`Matthew G. Friederichs, M.D.,
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`v.
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`Sanford Health,
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`Plaintiff,
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`Defendant.
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`Case No. ____________
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`COMPLAINT
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`JURY TRIAL DEMANDED
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`Case 3:22-cv-00008-PDW-ARS Document 1 Filed 01/18/22 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NORTH DAKOTA
`EASTERN DIVISION
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`Plaintiff Matthew G. Friederichs, M.D. (“Plaintiff”), as and for his Complaint against
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`Defendant Sanford Health (“Defendant”), states and alleges as follows:
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`PARTIES, JURISDICTION, AND VENUE
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`Plaintiff is an individual residing in Cass County, North Dakota.
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`Defendant is a South Dakota corporation with its principal office located at 1305 West 18th
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`1.
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`2.
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`Street, Sioux Falls, South Dakota 57015.
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`3.
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`This Court has federal question jurisdiction over the claims brought by Plaintiff under the
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`Lanham Act, 15 U.S.C. § 1125, and has supplemental jurisdiction over the remainder of Plaintiff’s
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`claims pursuant to 28 U.S.C. § 1367, in that the remaining claims are so related to Plaintiff’s
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`Lanham Act claim that they form part of the same case or controversy.
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`4.
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`This Court also has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332, in
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`that the parties are citizens of different states and the amount in controversy exceeds $75,000.
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`5.
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`Venue is proper in this Court because the causes of action arose primarily in North Dakota.
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`FACTUAL BACKGROUND
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`6.
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`Plaintiff is an orthopedic surgeon. Plaintiff is a graduate of the University of North Dakota
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`School of Medicine. Plaintiff completed a residency in orthopedic surgery at the University of
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`Utah School of Medicine and a fellowship in sports medicine at the University of Utah School of
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`Medicine. Plaintiff is certified by the American Board of Orthopedic Surgery.
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`7.
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`Defendant is a health system that owns and operates numerous affiliated hospitals and
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`clinics in the Upper Midwest, primarily in North Dakota, South Dakota, and Minnesota.
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`8.
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`In 2003, Plaintiff began employment as an orthopedic surgeon at MeritCare Medical Group
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`(“MeritCare”) in Fargo, North Dakota.
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`9.
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`10.
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`Plaintiff and MeritCare were parties to an Employment Agreement (the “Agreement”).
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`As is relevant here, the Agreement provided that either party could terminate the
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`Agreement, without cause, on 90 days’ written notice.
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`11.
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`The Agreement further provided that unless otherwise agreed to by MeritCare, Plaintiff
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`was to continue to provide full-time services until the effective date of termination.
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`12.
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`In 2009, MeritCare merged with Defendant, resulting in Defendant becoming Plaintiff’s
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`employer and Defendant becoming the assignee of or a party-in-interest to the Agreement. Plaintiff
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`then worked as an orthopedic surgeon for Defendant in Fargo for over a decade.
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`13.
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`On November 29, 2021, Plaintiff provided 90 days’ written notice to Defendant that he
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`was terminating the Agreement effective February 28, 2022.
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`14.
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`On November 30, 2021, Defendant informed Plaintiff that his last day would be February
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`25, 2022.
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`15.
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`At this time, Defendant also informed Plaintiff that he would not be allowed to see any
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`new patients six weeks before his last day. However, mere days later, Defendant unilaterally
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`decided that Plaintiff would not be allowed to see any new patients effective immediately, meaning
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`Defendant prevented Plaintiff from seeing new patients for approximately 83 of the 90 days in the
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`notice period. These new patients were reassigned to other surgeons employed by Defendant.
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`16.
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`Defendant also unilaterally decided that Plaintiff would not be allowed to perform surgeries
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`on existing patients after February 10, 2022, despite his last date of employment not being until
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`February 25, 2022.
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`17.
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`These unilateral decisions by Defendant caused Plaintiff to lose compensation and further
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`caused damage to his reputation with patients.
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`18.
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`On December 13, 2021, Plaintiff sent a letter to Defendant regarding these issues, but
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`received no response.
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`19.
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`On or about January 5, 2022, Defendant sent letters to an unknown number of Plaintiff’s
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`patients. This letter (the “January 5 Letter”) provided as follows:
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`20.
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`Plaintiff did not author the January 5 Letter or its contents. Nor did Plaintiff otherwise
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`authorize any such communication to be sent on his behalf.
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`21.
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`This January 5 Letter is a misrepresentation in its entirety, in that it purports to have been
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`sent by Plaintiff and/or authorized by Plaintiff, neither of which is true.
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`22.
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`The January 5 Letter contains further misrepresentations and false endorsements,
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`including:
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`a. That Plaintiff had “mixed emotions” about leaving Defendant;
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`b. That Plaintiff believed “[a]ll of Sanford’s Orthopedic Surgeons” are “highly trained
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`and skilled”;
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`c. That Plaintiff “trust[s] them and our team of advanced practice providers to
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`continue providing you with expert care for your orthopedic needs”;
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`d. That Plaintiff believed it would be a “seamless transition” to a new surgeon;
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`e. The implication that Plaintiff no longer wished to have a relationship with his
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`existing patients at his new clinic, such as the statements that “[i]t’s been truly
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`rewarding and humbling to have you as my patient” and “[b]est wishes for your
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`future health;” and
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`f. The implication that Plaintiff believed it was in the best interests of his patients to
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`continue their care with Defendant, and that Plaintiff desired for them to do so.
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`23.
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`Plaintiff has learned that Defendant sent this letter to multiple patients and, upon
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`information and belief, likely sent this letter to hundreds of patients, if not thousands.
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`24.
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`From the contents of the January 5 Letter, it is apparent that Defendant sent it in order to
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`transfer Plaintiff’s patients to other surgeons employed by Defendant, so that the patients would
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`not reschedule their surgeries with Plaintiff at his new clinic.
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`25.
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`On January 12, 2022, Plaintiff sent a letter to Defendant demanding that Defendant cease
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`all such communications with Plaintiff’s patients and that Defendant disclose the names of all
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`patients who received such communications so that Plaintiff could provide a corrective
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`communication to said patients. Plaintiff requested a response by noon on January 18, 2022.
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`26.
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`On January 17, 2022, Plaintiff returned to work following a vacation. On his first day back
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`at Defendant following the January 5 Letter, approximately 10 of Plaintiff’s patients either
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`cancelled their appointments or failed to show, an unusually high number that could be attributed
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`only to the January 5 Letter.
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`27.
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`As of the date of this filing, Defendant has not provided a response to Plaintiff’s cease and
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`desist letter. As a result, Plaintiff commenced the instant litigation.
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`COUNT I: VIOLATION OF LANHAM ACT (15 U.S.C. § 1125)
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`28.
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`Plaintiff incorporates the allegations in the Paragraphs above as though fully set forth
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`herein.
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`29.
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`In its entirety, the January 5 Letter by Defendant is a false statement about Defendant’s
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`products and services, as it purports to be an endorsement written and sent by Plaintiff, but Plaintiff
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`neither wrote nor sent the January 5 Letter, nor did he authorize it to be written or sent.
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`30.
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`Beyond this, the January 5 Letter by Defendant contains further misrepresentations as a
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`purported endorsement of Defendant’s products and services, as set forth in Paragraph 22 above.
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`31.
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`The January 5 Letter actually deceived recipients and further has the tendency to deceive
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`a substantial segment of its audience, given that it was purported to be authored and sent by
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`Plaintiff, and there was no indication that it was actually authored and sent by Defendant without
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`Plaintiff’s knowledge or authorization.
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`32.
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`The January 5 Letter is a material deception, in that it has accomplished and is likely to
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`further accomplish what it overtly seeks to accomplish: to influence Plaintiff’s patients to pick a
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`new surgeon at Defendant, rather than move to Plaintiff’s new clinic.
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`33.
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`The January 5 Letter and its misrepresentations affected interstate commerce, given
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`Defendant’s use of the United States Postal Service, Defendant’s status as a South Dakota
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`organization, the interstate nature of medical insurance benefits, and the status of numerous of
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`Plaintiff’s patients as citizens of states other than North Dakota.
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`34.
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`Plaintiff has been injured and is likely to be further injured as a result of the January 5
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`Letter, as it is likely to both divert Plaintiff’s patients from his new clinic to Defendant, and is also
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`likely to negatively impact Plaintiff’s goodwill with his patients. It is also likely to cause further
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`injury in that a substantial amount of Plaintiff’s business is driven by patient referrals.
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`35.
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`Defendant’s misrepresentations have caused Plaintiff to suffer harm. As a result, Plaintiff
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`is entitled to damages exceeding $75,000, a disgorgement of profits, and costs and attorneys’ fees
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`as allowed by the Lanham Act, 11 U.S.C. § 1117(a).
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`36.
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`Unless Defendant is enjoined from making further misrepresentations and ordered to
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`disclose the names of patients who received the January 5 letter so that Plaintiff can make
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`corrective representations, Plaintiff will suffer immediate and irreparable harm and will suffer
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`further monetary damages in an amount exceeding $75,000.
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`COUNT II: VIOLATION OF UNLAWFUL SALES OR ADVERTISING PRACTICES
`ACT (N.D.C.C. § 51-15-02)
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`Plaintiff incorporates the allegations in the Paragraphs above as though fully set forth
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`37.
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`herein.
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`38.
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`In its entirety, the January 5 Letter by Defendant is a false statement, deceptive act, and
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`misrepresentation regarding Defendant’s products and services, as it purports to be an endorsement
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`written and sent by Plaintiff, but Plaintiff neither wrote nor sent the January 5 Letter, nor did he
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`authorize it to be written or sent.
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`39.
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`Beyond this, the January 5 Letter by Defendant contains further false statements, deceptive
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`acts, and misrepresentations which amount to a fraudulent endorsement of Defendant’s products
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`and services, as set forth in Paragraph 22 above. Defendant intended that Plaintiff’s patients rely
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`on the January 5 Letter so that Defendant could provide surgical services to these patients, as
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`opposed to Plaintiff at his new clinic.
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`40.
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`The January 5 Letter actually deceived recipients and further has the tendency to deceive
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`a substantial segment of its audience, given that it was purported to be authored and sent by
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`Plaintiff, and there was no indication that it was actually authored and sent by Defendant without
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`Plaintiff’s knowledge or authorization.
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`41.
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`The January 5 Letter is a material deception, in that it has accomplished and is likely to
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`further accomplish what it overtly seeks to accomplish: to influence Plaintiff’s patients to pick a
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`new surgeon at Defendant, rather than move to Plaintiff’s new clinic.
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`42.
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`Plaintiff has been injured and is likely to be further injured as a result of the January 5
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`Letter, as it is likely to both divert Plaintiff’s patients from his new clinic to Defendant, and is also
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`likely to negatively impact Plaintiff’s goodwill with his patients. It is also likely to cause further
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`injury in that a substantial amount of Plaintiff’s business is driven by patient referrals.
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`43.
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`Defendant’s misrepresentations have caused Plaintiff to suffer harm. As a result, Plaintiff
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`is entitled to damages exceeding $75,000, treble damages, and costs and attorneys’ fees as allowed
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`by the Unlawful Sales or Advertising Practices Act, N.D.C.C. § 51-15-09.
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`44.
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`Further, unless Defendant is enjoined from making further misrepresentations and ordered
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`to disclose the names of patients who received the January 5 Letter so that Plaintiff can make
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`corrective representations, Plaintiff will suffer immediate and irreparable harm and will suffer
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`further monetary damages in an amount exceeding $75,000.
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`COUNT III: TORTIOUS INTERFERENCE
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`45.
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`Plaintiff incorporates the allegations in the Paragraphs above as though fully set forth
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`herein.
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`46.
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`Plaintiff has relationships with the patients he has served as their physician while employed
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`by Defendant.
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`47.
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`Plaintiff has expected or prospective relationships with these patients to serve as their
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`physician at his new clinic. These relationships drive further business, in that a substantial amount
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`of Plaintiff’s business is driven by referrals from existing patients.
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`48.
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`49.
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`Defendant knew about these actual and expected or prospective relationships.
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`As set forth above, Defendant has committed tortious and otherwise unlawful acts by
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`sending the January 5 Letter to an unknown number of patients.
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`50.
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`These tortious and otherwise unlawful acts were intended to interfere with the
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`relationships, actual and prospective, between Plaintiff and his patients, in an attempt to convince
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`these patients to transfer to a new surgeon at Defendant, as opposed to move to Plaintiff’s new
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`clinic.
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`51.
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`Defendant’s acts have caused harm to Plaintiff’s relationships with his patients and will
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`cause further harm if not remedied. Defendant’s acts have further caused harm to future referrals
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`of business to Plaintiff.
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`52.
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`53.
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`As a result, Plaintiff is entitled to damages exceeding $75,000.
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`Further, unless Defendant is enjoined from making further misrepresentations and ordered
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`to disclose the names of patients who received the January 5 Letter so that Plaintiff can make
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`corrective representations, Plaintiff will suffer immediate and irreparable harm and will suffer
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`further monetary damages in an amount exceeding $75,000.
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`COUNT IV: INVASION OF PRIVACY (RIGHT OF PUBLICITY/APPROPRIATION)
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`54.
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`Plaintiff incorporates the allegations in the Paragraphs above as though fully set forth
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`herein.
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`55.
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`Defendant used Plaintiff’s name in the January 5 Letter to make it appear as if the letter
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`was an endorsement of Defendant authored and sent by Plaintiff, thereby unlawfully invading and
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`appropriating Plaintiff’s privacy and right of publicity.
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`56.
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`Plaintiff did not authorize or consent to the use of his name or goodwill in the January 5
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`Letter, nor its fraudulent endorsement.
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`57.
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`Defendant used the January 5 Letter for its benefit in order to transfer Plaintiff’s patients
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`to other surgeons at Defendant, as opposed to Plaintiff’s new clinic.
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`58.
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`Defendant’s acts have caused harm to Plaintiff’s relationships with his patients and will
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`cause further harm if not remedied.
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`59.
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`As a direct and proximate result of the January 5 Letter, Plaintiff has suffered and will
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`continue to suffer damages in an amount exceeding $75,000.
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`60.
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`Further, unless Defendant is enjoined from making further misappropriations and ordered
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`to disclose the names of patients who received the January 5 Letter so that Plaintiff can make
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`corrective representations, Plaintiff will suffer immediate and irreparable harm and will suffer
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`further monetary damages in an amount exceeding $75,000.
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`COUNT V: DEFAMATION
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`61.
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`Plaintiff incorporates the allegations in the Paragraphs above as though fully set forth
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`herein.
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`62.
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`The January 5 Letter was a false and defamatory statement in that it purported to be
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`authored and/or authorized by Plaintiff, neither of which was true.
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`63.
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`64.
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`The January 5 Letter was published to an unknown number of patients.
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`Defendant sent this letter in order to divert patients away from Plaintiff and his new clinic
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`and instead to other surgeons employed by Defendant.
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`65.
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`The January 5 Letter concerned Plaintiff’s profession as a surgeon and implies that Plaintiff
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`no longer wanted to serve the patients as a surgeon, and that he instead thought it in the best
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`interests of the patients to see other surgeons employed by Defendant. As a result, the January 5
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`Letter has a tendency to injure Plaintiff in his occupation as an orthopedic surgeon.
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`66.
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`67.
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`As a result, the January 5 Letter constitutes defamation and defamation per se.
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`As a direct and proximate result of the January 5 Letter, Plaintiff has suffered and will
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`continue to suffer damages in an amount exceeding $75,000.
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`COUNT VI: BREACH OF CONTRACT
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`68.
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`Plaintiff incorporates the allegations in the Paragraphs above as though fully set forth
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`herein.
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`69.
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`70.
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`71.
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`Plaintiff and Defendant are parties to the Agreement.
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`The Agreement required Plaintiff to give 90 days’ notice of termination of the Agreement.
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`Plaintiff gave 90 days’ notice on November 29, 2021, making the termination effective on
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`February 28, 2022.
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`72.
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`Defendant informed Plaintiff that his last day of employment would be February 25, 2022,
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`but further unilaterally decided that Plaintiff would not be allowed to see any new patients.
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`Defendant further unilaterally decided that Plaintiff would not be allowed to perform surgeries
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`even for existing patients after February 10, 2022.
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`73.
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`74.
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`Plaintiff’s compensation at Defendant is driven by the services and surgeries he provides.
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`In requiring Plaintiff to remain employed until February 25, 2022, but not allowing Plaintiff
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`to see any new patients, and not allowing Plaintiff perform surgeries for existing patients after
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`February 10, 2022, Defendant has breached the Agreement, causing harm to Plaintiff’s
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`compensation and reputation in excess of $75,000.
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`75.
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`Therefore, Plaintiff is entitled to damages in excess of $75,000 and injunctive relief.
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`COUNT VII: EXEMPLARY DAMAGES
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`76.
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`Plaintiff incorporates the allegations in the Paragraphs above as though fully set forth
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`herein.
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`77.
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`As set forth above, Defendant committed fraudulent and deceptive acts designed to harm
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`Plaintiff, impede on his professional judgment as to advising his patients as to their choice of
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`medical providers, and impede upon patients’ free and informed choice of medical providers.
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`78.
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`Defendant acted with fraudulent and malicious intent in committing these fraudulent and
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`deceptive acts.
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`79.
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`Accordingly, Plaintiff is entitled to exemplary damages against Defendant in an amount to
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`be determined at trial.
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`WHEREFORE, Plaintiff prays for judgment against Defendant as follows:
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`1. Injunctive relief;
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`2. Damages in an amount in excess of $75,000, an exact amount to be proven at trial;
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`3. Treble damages as provided for by N.D.C.C. § 51-15-02;
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`4. Disgorgement of profits;
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`5. Prejudgment interest;
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`6. Costs, disbursements, and reasonable attorney’s fees;
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`7. Exemplary damages; and
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`8. For such other and further relief as the Court may deem just and equitable.
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`DEMAND FOR JURY TRIAL
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`Plaintiff demands a trial by jury on all claims so triable.
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`Dated: January 18, 2022.
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` FELHABER LARSON
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`By:
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`/s/Brandon J. Wheeler
`David L. Hashmall, MN #138162
`Daniel R. Kelly, MN #247674
`(D.N.D. admission pending)
`Brandon J. Wheeler, MN #396336
`220 South Sixth Street, Suite 2200
`Minneapolis, MN 55402-4504
`Telephone: (612) 339-6321
`Facsimile: (612) 338-0535
`dhashmall@felhaber.com
`dkelly@felhaber.com
`bwheeler@felhaber.com
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` ATTORNEYS FOR PLAINTIFF
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