ADR Case Updates
Stipulated Judgment for More than Settlement Is Invalid; CCP 664.6 "Object Lesson;" Employment Arbitration Provision Unconscionable; "Reverse Preemption" of FAA; PAGA Arbitration; and More, 12/06/2017
Stipulated Judgment Four Times Settlement Amount Is Unenforceable Penalty
In Vitatech International, Inc. v. Sporn (2017) 16 Cal. App. 5th 796, Plaintiff sued Defendants for approximately $166,000 for breach of contract after Defendants failed to pay invoices for certain manufactured products they purchased from Vitatech. On the eve of trial, the parties settled for a one-time payment of $75,000. They also entered into a stipulation for entry of judgment "in the full prayer of the Complaint," but Vitatech agreed to "forbear" from filing the stipulation and to accept the $75,000 "as full Settlement of its claims against Defendants" if they paid by the designated date. After Defendants failed to pay, Vitatech filed the stipulation. The trial court entered judgment against Defendants for $303,620.12, including $166,372.14 in compensatory damages, $104,427.01 in prejudgment interest, $28,315.00 in attorney fees (even though the stipulation lacked an attorney fee provision), and $4,505.97 in costs.
Later, Defendants moved to vacate the judgment under Code of Civil Procedure section 473(d), arguing it was void because it constituted an unlawful penalty because it bore no reasonable relationship to the damages likely to be caused by the breach of settlement agreement. Denying the motion, the trial court agreed with Vitatech - the judgment was not a penalty or illegal liquidated damages provision because Defendants judicially admitted and stipulated to their liability in the full amount of the complaint's prayer, and the stipulated judgment merely enforced that acknowledgement. It was simply a discount of the agreed-upon liability to encourage prompt and timely payment.
Reversed and remanded: Citing its earlier decision in Greentree Financial Group, Inc. v. Execute Sports, Inc. (2008) 163 Cal. App. 4th 495, the appellate court reversed the trial court. In general terms, California law has viewed liquidated damages after breach of contract as a forfeiture thereby rendering void that part of the contract. Civil Code section 1671 continues to apply that strict standard to liquidated damages clauses in certain contracts (consumer goods and services, and leases of residential real property). However, as to commercial and business contracts, the law is more liberal: "[A] provision in a contract liquidating the damages for breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made." (§ 1671, subd. (b).)
Liquidated damages will generally be considered unreasonable and, therefore, unenforceable under section 1671(b), if they bear no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach. Otherwise, they will be viewed as imposing a "penalty" and will be unenforceable. The defining feature is the lack of proportional relation between the "penalty" and the damages that may actually result from the breach. Where no proportional relation exists, the wronged-party may recover only the actual damages sustained.
Here, the stipulated judgment, four times the settlement amount, was an unenforceable penalty. It was void as a matter of law because no reasonable relationship existed between the damages that could have been anticipated based on Defendants failure to pay the $75,000 settlement amount and the stipulated judgment for more than $300,000. No evidence was presented to demonstrate the damages Vitatech incurred as a result of the breach.
Therefore, the appellate court reversed the order denying Defendants' motion to vacate the stipulated judgment and remanded with directions for the trial court to grant the motion and enter a new judgment for $75,000 based on the parties' stipulation for entry of judgment. Since the stipulation did not include a provision for attorney fees nor prejudgment interest, Vitatech was only entitled to trial court cost.
In order to enforce settlement agreement under CCP Section 664.6, parties must request court to retain jurisdiction before case dismissed
In Sayta v. Chu (2017) 17 Cal.App.5th 960, Shaunak Sayta subleased an apartment bedroom in San Francisco. After various disputes arose, he brought claims before the superior court and San Francisco Rent Board. The parties settled and entered into a confidential settlement agreement. The superior court action was dismissed without any party requesting the trial court to retain jurisdiction. Sayta then filed a motion with the court under Section 664.6 seeking to enforce the settlement agreement's confidentiality provision. He alleged that one of the defendants "had placed [the Agreement] ... on the public record," and sought $15,000 in liquidated damages. The trial court found no violation of the confidentiality provision and denied the motion. Sayta timely appealed.
Vacated: Because the parties failed to request retention of jurisdiction before dismissal of the action, the appellate court vacated the trial court's order as void. The trial court lacked subject matter jurisdiction after the voluntary dismissal of the action. Under the holding in Wackeen v. Malis (2002) 97 Cal. App. 4th 429, the request for retention of jurisdiction must comport to the three requirements of Section 664.6: (1) made during the pendency of the action; (2) by the parties themselves; and (3) in writing or orally before the court.
Arbitration Provision Unconscionable Because Employer Cannot Prevent Employee From Communicating With Other Employees About Claim
In Baxter v. Genworth North America Corporation (2017) 16 Cal. App. 5th 713, Genworth North American Corp. informed Maya Baxter that it was terminating her because it was eliminating her job position. Baxter sued Genworth, alleging that she was fired because of racial discrimination and retaliation for taking medical leave to care for her ill mother.
When Genworth acquired AssetMark Investment Services, Inc., Baxter's original employer, Genworth required her to sign an arbitration agreement under which she agreed to resolve employment disputes according to Genworth's alternative dispute resolution guidelines known as the Resolve Employee Issue Resolution Program (Resolve). After Baxter sued Genworth, she refused to stipulate to arbitrate her claims pursuant to Resolve. Therefore, Genworth filed a motion to compel arbitration in the trial court. The court denied Genworth's motion, finding the arbitration agreement both procedurally and substantively unconscionable. It also refused to sever the unconscionable provisions. Genworth appealed.
Affirmed: The appellate court found as a matter of law that the arbitration agreement was procedurally unconscionable because Baxter had no opportunity to negotiate the terms of the Resolve program or have any meaningful choice in the matter. She could either quit her job of over five years or agree to the arbitration terms that were a condition of her continued employment. In short, Baxter lacked bargaining power.
The court also found as a matter of law that the provisions in the Resolve program which prohibited contact with other employees about a claim, restricted formal discovery, shorten limitations periods, and effectively limited an employee's right to seek administrative remedies before an arbitration was conducted, provided more than ample grounds to support a conclusion that Resolve was substantively unconscionable.
Finally, the appellate court found that the trial court did not abuse its discretion in declining to server the unconscionable provisions because it lacked the power to cure unconscionability through reformation.
In sum, where employees who have unequal bargaining power sign arbitration agreements as a condition of employment and which limit their substantive rights, the agreement will not be upheld.
In Context Of Agreement Concerning Insurance Policy, Federal McCarron-Ferguson Act Allows State Law To Reverse-Preempt Federal Arbitration Act To Preclude Arbitration
In Citizens of Humanity v. Applied Underwriters (2017) 17 Cal.App.5th 806, Plaintiffs purchased from Defendants a workers' compensation package and signed an arbitration provision governing disputes arising under the agreement. In response to Plaintiffs' suit for breach of contract, Defendants moved to compel arbitration. In opposition to the motion, Plaintiffs argued that Nebraska law applied under a choice of law provision in the agreement, and the Nebraska Uniform Arbitration Act (NUAA), Section 25-2602.01, prohibited arbitration agreements in the context of insurance policies. The trial court agreed and denied the motion to compel. Defendants timely appealed.
Affirmed: In general terms, the Federal Arbitration Act (FAA, 9 U.S.C. §§ 1—16), makes arbitration agreements in contracts "involving commerce ... valid, irrevocable, and enforceable," and preempts state law to the contrary. However, another federal statute, the McCarran-Ferguson Act (15 U.S.C. §§ 1011—1015), provides a narrow exception to federal preemption of conflicting state laws that regulate the business of insurance. Section 1012(b) states, "No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance." Accordingly, the McCarran-Ferguson Act "allows a state law to reverse-preempt an otherwise applicable federal statue," but only where the state law specifically relates to insurance, and where "application of the federal statute operates to invalidate, impair, or supersede the state law." Here, application of the FAA would normally preempt the NUAA. Since section 25-2602.01 of the NUAA was enacted for the purpose of regulating the business of insurance, the McCarran-Ferguson Act applies to reverse-preempt the FAA. Therefore, the FAA did not preempt Nebraska law. Since Nebraska law applied to prohibit arbitration of the underlying dispute, the trial court's denial of Defendants' motion to compel was correct.
Post-Dispute Agreement To Arbitrate PAGA Claims Unenforceable Because Agreement Entered Into Before Employees Were Statutorily Authorized PAGA Representatives
In Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, Plaintiffs were employed by Defendant. During their employment, another employee brought an action alleging putative class claims based on Labor Code wage and hour claims. Defendant served its hourly employees, including Plaintiffs, with an arbitration agreement that included Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) claims. The agreement gave Plaintiffs 30 days to opt out of the agreement. They did not and later brought their own PAGA action. Defendant petitioned to compel arbitration arguing that Plaintiffs signed an enforceable post-dispute arbitration agreement. The trial court denied the petition and Defendant appealed.
Affirmed: Iskanian v. CLS transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, approved post-dispute waivers of PAGA claims by employees aware of Labor Code violations. However, under Bettencourt v. Prudential Overall Supply (2017) 9 Cal. App. 5th 439, pre-dispute agreements are "ineffective to compel arbitration of a PAGA claim, as the employee who signs the agreement has not been authorized to waive the state's right to a judicial forum." Moreover, "the state retains control of the right" until the employee meets the statutory requirements for commencing a PAGA action." Here, Plaintiffs entered into an arbitration agreement in 2014, well before they commenced their own action and met the statutory requirements to bring a PAGA claim. Because the arbitration agreement gave them 30 days to opt out, it was by definition a "pre-dispute agreement" and unenforceable. Therefore, the trial court's denial of the petition to compel arbitration was correct.
Security Guard's Wage And Hour Class Action Against San Francisco Giants Subject To Arbitration Under Federal Preemption Since Resolution Of Controversy Necessarily Requires Interpretation Of Parties' Collective Bargaining Agreement
In Melendez v. San Francisco Baseball Associates LLC (2017) 16 Cal. App. 5th 339, Melendez filed a wage and hour class action case against the San Francisco Baseball Associates LLC (the Giants) for allegedly failing to promptly pay final wages upon "discharge" in violation of Labor Code section 201.
Melendez, a security guard employed by the Giants at AT&T Park, contended that he and other security guards were employed "intermittingly" for specific job assignments (baseball games or other events) and were discharged "at the end of a homestand, at the end of a baseball season, at the end of an inter-season event like a fan fest, college football game, a concert, a series of shows, or other events," and that therefore under Labor Code section 201 were entitled to, but did not receive, immediate payment of their final wages upon each such "discharge." In turn, the Giants argued that payment immediately after each event was not required because under the terms of the collective bargaining agreement (CBA) between the Giants and the Service Employees International Union, United Service Workers West of San Francisco (the union), Melendez and all such security guards were not intermittent employees but year-round employees who remain employed with the Giants until they resigned or were terminated pursuant to the CBA. The Giants moved to compel arbitration or to dismiss the action under the arbitration provision of the CBA and on the ground that the action was preempted by section 301 of the Labor Management Relations Act, 29 U.S.C. section 185(a). The trial court rejected both grounds, and the Giants timely appealed.
Reversed: The appellate found that the trial court correctly ruled that the alleged statutory violation did not come within the scope of the contractual arbitration provision. However, the appellate court found that section 301 of the Labor Management Relations Act required that the dispute be arbitrated and reversed on this ground. The court reasoned that it was essential to determine whether the CBA provided for employment of security guards for only a single game or homestand (defined as between 3 and 10 or more consecutive games at the home ballpark), or season, or other event, or whether the agreement contemplated extended employment from season to season, event to event, year to year, recognizing that not every day will be a day of work. Accordingly, the meaning of the CBA was relevant to the outcome of the dispute over whether Melendez was "discharged" within the meaning of Labor Code section 201. Therefore, federal preemption applied and the dispute must be resolved pursuant to the grievance procedure and arbitration under the CBA.
However, In Another Wage And Hour Class Action, Trial Court Should Not Have Compelled Arbitration Of Entire Case As Some Claims Did Not Fall Within Purview Of Collective Bargaining Agreement's Arbitration Provision
In Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal. App. 5th 1, Gabriel Cortez sued his former employer, Doty Bros. Equipment Company, for Labor Code and wage and hour violations on behalf of himself and a putative class of employees and former employees. Cortez's complaint included a related representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). The superior court granted Doty Bros.' petition to compel arbitration of Cortez's individual claims pursuant to an arbitration provision in the collective bargaining agreement (CBA) governing his employment and severed and stayed his PAGA claim, which was not subject to arbitration. The court reserved questions concerning the arbitrability of the class claims for the arbitrator. Cortez and Doty Bros. then stipulated to allow the superior court, rather than the arbitrator, to determine the arbitrability of the class claims. The court dismissed the class claims as unauthorized under the CBA. Cortez appealed under the death knell doctrine. While Cortez's appeal was pending, the appellate courts in Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 310 (Munoz) and Miranda v. Anderson Enterprises, Inc. (2015) 241 Cal.App.4th 196, 201-202 (Miranda) held the death knell doctrine did not apply to the denial of class certification or dismissal of class claims while a plaintiff's PAGA claim remained pending in the trial court. Cortez voluntarily dismissed his PAGA claim with prejudice, and filed a second notice of appeal.
Petition to compel arbitration granted in part: The appellate court exercised its discretion to treat the consolidated appeal as a petition for writ of mandate and reached the merits of the superior court's orders compelling arbitration of Cortez's individual claims and terminating the class claims. Cortez's cause of action under the Labor Code for Doty Bros.' failure to timely pay wages upon his separation from employment (Lab. Code, § 203) (sixth cause of action) and his unfair competition action based on that alleged statutory violation (Bus. & Prof. Code, § 17200) (seventh cause of action) were not encompassed by the arbitration provision in the CBA. In all other respects, the appellate court affirmed the trial court, concluding the remaining causes of action were subject to arbitration, and the court's termination of class claims proper on the ground the CBA did not authorize classwide arbitration.
Verizon Customers Successful In Reversing Order Compelling Arbitration and Staying Putative Class Action in Suit Against Mobile Advertising Middle-Man
In In re Henson, 869 F. 3d 1052 (9th Cir. 2017), a "middle-man," Turn, Inc., contracted with Verizon to place Internet-based advertisement on Verizon subscribers' mobile devices using "zombie cookies." Anthony Henson and William Cintron were Verizon cellular and data subscribers, who brought a putative class action in the Northern District of California on behalf of all Verizon subscribers residing in New York against Turn over its data collection practices. Turn sought to compel arbitration based upon an arbitration provision in the Verizon Customer Agreement. Although Turn was not a signatory to the arbitration agreement, it invoked New York's equitable estoppel doctrine that allows a non-signatory to an arbitration agreement to compel arbitration against the plaintiffs because it provided a service to plaintiffs that was closely connected to their Verizon wireless service. The district court granted the motion to compel arbitration. Plaintiffs brought petition for writ of mandamus.
Petition granted: The Ninth Circuit panel granted the petition, and vacated the district court's order to compel arbitration.
Whether to grant a writ of mandamus depends upon the five factors set forth in Bauman v. U. S. Dist. Court, 557 F.2d 650, 654—55 (9th Cir. 1977). Here, the majority of the Bauman factors weighed heavily in favor of granting the writ of mandamus. Specifically, because "contemporaneous ordinary appeal" was unavailable, the first Bauman factor supported issuance of the writ. The second Bauman factor also weighed heavily in favor of granting mandamus relief because the subscribers would be prejudiced in a way not correctable on appeal. The third Bauman factor strongly favored granting the writ because the district court committed clear error by applying New York's equitable estoppel doctrine, rather than California's, and by failing to apply California law correctly. Under California law, equitable estoppel did not apply because plaintiffs' claims against Turn did not rely on the terms of the Verizon Customer Agreement, nor were they "dependent on or inextricably bound up with the contractual obligations of the agreement containing the arbitration clause." The fourth and fifth Bauman factors — oft-repeated error and issue of first impression — weighed against granting mandamus relief. However, because the first three Bauman factors strongly favored mandamus relief, the balance of factors favored issuing the writ and vacating the district court's order to compel arbitration.
Plaintiff Successful In Avoiding Arbitration Of Suit Alleging Former Employer Submitted Fraudulent Claims To Medicaid Under False Claims Act
In U.S. and Nevada ex rel. Welch v. My Left Foot Children's Therapy, LLC, 871 F. 3d 791 (9th Cir. 2017), Mary Kaye Welch was employed by My Left Food Children's Therapy (MLF) in Nevada. Shortly before she left her employment, she filed a sealed complaint in federal court in Nevada alleging that MLF violated the federal False Claims Act (FCA) and Nevada FCA by presenting fraudulent Medicaid claims. The United States and Nevada declined to intervene in the case. MLF moved to compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. Holding that Welch had entered into a valid arbitration agreement, the district court nonetheless declined to enforce that arbitration agreement. Reasoning that FCA claims belong to the government, and neither the United States nor Nevada agreed to arbitrate their claims, the district court declined to compel arbitration because doing so would improperly bind them to an agreement they never signed.
Affirmed: The Ninth Circuit reviewed the plain text of Welch's arbitration agreement and concluded it did not encompass the FCA case. Therefore, the lawsuit was not arbitrable, and the district court's denial of the motion to compel arbitration was affirmed on that alternate ground.
Arbitrator Erred In Finding Parties' Arbitration Agreement Included Promise To Forego Litigation Because California Arbitration Act Mandates Preliminary Determination Of Arbitrability From A Court
In Sargon Enterprises, Inc. v. Brown George Ross LLP (2017) 15 Cal. App. 5th 749, Browne George Ross LLP (BGR) represented Sargon Enterprises Inc. (Sargon) in long-running litigation against the University of Southern California (USC) involving a patent for a dental implant. After that litigation concluded in a $433,000 judgment in favor of Sargon and against USC, Sargon nevertheless sued BGR for legal malpractice. BGR petitioned to compel arbitration, and the superior court granted the petition and ordered the parties to arbitrate.
The parties litigated two claims before the arbitrator: Sargon's claim against BGR for legal malpractice, and BGR's claim against Sargon for breach of contract. The breach of contract claim alleged that the parties' arbitration agreement precluded resort to the courts to resolve disputes, and thus that Sargon's filing of the malpractice action constituted a breach of the arbitration agreement.
The arbitrator found Sargon's legal malpractice claim was barred by a release of claims earlier entered into by the parties. The arbitrator also found that Sargon had breached the arbitration agreement by filing the malpractice action in superior court and ordered Sargon to pay BGR damages of $200,000. The trial court confirmed the arbitration award and entered judgment.
Reversed in part: The appellate court concluded that the arbitrator erred in finding that the parties' arbitration agreement included a promise to forego litigation, and thus in concluding that Sargon breached the arbitration agreement by filing a malpractice action in superior court. The arbitrator's award violated Sargon's statutory right, as articulated in the California Arbitration Act, Code of Civil Procedure section 1280 et seq., to seek a preliminary determination of arbitrability from a court. Therefore, notwithstanding the limited judicial review generally afforded arbitration awards, the present arbitration award was subject to correction.
The appellate court did not vacate the arbitration award in its entirety. Because there was no basis for reversing the summary disposition of Sargon's legal malpractice claim against BGRâ€"and because the breach of contract and legal malpractice claims depend on entirely separate facts and legal theoriesâ€"the appellate court struck the portion of the arbitration award adjudicating BGR's breach of contract claim without affecting the merits of the arbitrator's summary disposition of Sargon's malpractice claim. Therefore the trial court was directed to correct the arbitration award and, as corrected, to confirm it.
National Labor Relations Board Correctly Concludes That Its New Standard Regarding When To Defer To Arbitration Decision Applies Prospectively Only
In Beneli v. National Labor Relations Board, 873 F. 3d 1094 (9th Cir. 2017), Colletta Beneli's Union filed a grievance against her employer Babcock and Wilcox Construction Co. Inc. (B&W) after she was fired over her actions as a union job steward. The grievance proceeded to binding arbitration before a joint labor-management Grievance Review Subcommittee, which ultimately decided against Beneli.
After reviewing the Subcommittee decision and determining that it was "repugnant to the [National Labor Relations] Act" (the "NLRA"), the NLRB issued a complaint against B&W. Following a hearing before an administrative law judge ("ALJ") where Beneli and B&W once again presented witness testimony, the ALJ issued a proposed order recommending that the Board defer to the Subcommittee decision and dismiss the complaint. In explaining his deferral decision, the ALJ stated, in part, that although he credited Beneli's version of events, the Subcommittee could have credited B&W's witnesses and reached a different conclusion.
The ALJ's decision to defer was based on long-standing NLRB precedent set forth in Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955) and Olin Corp., 269 N.L.R.B. 573 (1984) (Spielberg/Olin). Under the Spielberg/Olin standard, deferral to arbitral decisions is appropriate when: (1) all parties agree to be bound by the decision; (2) the proceedings appear to be fair and regular; (3) the arbitrator adequately considers the unfair labor practice issue, which requires the unfair labor practice issue and the contractual issue to be "factually parallel" and the arbitrator to have been "presented generally" with the relevant facts; and (4) the arbitration award is not clearly repugnant to the NLRA.
The NLRB General Counsel filed exceptions to the ALJ's decision on the merits. In addition, the NLRB General Counsel recommended that the Board revisit the standard for determining when to defer to an arbitral decision. The Board requested briefing on whether to adhere to, modify, or abandon the Spielberg/Olin standard.
Following an extensive review, the Board adopted the ALJ's decision, denying Beneli's complaint. In its order, the Board decided to change the standard for determining whether to defer to an arbitration decision. Under the new standard, the Board will now defer to an arbitral decision if the party urging deferral shows that: (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award. This standard shifts the burden of proof and makes deferral to an arbitral decision less likely. The NLRB applied the new deferral standard prospectively and declined to apply it in Beneli's case because of its impact on settled expectations of employers and unions, who had bargained for dispute resolution mechanisms under the old NLRB standard. Beneli petitioned for review of this retroactivity decision.
Affirmed: On appeal, the Ninth Circuit concluded that the factors for applying the new standard retroactively weighed in favor of prospective application. The court found that the new standard represented an abrupt departure from the previous Spielberg/Olin standard that had been applied and followed in labor disputes for almost 60 years. The court also noted that the reliance interests of the parties combined with the primary purpose of the NLRA strongly favored prospective application of the new standard. Therefore, the new standard should be prospectively applied. Finally, the court found that because the Subcommittee decision could be interpreted in a manner that was not clearly repugnant to the NLRA, the Board did not abuse its discretion in deferring to the arbitral decision. \
Under U.N. Arbitration Convention, Party Seeking To Compel Arbitration Must Be A Signatory And Party To Agreement Containing Arbitration Provision
In Yang v. Dongwon Industries Co., 876 F.3d 996 (9th Cir. 2017), Chang Cheol Yang was a seaman who died when the fishing vessel he worked on sank because of inadequate repairs and an incompetent crew provided by Dongwon Industries Co. Ltd ("Dongwon"). His widow commenced a wrongful death action under maritime law against Dongwon on behalf of his three minor children, herself, and his estate. Dongwon moved to compel arbitration based on an employment agreement between Mr. Yang and the vessel's owner, Majestic Blue Fisheries, LLC ("Majestic"). Because Dongwon was neither a signatory nor a party to the employment agreement, the district court denied Dongwon's motion and Dongwon appealed.
Affirmed: A party seeking to compel arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (9 U.S.C. § 201 et seq.) must prove the existence and validity of a written agreement within the meaning of the Convention. Here, Dongwon was neither a signatory to the agreement within the meaning of the Convention, nor a party to the relevant employment agreement.
California opinions are posted at: click here, and the Ninth Circuit opinion at: click here.
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