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KALISH v. FRANKLIN ADVISERS

July 24, 1990

LUCYLE KALISH AND SOL JOSEPH KAMEN, PLAINTIFFS,
v.
FRANKLIN ADVISERS, INC., FRANKLIN DISTRIBUTORS, INC., FRANKLIN ADMINISTRATIVE SERVICES, INC., FRANKLIN RESOURCES, INC., AND FRANKLIN CUSTODIAN FUNDS, INC. (U.S. GOVERNMENT SECURITIES SERIES), DEFENDANTS.



The opinion of the court was delivered by: Haight, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiffs Lucyle Kalish and Sol Joseph Kamen brought this derivative action on behalf of defendant Franklin Custodian Funds, Inc. (U.S. Government Securities Series) (the "Fund") under the Investment Company Act of 1940, as amended, 15 U.S.C. § 80a-1 et seq. (the "Act"), to recoup allegedly excessive advisory fees paid by the Fund to its investment adviser.

Franklin Custodian Funds, Inc. is a diversified open-end investment company registered with the Securities and Exchange Commission under the Act. The Fund is one of five series of Franklin Custodian Funds, Inc., and concentrates its investments in obligations of the Government National Mortgage Association ("GNMA"), with the objective of income through investment in securities of the U.S. Government or its instrumentalities.

Plaintiffs Kalish and Kamen became shareholders of the Fund in 1986 and 1987 respectively and remained shareholders throughout the pertinent period.

Defendant Franklin Distributors ("Franklin Distributors") acted as the Fund's investment adviser and manager until January 31, 1986, pursuant to contract. Defendant Franklin Advisers, Inc. ("Franklin Advisers") has acted as the Fund's investment adviser under a contract which became effective February 1, 1986 and has been subsequently renewed and modified. Franklin Distributors continues to act as principal underwriter of the Fund. Defendant Franklin Administrative Services, Inc. ("Franklin Services") has acted as shareholder servicing agent, transfer agent and dividend paying agent for the Fund. Each of these companies is a wholly owned subsidiary of defendant Franklin Resources, Inc. ("Franklin Resources"). These entities are from time to time referred to collectively as "Franklin" or "defendants."

Plaintiffs filed their complaint on September 25, 1987, stating a cause of action under § 36(b) of the Act, 15 U.S.C. § 80a-35(b). Plaintiffs alleged that the fees paid by the Fund to Franklin Advisers were exorbitant, and that Franklin Advisers and the Fund's directors had breached the fiduciary duty imposed upon them by the Act. The Court granted defendants' motion to strike plaintiffs' demand for a jury trial in a Memorandum Opinion and Order dated February 29, 1988. Following discovery, the case was tried to the Court. This Opinion constitutes the Court's findings of fact and conclusions of law under Rule 52(a), Fed.R.Civ.P.

BACKGROUND

The Fund was formed in 1971. In 1983 its directors decided to emphasize investment in securities issued by GNMA, popularly known as "Ginnie Maes." That has remained the focus of the Fund's investment policy to this date.

For purposes of limitations and streamlining of proof, this action has been deemed by stipulation to have been commenced on September 30, 1987. At issue are the fees paid by the Fund to Franklin Advisers during its fiscal years ending on September 30, 1987 and September 30, 1988. Those fees were paid pursuant to a series of one-year management agreements between the Fund and Franklin running from February to February, and approved by the Fund's board of directors.

The Fund has experienced dramatic growth since its inception, as revealed by the following table:

Outstanding
Date              # of Accounts  Net Assets           Shares
----              -------------  ----------        -----------
  Dec. 31, 1984       178,428    $2,496,954,705    351,627,795
  Dec. 31, 1985       450,980    $8,875,802,045  1,180,547,279
  Sept. 30, 1986      679,542    $14,361,682,054  1,938,886,002
  Dec. 31, 1986       694,579    $14,941,488,124  2,013,006,042
  June 30, 1987       687,256    $14,267,717,200  1,994,862,976
  Sept. 30, 1987      665,410    $13,024,436,878  1,895,183,448
  Dec. 31, 1987       639,336    $12,650,664,753  1,805,885,572
  June 30, 1988       621,240    $12,432,704,402  1,760,935,529
  Sept. 30, 1988      609,925    $12,112,775,121  1,735,011,210
  Dec. 31, 1988       599,227    $11,646,328,085  1,706,432,500
  June 30, 1989       570,386    $11,454,854,549  1,639,288,165

Ginnie Mae certificates are referred to as "pass-through" securities because the monthly payments of interest and principal on the mortgages in each pool are passed on by the pool originators to the certificate holders, after deduction of the foregoing fees. The nature of Ginnie Mae securities gives rise to certain complexities in respect of managing a fund consisting of them. Openend mutual funds such as the Fund are required to calculate their net asset values on a daily basis and to offer and redeem their shares on a daily basis. Because the individual mortgages making up the pool underlying the certificates might be prepaid as the result of changing interest rates, the calculation of net asset value on a daily basis poses some administrative problems. Uncertainty on prepayments also causes uncertainty in predicting yields, which impacts upon investment decisions.

Throughout the relevant period the Fund has had five directors. Charles B. Johnson and Rupert H. Johnson, Jr. are affiliated with defendants. The three independent, non-affiliated directors are S. Joseph Fortunato, Harris J. Ashton, and Edmund H. Kerr.

The fees paid by the Fund to its investment adviser-manager are approved by the board of directors and included in a contract between the Fund and the adviser. Franklin Distributors acted as the Fund's investment adviser-manager until January 31, 1986. Franklin Advisers has acted as the Fund's adviser-manager under a contract which became effective February 1, 1986, was renewed as of February 1, 1987, and amended in February 1988, effective April 30, 1988. The fees paid by the Fund to Franklin Advisers may be summarized as follows:

Fee Schedule of the Fund

February 1, 1986 through         .625% on first $100 million of
  January 31, 1988:                 net assets
                                 .50% on next $150 million
                                 .45% on amounts over $250
                                    million
February 1, 1988 (effective      .44% on net assets in excess
  April 30, 1988) to present:       of $10 billion up to $12.5
                                    billion
                                 .42% on net assets in excess
                                    of $12.5 billion up to $15
                                    billion
                                 .40% on net assets in excess
                                    of $15
                                    billion

Considerable majorities of the Fund's shareholders voted by proxy to approve each of the management agreements.

Purchasers of shares of the Fund pay a sales charge in accordance with the terms of the prospectus. On a purchase of up to $100,000, the sales charge equals 4% of the gross amount invested. The scale then adjusts downwards by stages to a sales charge of .25% for purchases in excess of $2.5 million. The sales charge is paid with respect to both new purchases and reinvestments of income dividends. One hundred percent of the initial sales charge is paid to securities dealers who sell the shares. The sales charge on reinvested income dividends is shared with the securities dealers. The sale charges received and retained in recent years may be summarized as follows:

         Amount Retained
         by Franklin       Amount Paid to
  Year   Distributors      Securities Dealers         Total
  ----   ------------      ------------------         -----
  1985   $3,114,000       $169,066,000        $172,180,000
  1986   $16,550,000       $315,271,000        $331,821,000
  1987   $14,357,000       $99,672,000        $114,029,000
  1988   $8,118,592       $38,224,436        $46,343,028

Pursuant to a separate contract, the Fund pays Franklin Services fees on a per-account basis of $6.00 annually. These fees are paid for Franklin Services' work as transfer agent,, dividend disbursing agent and shareholder services agent. For fiscal years ending September 30, the fees have been:

        1985            $1,508,043
        1986            $3,350,669
        1987            $4,473,316
        1988            $4,239,240

The parties have stipulated to the Fund's expense ratio, which is obtained by dividing expenses by Fund assets. The expense ratio for fiscal years ended September 30 has been as follows:

        Year          Expense Ratio
        ----          -------------
        1985              .57%
        1986              .54%
        1987              .52%
        1988              .53%

At the conclusion of the evidence, plaintiffs' counsel argued in summation that there were three main branches to plaintiffs' case. First, management failed to fully inform the directors, and in fact misled them concerning facts material to evaluation of the management fees. Second, the fees paid by the Fund were excessive by objective standards, whether or not the directors were misled. Third, contrary to the Act and the Fund's agreements with the Franklin affiliates, the Fund improperly was made to shoulder distribution expenses which were properly the obligation of other Franklin entities. Tr. 533-34. As will be seen, these contentions overlap considerably.

Defendants contend that plaintiffs have failed to prove that the fees paid by the Fund were excessive, or that Franklin and the Fund directors breached their fiduciary duty in that regard.

DISCUSSION

Section 36(b) of the Act provides:

  [T]he investment adviser of a registered
  investment company shall be deemed to have a
  fiduciary duty with respect to the receipt of
  compensation for services, or of payments of a
  material nature, paid by such registered
  investment company, or by the security holders
  thereof, to such investment adviser or any
  affiliated person of such investment adviser.

The Act also provides that in actions such as that at bar, a plaintiff need not "allege or prove that any defendant engaged in personal misconduct," but plaintiff does have "the burden of proving a breach of fiduciary duty." § 36(b)(1). Approval of compensation by the board of directors of the investment company, and ratification by its shareholders, "shall be given such consideration by the court as is deemed appropriate under all the circumstances." § 36(b)(2).

The legislative history reveals that the statute does not forbid an adviser-manager from earning a profit on services provided by it to a fund; that a "cost-plus" type of contract is not required; and that the court is not authorized "to substitute its business judgment for that of a mutual fund's board of directors in the area of management fees." S.Rep. No. 91-184, 91st Cong., 1st Sess., reprinted in [1970] U.S.Code Cong. & Ad.News 4897, 4902-03.

A series of cases construing § 36(b) have been tried in this Court and appealed to the Second Circuit. See Gartenberg v. Merrill Lynch Asset Management, Inc., 528 F. Supp. 1038 (S.D.N.Y. 1981) (Pollack, J.), aff'd, 694 F.2d 923 (2d Cir. 1982), cert. denied sub nom. Andre v. Merrill Lynch Ready Assets Trust, 461 U.S. 906, 103 S.Ct. 1877, 76 L.Ed.2d 808 (1983) ("Gartenberg I"); Gartenberg v. Merrill Lynch Asset Management, Inc., 573 F. Supp. 1293 (S.D.N.Y. 1983) (Pollack, J.), aff'd, 740 F.2d 190 (2d Cir. 1984) ("Gartenberg II"); Schuyt v. Rowe Price Prime Reserve Fund, 663 F. Supp. 962 (S.D.N.Y.) (Ward, J.), aff'd, 835 F.2d 45 (2d Cir. 1987), cert. denied, 485 U.S. 1034, 108 S.Ct. 1594, 99 L.Ed.2d 908 (1988); Krinsk v. Fund Asset Management, Inc., 715 F. Supp. 472 (S.D.N.Y. 1988) (Walker, J.), aff'd, 875 F.2d 404 (2d Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 281, 107 L.Ed.2d 261 (1989). See also Meyer v. Oppenheimer Management Corp., 609 F. Supp. 380 (S.D.N.Y. 1984) (Sofaer, J.) reversed, 764 F.2d 76 (2d Cir. 1985), on remand, 707 F. Supp. 1394 (S.D.N.Y. 1988), 715 F. Supp. 574 (S.D.N.Y. 1989) (Sweet, J.). From these cases a considerable body of instructive precedent has grown.

In determining whether fund directors have breached their § 36(b) fiduciary duty,

  the test is essentially whether the fee schedule
  represents a charge within the range of what would
  have been negotiated at arm's-length in the light
  of all the surrounding circumstances.

It follows that:

  to be guilty of a violation of § 36(b), therefore,
  the adviser-manager must charge a fee that is so
  disproportionately large that it bears no
  reasonable relationship to the services rendered
  and could have not been the product of arm's-length
  bargaining.

Gartenberg I at 694 F.2d 928.

The Second Circuit has identified a number of factors to be considered in evaluating the fairness of an adviser-manager's fee. Gartenberg I holds that "the principal factor" in evaluating that fairness cannot be "the price charged by other similar advisers to funds managed by them," since "the existence in most cases of an unseverable relationship between the adviser-manager and the fund it services tends to weaken the weight to be given to rates charged by advisers of similar funds." Id. at 929. Given that circumstance, the court of appeals continued, "other factors may be more important in determining whether a fee is so excessive so as to constitute a `breach of fiduciary duty.'" Those other factors "include the adviser-manager's cost in providing the service, the nature and quality of the service, the extent to which the adviser-manager realizes economies of scale as the fund grows larger, and the volume of orders which must be processed by the manager." Id. at 930. In expanding the focus beyond fees charged by other advisers, the Second Circuit implemented the legislative history expressed in the Senate report, which made clear that Congress:

  intended that the court look at all the facts in
  connection with the determination and receipt of
  such compensation, including all services rendered
  to the fund or its shareholders and all
  compensation and payments received, in order to
  reach a decision as to whether the adviser has
  properly acted as a fiduciary in relation to such
  compensation.
  S.Rep. No. 91-184, supra [1970] U.S. Code Cong. &
  A.D. News at 4910, quoted at 694 F.2d 930.

The Second Circuit in Gartenberg I did not eliminate the price charged by other similar advisers from all consideration; its analysis relates more to the weight to be accorded that factor, than its admissibility in the equation. Thus District Judge Walker (as he then was) felt at liberty in Krinsk to consider "the advisory fees charged" by other "central asset account funds," although acknowledging that under Gartenberg I "such comparisons have limited value due to the lack of competition among advisers for fund business." 715 F. Supp. at 497. The Second Circuit, affirming Judge Walker's dismissal of the complaint in Krinsk, included "comparative fee structures" as a factor to be considered. After reiterating the Gartenberg I test of fairness, the court of appeals said in Krinsk:

  The following factors are to be considered in
  applying this standard: (a) the nature and quality
  of services provided to fund shareholders; (b) the
  profitability of the fund to the adviser-manager;
  (c) fall-out benefits; (d) economies of scale; (e)
  comparative fee structures; and (f) the
  independence and conscientiousness of the
  trustees.

875 F.2d at 409.

As to comparative expense ratios and advisory fees, the Second Circuit noted the district court's finding "that the Fund's expense ratio and advisory fee are not only consistent with the industry norms, but have been among the lowest of any mutual fund in the industry," although repeating the Gartenberg I caution "against providing much weight to this type of comparison." Id. at 411-12.

Accordingly, while I will give consideration to comparative fee structures in evaluating the fairness of defendants' fees, I will place that factor last in the batting order, and first consider the evidence concerning (a) the nature and quality of Franklin Advisers' services provided to Fund shareholders; (b) the profitability of the Fund to the adviser; (c) whether economies of scale were realized by the adviser-manager and shared with the shareholders; and (d) the role played by the Fund's independent directors. That last factor breaks down into three questions: (1) the expertise of the independent directors; (2) whether they were fully informed about all facts bearing on the adviser-manager's services and fee; and (3) the conscientiousness with which the independent directors performed their duties. Gartenberg I at 930.*fn1

(a) The Nature and Quality of the Adviser-Manager's
    Services Provided to the Shareholders.

Individuals are drawn to open-end mutual funds by the opportunity to make investments perhaps not otherwise feasible for them; the certainty of professional management and the hope for profit; and liquidity of assets. To accomplish those purposes, funds make available a number of shareholder services. Advisers' services consist in the main of devising an overall investment strategy, including analysis of current projected economic factors, the selection of securities, and the execution of trades. Shareholder services cover a wide range of functions centering around the opening of accounts, redeeming of shares, maintenance of records, and furnishing of information. Fund managers must also insure compliance with federal securities regulations and comparable regulations of the 50 states. Charles B. Johnson dep. 35-38.

Franklin Advisers and Franklin Resources act as investment advisers and managers to a family of about 52 Franklin funds of which the Fund is one. At the times in question, five members of a research staff of about 35 spent more than half their time on the Fund, analyzing investment strategy, conducting portfolio research, executing transactions, and settling administrative problems. Rupert H. Johnson, Jr. dep. 8-9. As the Fund increased in size, Franklin Advisers hired additional people to handle the administrative side of managing trading in Ginnie Maes. Ashton Dep. 17-19. The Franklin group wrote some proprietary computer software to help process and control the administrative functions, but many entries must be made manually. Charles Johnson dep. at 26-27.

Plaintiffs disparage these services. They argue in Proposed Finding of Fact 24 that Franklin Advisers relies upon securities dealers for investment expertise in selecting mortgage pools and does not perform the extensive in-depth research performed by the dealers. Counsel also argued in summation that according to defendants' expert witness Kingman, "the principal function that Franklin performed was a back-office type of function," adding that Kingman "conceded that back-office jobs typically on Wall Street garner less prestige and command lower salaries." Tr. 576.

I accept that the securities dealers who trade in Ginnie Mae certificates bring their own expertise to bear. However, as plaintiffs acknowledge, Franklin Advisers' investment committee must make decisions as to the coupon rates at which the Fund will purchase securities; and that function is not performed in a vacuum. Consideration must be given to rate of interest projections. The fact that trading in Ginnie Mae certificates tends to be long term rather than the more hectic pattern of short term, in and out trading does not diminish the importance of sound investment analysis for long-term decisions. As for Kingman, he did say in his deposition that back-office work "is not the glamor side of the business," lacking "the prestige of the investment or marketing side", dep. 33. However, he also said: "It is terribly important to have good managers in the back office or you are in deep trouble." Ibid. More significant than these reflections on the social strata of the securities business is Kingman's opinion, expressed in his position paper (DX AU), and unshaken on cross-examination at his deposition:

  Back office problems occur with trading and
  investing in all types of securities. However,
  mortgage-backed securities . . . necessarily
  involve more operational problems because of the
  way the payments are received. Instead of
  semi-annual payments of interest with principal at
  maturity, the principal and interest are paid
  monthly along with any prepayments that have been
  made on the underlying mortgages. The accounting
  for these payments is therefore more expensive
  than for that on any other type of securities.
  In addition, the trading of mortgage backed
  securities has proved to be a time-consuming task
  for back office operations personnel. Problems
  experienced in trade settlement, payment tracking,
  and securities clearance are unlike that of any
  other security in the market.

Kingman was qualified to express these opinions. There is no contrary expert opinion evidence in the record.

On the issue of the nature of defendants' services, I conclude that Franklin Advisers' responsibilities to the Fund in respect of investment advice and management were relatively complex, certainly far more so than plaintiffs were prepared to concede at trial.*fn2

As for the quality of these services, there is no evidence that Franklin performed its administrative and management duties in less than an efficient and satisfactory manner. Plaintiffs offered no specific complaints, on their part or in connection with any other investors. Plaintiffs did adduce evidence that in past years two of Franklin's officers had been sanctioned by regulatory agencies for improper record keeping. That proof does not rise much above the level of establishing that defendants hired humans instead of recording angels. Plaintiffs' evidence on the point is more than offset by a series of apparently unsolicited letters from investors praising the quality of Franklin employees' services. See DX X. Furthermore, a 1988 independent industry survey of broker/dealers rated Franklin first in the quality of its services to those entities. DX BU.

Given investors' primary objective of making money, the most significant indication of the quality of an investment adviser's services is the fund's performance relative to other funds of the same kind. See Krinsk, 875 F.2d at 409.

The traditional yardsticks measuring performance are yield and expense ratio. They determine what the investor gets and how much he pays for it. A leading source of statistics on mutual fund performances is Lipper Analytical Services, Inc. Lipper statistical tables in evidence (DX AD, BE), furnished to the Fund's directors, show that for the fiscal years ending September 30, 1987 and 1988, in a universe of fixed income funds with assets in excess of $5 billion, the Fund had the highest total return of them all. All the funds in that universe were government securities funds. In a universe of fixed income funds with assets over $2 billion, most of which were government securities funds, the Fund ranked fourth out of 23 for the fiscal year ended September 30, 1987, and fourth out of 18 for the fiscal year ended September 30, 1988.

Those impressive yields were coupled with an expense ratio comparing favorably with industry experience. Defendants offered two studies by Lipper comparing the fees and expense ratios of Franklin funds (including the Fund) with the fees and expense ratios of funds of similar objective and size managed by other firms. DX AA is a Lipper report dated July 30, 1987. The report analyzes the Fund's expense ratio for the most recently reported fiscal year (September 30, 1986). Franklin placed second in a universe of 13, which means that only one of the funds in the 13-member peer group had lower expense ratios than the Fund. That study was updated in a report dated November 1989, DX BF, in which the Fund placed second in a peer group of 16.*fn3

Plaintiffs called an expert to compare the Fund's performance with another Ginnie Mae mutual fund, with results less favorable to Franklin. Plaintiffs' expert witness, John Livingstone, holds a doctorate in business, teaches accounting and business strategy at the graduate level, and is a principal in a management consulting company advising corporations in accounting, finance and economics. Livingstone has never been a director of a Ginnie Mae fund, employed by an adviser of such a fund, or participated in the negotiation of a management fee for a Ginnie Mae fund.

Livingstone focused upon the Vanguard GNMA Fund. He added Vanguard to the 13 funds the directors were given as part of management's fee presentation. See DX 35 (pp. 1-3). The statistics show that Vanguard outperformed the Fund in respect of expense ratio and yield. As to expense ratio, Vanguard's total expense ratio for the most recently reported fiscal year was 0.350%. The Franklin Fund ranked fifth lowest at 0.545%. The highest total expense ratio amassed in the universe of 14 was Colonial Government Securities Plus, at 1.102%.

As to total yield, Livingstone compared Franklin and Vanguard. The comparison was complicated by the fact that the two funds have different fiscal years. Accordingly Livingstone compiled averages over the last five years, four years, three years, and two years. Taking "total return" as the addition of dividends and increases in net asset value, Livingstone computed a five-year average total return for Franklin of 10.03% as to Vanguard's 11.32%; a four year average of Franklin 9.67%, Vanguard 11.35%; a 3-year average of Franklin 10.63%, Vanguard 10.99%; and a two-year average of Franklin 7.25%, Vanguard 8.13%.

Defendants attack plaintiffs' use of the Vanguard GNMA fund as a basis for comparison with the performance of the Franklin GNMA Fund. They contend that the structure of the Vanguard family of funds is unique.

Specifically, Charles Johnson testified that characteristically the funds in the Vanguard family of funds own the management company, and that in consequence the management company renders services to the funds at cost, whereas in the Franklin family, Franklin Advisers seeks to make a profit. Tr. 401-404. Johnson also testified that the capital of "Vanguard Company is supplied by the various funds for which it is the manager," making the operation comparable to "a mutual life insurance company as opposed to a stock life insurance company." Tr. 402, 403. For those reasons, Johnson "totally reject[ed]" Livingstone's comparison of the expense ratio of the Vanguard Ginnie Mae Fund with the Franklin Ginnie Mae Fund. Tr. 403.

Defendants sought at trial to shore up that distinction by introducing a letter dated November 30, 1989 from a senior vice president of Lipper Analytical Services to Franklin Resources, commenting on the differences between the two funds. DX CA. The Court excluded the exhibit on defendants' case under the rules of evidence, but admitted the document when plaintiffs offered it, thereby transforming the letter into PX CA. Lipper's comments constitute something of a mixed bag. The letter concludes:

  The fundamental differences between the Vanguard
  Group and Franklin Resources makes a comparison
  between the Fund's managed by the two companies a
  tenuous one. In the world of mutual funds,
  Vanguard funds are truly unique.

However, the Lipper letter also indicates that Johnson was wrong in saying that the Vanguard GNMA fund received investment advice from a Vanguard manager at cost. The letter recites:

  The [Vanguard] GNMA Portfolio is managed by
  Wellington Management Company. In the fiscal year
  ended January 31, 1989 the GNMA portfolio paid
  0.03% of its average net assets to Wellington.
  This extraordinarily low fee is possible because
  of the great buying power possessed by the
  Vanguard group. Acting on behalf of its
  shareholder constituency, The Vanguard Group has
  negotiated low advisory fees with Wellington,
  which manages the portfolios of fifteen Vanguard
  funds having assets of $16 billion at September
  30, 1989, and twelve other money managers who
  oversee as many Vanguard fund portfolios. Note the
  advisors provide no other services beyond money
  management.

As to "other services", the Lipper letter states:

  The Vanguard Group reduces the costs of running
  mutual funds from the fund shareholders' point of
  view by operating on an "at-cost" basis. All the
  Vanguard mutual funds receive corporate
  management, administrative, shareholder
  accounting, marketing and distribution services
  from the Vanguard Group.

To that extent, Johnson's distinction is valid.

The conclusion to be drawn is that the Vanguard GNMA fund furnishes some basis for a comparison of performance with the Franklin Fund, but there are also significant differences in structure, peculiar to the Vanguard family of funds, ...


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