders.

Halliburton is challenging the Supreme Court’s decision in 1988 in Basic v. Levinson, in which the Court determined the fraud-on-the-market theory, which has been the basis for most securities class actions ever since. The theory states that, when a public company makes a misrepresentation in an efficient market, that misinformation is carried through the market and affects the company’s stock price. An investor purchasing a security is thus presumed to have relied on that misinformation. However, the concept of an efficient market, while largely uncontested in the 1980s, has since come under scrutiny and has recently been questioned by some of the current justices of the Supreme Court. If the Court overturns its decision in Basic v. Levinson, each class member will have to prove that they relied on the misinformation when purchasing or selling company stock.

Plaintiffs’ attorneys fear that such a requirement will render class certification for such cases nearly impossible. Some of them have claimed that it could have consequences beyond just securities class actions. Consumer class actions, for example, might also be affected.

The “Washing Machine” Cases

Two separate consumer class actions alleging defective washing machines have made their way through the court system and are currently being petitioned to be heard by the Supreme Court. The defendants in the lawsuit, Whirlpool Corp, and Sears Roebuck & Co., are asking the Supreme Court to overrule the decisions made by lower courts to certify classes of consumers. The plaintiffs against Whirlpool allege that 21 different models of the company’s high-efficiency, front-loading Duet clothes washers sold since 2001 have a design defect that results in mold.
Both Whirlpool and Sears argue that the classes fail to meet the predominancy requirements of class certification and that most of the class members were not harmed.
If the Supreme Court agrees to hear the case and rules in favor of the defendants, the decision could have serious consequences on all issue-based class actions. It has the potential to severely limit consumers’ ability to bring their grievances against a company.

Securities Litigation Uniform Standards Act (SLUSA)

While rulings made by the Supreme Court can sometimes mean drastic changes in the law, it also frequently means simply clarifying older laws. For example, the SLUSA was enacted in 1998 as a way to prevent shareholders from evading the pleading standards of federal litigation by filing suit in state court, whose pleading standards are usually less rigorous. Specifically, SLUSA prohibits state-based suites alleging fraud “in connection with the purchase or sale” of covered securities.

The current lawsuit arose when investors bought securities which were not covered under SLUSA directly, but were certificates of deposits which were backed by SLUSA-covered securities.

When Robert Allen Standford’s $7 billion Ponzi scheme was revealed to the public, the shareholders filed a class action lawsuit alleging fraud. The law firms Proskaur Rose LLP and Chadbourne & Parke LLP were included as defendants in the lawsuit for allegedly aiding the Ponzi scheme.

A Texas federal judge ruled that the investors’ claims were precluded by SLUSA. The decision was appealed and went to the Fifth Circuit Court, which found that the claims were only “tangentially related” to SLUSA-covered securities trades. The attorneys representing the law firms are appealing the decision, arguing that the Fifth Circuit Court’s decision allows plaintiffs to avoid SLUSA.

If the Supreme Court decides to rule in favor of the defendants, the result could have far-reaching implications on shareholders’ ability to file claims.

Mississippi ex rel. Hood v. AU Optronics Corp.

Consumers who have suffered as a result of fraud are not the only ones capable of bringing a lawsuit against a company for violating consumer rights. State attorneys general also have the option of bringing a lawsuit to recover damages on behalf of consumers. These are known as parens patriae cases. At issue in this lawsuit is whether a parens patriae case in which the attorney general is seeking to represent 100 or more consumers should be treated as a class action.

Mississippi’s attorney general, Jim Hood, filed a lawsuit against a group of electronics companies for allegedly fixing the price of liquid crystal display panels.
If the Supreme Court rules that parens patriae lawsuits count as class actions, it could give defendants the option of moving such cases to federal court. If the Court rules that these lawsuits cannot be treated as class actions, then the state attorneys’ general can keep them in their home courts, which are often more disposed to be favorable to the attorney general.

Carrera v. Bayer Corp. et al.

This lawsuit was filed against Bayer by a consumer who alleges that the pharmaceutical company engaged in deceptive practices by claiming that its One-A-Day WeightSmart could enhance metabolism. Since Bayer does not sell its products directly to consumers, the company has no records of who purchased the vitamin. The defendants therefore claim that the class cannot be certified because the plaintiffs have no way of finding every single class member, despite such a limitation never having been a requirement for class action certification.
The district court certified the class, but the Third Circuit Court of Appeals reversed that decision, saying that the difficulty in determining consumers who belong to the class rendered it ineligible for certification.

If the Supreme Court agrees to hear the case and makes a ruling in line with that of the Third Circuit Court, the decision could affect consumers’ ability to file claims. The plaintiffs in the case also argue that such a decision could encourage companies like Bayer not to keep a record of customer purchases.

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