In Re: Takata Airbag Products Liability Litigation (Economic Loss Track Cases) Frequently Asked Questions

BMW Settlement
No. 15-MD-2599-FAM

Frequently Asked Questions about the In Re: Takata Airbag Products Liability Litigation (Economic Loss Track Cases)

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A Court authorized the Notice because you have a right to know about a proposed settlement of a class action lawsuit and about all of your options and associated deadlines before the Court decides whether to give final approval to the settlement. The name of the lawsuit is In Re: Takata Airbag Product Liability Litigation, No. 1:15-MD-2599-FAM. Takata and several automotive companies have been named as defendants in the litigation, including BMW. The Notice explains the lawsuit, the proposed settlement, and your legal rights. You are NOT being sued. The Court still has to decide whether to finally approve the settlement. Benefits will be distributed only if the Court finally approves the settlement and, subject to the terms of the Settlement, the settlement approval is upheld after any appeals. Please be patient and check this website regularly. Please do not contact BMW Dealers regarding the details of this settlement while it is pending before the Court. 
The lawsuit alleges that certain automotive companies, including BMW (collectively, the “Automotive Defendants”), manufactured, distributed, or sold certain vehicles containing allegedly defective Takata airbag inflators manufactured by Defendants Takata Corporation and TK Holdings, Inc. that allegedly could, upon deployment, rupture and expel debris or shrapnel into the occupant compartment and/or otherwise affect the airbag’s deployment, and that the plaintiffs sustained economic losses as a result. The lawsuit claims violations of various state consumer protection statutes, among other claims. You can read the Second Amended Consolidated Class Action Complaint filed by certain named plaintiff recyclers which can be found on the documents section. BMW denies that it has violated any law, denies liability, and denies that it engaged in any wrongdoing with respect to the manufacture, distribution, or sale of the Subject Vehicles.

On January 13, 2017, the Takata Corporation signed a criminal plea agreement in which it admitted, among other things, that it “knowingly devised and participated in a scheme  to obtain money and enrich Takata by, among other things, inducing the victim OEMs to purchase airbag systems from Takata that contained faulty, inferior, nonperforming, non-conforming, or dangerous PSAN inflators by deceiving the OEMs through the submission of false and fraudulent reports and other information that concealed the true and accurate test results for the inflators which the OEMs would not have otherwise purchased as they were.”  On the same day, an indictment of three Takata employees on related charges was unsealed.  Takata entered a guilty plea to one count of wire fraud before U.S. District Judge George Caram Steeh, as part of a settlement with the U.S. Department of Justice.  See U.S. v. Takata Corp., No. 2:16-cr-20810-GCS-EAS, Dkt. No. 23 (E.D. Mich. Feb. 27, 2017).

The Recycler Plaintiffs filed their First Amended Consolidated Class Action Complaint against Defendants on May 18, 2018.  On August 20, 2018, the Automotive Defendants filed multiple Motions to Dismiss.  The Court granted in part and denied in part the Motions to Dismiss on March 9, 2021.  The Court dismissed the following claims against BMW: RICO claim for the nationwide class; Lanham Act for all Plaintiffs; Fraudulent Concealment and Fraudulent Misrepresentation claims for Tennessee and North Carolina; Violation of the Georgia Uniform Deceptive Trade Practices Act; and Violation of the Tennessee Consumer Protection Act. The claims remaining against BMW are:  Violation of Florida’s Deceptive and Unfair Trade Practices Act; Violation of the North Carolina Unfair and Deceptive Trade Practices Act; Violation of the Tennessee Consumer Protection Act; and Fraudulent Concealment and Fraudulent Misrepresentation claims under Georgia, Florida, Missouri, Texas, and Virginia law.

On April 24, 2021, the Recycler Plaintiffs filed a Second Amended Class Action Complaint (“SACAC”).  The Recycler Plaintiffs corrected this Complaint on May 7, 2021, and this is the operative pleading for Plaintiffs’ claims at this time.  BMW answered the SACAC on May 21, 2021.

A detailed description of the legal proceedings, including motions to dismiss, is set forth in the Settlement Agreement, which is available on the documents section of this website.

The following BMW vehicles (called the “Subject Vehicles”) distributed for sale or lease in the United States, the District of Columbia, and Puerto Rico are included:

Model Years

Make and Model

Inflator Type

2006, and 2008 -2013

BMW 1 Series

PSDI-5

2014-2017

BMW 2 Series

PSDI-X

2000-2017

BMW 3 Series

PSPI
PSDI-4
PSDI-5
PSDI-X

2014-2017

BMW 4 Series

PSDI-X

2001-2003
and 2009-2017

BMW 5 Series

PSDI-4
PSDI-X

2012-2017

BMW 6 Series

PSDI-X

2011-2017

BMW X1

PSDI-5
PSDI-X

2007-2017

BMW X3

PSDI-5
PSPI-X

2014-2017

BMW X4

PSDI-X

2000-2004
and 2006-2017

BMW X5

PSDI-4
PSDI-5
PSPI-2

2007-2017

BMW X6

PSDI-5
PSPI-2

2014-2017

BMW i8 EV

PSDI-X

 

In a class action, people or entities called “class representatives” sue on behalf of other people or entities who have similar claims. All of these people or entities together are the “Class” or “Class Members” if the Court approves this procedure. Once approved, the Court resolves the issues for all Class Members, except for those who exclude themselves from the Class.
Both sides in the lawsuit agreed to a settlement in order to avoid the cost and risk of further litigation so that the Class Members can get the benefits of the settlement and, in exchange, BMW receives a release from liability. The settlement does not mean that BMW broke any laws or did anything wrong. Additionally, the Court did not decide which side was right. This settlement has been preliminarily approved by the Court, which authorized the issuance of the Notice. The Class Representatives/Named Plaintiffs and the lawyers representing them (called “Settlement Class Counsel”) believe that the settlement is in the best interests of all Class Members.

The essential terms of the settlement are summarized in the Notice. The Settlement Agreement along with all exhibits and attachments sets forth in greater detail the rights and obligations of the parties. If there is any conflict between the Notice and the Settlement Agreement, the Settlement Agreement governs.

To see if you are affected or if you can get money or benefits, you first have to determine whether you are a Class Member.
You are part of the settlement if you are a person who or entity purchased a Subject Vehicle containing a Takata Inflator, and that currently engage in, or at the time of such purchase were engaged in, the business of automotive salvage or recycling, or that recycled, re-furbished, or removed for sale or re-sale, second-hand Takata Inflators or Takata Inflator-related component parts in the United States, the District of Columbia, and Puerto Rico prior to April 3, 2023.

This is called the “Class.” Excluded from this Class are: (a) BMW, their officers, directors, and employees; their affiliates and affiliates’ officers, directors and employees; their distributors and distributors’ officers, directors and employees; and BMW’s Dealers and their officers and directors; (b) Settlement Class Counsel and their employees; (c) judicial officers and their immediate family members and associated court staff assigned to this case; and (d) persons who or entities which timely and properly exclude themselves from (opt out of) the Class.

The settlement does not relate to claims for personal injury or property damage to any property other than the Subject Vehicles.
If you are not sure whether you are included in the Class, you may call (859)-344-1901. Please do not contact BMW Dealers regarding the details of this settlement while it is pending before the Court as the Court has ordered that all questions be directed to the Settlement Notice Administrator.

If you are a Class Member, what you are eligible to receive depends on several factors. The settlement benefits are outlined generally below, and more information can be found on this settlement website. The Court still has to decide whether to finally approve the settlement.

The proposed settlement benefits consist of a Takata Inflator Certification Program. Class Members will submit claims to Car-Part, as BMW’s Settlement Claims Administrator, who will work with the Class Members to locate, identify, and obtain a certification that the Takata Inflators in recalled (as of January 12, 2023) Subject Vehicles of Class Members have been deployed or destroyed.  If BMW has previously compensated you for an Inflator, you cannot be compensated under this Program for the same Inflator.

Deadline to Submit Claim Form: In order to participate in the Takata Inflator Certification Program, eligible Class Members must complete and submit the Claim Form during the Claim Period. Class Members will have two years from the date of implementation to submit a Claim Form.

Obtaining, Completing, and Submitting the Claim Form: You can complete and submit a Claim Form online at www.recyclerpayment.org. You can also obtain a Claim form here, which includes the instructions on how to submit a Claim.

We do not know when the Court will finally approve the settlement, if it does so, or whether there will be any appeals that would have to be resolved in favor of the settlement before certain benefits would be provided, so we do not know precisely when any benefits may be available. Please check www.recyclerpayment.org regularly for updates regarding the settlement.

Please note that you have to take action within certain deadlines to receive certain benefits, such as completing and submitting a Claim Form. If you do nothing, you may not receive benefits from the settlement, and, as a Class Member, you will not be able to sue the Released Parties about the issues in the lawsuit.

Takata Inflator Certification Program: Pursuant to the Takata Inflator Certification Program and at BMW’s direction, Car-Part will locate, identify, and obtain a certification that the Takata Inflators in recalled Subject Vehicles of Class Members have been destroyed or deployed in Class Members’ Subject Vehicles that have been recalled as of January 12, 2023.  This Takata Inflator Certification Program does not apply to Inflators for which BMW has previously compensated Class Members under a separate program overseen by Car-Part.

If the Inflators in Class Members’ Subject Vehicles that have been recalled as of the date of this Agreement have deployed or are missing, Car-Part, at BMW’s direction, will, to the extent reasonably possible, locate and identify such Inflators and request the Class Member submit documentation for verification of such deployed or missing Inflators for which the Class Members were not previously compensated by BMW under a separate program administered by Car-Part.

To the extent reasonably practicable, a website for the Takata Inflator Certification Program will be created (“Settlement Website”) and overseen by the Settlement Claims Administrator which will (i) make available to Class Members information applicable to the Subject Vehicles; (ii) allow Class Members to upload batches of VINs for batch processing and comparison to the list of VINs for Subject Vehicles that have been recalled as of the date of this Agreement that still may be equipped with Inflators (“VIN List”) to determine which, if any, Inflators are subject to payment under the Takata Inflator Certification Program; and (iii) allow Class Members to submit claims for certification under the Takata Inflator Certification Program for Inflators in Subject Vehicles that have been recalled as of the date of this Agreement or payment for deployed or missing Inflators in Subject Vehicles that have been recalled as of the date of this Agreement at and after the Effective Date.

Under the Takata Inflator Certification Program, BMW, through Car-Part, will pay to the eligible Class Member 15% more per Inflator than it currently, as of the Effective Date of the Agreement, unless implemented earlier, pays or paid under its prior or existing Takata Inflator Certification Program for recovered Inflators. Specifically, BMW will pay $40.25 for each certification of a Recalled BMW Airbag in Current Inventories and $28.75 for each certification of a Recalled BMW Airbag in Historic Inventories.

Car-Part will coordinate with, notify, and provide monthly updates to BMW regarding the results of the implementation of the Takata Inflator Certification Program.  BMW will enter into a written, legally enforceable agreement with Car-Part (the “Car-Part Takata Inflator Certification Agreement”) that memorializes the terms of the Takata Inflator Certification Program as described above.  Under the terms of this Settlement Agreement, BMW will have a continuing obligation until the termination of the Takata Inflator Certification Program to periodically monitor Car-Part’s compliance with the terms of the Car-Part Takata Inflator Certification Program Agreement.  If BMW determines that Car-Part has breached the agreement, BMW will take necessary and reasonable steps to enforce the terms of the Car-Part Takata Inflator Certification Agreement.

The Takata Inflator Certification Program will run for a total of two (2) years, measured from the date of implementation.  BMW, at its sole discretion, may implement the Takata Inflator Certification Program prior to the occurrence of the Effective Date.

The Settlement Claims Administrator will receive, review, and process the claims Class Member submit to the Takata Inflator Certification Program  (“Claims”) to determine whether the Class Members’ Subject Vehicles are on the VIN List and, if so, take such actions as required to obtain certification that the Takata airbags in those Subject Vehicles have been deployed or destroyed.  The Settlement Claims Administrator will provide periodic reports to counsel for BMW and Settlement Class Counsel, but not more often than quarterly.

If the settlement becomes final, Class Members who do not exclude themselves from the Class will release BMW and the Released Parties from liability and will not be able to sue the Released Parties about the issues in the lawsuit. The Settlement Agreement at Section VII describes the released claims in necessary legal terminology, so read it carefully. For ease of reference, we also attach the full release section and the definition of Released Parties in Appendix A to the Notice. The Settlement Agreement is available on the documents section. You can talk to one of the lawyers listed in Question 13 below for free or you can, of course, talk to your own lawyer at your own expense if you have questions about the released claims or what they mean.
If you exclude yourself, you cannot receive settlement benefits. If you ask to be excluded, you cannot object to the settlement. But, if you timely and properly request exclusion, the settlement will not prevent you from suing, continuing to sue, or remaining or becoming part of a different lawsuit against BMW or the Released Parties in the future about the issues in the lawsuit. If you exclude yourself, you will not be bound by anything that happens in this lawsuit and you may not object to the settlement.
Unless you exclude yourself, you give up the right to sue the Released Parties for the claims resolved by this settlement. If the settlement is finally approved, you will be permanently enjoined and barred from initiating or continuing any lawsuit or other proceeding against the Released Parties about the issues in the lawsuit, as set forth in the full release found in Appendix A.

To exclude yourself from the settlement, you must mail a written request for exclusion to the Settlement Notice Administrator saying that you want to be excluded from the settlement in In Re: Takata Airbag Products Liability Litigation (Economic Loss Track Cases), and mention the case number (1:15-md-2599-FAM).

The letter must be signed by you or the entity seeking to be excluded from the Class and include the following information: (i) your full name, telephone number, and address; (ii) a statement affirming you are a member of the Class and providing your Subject Vehicle’s(s’) Vehicle Identification Number(s) (VIN); and (iii) a statement that you wish to be excluded from the BMW Settlement in the In re Takata Airbag Products Liability Litigation, 1:15-md-02599-FAM. You can’t ask to be excluded over the phone or through the settlement website. To be valid and timely, exclusion requests must be postmarked on or before October 4, 2023, the last day of the Exclusion (“Opt-Out”) Period (the “Exclusion (Opt-Out) Deadline”). You must mail your request for exclusion postmarked no later than October 4, 2023, to:

Dunn v. Takata
c/o Kroll Settlement Administration
PO Box 225391
New York, NY 10150-5391


The deadlines found on this website may be changed by the Court. Please check this website regularly for updates regarding the settlement.

Yes. The Court has appointed lawyers to represent you and other Class Members. These lawyers are called “Settlement Class Counsel”: Peter Prieto of Podhurst Orseck, P.A., is Chair Lead Counsel, and David Boies of Boies Schiller & Flexner, L.L.P. and Todd A. Smith of Smith LaCien L.L.P. are Co-Lead Counsel for the economic damages track. Roland Tellis of Baron & Budd P.C., James Cecchi of Carella Byrne Cecchi Olstein P.C., and Elizabeth Cabraser of Lieff, Cabraser, Heimann & Bernstein, LLP are the Plaintiffs’ Steering Committee members. If you want to be represented by another lawyer, you may hire one to appear in Court for you at your own expense. Their contact information is as follows:

Peter Prieto

PODHURST ORSECK, P.A.

SunTrust International Center One S.E. 3rd Avenue,

Suite 2300 Miami, Florida 33131

Tel: (305) 358-2800

Email: [email protected]

URL: www.podhurst.com

Chair Lead Counsel

David Boies

BOIES, SCHILLER & FLEXNER, L.L.P.

575 Lexington Avenue

New York, NY 10022

Tel: (305) 539-8400

Email: [email protected]

URL: www.bsfllp.com

Co-Lead Counsel for the Economic Loss Track

Todd A. Smith

Roland Tellis

SMITH LACIEN LLP

BARON & BUDD

70 West Madison St., Suite 2250

15910 Ventura Blvd. #1600 Encino, CA 91436

Chicago, IL 60602

Tel: (818) 839-2333

Tel: (312)509-8900

Email: [email protected]

Email: [email protected] 

URL: www.baronbudd.com


Plaintiffs’ Steering Committee

Co-Lead Counsel for the Economic Loss Track

 

James E. Cecchi

Elizabeth J. Cabraser

CARELLA, BYRNE, CECCHI, OLSTEIN,

LIEFF CABRASER HEIMANN &

BRODY & AGNELLO, PC

BERNSTEIN, LLP

5 Becker Farm Road

275 Battery Street, 29th Floor

Roseland, NJ 07068

San Francisco, CA 94111

Tel: (973)994-1700

Tel: (415)956-1000

Email: [email protected]

Email: [email protected]

URL: www.carellabyme.com

URL: www.lchb.com

Plaintiffs’ Steering Committee

Plaintiffs’ Steering Committee

BMW will not be liable for, or obligated to pay, any attorneys’ fees, expenses, costs, or disbursements, either directly or indirectly, in connection with the Actions or the Agreement, other than as set forth in the Settlement Agreement.

Settlement Class Counsel have agreed to limit any petition for an award of attorneys’ expenses in the Actions not to exceed $214,938.00 to be shared equally by the settling OEMs (BMW’s share therefore being $26,867.25).  This award of costs and expenses will be the only compensation BMW pays for all Settlement Class Counsel in the Actions.  Any attorneys’ expenses award made by the Court shall be paid by BMW within 30 days of the Effective Date.

Any order or proceedings relating to the application for attorneys’ costs and expenses, or any appeal from any order related to that application, or reversal or modification that order, will not operate to terminate or cancel the settlement or affect or delay the Effective Date.

Settlement Class Counsel will allocate among other plaintiffs’ counsel the attorneys’ expenses BMW pays as provided for in the settlement in a manner that Settlement Class Counsel in good faith believe reflects the contributions of all plaintiffs’ counsel to the prosecution and settlement of the claims against BMW in the Actions.

The Court will consider the amount(s) of any attorneys’ expenses separately from the Court’s consideration of the fairness, adequacy, and reasonableness of the settlement.  No order of the Court, or modification or reversal or appeal of any order of the Court, concerning the amount(s) of any attorneys’ expenses the Court awards to Settlement Class Counsel will affect the finality of the Final Order and Final Judgment.

Pursuant to case law, Recycler Plaintiffs are not seeking any incentive awards relating to the resolution of the Actions.
If you are a Class Member, and you do not exclude yourself from (opt-out of) the Class, you can object to the settlement if you do not like some part of it or all of it. You can give reasons why you think the Court should not approve it. To object, you must deliver to Settlement Class Counsel, BMW’s Counsel (see addresses below), and the Court, on or before October 4, 2023 a written statement of your objections.

The written objection of any Class Member must include:

a) a heading which refers to the Takata MDL;

b) the objector’s full name, telephone number, and address (the objector’s actual address must be
included);

c) an explanation of the basis upon which the objector claims to be a Class Member, including the Vehicle
Identification Number (“VIN”) of the objector’s Subject Vehicle(s);

d) all grounds for the objection, accompanied by any legal support for the objection known to the objector
or his or her counsel;

e) whether the objection applies only to the objecting Class Member, to a specific subset of the Class, or
to the entire Class;

f) the number of times the objector has objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the objector
has made such objection, and a copy of any orders related to or ruling upon the objector’s prior such
objections that were issued by the trial and appellate courts in each listed case;

g) if represented by counsel, the full name, telephone number, and address of all counsel, including any former or current counsel who may be entitled to compensation for any reason related to the objection
to the Settlement or fee application;

h) the number of times the objector’s counsel and/or counsel’s law firm have objected to a class action settlement within the five years preceding the date that the objector files the objection, the caption of each case in which the counsel or the firm has made such objection, and a copy of any orders related
to or ruling upon counsel’s or the firm’s prior such objections that were issued by the trial and appellate
courts in each listed case;

i) any and all agreements that relate to the objection or the process of objecting―whether written or
verbal―between objector or objector’s counsel and any other person or entity;

j) whether the objector intends to appear at the Final Approval Hearing on his or her own behalf or
through counsel;

k) the identity of all counsel representing the objector who will appear at the Final Approval Hearing;

l) a list of all persons who will be called to testify at the Final Approval Hearing in support of the
objection; and

m) the objector’s dated, handwritten signature (an electronic signature or the objector’s counsel’s
signature is not sufficient).

Any documents supporting the objection must also be attached to the objection.

The objection must be received by Settlement Class Counsel and BMW’s Counsel no later than October 4, 2023. To have your objection considered by the Court, October 4, 2023.

Objections must be mailed to:

 

Clerk of the Court

Wilkie D. Ferguson, Jr. U.S. Courthouse

400 North Miami Avenue

Miami, FL 33128

 

Settlement Class Counsel

Peter Prieto

PODHURST ORSECK, P.A.

SunTrust International Center

One S.E. 3rd Ave, Suite 2700 Miami, FL 33131

 

BMW’s Counsel

Christopher J. Dalton

Buchanan Ingersoll & Rooney

PC 550 Broad Street, Suite 810

Newark, NJ 07102

 

Excluding yourself (or “opting out”) is telling the Court that you do not want to be part of the Class. If you exclude yourself, you have no basis to object because the settlement no longer affects you. Objecting is telling the Court that you do not like something about the settlement. You can object only if you stay in the Class.

If you are a Class Member and you do nothing, you will remain a Class Member and all of the Court’s orders will apply to you, you will be eligible for the settlement benefits described above as long as you satisfy the conditions for receiving each benefit, and you will not be able to sue the Released Parties over the issues in the lawsuit, as set forth in the full release of Appendix A that can be found on the  documents section.
The Court will hold a Final Approval, or “Fairness,” Hearing at 2:30 p.m. (ET) on November 3, 2023 at the Wilkie D. Ferguson, Jr. United States District Courthouse, Southern District of Florida, 400 North Miami Avenue, Miami, FL 33128. At this hearing, the Court will consider whether the settlement is fair, adequate, and reasonable. If there are objections, the Court will consider them. The Court will only listen to people who have met the requirement to speak at the hearing (See Question 19). After the hearing, the Court will decide whether to grant final approval of the settlement, and, if so, how much to pay the lawyers representing Class Members. We do not know how long these decisions will take.
No. Settlement Class Counsel will answer any questions the Court may have. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it - but you can if you provide advance notice of your intention to appear (See Question 19). As long as you filed a written objection with all of the required information on time with the Court, the Court will consider it. You may also pay another lawyer to attend, but it is not required.
You or your attorney may ask the Court for permission to speak at the Final Approval Hearing. To do so, you must send a letter saying that it is your “Notice of Intent to Appear in In Re: Takata Airbag Products Liability Litigation (Economic Track Cases), No. 1:15-md-2599-FAM” to Settlement Class Counsel and BMW’s Counsel identified above (See Question 15) so that they receive it no later than October 4, 2023. You must also send such a Notice to the Clerk of Court so that it is received and filed no later than October 4, 2023. You must include your name, address, telephone number, the year, make, model, and VIN number of your vehicle(s), and your signature. Anyone who has requested permission to speak must be present at the start of the Final (Fairness) Hearing at 2:30 p.m. (ET) on November 3, 2023. You cannot speak at the hearing if you excluded yourself from the Class.

The Notice summarizes the proposed settlement. More details are in the Settlement Agreement. You can get a copy of the Settlement Agreement and other information about the settlement and the Claim Form, on the documents section. You can also call the toll-free number, 1-(859)-344-1901, or write the Settlement Notice Administrator at:

Dunn v. Takata
c/o Kroll Settlement Administration
PO Box 225391
New York, NY 10150-5391

You can also look at the documents filed in the lawsuit at the Court at the address provided above in response to Question 15.

The settlement will not be final unless and until the Court grants final approval of the settlement at or after the Final Approval Hearing and after any appeals are resolved in favor of the settlement. Please be patient and check this website regularly. Please do not contact BMW or BMW Dealers about the Settlement. Please direct all questions about the Settlement to the Settlement Administrator.
This website is authorized by the Court, supervised by counsel, and controlled by the Settlement Notice Administrator approved by the Court. This is the only authorized website for this case.

Call
1-833-630-4683
Mail
Dunn v. Takata
Kroll Settlement Administration
PO Box 225391
New York, NY 10150-5391

Important Dates

  • Exclusion Deadline

    Wednesday, October 4, 2023 You must complete and mail your request for exclusion so that it is postmarked no later than Wednesday, October 4, 2023.
  • Objection Deadline

    Wednesday, October 4, 2023 You must mail your objection(s) and/or notice of intent to appear at the Final Approval Hearing so that it/they are postmarked no later than Wednesday, October 4, 2023.
  • Final (Fairness) Hearing Date

    Friday, November 3, 2023 The Final (Fairness) Hearing is scheduled for Friday, November 3, 2023 at 2:30 p.m. (Eastern Time).

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