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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Civil Action No. 1:21-CV-2190
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`BRITTNEY FREDERICK,
`ALEXANDER PRUEFER, and JINGER
`SANDERS, individually and on behalf of
`all others similarly situated,
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`Plaintiffs,
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`v.
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`EXAMSOFT WORLDWIDE, INC.,
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`Defendant.
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`DEFENDANT EXAMSOFT WORLDWIDE, INC.’S NOTICE OF REMOVAL
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`PLEASE TAKE NOTICE that Defendant ExamSoft Worldwide, Inc.1 (“ExamSoft”), by
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`and through its undersigned counsel, removes the above-captioned action from the Circuit Court
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`of Cook County, Illinois, to the United States District Court for the Northern District of Illinois,
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`Eastern Division, pursuant to 28 U.S.C. § 1441(a), 1446, and 1453, on the ground that federal
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`jurisdiction exists under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2)(A).
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`I.
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`BACKGROUND
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`1.
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`On March 17, 2021, Plaintiffs Brittney Frederick, Alexander Pruefer, and Jinger
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`Sanders, individually and on behalf of all others similarly situated, filed this action, captioned
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`Frederick, et al. v. ExamSoft Worldwide, Inc., in the Circuit Court of Cook County, Illinois, and
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`the case was docketed at 2021-CH-01276. A true and correct copy of Plaintiffs’ complaint and
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`summons are attached hereto as Exhibits 2 and 3, respectively.
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`1 ExamSoft Worldwide, Inc. was renamed ExamSoft Worldwide, LLC in October 2020. See
`Ex. 1 (Declaration of Sebastian Vos) at ¶ 2.
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`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 2 of 6 PageID #:2
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`2.
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`3.
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`ExamSoft was served on March 23, 2021. See Ex. 3.
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`Plaintiffs allege that ExamSoft violated the Illinois Biometric Information Privacy
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`Act (“BIPA”). Ex. 2 at ¶¶ 68-77.
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`4.
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`Specifically, Plaintiffs seek relief on behalf of a purported class of “all Illinois
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`residents who used ExamSoft to take an exam online and who had their facial geometry or other
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`biometric information collected, captured, received, or otherwise obtained and/or stored by
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`Defendant.” Ex. 2 at ¶ 56. Plaintiffs also seek relief on behalf of four purported subclasses defined
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`as follows:
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` The “Bar Exam Subclass,” which consists of “[a]ll Illinois residents who took the
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`October 2020 Illinois Bar Exam and who had their facial geometry collected,
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`captured, received, or otherwise obtained and/or stored by Defendant.” Id. at ¶ 57.
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` The “John Marshall Subclass,” which consists of “[a]ll students at the John
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`Marshall Law School in Chicago who took an online exam from August 2017 to
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`August 2019 and who had their facial geometry collected, captured, received, or
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`otherwise obtained and/or stored by Defendant.” Id. at ¶ 58.
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` The “UIC John Marshall Subclass,” which consists of “[a]ll students at the UIC
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`John Marshall Law School who took an online exam from August 2019 to May
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`2020 and who had their facial geometry collected, captured, received, or otherwise
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`obtained and/or stored by Defendant.” Id. at ¶ 59.
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` The “St. George’s Subclass,” which consists of “[a]ll students at the St. George’s
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`School of Medicine who took an online exam from March 2020 through December
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`2020 and who had their facial geometry collected, captured, received, or otherwise
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`obtained and/or stored by Defendant.” Id. at ¶ 60
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`2
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`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 3 of 6 PageID #:3
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`5.
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`Plaintiffs allege that the number of persons within the putative class “is substantial,
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`believed to amount to thousands of persons.” Id. at ¶ 63.
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`6.
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`The complaint seeks certification of the putative classes, declaratory relief,
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`statutory damages of $5,000 for any intentional and reckless violation of BIPA and $1,000 for any
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`negligent violation of BIPA, injunctive and other equitable relief, reasonable litigation expenses
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`and attorneys’ fees, and pre- and post-judgment interest. Ex. 2 at 16, 18.
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`7.
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`ExamSoft has not yet filed an answer or responsive pleading to the complaint.
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`II.
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`JURISDICTIONAL REQUIREMENTS SATISFIED
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`8.
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`CAFA sets forth three requirements to invoke federal jurisdiction: (1) a class action
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`comprising 100 or more members, (2) in which any member of a class of plaintiffs is a citizen of
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`a state different from any defendant, and (3) in which the amount in controversy exceeds
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`$5,000,000. 28 U.S.C. § 1332(d)(2), (d)(5). All three requirements are satisfied here.
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`A. This Case Is A Putative Class Action Comprising At Least 100 Members
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`9.
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`The action is a “class action” as defined in 28 U.S.C. § 1332(A)(1)(B) and, as noted
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`above, Plaintiffs allege that there are “thousands of persons” in the putative classes. Ex. 2 at ¶ 63.
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`B. Minimal Diversity Exists Pursuant To 28 U.S.C. § 1332(d)(2)(A)
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`10.
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`ExamSoft is a Delaware limited liability company with its principal place of
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`business at 5001 LBJ Freeway, Suite 700, Dallas, Texas, 75244. Ex. 1 at ¶¶ 3-4. For purposes of
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`minimal diversity under CAFA, ExamSoft is a citizen of Delaware and Texas. 28 U.S.C.
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`§ 1332(d)(10); see Aliano v. Louisville Distilling Co., LLC, 115 F. Supp. 3d 921, 927 n.3 (N.D. Ill.
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`2015).
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`11.
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`Plaintiffs allege that they and the putative class members are Illinois residents. Ex.
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`2 at ¶¶ 14-16, 56.
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`3
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`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 4 of 6 PageID #:4
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`12.
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`Based on the foregoing, minimal diversity exists because at least one member of
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`the putative class is a citizen of a different state than ExamSoft. See 28 U.S.C. § 1332(d)(2)(A).
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`C.
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`13.
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`The Amount In Controversy Exceeds $5,000,000
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`Under CAFA, the claims of the individual class members are aggregated to
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`determine whether the amount in controversy exceeds the required “sum or value of $5,000,000,
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`exclusive of interest and costs.” 28 U.S.C. § 1332(d)(2), (d)(6). A party removing under CAFA
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`need only establish that the amount in controversy exceeds the jurisdictional minimum by a
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`preponderance of the evidence. See Roppo v. Travelers Commercial Ins. Co., 869 F.3d 568, 579
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`(7th Cir. 2017). The question is not whether damages will be greater than $5 million, but only
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`whether “a fact-finder might conceivably lawfully award” damages greater than $5 million. Id. at
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`583 (emphasis in original). The removing party’s burden is a mere “pleading requirement, not a
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`demand for proof.” Blomberg v. Serv. Corp. Int’l, 639 F.3d 761, 763 (7th Cir. 2011).
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`14. While ExamSoft denies the claims alleged in Plaintiffs’ complaint and further
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`denies that Plaintiffs, or any putative class member, are entitled to any monetary or other relief, on
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`a classwide basis or otherwise, the amount in controversy here satisfies the jurisdictional threshold.
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`Plaintiffs seek statutory damages of up to $5,000 per violation from ExamSoft for each putative
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`class member (see Ex. 2 at 16, 18), and allege that there are “thousands of persons” in the class.
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`Id. at ¶ 63. Multiplying $5,000 for each putative class member by just two “thousand[]” putative
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`class members (the bare minimum putative class size alleged based on Plaintiffs’ allegation that
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`there are “thousands” of class members) yields an amount in controversy of $10 million—well in
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`excess of $5 million. And, if the putative class size is larger, as Plaintiffs’ allegation allows, the
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`amount in controversy would exceed the CAFA threshold by an even wider margin.
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`4
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`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 5 of 6 PageID #:5
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`15.
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`Thus, ExamSoft has made a showing that, if Plaintiffs prevail, recovery in this
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`action “might conceivably” exceed the mandatory minimum threshold for jurisdiction under
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`CAFA. Roppo, 869 F.3d 583.
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`16.
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`Because this is (1) a putative class action comprising 100 or more members, (2) in
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`which any member of the putative class is a citizen of a state different from the defendant’s state
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`of citizenship, and (3) the aggregate amount of damages sought is in excess of $5 million, this case
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`falls within the subject matter jurisdiction of this Court pursuant to 28 U.S.C. § 1332 and is
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`therefore removable pursuant to 28 U.S.C. § 1441.
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`III. OTHER STATUTORY REQUIREMENTS FOR REMOVAL ARE SATISFIED
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`17.
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`Plaintiffs filed this action in the Circuit Court of Cook County, Illinois. Venue is
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`proper in the United States District Court for the Northern District of Illinois, Eastern Division,
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`because it is the “district and division embracing the place where such action is pending.” 28
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`U.S.C. § 1441(a).
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`18.
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`19.
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`No previous application has been made for the relief requested herein.
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`As required by 28 U.S.C. § 1446(a), copies of all process and pleadings served upon
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`ExamSoft are attached as exhibits hereto.
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`20.
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`21.
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`This notice of removal is timely pursuant to 28 U.S.C. § 1446(b)(1).
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`As required by 28 U.S.C. § 1446(d), ExamSoft will promptly file a copy of this
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`Notice of Removal with the Circuit Court of Cook County, Illinois, County Department, Chancery
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`Division and serve copies of the same on all parties to this action.
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`WHEREFORE, ExamSoft respectfully removes this action from the Circuit Court of Cook
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`County, Illinois, docketed at 2021-CH-01276, to this Court.
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`5
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`Case: 1:21-cv-02190 Document #: 1 Filed: 04/22/21 Page 6 of 6 PageID #:6
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`DATED: April 22, 2021
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`Respectfully submitted,
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`By: /s/ Lauren R. Goldman
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`MAYER BROWN LLP
`Lauren R. Goldman
`1221 Avenue of the Americas
`New York, NY 10020
`Telephone: (212) 506-2647
`lrgoldman@mayerbrown.com
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`Archis A. Parasharami
`1999 K Street, N.W.
`Washington, DC, 2006
`Telephone: (202) 263-3000
`aparasharami@mayerbrown.com
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`Matthew D. Provance
`71 S. Wacker Drive
`Chicago, IL 60606
`Telephone: (312) 782-0600
`mprovance@mayerbrown.com
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`Attorneys for Defendant ExamSoft Worldwide, LLC
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`6
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