`
`UNITED STATES DISTRICT COURT FOR
`
`THE WESTERN DISTRICT OF MICHIGAN
`
`
`SUSAN MCKAY, individually and on behalf of
`all others similarly situated,
`
`
`
`
`
`
`BORDER FOODS, INC., and BORDER FOODS
`OF WISCONSIN, LLC,
`
`
`
`
`
`
`v.
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`
`
`
`
`
`
`
`Case No.
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`NATIONWIDE
`
`CLASS ACTION COMPLAINT
`
`
`
`
`
`Plaintiff,
`
`
`Defendants.
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`
`
`NATIONWIDE CLASS ACTION COMPLAINT
`
`COMES NOW, Plaintiff SUSAN MCKAY (“Plaintiff”), on behalf of herself and all others
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`similarly situated, and asserts as follows:
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`INTRODUCTION
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`1.
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`Plaintiff, a person with a mobility disability who uses a wheelchair for mobility,
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`brings this action individually and on behalf of all others similarly situated against Defendants,
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`asserting violations of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
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`(the “ADA”), and its implementing regulations. Defendants BORDER FOODS, INC., and
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`BORDER FOODS OF WISCONSIN, LLC (collectively, “Defendants”) collectively own, lease,
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`and/or operate at least one hundred eighty-nine (189) Taco Bell restaurants in the states of Iowa,
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`Illinois, Michigan, Minnesota, South Dakota, Wisconsin, and Wyoming. Plaintiff’s claims arise
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`from own her experience with excessive sloping conditions in purportedly accessible parking
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`spaces, access aisles, and curb ramps (“Parking Area” or “Parking Areas”) at places of public
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`accommodation owned, operated, controlled, and/or leased by Defendants (“Defendants’
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`
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`Case 1:21-cv-00963-PLM-PJG ECF No. 1, PageID.2 Filed 11/12/21 Page 2 of 14
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`facilities”), and from site investigations at seventeen (17) of Defendants’ facilities also finding
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`excessive sloping conditions.
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`2.
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`Plaintiff asserts that these excessive sloping conditions persist in part as a result of
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`Defendants’ existing but inadequate internal maintenance procedure, which fails to ensure
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`compliance with the sloping requirements of the ADA’s implementing regulations. See 28 C.F.R.
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`§§ 36.101 et seq.
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`3.
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`The ADA expressly authorizes the injunctive relief aimed at modification of
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`existing policies, practices, or procedures that Plaintiff seeks in this action. In relevant part, the
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`ADA states:
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`In the case of violations of . . . this title, injunctive relief shall include an order to
`alter facilities to make such facilities readily accessible to and usable by individuals
`with disabilities. … Where appropriate, injunctive relief shall also include requiring
`the . . . modification of a policy…
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`42 U.S.C. § 12188(a)(2).
`
`4.
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`Based on the extensive factual investigation performed by Plaintiff’s investigators,
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`Plaintiff believes and therefore asserts that numerous additional facilities owned, controlled, and/or
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`operated by Defendants have Parking Areas that are, or have become, inaccessible to individuals
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`who rely on wheelchairs for mobility due to excessive sloping, demonstrating that the Defendants’
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`existing internal maintenance procedure (discussed at ¶¶ 18-21 below) is inadequate and must be
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`modified. 42 U.S.C. § 12188(a)(2).
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`5.
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`Plaintiff brings this action individually and on behalf of all other similarly situated
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`wheelchair users to compel Defendants to (i) remediate all access barriers within the Parking Areas
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`of their facilities, and (ii) modify its existing policies to ensure that its facilities comply with the
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`ADA implementing regulations’ excessive sloping requirements. 28 C.F.R. §§ 36.101 et seq.
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`2
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`6.
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`Consistent with 42 U.S.C. § 12188(a)(2), Plaintiff seeks a permanent injunction
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`requiring that:
`
`a. Defendants remediate excessive sloping within the Parking Areas at Defendants’
`facilities, consistent with the ADA’s implementing regulations;
`
`
`
`b. Defendants modify its existing maintenance policy to ensure that the excessive
`sloping conditions within the Parking Areas at Defendants’ facilities do not
`reoccur; and
`
`
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`c. Plaintiff’s representatives shall monitor Defendants’ facilities to ensure that the
`injunctive relief ordered pursuant to Paragraph 6.a. and 6.b. has been
`implemented and will remain in place.
`
`
`7.
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`Plaintiff’s claims for permanent injunctive relief are asserted as class claims
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`pursuant to Fed. R. Civ. P. 23(b)(2). Rule 23(b)(2) was specifically intended to be utilized in civil
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`rights cases where the Plaintiff seeks injunctive relief for his or her own benefit and the benefit of
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`a class of similarly situated individuals. To that end, the note to the 1996 amendment to Rule 23
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`states:
`
`
`
`Subdivision(b)(2). This subdivision is intended to reach situations where a party
`has taken action or refused to take action with respect to a class, and final relief of
`an injunctive nature or a corresponding declaratory nature, settling the legality of
`the behavior with respect to the class as a whole, is appropriate . . .. Illustrative are
`various actions in the civil rights field where a party is charged with discriminating
`unlawfully against a class, usually one whose members are incapable of specific
`enumeration.
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`PARTIES
`
`8.
`
`Plaintiff Susan McKay is, and at all times relevant hereto was, a resident of
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`Jackson, Michigan. Plaintiff is a person with a mobility disability stemming from a T11/T12 injury
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`resulting from a car accident in 1979. As a result of her disability, Plaintiff uses a wheelchair for
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`mobility. Plaintiff is therefore a member of a protected class under the ADA, 42 U.S.C. § 12102(2),
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`and the regulations implementing the ADA set forth at 28 C.F.R. §§ 36.101 et seq.
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`
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`3
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`9.
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`Defendant BORDER FOODS, INC., is, and at all relevant times was a Minnesota
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`Corporation, doing business in the State of Michigan as the owner, lessee, and/or operator of
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`dozens of Taco Bell restaurants in the state.
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`10.
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`Defendant BORDER FOODS OF WISCONSIN, LLC, is, and at all relevant times
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`was a Wisconsin Corporation, doing business in the State of Michigan as the owner, lessee, and/or
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`operator of dozens of Taco Bell restaurants in the state.
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`11.
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`Plaintiff is further informed and believes, and based thereon alleges that Defendants
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`collectively own, lease, and/or operate one hundred eighty-nine (189) Taco Bell restaurants in the
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`states of Iowa, Illinois, Michigan, Minnesota, South Dakota, Wisconsin, and Wyoming, as
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`described herein.
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`12.
`
`Defendants’ facilities are places of public accommodation as defined in 42 U.S.C.
`
`§12181(7) and are therefore subject to the requirements of the ADA.
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`FACTUAL ASSERTIONS
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`Plaintiff Has Been Denied Full and Equal Access to Defendants’ Facilities
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`13.
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`Plaintiff visited Defendants’ facilities located at 821 Capital Avenue, Battle Creek,
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`Michigan, on September 13, 2021, where she experienced unnecessary difficulty and risk of
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`physical harm exiting and entering her vehicle, and navigating the facilities, such that extra care
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`was needed to avoid falling and to safely traverse the area, due to excessive slopes in a purportedly
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`accessible Parking Area and other ADA accessibility violations as set forth in more detail below.
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`14.
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`Despite this difficulty and risk, Plaintiff plans to return to Defendants’ facilities.
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`She regularly travels to the area to shop and for leisure. On September 13, 2021, Ms. McKay was
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`traveling to Saugatuck for a vacation with her husband and stopped in Battle Creek for food. She
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`travels through Battle Creek to Saugatuck multiple times per year, and plans those trips around
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`4
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`stopping in Battle Creek to eat. Plaintiff often stops for Taco Bell on road trips due to her
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`preference for their crunchwrap supreme and an iced tea. Plaintiff is familiar with Battle Creek
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`because she also travels there several times a year to shop at the store “Ollie’s Bargain Outlet.”
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`Plaintiff will be visiting Battle Creek within the next few months to shop and will be passing
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`through the area to the beach again next Spring, and during those visits, intends to dine at
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`Defendants’ Battle Creek facility. Furthermore, Plaintiff intends to return to Defendants’ facility
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`in Battle Creek facility to ascertain whether it remains in violation of the ADA.
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`15.
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`As a result of Defendants’ non-compliance with the ADA, Plaintiff’s ability to
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`access and safely use Defendants’ facilities has been significantly impeded and Plaintiff will be
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`deterred from returning to and fully and safely accessing Defendants’ facilities due to the
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`discrimination she has previously encountered there.
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`Defendants Repeatedly Deny Individuals with Disabilities Full and Equal Access to
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`Defendants’ Facilities
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`16.
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`As the owner and/or operator of its facilities, Plaintiff is informed and believes, and
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`based thereon alleges that, as a Taco Bell franchisee pursuant to franchise agreements, Defendants
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`utilize an Operations Manual or “Answer System” (the “Manual”) which sets forth the standards
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`issued by the franchisor, and is required to follow all of the manual’s instructions, requirements,
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`standards, specifications, and procedures at each of their locations, including those setting further
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`management, administration, and maintenance policies, practices, and procedures related to “Daily
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`Outside Maintenance.” Plaintiff is further informed and believes, that pursuant to the franchise
`
`agreements, Defendants are required to maintain the Restaurant buildings, drivethrus, parking lots,
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`and landscaped areas at each individual location in conformance with the specifications set forth
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`in the Manual.
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`5
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`17.
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`Plaintiff is further informed and believes, that pursuant to the franchise agreements,
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`Defendants are required to maintain the Restaurant buildings, drivethrus, parking lots, and
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`landscaped areas at each individual location in conformance with the specifications set forth in the
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`Manual.
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`18.
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`Plaintiff is informed and believes that, pursuant to the franchise agreement,
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`Defendants are required to enter into lease agreements containing specific terms, setting forth,
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`among other things, Defendants’ obligations to comply with the requirements of the ADA and the
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`regulations promulgated thereunder, and to maintain, repair, and/or replace the parking lot, curbs,
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`driveways, and sidewalks on the leased property.
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`19.
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`Plaintiff is further informed and believes, and based thereon alleges that, pursuant
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`to the franchise agreement, Defendants are required to designate an “Principal Operator” that
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`supervises the operation of Defendants’ restaurants within designated market areas. Due to the
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`high number of locations and geographic distances, Defendants manage compliance with their
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`centralized policies, practices, or procedures concerning its daily outside maintenance obligations,
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`and obligations to maintain, repair, and/or replace features within its Parking Areas, through one
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`or more Directors of Operations, who supervises restaurant leaders, including Region Coaches,
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`who provide support for three to seven Area Coaches; the Area Coaches, in turn, provide
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`leadership and direct supervision to five to eight restaurants, General Managers, and Assistant
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`General Managers who are in restaurant supervisors. Plaintiff is further informed and believes,
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`and based thereon asserts that Defendants employ a Director of Facilities who oversees one or
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`more Regional Facility Managers who oversee the day-to-day maintenance and act as a liason
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`between operations and service providers for Defendants’ restaurants, and who are responsible for
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`developing, scheduling, and updating preventative maintenance programs for Defendants’
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`
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`6
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`restaurants. Plaintiff is informed and believes that collectively, these positions constitute the
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`“Principal Operator” charged with overseeing operations of Defendants’ restaurants for
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`compliance with Taco Bell’s policies through regular and complete inspections of Defendants’
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`restaurants.
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`20.
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`Defendants’ centralized maintenance and operational policies, practices, or
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`procedures have systematically and routinely resulted in excessive sloping conditions in the
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`Parking Areas of Defendants’ facilities, in violation of the ADA and its implementing regulations.
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`21.
`
`On Plaintiff’s behalf, investigators examined multiple locations that Plaintiff is
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`informed and believes are owned, controlled, and/or operated by Defendants, and found the
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`following violations which are illustrative of the fact the Defendants’ existing policies, practices,
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`or procedures, are discriminatory, unreasonable, inadequate, and routinely result in excessive
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`sloping conditions in the parking spaces, accessible routes and curb ramps:
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`a. 4269 17 Mile Road South East, Cedar Springs, Michigan:
`
`
`i. The purportedly accessible landing at the top of the curb ramp to the
`building had a running and cross slope exceeding 2.1%.
`
`b. 695 68th Street South West, Byron Center, Michigan:
`
`
`i. The parking surface of one or more purportedly accessible parking spaces
`and access aisles within the Parking Area had slopes exceeding 2.1%1.
`
`c. 1825 West Washington Street, Greenville, Michigan:
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`i. The purportedly accessible curb ramp located on the route to the building
`entrance had a running slope exceeding 8.33% and flares exceeding 10%2;
`
`
`
`
`
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`1 Pursuant to the 2010 Standards, parking spaces or access aisles may not have slopes steeper than 1:48, i.e., 2.1%.
`See, 36 C.F.R. part 1191, § 502.4. The 2010 Standards continued the 1991 Standards without change. See, Appendix
`D to 28 C.F.R. Part 36, § 4.6.3.
`2 The 2010 Standards at §§ 405.2 and 406.1 set the maximum threshold for ramp running slopes at not steeper than
`1:12, i.e., 8.3%, and limit curb ramp flares to not steeper than 1:10, i.e., 10%. The 2010 Standards continued the 1991
`Standards without change. See, Appendix D to 28 C.F.R. Part 36, § 4.7.5, §4.8.2.
`
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`7
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`ii. The parking surface of one or more purportedly accessible parking spaces
`and access aisles within the Parking Area had slopes exceeding 2.1%.
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`d. 1819 28th Street South West, Wyoming, Michigan:
`
`
`i. The purportedly accessible landing at the top of the curb ramp to the
`building had a running and cross slope exceeding 2.1%.
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`e. 4234 Lake Michigan Drive, Grand Rapids, Michigan:
`
`
`i. The purportedly accessible curb ramp located on the route to the building
`entrance had a running slope exceeding 8.33% and flares exceeding 10%;
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`f. 1191 O'Malley Drive, Coopersville, Michigan:
`
`
`i. The purportedly accessible curb ramp located on the route to the building
`entrance had a curb ramp flare slope exceeding 10.0%;
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`g. 1144 Washington Avenue, Holland, Michigan:
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`i. The purportedly accessible landing at the top of the curb ramp to the
`building had a running and cross slope exceeding 2.1%.
`
`h. 1133 Phoenix Road, South Haven, Michigan:
`
`
`i. The purportedly accessible curb ramp located on the route to the building
`entrance had a running slope exceeding 8.33% and curb ramp flare slopes
`exceeding 10.0%.
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`ii. The purportedly accessible landing at the top of the curb ramp to the
`building had a running and cross slope exceeding 2.1%;
`
`
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`i. 835 South Kalamazoo Street, Paw Paw, Michigan:
`
`
`i. The purportedly accessible landing at the top of the curb ramp to the
`building had a running and cross slope exceeding 2.1%;
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`j. 5301 Portage Road, Portage, Michigan:
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`8
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`i. The purportedly accessible curb ramp projected into an access aisle3 in
`violation of 36 C.F.R. part 1191, §406.5;
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`k. 25 South Waverly Road, Holland, Michigan:
`
`
`i. The purportedly accessible curb ramp projected into an access aisle in
`violation of 36 C.F.R. part 1191, §406.5;
`
`ii. The parking surface of one or more purportedly accessible parking spaces
`and access aisles within the Parking Area had slopes exceeding 2.1%.
`
`l. 10729 University Avenue North East, Blaine, Minnesota:
`
`
`i. The purportedly accessible curb ramp projected into an access aisle in
`violation of 36 C.F.R. part 1191, §406.5;
`
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`m. 291 Highway 10 North East, Blaine, Minnesota:
`
`
`i. The parking surface of one or more purportedly accessible parking spaces
`and access aisles within the Parking Area had slopes exceeding 2.1%.
`
`ii. The purportedly accessible curb ramp located on the route to the building
`entrance had a curb ramp flare slope exceeding 10.0%;
`
`n. 14231 Nicollet Avenue, Burnsville, Minnesota:
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`i. The parking surface of one or more purportedly accessible parking spaces
`and access aisles within the Parking Area had slopes exceeding 2.1%.
`
`o. 8623 East Point Douglas Road, South, Cottage Grove, Minnesota:
`
`
`i. The purportedly accessible curb ramp located on the route to the building
`entrance had a curb ramp flare slope exceeding 10.0%;
`
`ii. The purportedly accessible landing at the top of the curb ramp to the
`building had a running and cross slope exceeding 2.1%;
`
`
`3 Pursuant to the 2010 Standards, curb ramps cannot project into parking spaces or access aisles. See, 36 C.F.R. part
`1191, § 406.5. The 2010 Standards continued the 1991 Standards without change. See, Appendix D to 28 C.F.R. Part
`36, § 4.7.6, §4.7.8.
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`
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`9
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`p. 821 Capital Avenue South West, Battle Creek, Michigan:
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`i. The purportedly accessible landing at the top of the curb ramp to the
`building had a running and cross slope exceeding 2.1%;
`
`q. 6314 South Westnedge Avenue, Portage, Michigan:
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`i. The purportedly accessible landing at the top of the curb ramp to the
`building had a running and cross slope exceeding 2.1%;
`
`
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`22.
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`As evidenced by the widespread excessive sloping conditions present in the Parking
`
`Areas of Defendants’ facilities, absent a change in Defendants’ existing procedure, excessive
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`sloping conditions will continue to reoccur in Defendants’ facilities even after they have been
`
`remediated.
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`JURISDICTION AND VENUE
`
`23.
`
`This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 42
`
`U.S.C. § 12188.
`
`24.
`
`Plaintiff’s claims asserted herein arose in this judicial district, and Defendants do
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`substantial business in this judicial district.
`
`25.
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`Venue in this judicial district is proper under 28 U.S.C. § 1391(b)(2) in that this is
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`the judicial district in which a substantial part of the events and/or omissions at issue occurred.
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`CLASS ASSERTIONS
`
`26.
`
`Plaintiff brings this class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2) on
`
`behalf of herself and the following nationwide class:
`
`All wheelchair users with qualified mobility disabilities who were denied the full
`and equal enjoyment of the goods, services, facilities, privileges, advantages or
`accommodations of any BORDER FOODS, INC., and BORDER FOODS OF
`WISCONSIN, LLC located in the United States on the basis of disability because
`such persons encountered accessibility barriers due to Defendants’ failure to
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`10
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`comply with the ADA’s slope regulations within the purportedly accessible Parking
`Areas of its facilities.
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`27.
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`Numerosity: The class described above is so numerous that joinder of all individual
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`members in one action would be impracticable. The disposition of the individual claims of the
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`respective class members through this class action will benefit both the parties and this Court and
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`will facilitate judicial economy.
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`28.
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`Typicality: Plaintiff’s claims are typical of the claims of the members of the class.
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`The claims of Plaintiff and members of the class are based on the same legal theories and arise
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`from the same unlawful conduct.
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`29.
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`Common Questions of Fact and Law: There is a well-defined community of
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`interest and common questions of fact and law affecting members of the class in that they all have
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`been and/or are being denied their civil rights to full and equal access to, and use and enjoyment
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`of, Defendants’ facilities and/or services due to Defendants’ failure to make their facilities fully
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`accessible and independently usable as above described.
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`30.
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`Adequacy of Representation: Plaintiff is an adequate representative of the class
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`because her interests do not conflict with the interests of the members of the class. Plaintiff will
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`fairly, adequately, and vigorously represent and protect the interests of the members of the class,
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`and she has no interests antagonistic to the members of the class. Plaintiff has retained counsel
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`who are competent and experienced in the prosecution of class action litigation, generally, and
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`who possess specific expertise in the context of class litigation under the ADA.
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`31.
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`Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because
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`Defendants have acted or refused to act on grounds generally applicable to the class, making
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`appropriate both declaratory and injunctive relief with respect to Plaintiff and the class as a whole.
`
`//
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`11
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`SUBSTANTIVE VIOLATION
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`VIOLATION OF THE ADA, TITLE III
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`[42 U.S.C. §§ 12101, et seq.]
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`(Against all Defendants)
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`32.
`
`Plaintiff restates each and every allegation set forth in the foregoing paragraphs of
`
`this Complaint with the same force and effect as if more fully set forth herein.
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`33.
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`At all times relevant to this action, Plaintiff has been substantially limited in the
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`major life activities of mobility. Accordingly, she is an individual with a disability as defined by
`
`the ADA, 42 U.S.C. § 12102(2).
`
`34.
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`Defendants own, lease, and/or operate restaurants that are places of public
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`accommodation as defined under Title III of the ADA. 42 U.S.C. § 12181(7)(F).
`
`35.
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`Plaintiff is informed and believes, and based thereon asserts that Defendants’
`
`facilities were altered, designed, or constructed after the effective date of the ADA.
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`36.
`
`The ADA, the franchise agreements, and lease agreements require the accessible
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`features of Defendants’ facilities, which include Parking Areas of its facilities, to be maintained
`
`so that they are readily accessible to and usable by individuals with mobility disabilities.
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`37.
`
`The architectural barriers described above demonstrate that Defendants’ facilities
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`were not constructed or altered in a manner that causes them to be readily accessible to and usable
`
`by individuals who use wheelchairs in the first instance, and/or that Defendants’ facilities were not
`
`maintained or operated so as to ensure that they remained accessible to and usable by individuals
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`who use wheelchairs.
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`38.
`
`Furthermore,
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`the architectural barriers described above demonstrate
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`that
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`Defendants have failed to remove barriers as required by 42 U.S.C. § 12182(b)(2)(A)(iv).
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`12
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`39.
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`Defendants’ repeated and systemic failures to remove architectural barriers, to
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`maintain the accessible features of their facilities, and/or modify its existing procedures to ensure
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`compliance with the sloping requirements of the ADA’s implementing regulations once
`
`constructed, constitute unlawful discrimination on the basis of a disability in violation of Title III
`
`of the ADA.
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`40.
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`Defendants’ conduct is ongoing and continuous, and Plaintiff has been harmed by
`
`Defendants’ conduct.
`
`41.
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`Unless Defendants are restrained from continuing its ongoing and continuous
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`course of conduct, Defendants will continue to violate the ADA and will continue to inflict injury
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`upon Plaintiff and the class.
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`42.
`
`Given that Defendants have not complied with the ADA’s requirements to make
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`Defendants’ facilities fully accessible to, and independently usable by, individuals who use
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`wheelchairs, Plaintiff invokes her statutory rights to declaratory and injunctive relief, as well as
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`costs and attorneys’ fees.
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`PRAYER FOR RELIEF
`
`
`
`WHEREFORE, Plaintiff, on behalf of herself and the members of the Class, prays for:
`
`a.
`
`b.
`
`A declaratory judgment that Defendants are in violation of the specific
`requirements of Title III of the ADA described above, and the relevant
`implementing regulations of the ADA, in that Defendants’ facilities, as described
`above, are not fully accessible to, and independently usable by, individuals who
`use wheelchairs;
`
`A permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 C.F.R. §
`36.501(b) that (i) directs Defendants to take all steps necessary to remove the
`architectural barriers described above and to bring its facilities into full
`compliance with the requirements set forth in the ADA, and its implementing
`regulations, so that the facilities are fully accessible to, and independently usable
`by, individuals who use wheelchairs; (ii) directs Defendants to modify its
`existing procedures to prevent the reoccurrence of excessive sloping conditions in
`the Parking Areas of its facilities post-remediation; and (iii) directs that Plaintiff
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`13
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`shall monitor Defendants’ facilities to ensure that the injunctive relief ordered
`above remains in place.
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`An Order certifying the class proposed by Plaintiff, naming Plaintiff as class
`representative, and appointing her counsel as class counsel;
`
`Payment of costs of suit;
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`Payment of reasonable attorneys’ fees pursuant to 42 U.S.C. § 12205 and 28
`C.F.R. § 36.505; and
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`The provision of whatever other relief the Court deems just, equitable, and
`appropriate.
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`c.
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`d.
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`e.
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`f.
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`Dated: November 12, 2021
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`Respectfully Submitted,
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`/s/ Jordan T. Porter
`Jordan T. Porter
`(Pro Hac Vice Forthcoming)
`NYE, STIRLING, HALE
`& MILLER, LLP
`33 West Mission Street, Suite 201
`Santa Barbara, CA 93101
`Phone: 805-963-2345
`jordan@nshmlaw.com
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`Benjamin J. Sweet
`NYE, STIRLING, HALE
`& MILLER, LLP
`1145 Bower Hill Road, Suite 104
`Pittsburgh, PA 15243
`Phone: 412-857-5352
`ben@nshmlaw.com
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`Attorneys for Plaintiff and the Class
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`14
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