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November 23, 1981

Juan Valderrama RIOS, et al., Plaintiffs,
Secretary of Labor F. Ray MARSHALL, et al., Defendants

The opinion of the court was delivered by: GAGLIARDI

This action was commenced by thirty-eight migrant farmworkers, individually and on behalf of a class of all migrant farmworkers who are citizens of the United States and who from 1975 to 1979 worked or sought to work in the annual New York apple harvest. The named plaintiffs are Puerto Ricans and southern blacks. They allege that seven New York apple growers and two New York apple growers' cooperatives (the "New York apple defendants") and their agents, including two Florida sugar cane growers' associations (the "Florida sugar defendants"), conspired among themselves and with an instrumentality of the government of Jamaica to replace plaintiffs in the New York apple harvest with temporary foreign workers from Jamaica. Also named as defendants are officials of the United States Department of Labor, the United States Immigration and Naturalization Service, and the New York, Florida and Puerto Rico Departments of Labor, who plaintiffs allege failed to fulfill their statutory duties and aided the aforementioned conspiracy in violation of plaintiffs' rights under the antitrust and civil rights laws. Plaintiffs' claims arise under the Sherman Act, 15 U.S.C. §§ 1, 2, the Clayton Act, 15 U.S.C. § 15, the civil rights laws, 42 U.S.C. §§ 1981, 1983, 1985, the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and the Wagner-Peyser National Employment System Act, 29 U.S.C. § 49 et seq. Plaintiffs seek declaratory, injunctive and monetary relief.

Pending before the court are motions by the following defendants to dismiss plaintiffs' claims: (1) the New York apple defendants; *fn1" (2) the Florida sugar defendants; *fn2" (3) William H. Meranda; (4) the British West Indies Central Labour Organization ("BWICLO") and Harold F. Edwards, BWICLO's Chief Liaison Officer in the United States; (5) the Government of Jamaica; (6) Wallace E. Orr, Secretary of the Florida Department of Labor and Employment Security; and (7) Carlos S. Quiros, Puerto Rico Secretary of Labor.


 At issue in this action are the interstate clearance system for recruitment of agricultural workers and the temporary foreign worker certification program which were established under the authority of the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. The interstate clearance system and the certification program are the principal elements of "a complex statutory structure designed to facilitate the employment of domestic workers for seasonal agricultural labor, and to permit the use of foreign nationals temporarily admitted to the United States to work for a specific employer if domestic workers are unavailable." Elton Orchards, Inc. v. Brennan, 508 F.2d 493, 495 (1st Cir. 1974). Plaintiffs' claims and the issues decisive of defendants' motions to dismiss cannot be understood without prior explanation of the statutory scheme.

 The Wagner-Peyser Act authorizes the establishment of a federal employment service within the Department of Labor to function in conjunction with state employment services which receive federal funding. Under the regulations promulgated pursuant to the Wagner-Peyser Act, an employer who wishes to use state employment agencies to secure workers for temporary employment must inform the local office of the state agency of the employer's need for temporary workers and must file with that office a job offer that meets federally established minimum standards. 20 C.F.R. 604.2(c). The state agency will then seek to place local workers with the participating local agricultural employer. 20 C.F.R. § 604.2(b). When local workers are not available, the local agency uses the interstate clearance system to recruit through agencies in other states workers throughout the United States. 20 C.F.R. §§ 602.2(c) and (d). Workers recruited through the state agencies, whether intrastate or interstate, are protected by a series of regulations prescribing minimum working and living conditions, including free housing, transportation and daily subsistence from the place of recruitment to the place of employment and back, a guarantee of work during three-fourths of the days covered by the work contract, workmen's compensation insurance, and three meals per day. 20 C.F.R. §§ 655.202(b)(1), (2), (4), (5), (6).

 When an employer is unable to secure domestic workers through the interstate clearance system, that employer may petition the Immigration and Naturalization Service (the "INS") for admission of aliens to serve as temporary agricultural laborers. 20 C.F.R. § 655.201(a)(1). Aliens are permitted to enter the country to work as "nonimmigrants" only "if unemployed persons capable of performing such service or labor cannot be found in this country." 8 U.S.C. § 1101(a)(15)(H)(ii). *fn3" Specifically, INS regulations require that an employer's petition for the admission of aliens to perform temporary work be accompanied by "a certification from the Secretary of Labor ... stating that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed...." 8 C.F.R. § 214.2(h)(3). Prospective employers of temporary foreign workers may not offer the foreign workers terms of employment more favorable than those offered domestic workers. 20 C.F.R. § 655.202(a). To further insure that domestic agricultural workers will not be disadvantaged by the admission of temporary foreign workers, the Department of Labor sets an annually revised "adverse effect wage rate" for specific states. 20 C.F.R. § 655.200(b). The adverse effect rate is defined as the prevailing wage rate of similarly employed domestic workers unless the use (or nonuse) of aliens has depressed the rate. 20 C.F.R. §§ 655.200(b), 655.207(a). An agricultural employer seeking to import foreign workers must first file with the state employment service an offer of employment to domestic workers at a wage rate not lower than the adverse effect wage rate. 20 C.F.R. § 655.202(b)(9). It is also specifically provided that if the workers are paid on a piece rate basis, the average hourly earnings must at least equal the adverse effect rate. 20 C.F.R. § 655.202(b) (9)(ii).


 I. New York Apple Defendants

 Plaintiffs allege that the New York apple defendants and their agents conspired to discourage plaintiffs from competing for or accepting jobs in the annual harvest by offering domestic workers low wages and discriminatory working conditions with the purpose of replacing domestic workers with foreign workers willing to work long hours at low wages. This allegedly conspiratorial pattern of conduct serves as the basis of plaintiffs' three antitrust claims and one civil rights claim against the New York apple defendants. These defendants now move to dismiss plaintiffs' claims for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P., or in the alternative for a more definite statement pursuant to Rule 12(e). Defendants further move to dismiss a certain portion of plaintiffs' claims under the statute of limitations and to dismiss the claims of several plaintiffs under the doctrine of res judicata. Finally, one of the defendant apple growers, the Farm Labor Executive Committee, moves to dismiss pursuant to Rule 12(b)(2) for lack of in personam jurisdiction.

 A. Antitrust Claims

 The principal thrust of plaintiffs' claims *fn4" under the antitrust laws is that the defendant apple growers and their agents conspired to restrain the domestic job market for the annual New York apple harvest during the years 1975 to 1979 by offering wage rates that were below competitive rates in the relevant market. Specifically, plaintiffs assert that the piece rates offered uniformly by the apple growers, while comporting with the adverse effect rates, were artificially depressed by the New York apple defendants. In addition, plaintiffs allege that the New York apple defendants conspired against them by refusing to arrange for travel advances or subsistence money for plaintiffs while making preferential arrangements for foreign workers, by failing to vary the uniform piece rate for hardship apple-picking conditions, by discriminating against plaintiffs with regard to work assignments, living conditions and food, and by group boycotts and refusals to deal. The New York apple defendants contend that their participation in the temporary foreign labor certification program and the terms offered to domestic workers-in particular the wage rates, which plaintiffs do not contend were below the adverse effect rates set by the Department of Labor-are mandated by statute and regulations, that antitrust scrutiny would subject them to conflicting standards, and that therefore exemption from antitrust regulation must be implied.

 The court considers first whether defendants' allegedly anticompetitive employment practices are shielded in toto from antitrust scrutiny by virtue of the "complex statutory structure" pursuant to which temporary foreign workers are certified for admission into the United States. Since no statutory provision expressly exempts defendants' activities from the antitrust laws, defendants bear the burden of demonstrating that immunity should be implied. The standard for the implication of antitrust immunity, whether general or specific, is an exacting one. Gordon v. New York Stock Exchange, Inc., 422 U.S. 659, 682, 95 S. Ct. 2598, 2611, 45 L. Ed. 2d 463 (1975). The mere existence of regulation, even if pervasive, is insufficient to imply an exemption from antitrust laws since "(activities) which come under the jurisdiction of a regulatory agency nevertheless may be subject to scrutiny under the antitrust laws." Otter Tail Power Co. v. United States, 410 U.S. 366, 372, 93 S. Ct. 1022, 1027, 35 L. Ed. 2d 359 (1973). As the Supreme Court has emphasized: "(the) Court has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory Act work, "and even then only to the minimum extent necessary.' " Cantor v. Detroit Edison Co., 428 U.S. 579, 597, 96 S. Ct. 3110, 3121, 49 L. Ed. 2d 1141 (1976) (footnote omitted), quoting Silver v. New York Stock Exchange, Inc., 373 U.S. 341, 357, 83 S. Ct. 1246, 1257, 10 L. Ed. 2d 389 (1963).

 The relevant inquiry is whether enforcement of the antitrust laws would be repugnant to the regulatory scheme. *fn5" The Wagner-Peyser Act authorizes the admission of temporary foreign workers on terms not preferable to those offered domestic workers only after a shortage of domestic labor has been demonstrated. With the exception of the adverse effect rate which will be discussed below, there is nothing in the Wagner-Peyser scheme inconsistent with antitrust scrutiny; a challenge under the antitrust laws of an alleged conspiracy among agricultural employers to restrain conditions in the domestic migrant labor market would not conflict with the purpose or provisions of the Wagner-Peyser Act. Certain employment practices may violate one or the other set of laws, or both, but, with the exception of wage rates, there is no significant, possibly anticompetitive practice specifically sanctioned or required under the Wagner-Peyser scheme. The court therefore declines to take the extraordinary step of implying blanket antitrust immunity.

 Where there is no blanket immunity, defendants may nevertheless be immune with respect to particular practices. The district court in MCI Communications Corp. v. American Tel. & Tel. Co., 462 F. Supp. 1072, 1082 (N.D.Ill.1978), found that limited immunity has been implied in two situations: (1) "when the statute provides that an agency may regulate an industry under standards which are a substitute for those embodied in the antitrust laws;" and (2) "when the statute confers authority on an agency to regulate specific conduct which might be anticompetitive and the agency has, under the aegis of that authority, either required, approved or sanctioned the anticompetitive conduct at issue." The wage rates offered by the New York apple defendants fall within (2) above. Although plaintiffs assert that the wage rates offered by defendants were below market rates, plaintiffs do not allege that the wage rates were below the adverse effect rates set annually by the Secretary of Labor; it is uncontested that the New York apple defendants complied with the applicable adverse effect rates. *fn6" Plaintiffs are therefore challenging as anticompetitive a practice which has been specifically sanctioned by the agency charged with statutory authority to regulate that practice. As stated in Litton Systems, Inc. v. American Tel. & Tel. Co., 487 F. Supp. 942, 947 (S.D.N.Y.1980), exemption from antitrust scrutiny should be implied "when a regulatory agency is authorized by statute to exercise, and has in fact exercised, authority over the particular practice under attack (as contrasted with the general field of activity) in a way which effectuates the regulatory scheme." Accordingly, plaintiffs' antitrust claims must be dismissed insofar as they attack the wage rates offered by the New York apple defendants. *fn7"

 The preceding discussion does not apply to plaintiffs' claim that the New York apple defendants violated plaintiffs' rights under the antitrust laws by conspiring to offer plaintiffs working and living conditions inferior to those offered foreign workers. Neither set of circumstances under which limited immunity must be implied is present here. See MCI Communications, supra, 462 F. Supp. at 1082. First, although the Secretary of Labor is charged with responsibility for regulating the temporary foreign worker certification program, the statutory concern is not that a competitive market be preserved but rather that foreign workers not be preferred over domestic workers. Cf. Pan American World Airways, Inc. v. United States, 371 U.S. 296, 83 S. Ct. 476, 9 L. Ed. 2d 325 (1963) (particular immunity implied where the Civil Aeronautics Act specifically confers upon the CAB the power to investigate and enjoin anticompetitive practices). Second, whereas the wage rates challenged by plaintiffs were specifically sanctioned by the Secretary of Labor, the allegedly discriminatory working and living conditions would violate the Wagner-Peyser Act and were in no way approved by the agency. Antitrust scrutiny of the suppression of the working and living conditions offered domestic workers would not conflict with the regulatory scheme and exemption from the antitrust laws need not be implied. Moreover, certain working and living conditions that plaintiffs assert were offered on preferential terms to foreign workers-such as working hours and type of food-are not mandated by statute or regulations. The complaint *fn8" therefore states a viable claim of a conspiracy to depress employment conditions in violation of § 1 of the Sherman Act. See II P. Areeda & D. Turner, Antitrust Law § 338c at 199-200 (1978). In view of the liberal pleading standard of Rule 8, Fed.R.Civ.P., and the strict standard for motions to dismiss under Rule 12(b)(6), Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957), the court declines to conclude at this stage of the proceedings that plaintiffs could not establish the requisite anticompetitive purpose and effect with respect to defendants' employment practices. The New York apple defendants' motion to dismiss plaintiffs' antitrust claims for failure to state claims upon which relief can be granted is denied in part and granted in part.

 B. Civil Rights Claims

 Plaintiffs' fourth claim seeks relief for alleged violations by the New York apple defendants of the civil rights laws, 42 U.S.C. §§ 1981, 1983, 1985(3). The New York apple defendants' motion to dismiss challenges the sufficiency of plaintiffs' claim under each of those provisions.

 1. Section 1981 Claim

 The New York apple defendants move to dismiss plaintiffs' claim under 42 U.S.C. § 1981 on the ground that plaintiffs allege discrimination on the basis of citizenship, not race as assertedly required by § 1981. Section 1981 provides that:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens....

 The Supreme Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968), ruled that 42 U.S.C. § 1982, the companion section to § 1981, see Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 439-40 & n.11, 93 S. Ct. 1090, 1094-95 & n.11, 35 L. Ed. 2d 403 (1973), "deals only with racial discrimination and does not address itself to discrimination on grounds of religion or national origin." 392 U.S. at 413, 88 S. Ct. at 2189 (footnote omitted). Since Jones it has been well-settled that racial animus is a necessary component of a § 1981 claim. Campbell v. Gadsden County Dist. School Bd., 534 F.2d 650, 653-54 n.8 (5th Cir. 1976); Avigliano v. Sumitomo Shoji America, Inc., 473 F. Supp. 506, 513-14 (S.D.N.Y.1979) aff'd and remanded, 638 F.2d 552 (2d Cir. 1981); Pyles v. Keane, 418 F. Supp. 269, 271 n.1 (S.D.N.Y.1976); Stewart v. New York Univ., 430 F. Supp. 1305, 1315 (S.D.N.Y.1976).

 In the instant case, plaintiffs allege discrimination on the basis of citizenship, not race, and therefore do not state a claim for relief under § 1981. The complaint states that a purported class of United States migrant workers was discriminated against in favor of temporary foreign workers. Although the named plaintiffs are either Puerto Rican or black, the complaint does not assert that the basis of the alleged discrimination is defendants' preference for one racial group instead of another but rather the preference for foreign workers, who are black Jamaicans, instead of domestic workers. The plaintiff class extends to all domestic workers excluded or discouraged from the annual apple harvests, and is not limited to black or Puerto Rican domestic workers. As stated in Jones v. United Gas Improvement Corp., 68 F.R.D. 1, 15 (E.D.Pa.1975):

(T)he provisions of 42 U.S.C. § 1981 are limited in their application to discrimination, the effect of which is to deny to any person within the jurisdiction of the United States any of the rights enumerated in that section, to the extent that such rights are enjoyed by white citizens of this nation. Discrimination on other grounds, such as religion, sex, or national origin, to which white citizens may be subject, as well as white non-citizens, non-white citizens, or non-white non-citizens, is not proscribed by the statute.

 Plaintiffs' claim that foreign workers are preferred over domestic workers could be asserted as well by domestic white workers. The basis of the claim is citizenship, not racial animus, and accordingly the motion of the New York apple defendants to dismiss plaintiffs' § 1981 claim is granted. *fn9"

 2. Section 1983 Claim

 The New York apple defendants move to dismiss plaintiffs' claim under 42 U.S.C. § 1983 on the ground that defendants' alleged conspiracy was private in character and not under color of state law as required by § 1983. Section 1983 provides that "(e)very person who, under color of any statute, ordinance, regulation ... of any State or Territory, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured...." It is well-settled that to state a claim for relief under § 1983, plaintiffs must allege that the persons who allegedly deprived them of a federal right acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1924, 64 L. Ed. 2d 572 (1980). The color of state law requirement will not be satisfied by claims against private defendants such as the New York apple defendants absent allegations that they conspired with state officials. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L. Ed. 2d 142 (1970).

 In the instant case, plaintiffs assert that the New York apple defendants conspired to deprive plaintiffs of their civil rights by, inter alia, submitting discriminatory job offers through the state offices of the Wagner-Peyser system. Plaintiffs further allege that defendant officials of the United States Department of Labor and the New York State Department of Labor failed to fulfill their statutory duties and violated plaintiffs' civil rights by, inter alia, accepting and processing discriminatory job offers. Nowhere, however, does the complaint assert that federal or state officials conspired with the New York apple defendants. The complaint merely states in an introductory paragraph that "(t)he aforesaid conspiracy (among the New York apple defendants and their agents) has been aided, contrary to law, by officials of the United States Department of Labor, the United States Immigration and Naturalization Service, and the New York, Florida, and Puerto Rico Departments of Labor." The complaint, which is forty pages in length, substantiates that introductory paragraph by alleging numerous statutory violations by state and federal officials acting independently of the private defendants, but clearly fails to allege concerted activity between those officials and the private defendants. Accordingly, in the absence of allegations that the private defendants acted in complicity with the state and federal defendants, the motion of the New York apple defendants to dismiss plaintiffs' § 1983 claim is granted. See Buck v. Board of Elections of City of New York, 536 F.2d 522, 524 (2d Cir. 1976); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975); Archer Gardens, Ltd. v. Brooklyn Ctr. Dev. Corp., 468 F. Supp. 609, 613 (S.D.N.Y.1979); Sanabria v. Village of Monticello, 424 F. Supp. 402, 411 (S.D.N.Y.1976); Harris v. Ward, 418 F. Supp. 660, 661-62 (S.D.N.Y.1976).

 3. Section 1985 Claim

 The New York apple defendants also move to dismiss plaintiffs' claim under 42 U.S.C. § 1985(3) which makes it illegal for two or more persons to conspire to deprive any person of the equal protection of the laws. Defendants contend that plaintiffs have failed to satisfy two of the requirements for a cause of action under § 1985(3). First, the Supreme Court ruled in Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971), that to be actionable under § 1985(3) a conspiracy must be motivated by "some racial, or perhaps otherwise classbased, invidiously discriminatory animus...." Second, as the Supreme Court stated in Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 99 S. Ct. 2345, 2349, 60 L. Ed. 2d 957 (1979): "Section 1985(c) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates." Defendants dispute that plaintiffs have alleged either the requisite class animus or the violation of a right protected by § 1985. The court observes at the outset that "(t)he question of the scope of § 1985(3) is the subject of a considerable controversy among the circuits." Regan v. Sullivan, 557 F.2d 300, 308 n.9 (2d Cir. 1977).

 In support of their motion, defendants rely principally on Lopez v. Arrowhead Ranches, 523 F.2d 924 (9th Cir. 1975), wherein the Ninth Circuit dismissed a claim under § 1985(3) that United States citizen and legal alien farm workers were being discriminated against in favor of illegal alien workers. The court in Lopez distinguished and dismissed two claims of discriminatory deprivation: first, that plaintiffs were unable to secure employment because of the disparate treatment of illegal aliens; and second, that plaintiffs' working conditions were indirectly harmed as a result of defendants' use of illegal aliens. The Ninth Circuit dismissed plaintiffs' claim for discrimination in hiring as follows:

To put the matter simply, plaintiffs have no legal right or entitlement either to be hired by the private employers, or to be free of discrimination on the basis of alienage when seeking private employment. The sole potential source of such a legal right of which we are aware, Title VII's proscription of private employment discrimination on the basis of national origin, 42 U.S.C. § 2000e-2(a)(1), has been held not to bar discrimination on the basis of alienage. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 S. Ct. 334, 38 L. Ed. 2d 287 (1973).

 523 F.2d at 927. As to plaintiffs' claim regarding their working conditions, the Ninth Circuit conceded that plaintiffs had a legal entitlement under various statutes and regulations such as the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii) and 20 C.F.R. § 602.10, but nevertheless dismissed the claim on the ground that "the alleged animus against legal workers is contradicted by plaintiffs' own allegations that defendants deprive both legal and illegal farm workers of statutory protections...." 523 F.2d at 928.

 The New York apple defendants' contention that the alleged preferential treatment of foreign workers at the expense of domestic workers lacks the necessary class-based animus must be rejected. First, the Supreme Court in Griffin did not limit § 1985(3) claims to those based on alleged racial discrimination, and the court finds no reason to reject plaintiffs' claim of discrimination against domestic migrant workers as insufficiently invidious or class-based. See Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975) (§ 1985 applies to alleged gender discrimination against female University faculty members); Weiss v. Willow Tree Civic Ass'n, 467 F. Supp. 803, 812 & n.25 (S.D.N.Y.1979) (§ 1985 applies to alleged discrimination against Hasidic sect); cf. Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711, 720 (9th Cir. 1981) (bias against sheriffs not the kind of bias prohibited by § 1985). Second, although the requirement that there be no inconsistency between the alleged class animus and the alleged deprivation of rights would exclude plaintiffs' claim that the wage rates violated § 1985(3) since the wages were admittedly offered uniformly to both domestic and foreign workers, that requirement is satisfied by plaintiffs' allegations that various working and living conditions were offered preferentially to foreign workers. Thus, the court rules that plaintiffs' assertion that the New York apple defendants discriminated with respect to working and living conditions against the class of domestic migrant workers either employed or seeking employment in the annual New York apple harvests satisfies Griffin's mandate that to be actionable under § 1985(3) a conspiracy be motivated by a class-based, invidiously discriminatory animus.

 The court next considers whether plaintiffs have asserted the violation of a right protected under the Constitution or federal law. As Justice Powell stated in his concurring opinion in Novotny, and as apparently recognized by the Ninth Circuit in Lopez, the Supreme Court "has never held that the right to any particular private employment is a "right of national citizenship,' or derives from any other right created by the Constitution." 442 U.S. at 380. Nevertheless, plaintiffs' claim in the instant case is sufficient under § 1985(3) in that plaintiffs allege violations of rights established by regulations promulgated under the Wagner-Peyser Act to non-discriminatory treatment vis-a-vis temporary foreign workers. See 20 C.F.R. §§ 655.202(a), (b), 655.203(b), (c), (e), 655.206(a)(2), (b)(1). The court holds that § 1985(3) applies to the alleged conspiracy among the New York apple ...

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