Society of Financial Service Professionals South Jersey Chapter Annual Ethics Meeting

“Annual Ethics Meeting”

Tuesday, April 18, 2017

Laurel Creek Country Club,

701 Centerton Rd., Mt. Laurel, NJ

7:45 AM — Breakfast

8:30-11:30 AM Program

This year’s Ethics Program will be an interactive Panel discussion with 3 area experts reviewing Best Practices for Financial Advisors under the new Fiduciary Standard Rules. We will focus on Best Practices for IRA Rollovers, Pension Maximization, E & O Insurance coverage, and an actual Annuity Sale Court Case. The Ethics Program will be a new program for NJ Insurance credits but a “renewed” (aka same course number) for CFP Professionals, as last year’s program.

The 3 expert panel members are Deirdre Koerick, Chief Compliance Officer for Lincoln Investment, Thomas C. Piersanti, CLU, RHU and John C. Grady, Esq.

This Meeting is Generously Sponsored By:

  • Empower
  • Principal Financial
  • SeniorWise Care Management

Full Information online at:

www.societyoffsp.org/south-jersey

Or by contacting Abby Murray
Email: Send an email to Homer now!

Or by phone: 856-470-4521

We have been approved for this meeting to qualify for NJ Insurance and have applied for CFP credits

New Jersey Supreme Court Updates Standards For Communicating Rejection of Real Estate Contract After Attorney Review

Picture of a contract

On April 3, 2017 the New Jersey Supreme Court published its decision in Michael Conley, Jr. v. Mona Guerrero (A-65-15) (076928) dealing with the requirement of notice of rejection under the attorney review provisions of a standard form real estate contract. The Plaintiffs entered into a standard form real estate contract which included an attorney-review clause, mandated by the Court in New Jersey State Bar Ass’n v. New Jersey Ass’n of Realtor Boards (Bar Ass’n), 93 N.J. 470, 476-77, modified, 94 N.J. 449 (1983), and N.J.A.C. 11:5-6.2(g)(2), which gave the parties’ respective attorneys three business days to review the contract before it became legally binding. If Buyers’ or Seller’s attorney disapproved the contract, the clause required that he or she notify the “REALTOR(S) and the other party . . . within the three-day period.” Any notice of disapproval was required to be sent to the “REALTOR(S) by certified mail, by telegram, or by delivering it personally.” A bidding war began on the same day that the attorney-review period commenced, and Seller accepted a higher bid than the contract with the original buyer, Michael Conley, Jr., called for. The Seller’s attorney delivered a letter by e-mail and fax to Conley’s attorney and to the broker rejecting the contract one day before the three day notice period expired. He did not use certified mail, telegram or personal delivery. Seeking to enforce the strict terms of the contract after being overbid and losing the house, Conley sued and sought to enjoin the sale. The lower courts granted the seller’s and new buyers’ motion to dismiss and Conley exhausted his appellate review options – pursuing it all the way to the Supreme Court.

The Supreme Court held that in this case, because Buyers received actual notice of disapproval within the three-day attorney-review period by a method of communication commonly used in the industry, the notice of disapproval was valid. The Court also exercises its constitutional authority over the practice of law and finds that an attorney’s notice of disapproval of a real estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remains three business days.

Read your standard real estate contract carefully, and make sure the notice of rejection after attorney review is communicated in accord with this opinion. Real estate brokers should consider revising the standard agreement to update the notice requirements to those expressed by the Supreme Court which are more in keeping with current communication methods. The New Jersey State Bar Association advocated this update as a friend of the court in the Supreme Court’s consideration of the case.

Do We Really Need the Proposed New “Distracted Driving” Provision And Is It Likely To Be “Void For Vagueness”?

A proposed addition to New Jersey’s distracted driving statute, N.J.S.A. 39:4-97.3 would add this language; “[a]n operator of a moving motor vehicle shall not engage in any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway.”

There is already a lot of discussion of whether this will be applied to ticket those who drink coffee, eat, or engage in any activity that a police officer feels is unrelated to the operation of a motor vehicle that interferes with the safe operation of the vehicle. Will this new provision be considered “void for vagueness” if adopted and challenged? The concept of vagueness or indefiniteness rests on the principle that the constitution requires fair notice and proper standards for punishment. The primary issues involved are whether the provisions of the statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and provide adequate standards for the determination of guilt. If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional. State v. Lashinsky, 81 N.J. 1, 16 (1979).

The New Jersey Supreme Court in Lashinsky said “the decisive question for purposes of this vagueness argument is whether the defendant was reasonably apprised, as a matter of common intelligence, in light of ordinary human experience, that his particular conduct was unlawful.”
State v. Lashinsky, 81 N.J. 1, 18 (1979).

The question is then whether reasonable minds in light of ordinary experience could determine what is banned? It may be anything if that impairs the safe operation of the vehicle; speaking with a passenger, refereeing squabbling siblings in the back seat, checking a map or directions, eating, drinking, singing along with the music. This does seem to be overly broad and vague.

At the same time if it is the safe operation of the vehicle that is being addressed there are already other statutes addressing unsafe vehicle operation. Unsafe driving is already addressed by the careless driving statute, 39:4-97 (a person who drives a vehicle carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving) and reckless driving statute, 39:4-96 (a person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving). There is even a statute for driving so slow as to obstruct traffic, 39:4-97.1 (no person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law) and one for operating a vehicle in an unsafe manner, 39:4-97.2 (notwithstanding any other provision of law to the contrary, it shall be unlawful for any person to drive or operate a motor vehicle in an unsafe manner likely to endanger a person or property). Any of these which are already in force are available to a police officer who observes unsafe driving.

HOW IS THE APPLICATION OF THE “BASEBALL RULE” AFFECTED BY THE EXPANSION OF NETTING IN MAJOR LEAGUE BALLPARKS?

 

Major League Baseball this past off-season issued a recommendation that all teams lengthen the safety netting at ballparks to increase fan safety.  http://m.mlb.com/news/article/159233076/mlb-issues-recommendations-on-netting.  Tampa Bay was one of the teams that heeded the new recommendations; “I don’t think we’re taking anything away from the fans who are there,” said Rays vice president of operations/facilities Rick Nafe. “My own personal observation — I have sat in seats in that area that are unprotected by a net, and I tend to enjoy the game a lot more when I know there’s a net in front of me. You know, some of those seats you have to pay attention constantly. That’s just a personal opinion. But I don’t think we’re going to be taking anything away from the fans.”  http://m.mlb.com/news/article/159233076/mlb-issues-recommendations-on-netting.

Despite their best intentions, a Rays fan was struck and seriously injured by a baseball fouled by a Rays player that passed through the protective netting and struck her in the face.  http://abcnews.go.com/Sports/fan-rays-game-struck-foul-ball-protective-netting/story?id=38442152

Apparently, at the bottom of the seam where the new netting joined the old, triangular gaps were left to provide access to the camera wells. The gaps angled sideways from the field, and the width of the opening facing the field was no more than 6 inches, which made it seemingly unlikely for a ball to get through. http://www.tampabay.com/news/fan-struck-by-foul-ball-is-in-the-hospital-rays-add-netting-to-close-gap/2273551  The Rays have already taken steps to close off those gaps, and the injured fan is recovering from facial injuries that required surgery.

The “Baseball Rule” has long protected baseball teams, as well as hockey teams and other sports from lawsuits for injuries suffered by fans when they are struck by projectiles that leave the field of play or rink.  It is a specialized negligence rule that has been in effect since the early twentieth-century.  Patrons who chose unprotected seating areas were routinely denied recovery.  Such decisions based their decisions on two facts: that the danger of errant balls was common knowledge and that spectators sitting in unscreened seats assumed the risk of injury. See, e.g., Brisson v. Minneapolis Baseball & Athletic Ass’n, 185 Minn. 507, 240 N.W. 903 (1932); Kavafian v. Seattle Baseball Ass’n, 107 Wash. 249, 181 P. 677 (1919). Thus, the rule established a fact-specific standard of care for injuries caused by errant balls at baseball stadiums by accounting for the open and obvious nature of the risk that batted balls pose to fans.  Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 185 N.J. 70, 78 (2005).

New Jersey and the Baseball Rule

In New Jersey and several other states, the operator of a sports venue must provide protected seating “sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion,” and second, the operator must provide protection for spectators in “the most dangerous section” of the stands. The second component of this limited duty may ordinarily be satisfied by the operator providing screened seats behind home plate in baseball and behind the goals in hockey.

New Jersey follows a hybrid approach, patrons in the seating areas of a stadium are subject to the limited duty “Baseball Rule”,  while those in other areas of the venue are protected by the business invitee rule, which provides that a landowner “owe[s] a duty of reasonable care to guard against any dangerous conditions on his or her property that the owner either knows about or should have discovered.” Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 185 N.J. 70, 85 (2005)

Where the operator of a stadium provides screened seats for the members of the public that desire such protection, and the protection fails, is the operator liable for the injuries that result?  The answer is determined by the particular facts of the incident.  A Florida jury may have to determine whether leaving the triangular gap described in Marc Topkin’s story for the Tampa Bay Times constituted a failure by the Rays to take reasonable care to protect their patrons.  If this happened in New Jersey and you were a juror – what would you decide?

Contact CraigAnninBaxter Law

If you have a concern about your legal rights, remedies, and obligations contact the experienced lawyers of Craig Annin & Baxter, LLP.

ANTHEM OF THE SEAS PASSENGERS PLACED AT RISK BY ROYAL CARIBBEAN

By: Timothy E. Annin

Royal Caribbean’s ANTHEM OF THE SEAS encountered hurricane strength winds and high seas resulting in her aborting a Caribbean cruise and returning to New Jersey this week. This is the second sailing in less than five months where a vessel set out on a heading which would place it in the path of bad weather. The consequences to EL FARO were catastrophic with the loss of all hands and the cargo vessel as a result of Joaquin which intensified from a tropical depression to a Category 4 hurricane. The decision to sail ANTHEM OF THE SEAS was made in the face of an adverse weather forecast also.

Unfortunately there is no remedy in Admiralty Law for the inconvenience or emotional trauma suffered by thousands of passengers confined to their staterooms to ride out the storm. To obtain monetary relief for emotional trauma, it must be accompanied by some physical injury. All passengers should immediately study their trip documents/tickets to ensure that they comply with strict time limits to make a claim for refunds or discount tickets to partially compensate them for the terror and inconvenience suffered.

Boat Accidents in New Jersey and Pure Comparative Negligence

In maritime accidents, the United States Code requirement of pure comparative negligence controls. This means an injured party is eligible to recover damages, minus the percentage of their fault, regardless of how much fault is assigned to them. If Smith suffers $100,000 in losses but is found to be 80% at fault, Smith is still eligible to recover $20,000 in compensation. The implications of pure comparative negligence are significant for both the insured and the insurer.

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To arrange a meeting to discuss your rights and options, contact our office online or call us at 856-795-2220.

NEW JERSEY SUPREME COURT CONFIRMS INSURANCE FRAUD LAW DOES NOT REQUIRE THAT THE CARRIER BE INDUCED BY A FALSE STATEMENT TO PAY A DAMAGE CLAIM.

 

In a unanimous opinion released today the New Jersey Supreme Court held that a violation of the criminal insurance fraud statute, N.J.S.A. 2C:21-4.6(a), does not require proof that a false statement made by the defendant induced the insurance carrier to pay the claim.

In State of New Jersey v. Robert Goodwin, (A-20-14) (0743520 (decided January 19, 2016) http://www.judiciary.state.nj.us/opinions/supreme/A2014StatevRobert.pdf the New Jersey Supreme Court reinstated the conviction of Goodwin for insurance fraud.  Goodwin lived with his girlfriend “Stacey”, who owned a 1999 Chevy Tahoe she insured with Progressive Insurance Company.  On September 13, 2009, Goodwin took the Tahoe from its normal parking location in front of the building where he lived with Stacey and drove it to another location where he met with another woman whom he was dating without Stacey’s knowledge.  While he was with her, someone set the Tahoe on fire.

Goodwin told Progressive that he parked the Tahoe in front of the apartment where he lived with Stacey, had the only set of keys, and that it had been stolen and torched.  Progressive never believed the vehicle was stolen. A Newark Fire Department arson investigator determined that the fire was intentionally set with gasoline and the Tahoe was driven to the scene of the fire with the ignition key.  Consequently, Progressive denied Stacey’s claim.

Charged criminally with arson, attempted theft by deception, and insurance fraud a jury convicted Goodwin only of insurance fraud.  On appeal, the panel determined that because Progressive knew the Tahoe was not stolen and denied the claim no insurance fraud occurred.  The Supreme Court disagreed, finding that the statute required only that the defendant knowingly make or cause to be made a false statement of material fact as part of a claim for payment pursuant to an insurance policy.   Weighing in on the proper interpretation of “material”, the Supreme Court found that a statement that “could have affected the outcome of the proceeding or the disposition of the matter” even if it did not actually corrupt the proceeding.  This is consistent with interpretations of the perjury statute, N.J.S.A. 2C:28-1(b), and definitions applied by federal courts, Black’s Law Dictionary and Webster’s New World College Dictionary.

To avoid confusion this is the portion of the Model Jury charge should be used in defining “material fact” in criminal insurance fraud cases:

  • “[T]he statement of material fact is material if it could have reasonably affected the decision by an insurance company to provide insurance coverage to a claimant of the decision to provide reimbursement or the decision to pay a claim.”

The Supreme Court reaffirmed that the intent of insurance fraud legislation is to punish wrongdoers and deter others and that their application is not limited to only those cases in which an individual succeeded in inducing an insurance carrier to pay a false claim.

Contact CraigAnninBaxter Law

Our attorneys also represent insurance carriers in subrogation claims, helping you seek reimbursement from other insurers for costs you have incurred due to the wrongdoing of their insureds. To learn how we can help you, contact the Haddonfield insurance carrier attorneys online or call us in Haddonfield, New Jersey, at 856-795-2220.

Seasons Greetings & Happy New Year from Craig Annin Baxter Law

Seasons Greetings & Happy New Year from Craig Annin Baxter Law

New Jersey Assembly Takes Up The Subject Of A Private Cause of Action For Bad Faith in Settlement of Insurance Claims

Efforts have been made, since Hurricane Sandy, to broaden the remedies available to consumers who feel they have been wronged by the claim practices of insurance carriers. These efforts have failed in each of their prior versions.  A-231 sponsored by Assemblypersons Reed Gusciora, Timothy Eustace, and Marlene Caride will be reviewed by the Assembly Financial Institutions and Insurance Committee on December 10, 2015.

The bill has a narrow scope of relief, providing for a private civil action in addition to the enforcement authority of the Commissioner of Banking and Insurance only in regard to claims arising out of a declared disaster.  In the event a carrier were to violate N.J.S.A. 17:29B-4(9) the wronged insured may recover the full amount of damages regardless of the coverage limits of the policy along with pre-judgment interest, attorneys’ fees, and all reasonable litigation expenses from the date of institution of the action as well as punitive damages.

The statutory requirements are enumerated as:

(9)  Unfair claim settlement practices. Committing or performing with such frequency as to indicate a general business practice any of the following:

  • (a)  Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;
  • (b)  Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies;
  • (c)  Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;
  • (d)  Refusing to pay claims without conducting a reasonable investigation based upon all available information;
  • (e)  Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;
  • (f)  Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;
  • (g)  Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds;
  • (h)  Attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application;
  • (i)  Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of the insured;
  • (j)  Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are being made;
  • (k)  Making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;
  • (l)  Delaying the investigation or payment of claims by requiring an insured, claimant or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information;
  • (m)  Failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage;
  • (n)  Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement;
  • (o)  Requiring insureds or claimants to institute or prosecute complaints regarding motor vehicle violations in the municipal court as a condition of paying private passenger automobile insurance claims.

N.J. Stat. § 17:29B-4

Contact CraigAnninBaxter Law

The attorneys of Craig, Annin & Baxter have testified before legislative committees on pending legislation and have participated in working groups with the Legislature in drafting legislation.  If you wish to discuss this or any other pending legislative matter give us a call at 856-795-2220.

 

WHAT CAN WE LEARN FROM JUDGE BERMAN’S OPINION IN DEFLATEGATE ABOUT ATTACKS ON ARBITRATOR’S RULINGS?

Deflategate Ruling – USDC Judge Rules on National Football League Management Council v. National Football League Players Association

United States District Court Judge Richard M. Berman ruled today that the arbitrator’s ruling by Commissioner Goodell in National Football League Management Council v. National Football League Players Association could not be confirmed, and instead must be vacated.

​Sports media legal analysts generally forecast a victory for Commissioner Goodell and the National Football League Management Council on the basis of past history and case law on the deference afforded to arbitral decisions. What was it that persuaded Judge Berman that this ruling could not stand?

​Without questioning the factual findings in the arbitration decision, Judge Berman determined that the Award (Commissioner’s Goodell’s July 28, 2015 Arbitration Award) should be vacated because of three key legal deficiencies; (a) inadequate notice to Tom Brady that he could receive a four game suspension; (b) denial of the opportunity to examine one of the two lead investigators – NFL Executive Vice President and General Counsel Jeff Pash, and (c) denial of equal access to investigative files including witness interview notes.

​The NFL could not explain, even at oral argument, what portion of the suspension was attributable to ball-tampering as opposed to Brady’s failure to cooperate with the investigation. The Award equated Brady’s conduct in allegedly seeking an improper competitive advantage with a violation of the collectively bargained performance enhancing drug policy – as if Brady had tested positive for using steroids. Judge Berman found that there was nothing in the “Policy on Anabolic Steroids and Related Substances” that could reasonably put Brady on notice of the discipline he would face for an equipment violation.

​“No player alleged or found to have general awareness of the inappropriate ball deflation activities of others or who allegedly schemed with others to let air of out of footballs in a championship game and also had not cooperated in an ensuing investigation, reasonably could be on notice that their discipline would (or should) be the same as applied to a player who violated the NFL Policy on Anabolic Steroids and Related Substances.”

​Paul Tagliabue’s arbitration award in the Bounty-Gate case that no player had been suspended for obstructing a league investigation came back to bite the NFL once again.

​The second point is probably the one from which we can draw the most practical lesson for other cases – if an attorney becomes a co-lead investigator for the case they cannot be shielded from examination on the basis that their testimony would be “cumulative”. When Jeff Pash reviewed, edited, and provided written comments on the report of an “independent investigation” and was publicly declared by the NFL to be the co-lead investigator he became a witness subject to examination. NFL precedent affords players an opportunity to confront their investigators. Denying Brady the opportunity to question Pash was determined by Judge Berman to be “fundamentally unfair”. The substantial prejudice to Brady from being denied access to this evidence would warrant, by itself, vacating the award.

​The third point also provides practical guidance; Brady was denied access to the investigative files of the “independent investigation”. The deprivation of access to materials providing the basis for the report relied upon to discipline Brady was fundamentally unfair and prejudicial. Like the denial of access to Pash, this alone would have warranted vacating the award. This parallels a situation where an investigator’s notes relied upon in preparing his report are withheld from discovery, a situation no other civil case in federal or state court would permit absent a “work-product” privilege objection, which could be overcome by a demonstration of substantial need. As both the “independent investigator” and retained counsel who handled Brady’s cross-examination, the Paul, Weiss attorneys had access to materials used to question Brady that he and his counsel did not have. Paul Tagliabue’s Arbitrator’s Ruling in Bounty-Gate compelling production of NFL investigative reports and redacted accounts of witness statements was a telling blow to the NFL Management Council’s position here.

​The lessons to be drawn are; if you are going to discipline someone make sure (a) they have documented notice of the discipline they can face for the violations being brought against them and impose discipline consistent with that notice, (b) if in-house counsel becomes an investigator he becomes a witness subject to questioning, and (c) investigative materials available to one side that provide the basis for an investigation report that provides the basis for the discipline have to be produced upon request in order to allow a full and fair opportunity to contest the report and the basis for discipline.
​The NFL Management Council has already appealed so the last words on this decision have not yet been spoken or written.

-written by JCG

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To schedule a confidential meeting with a respected tort claims defense attorney, contact us online or call our office in Haddonfield at 856-795-2220. We understand how important your case is to you…it’s just as important to us.

INSURANCE FRAUD – NEW JERSEY SUPREME COURT UPDATES CARRIER RESPONSIBILITY

INSURANCE FRAUD – NEW JERSEY SUPREME COURT UPDATES CARRIER RESPONSIBILITY TO INNOCENT THIRD PARTIES WHEN AN APPLICANT FOR A “BASIC” POLICY COMMITS APPLICATION FRAUD

New Jersey’s courts have a history of protecting innocent third parties injured in accidents with drivers who have obtained their automobile insurance through fraud in their application.  In the context of New Jersey’s compulsory automobile insurance requirements that history is reflected in    New Jersey Manufacturers Insurance Co. v. Varjabedian, 391 N.J.Super. 253 (App.Div.) certif. denied. 192 N.J. 295 (2007).  Applying  Varjabedian, a policy voided due to the applicant’s fraud was molded to compel the defrauded insurance carrier to make $15,000 per person and  $30,000 per accident coverage available to innocent third parties.

Today the New Jersey Supreme Court, in a unanimous decision written by Justice Fernandez-Vina ruled that where New Jersey’s “basic policy” is concerned voiding such a policy for application fraud yields no more than the limit chosen for third party bodily injury coverage in the application – in this case the applicant elected the optional $10,000 personal liability coverage – rather than the $15,000 per person $30,000 per accident of the “standard policy”.

The “basic policy” permitted by N.J.S.A. 39:6A-3.1 does not mandate personal liability insurance, if the optional personal liability limit is not elected no coverage will be made available to innocent third parties if such policies are voided.

The link to the New Jersey Supreme Court’s opinion in Citizens United Reciprocal Exchange v. Sabrina A. Perez, et al; is http://www.judiciary.state.nj.us/opinions/supreme/A6713CUREvSabrina.pdf

Contact CraigAnninBaxter Law

Our attorneys also represent insurance carriers in subrogation claims, helping you seek reimbursement from other insurers for costs you have incurred due to the wrongdoing of their insureds.

To learn how we can help you, contact the Haddonfield insurance carrier attorneys online or call us in Haddonfield, New Jersey, at 856-795-2220.

 


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