posted Nov 29, 2010 7:37 PM by Tyler Durden
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Tyler,
I
ask if you would post this annotated response to the EMSA letter on
your website. Similiar to the CMSA letter a while ago, I have
concerns and issues with respect to EMSA assertion of the "facts" to
its members that right minded people should not just accept without
knowing at least the other side so they can check things out themselves
and form their own opinions.
Your
website is an excellent source of information, if only people would
read it for themselves and draw their own conclusions.
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To The Members of the Edmonton
Minor Soccer Association (“EMSA”)
RE: Alberta
Soccer
Association (the “ASA”) Dispute – A
Response to the EDSA Board’s Misleading Comments
You have
likely
heard about the current dispute involving the ASA, with two competing
groups claiming to be the legitimate members of the ASA’s
board of directors. This dispute has created a severe fracture in
Alberta’s soccer community, which has been exacerbated by
incomplete and inaccurate information being disseminated by various
people. In this respect, it has come to the attention of the EMSA Board
of Directors (the “EMSA Board”) that the Edmonton
& District Soccer Association board of directors (the
“EDSA Board”), during its general meeting on
September 25, 2010 (the “EDSA Meeting”), presented
to its membership incomplete and misleading information about this
dispute.
As the
largest
member of the ASA , EMSA has an important interest in the ASA dispute
and its proper resolution. Therefore, it is important that our members
have the correct facts relating to the dispute and an understanding of
the potential impact it has upon EMSA. ....
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This backgrounder is disputed by many but the relevance of getting into
that is highly questionable. Folks are urged to read more than just
this letter to get at the facts.
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... At the January 2009 ASA
annual general meeting Chris Billings was elected by the ASA members as
the ASA President for a two year term. Mr. Billings had previously
served as a 2nd Vice President on the ASA board.
In February
2010,
9 of the 10 other directors of the ASA (the “ASA
Board”) signed a petition asking Mr. Billings to resign from
the ASA Board (in effect, there was a vote of no confidence in Mr.
Billings). Mr. Billings refused to resign, and the ASA board
subsequently suspended him pending a hearing. ...
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After dismissing Mr. Billings, Mr. Charpentier as newly elected First
VP assumed the President’s functions. One day later, the
Executive Committee of the ASA Board, minus Mr. Billings, fired the
Executive Director without cause. Not every board member was
even aware of this step. Many question the ability of the Executive
Finance Committee’s authority to do this. Regardless, under
the circumstances it seems a little unusual that the other
board members would not have been told that the ED was going to be
fired at the same time as the President was being suspended.
The so called petition referred to above was not signed by all
directors at once, or face to face even. Mr. Malone was
approached at his home to sign the document. The
“decision” was not made in a properly constituted
board meeting, and Mr. Billings was immediately suspended without
hearing. He was denied access to the office, the internet,
staff and members. It was not 9 of 10 but 9 of 12 as the board members
excluded were Mr. Danny Bowie and then Executive Director, Salvi
Cammerati and of course, Mr. Billings.
The allegations made against Mr. Billings are all made by a small
number of the same board members that decided to suspend him, which was
executed without any authority under the ASA bylaws, nor
pursuant to a hearing. The allegations all relate
to alleged events that predate the January 2010 AGM so many they ought
to have been brought to the members attention at the AGM in January
2010. Mr. Charpentier indicates that the investigation had
gone on for months so why was this not brought to the members attention
at the AGM. Mr. Jacobsen, who was a board member until
January 2010, has indicated he knew nothing about this investigation.
So who was conducting it? On whose authority? Why
was an investigation needed… or was it really just a
campaign?
In addition, the board of 9 seemed to rely upon a legal opinion from
the Gowlings law firm to justify the process they used to suspend the
president. Members immediately requested confirmation that the
resolution was passed at a duly constituted board meeting, to see the
minutes from such a meeting, and the authority relied upon for their
actions, along with a copy of the Gowlings opinion. To date,
none of this documentation has been provided to any of the members of
the ASA that made this request. It appears that these things
don’t in fact exist.
Mr. Billings disclosed the allegations and responded to
them. See the Reform Alberta Soccer website for the
documentation on this. Anyone who has any knowledge
whatsoever about due process, fairness and the proper function of a
legal entity will know that the board members raising these allegations
ought to have brought them to Mr. Billings attention to hear his
response before acting upon them, discussed at a properly constituted
board meeting, with Mr. Billings and a full board present, then taken
what action seemed appropriate in accordance with the bylaws and
procedural fairness. If there were any conduct issues associated with
Mr. Billings that were considered to be of any merit after this step,
then a real independent investigation ought to have been
conducted since all but one of the allegations were made by the same
directors who decided the consequence for Mr. Billings. It is a
fundamental principle that you cannot be both prosecutor and judge, let
alone in this case, also the complainant/accuser.
In addition, anyone reviewing the allegations ought to make note that,
with one exception, the allegations are not of the nature that warrants
suspension – not even close.
Furthermore, they relate to conduct which most every other member of
the ASA Board has committed themselves from time to time – ie
reflects the culture and practices of the ASA.
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... Although the reasons for
taking this extraordinary step have not been disclosed by these
directors, it has been disclosed in a local newspaper, through
information allegedly provided by Mr. Billings, that some of the issues
relate to harassment of people and unauthorized expenditure of ASA
funds. Mr. Billings has denied some of these allegations outright and
has noted that the remaining allegations are trivial in nature.
Obviously, 9 of 10 ASA board members feel otherwise. ...
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Mr. Billings has provided the membership with full disclosure of the
allegations made against him that he received from the board of 9,
along with a summary of his responses. See the Reform Alberta
Soccer website for these documents.
Again, it is not appropriate at all for board members to simply act
upon a feeling s suggested above– they need to make sure that
in matters such as this they engage all the necessary processes to
ensure that their “feelings” are well founded, and
in the best interests of the association they represent and to do this
they cannot be both the accuser, and the judge and jury.
After Mr. Billings’ and Cammarati’s dismissal, the
remainder of the board held a board meeting on March 6 –
which had been previously scheduled by Billings. This meeting
resulted in the creation of the so called hearing panel and is touted
as having “ratified” the suspension of Billings.
However, since Mr. Danny Bowie, a director who was elected in 2009,
would not sign the resolution suspending Billings without seeing
further information, he was excluded from the meeting as well as all
subsequent discussions about Billings. Mr. Bowie has since been
excluded from the board by the board of 9 – excluded from all
meetings, communications etc. All decisions of the board are
at risk because of this unofficial suspension of Mr. Bowie by the board
of 9.
As for the ratification aspect, there was not much to ratify, as Mr.
Billings had already been suspended and excluded from all ASA business.
There was still no fixing the breach of due process caused by the Feb
19 actions of the group of 9. Furthermore, the ratification
of a suspension at a board meeting is not provided for in the bylaws of
the ASA.
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... A hearing was scheduled for
April 23, 2010 for Mr. Billings to answer the allegations made against
him. Mr. Billings refused to attend the hearing, citing a fear of bias
amongst the panel hearing the matter who would have been selected by
the ASA Board or its delegates. ...
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Mr. Billings cited more than just bias in his reasons for not
attending. Again, the Reform Alberta Soccer website contains a full
description of the correspondence which included the fact that
there had been no disclosure of the particulars of the allegations to
Mr. Billings for him to respond. A fundamental right of
anyone attending a hearing is to know the full case against them in
order to be able to provide a proper response. To do anything
less is archaic and went out years ago along with the Star Chamber.
The notice of the April 23 hearing was for an investigative and
disciplinary hearing whereas the initial notice of suspension to Mr.
Billings was that an independent investigation hearing would be
arranged. How can a hearing be both? When was the decision
made to make it both? Furthermore, the decision of the ASA
was already made—Mr. Billings was in fact suspended. He was
no longer permitted any access to ASA business, meeting, staff
etc. The decision had been made. The chair of the
hearing panel was Mr. Leighton – a person well know to EMSA
and not therefore one most right minded people would consider
independent. Furthermore, the panel was appointed by the remaining
board of the ASA with the exception of Mr. Bowie. Again, the
accusers cannot appoint the judge! No matter whom he is.
When Mr. Leighton was asked by Mr. Billings for further information
about the hearing, the nature of the allegations and the identity of
the other members of the panel, Mr. Leighton refused. See the
Reform Alberta Soccer website for this email correspondence.
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... The CSA subsequently asked
Mr. Billings to attend a CSA hearing on September 14, 2010 to afford
him with the opportunity to answer the allegations made against him
before a committee selected by the CSA (and not the ASA). Mr. Billings
failed to attend. If the allegations against him are false or trivial
as he alleges, why does Mr. Billings not take advantage of the
opportunity to defend and clear himself of these allegations? ...
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The CSA’s ability to hold a hearing on this is highly
questionable as there does not seem to be authority in their bylaws to
discipline any member of the ASA. More importantly, who asked
them to get involved – bit of a rhetorical question we know
that Furthermore what were they holding a hearing
on? Mr. Billings explained through counsel his reasons for
not attending the CSA hearing. This document was not
forwarded to the panel that heard the matter on Sept 14, 2010.
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... On September 28, 2010 the
CSA suspended Mr. Billings from all soccer activities in Canada.
It should be
noted
that the EDSA Board and others have criticized the ASA Board for
suspending Mr. Billings prior to holding a hearing. In this respect,
there is a provision in the ASA bylaws relating to breaches of
conflicts of interest which requires a hearing prior to suspending a
person for a breach of this provision. The EMSA Board is not aware of
any allegation of a breach of the conflict of interest provisions
against Mr. Billings. Rather, it is our understanding that the
suspension of Mr. Billings reflects the inherent right of the ASA Board
to revoke the ASA President’s delegated powers and
responsibilities, leaving only his right to preside over ASA
member’s meetings as set out in the ASA bylaws, and reflects
the ASA Board’s general powers with respect to the conduct of
disciplinary matters under the ASA bylaws (i.e., all ASA participants,
such as players and coaches, are suspended pending a hearing if cited
for a breach). There is also a provision in the ASA bylaws which
requires the members to remove any director of the ASA; in other words,
the ASA Board itself cannot remove a director. However, it should be
noted that the ASA Board did not remove Mr. Billings as a director or
as ASA President; he continues to be the ASA President today (although
practically in name only). ...
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This is the first explanation ever given as to the authority that is
believed to have justified the actions. It defies
logic: if Billings can preside over member meetings, then why
could he not call the SGM? Furthermore, it is a farce to
suggest that a director is a
“participant” -- they usually
don’t kick balls around! Furthermore, when the bylaws specify
a process, then it is not up to the directors to make another one
up. Due process was not followed and even if the bylaws
sanctioned the director to do this, due process must still be
followed. Otherwise, it just looks like and smells like a
coup.
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5. The Billings Special General
Meeting
In response
to his
suspension by the ASA Board, Mr. Billings sought and obtained support
from some ASA members. These ASA members submitted a petition
to the ASA Board requesting them to call a special general meeting of
the ASA members to consider a resolution removing the 9 directors who
had sought Mr. Billings’ resignation. In response to the
petition, on April 1, 2010 the ASA Board issued notice of a special
general meeting to be held at 1 p.m. on April 24, 2010 in Red Deer,
which was the date of a previously planned outdoor season planning
meeting to commence at 9 a.m. that day (the planning meeting was
cancelled and replaced with the special general meeting). In the
meantime, prior to the ASA Board issuing its notice, on March 31, 2010
Mr. Billings himself issued a special general meeting notice for 9 a.m.
on April 24, 2010 in Red Deer (the “Billings SGM”).
The ASA Board was not aware of Mr. Billings’ notice at the
time that it directed the issuance if its notice of a special general
meeting.
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The 12 members of the ASA continued to be extremely concerned
about the lack of due process, disclosure and adherence to the bylaws
and called for a Special General Meeting to review the conduct of the
group of 9. The notice from the members requested that the
meeting take place in advance of the Annual Fall Planning meeting
already schedule for April 24 at 8:30am at the Capri Hotel in Red
Deer. The bylaws of the ASA are clear that members may call
such a meeting and in doing so the meeting must include the business
specified by the members. The group of 9 board members failed
to respond to the call for an SGM as they did not call the meeting
requested by the members in the petition. Instead they arranged for an
SGM of the same date, different time, with an agenda that was developed
later and required all attendees to sign a confidentiality agreement
before they would be permitted to attend! In addition, Mr. Charpentier
actively encouraged the group of 9 and all committee members to NOT
attend the SGM called by the members on the grounds that Mr. Billings
had called it. If they had nothing to hide, why didn’t they
attend? Why not address the members openly and transparently?
Why did they characterize this as Mr. Billings SGM when so many members
were demanding an AGM and questioning the process used to suspend Mr.
Billings. The members arranged for the SGM to be chaired by
an independent professional Mr. Alan Beattie to ensure decorum, the
rule of law, and an independent chair so all sides would have an
opportunity to speak their minds.
At the members SGM, the group of 9 were removed from office.
The group of 9 challenged this in court in Calgary right away, An
interim order was granted until the judge could hear all of the
evidence, and then the group of 9 withdrew their action. Over
the course of the next few months, the group of 9 continued made
decisions as the board to fire staff, cancel provincials and suspend
associations. The bank accounts of the ASA were frozen, and
grant funding suspended. See Reform Alberta Soccer website for
documents. The members appointed to fill the vacancies on the board,
the new board, also tried to conduct business of the ASA.
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... EMSA, together with some
other ASA members, did not attend the Billings SGM on the grounds that
the meeting was not properly called. Specifically, under the ASA bylaws
only the ASA Board has the authority to call an annual general or
special meeting of the ASA members. ...
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Funny now to be sticklers for proper bylaws but it is consistent with
the unwillingness of the group of 9 to account in any public forum to
the members for their actions. Who knows what the outcome of the
members SGM would have been had they attended – they were
invited, everyone hoped they would attend. One thing is for sure is
that the ASA would NOT be on the verge of implosion had the group of 9
attended the SGM called by the members.
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... The EDSA Board and some of
Mr. Billings’ supporters have argued that Mr. Billings was
acting for the ASA members who petitioned for a special meeting;
however, under the ASA bylaws ASA members do not have any authority to
call a members’ meeting. ...
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Read the bylaws as this is simply not true. A special general meeting
is common mechanism for all corporations, profit and not profit alike,
to enable members to have a voice when their representative are not
representing them.
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... The notice of the Billings
SGM was invalid, and therefore the Billings SGM itself was invalid.
Nevertheless,
the
Billings SGM proceeded, with a number of Mr. Billings’
supporters in attendance. However, there were other deficiencies with
the Billings SGM that renders it invalid, including the following:
(a) There was no quorum of members in attendance at the Billings SGM.
Under
the ASA bylaws, a quorum at members’ meetings requires a
2/3rds majority of the ASA members. There are 18 district members and 3
associate members of the ASA (there is a common confusion that there
are 4 associate members, which is incorrect), for a total of 21. A
2/3rds majority therefore requires at least 14 members. The chair of
the Billings SGM, Mr. Allan Beattie, declared quorum was achieved at
the Billings SGM on the basis that there were 13 members present. ...
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The issue of quorum is raised solely because the bylaws that everyone
in the Association has been using for the past 7 years have not been
filed and the old bylaws included (the only filed ones) the associate
members in the count. This issue is only raised by the board
of 9 as a technicality with respect to the members SGM in order to
defeat it. Note in the Calgary action the group of 9 relied
upon the same bylaws everyone had been using in the ASA for the past 7
years. The law says the real bylaws are only those filed.
Sometimes the law is not always practical but it is the law.
Mr Charpentiers directive to not attend the members SGM went along way
to assuring quorum would not be achieved. A proven technique
when you want to avoid dealing with something in a democratic fashion.
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... Mr. Beattie was misinformed.
His declaration of quorum was incorrect and invalid.
(b) Some
lifetime
members of the ASA, who are entitled to notice of, and to attend, ASA
members’ meetings, did not receive notice of the Billings
SGM. ...
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This has not been substantiated and there is information to the
contrary. See the Reform Alberta website. In fact, in court this
argument failed.
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6. The First Court Action and
the CSA’s Intervention
In response
to the
Billings SGM and the purported removal of the 9 ASA directors, the ASA
Board filed a court application to have the Billings SGM declared
invalid. In the meantime, and prior to the hearing of the court
application, the CSA issued a directive advising that they recognized
the original ASA Board as the legitimate board of directors of the ASA
(and therefore not the Billings Board). ...
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The CSA did in fact do this, again without the benefit of
hearing
from both sides or a hearing of any kind. Everyone needs to
question how the CSA can wade into this matter without hearing from
those who convened the members SGM?
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7. Billings’ Refusal
to Recognize the CSA
Mr. Billings
and
his supporters refused to recognize the CSA directive. Instead, they
commenced taking actions to take control of the ASA’s
operations.
These
actions
included the following:
(a)
Interfering
with ASA staff members and their duties, which resulted in confusion
amongst staff members about who they should be taking directions from,
and lead to a fractionation of the staff members between those who were
sympathetic to the ASA Board, those who were sympathetic to the
Billings Board and those who tried to remain neutral. The business and
affairs of the ASA ended up in disarray.
(b)
Attempting to
change the signing authority for the ASA’s bank accounts held
at TD Bank. Although the TD Bank initially resisted these attempts,
they ultimately froze the ASA bank account.
(c) Filing a
notice of change of directors with Alberta Corporate Registries, and
thereafter misrepresenting to the ASA membership that Alberta Corporate
Registries had made a determination of who the members of the ASA board
of directors were (the filing of change of directors is a notice
requirement; Alberta Corporate Registries does not independently verify
the information filed nor does it give any assurance of its accuracy or
veracity).
(d)
Directing some
of their supporters to pay ASA outdoor fees to Mr. Billing’s
legal counsel, Bennett Jones, in trust for the ASA instead of to the
ASA directly. This step, combined with the freezing of the TD bank
account, resulted in a financial crisis for the ASA as the ASA did not
have access to sufficient funds to continue its operations.
The above is
just
a sample of the actions taken by Mr. Billings and his supporters. These
actions resulted in the ASA Board having to make difficult decisions in
order to continue its operations, There was no operational reason to
take any of these steps other than to assert control over the
Association by fairly penal means. Otherwise, things were operating
just fine and there could have been other means to resolve the issue of
which board was in control but the group of 9 chose not to engage in
any other dispute resolution process. The timeline and sequence of
events reveals that it was the result of the group of 9 actions that
follow that led to the freezing of the bank accounts and the censure
from Alberta registries,.including the following:
(e) The
suspension, dismissal and temporary lay-off of some ASA staff members
who obstructed attempts by the ASA Board to conduct the
organization’s business or who the ASA could not otherwise
afford to pay due to financial constraints.
(f) The
postponement of Provincial tournaments and some other activities to
conserve cash and ensure that the ASA was not in a bankruptcy situation
by the end of the outdoor season.
(g) The
declaration of ASA members who paid their fees to Bennett Jones, or who
otherwise refused to pay fees, as being in bad standing, with the
consequence that their members would not be permitted to host or attend
Provincials.
While the
steps
taken may be criticized as drastic in nature, they should be evaluated
in the context of the environment and circumstances that the ASA Board
was faced with. ...
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Having exercised their democratic rights at an SGM the 13 members were
confident that the board they appointed to take control of the ASA
operations had the authority to do so. They did not run off to court,
they tried to use the process contemplated in their bylaws for dealing
with exactly this kind of issue.
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... The above is just a sample
of the actions taken by Mr. Billings and his supporters. These actions
resulted in the ASA Board having to make difficult decisions in order
to continue its operations, including the following:
(e) The
suspension, dismissal and temporary lay-off of some ASA staff members
who obstructed attempts by the ASA Board to conduct the
organization’s business or who the ASA could not otherwise
afford to pay due to financial constraints.
(f) The
postponement of Provincial tournaments and some other activities to
conserve cash and ensure that the ASA was not in a bankruptcy situation
by the end of the outdoor season.
(g) The
declaration of ASA members who paid their fees to Bennett Jones, or who
otherwise refused to pay fees, as being in bad standing, with the
consequence that their members would not be permitted to host or attend
Provincials.
While the
steps
taken may be criticized as drastic in nature, they should be evaluated
in the context of the environment and circumstances that the ASA Board
was faced with. ...
|
There was no operational reason to take any of these steps other than
to assert control over the Association by fairly penal means.
Otherwise, things were operating just fine and there could have been
other means to resolve the issue of which board was in control but the
group of 9 chose not to engage in any other dispute resolution process.
The timeline and sequence of events reveals that it was the result of
the group of 9 actions that follow that led to the freezing of the bank
accounts and the censure from Alberta registries.
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8. Current Status of Dispute
In July 2010 the Billings Board
commenced a lawsuit against the ASA Board. EDSA and two ASA member
districts (Sunny South District Soccer Association (“Sunny
South”) and Central Alberta Soccer Association
(“CASA”)) also commenced a separate lawsuit. The
key issues raised by the lawsuits are: (a) who is the legitimate board
of the ASA – the ASA Board or the Billings Board, and (b)
whether the suspension of Mr. Billings by the ASA Board is valid.
...
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Only after members were told by the group of 9 that various provincials
were cancelled, and suspensions were issued to various associations and
teams that these lawsuits commenced… the courts were used as
a last resort to try to resolve the dispute.
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... The EMSA
Board
believes that the EDSA Board’s involvement in this dispute is
primarily focused upon taking away EMSA’s voice, and in turn
the voice of all children and other soccer participants in
EMSA’s programs, in soccer matters at the provincial level.
The EDSA Board wishes to reclaim its prior influence and effectively
reverse the impact of the 2006 Arbitration Award. ...
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This is a disservice to the vast majority of ASA members who attended
the SGM, after their repeated requests for disclosure; explanation and
accountability from the group of 9 have been ignored. The issue is one
of governance, it is real and it needs to be resolved. Suggesting that
there is any other reason for it will prevent the association from ever
being able to tackle the real problem. |
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