Bayhawks

Stormy Daniels scandal thread

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So, Trump's lawyer admitting to paying Stormy Daniels $130,000 out of his own pocket.  This payment was reportedly (prior to Cohen's admitting there WAS a payment) part of a NDA, that is preventing Daniels from talking about the alleged affair.

Now that Cohen has disclosed that the payment took place, has the NDA been violated/broken?  Since he is disclosing information about the agreement, is Daniels now free to disclose information, as well?

Edited by Bayhawks

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27 minutes ago, Bayhawks said:

So, Trump's lawyer admitting to paying Stormy Daniels $130,000 out of his own pocket.  This payment was reportedly (prior to Cohen's admitting there WAS a payment) part of a NDA, that is preventing Daniels from talking about the alleged affair.

Now that Cohen has disclosed that the payment took place, has the NDA been violated/broken?  Since he is disclosing information about the agreement, is Daniels now free to disclose information, as well?

We'd have to read the agreement to know that

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it is certainly possible the NDA only went one way.  There would previously have been no incentive for Cohen to disclose the information.

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27 minutes ago, randall146 said:

We'd have to read the agreement to know that

So, an NDA could say 1 side isn't allowed to discuss something, but the other is?

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16 minutes ago, Bayhawks said:

So, an NDA could say 1 side isn't allowed to discuss something, but the other is?

Sure, especially when 1 side is paying money to the other side not to discuss something.

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Any thought on maybe making this a Stormy Daniels Scandal thread? Seems like there should be one...

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44 minutes ago, Bayhawks said:

So, an NDA could say 1 side isn't allowed to discuss something, but the other is?

Sure.  Other possibilities are 1 side can't confirm anything at all, but one side can confirm payment; or one side can't say anything at all, and the other side can deny everything; or it could have been a full mutual NDA, but they have since re-negotiated.

There is no standard "official" NDA - it's a contract between two free parties.  They can essentially frame it however they want, as long as both sides agree, both sides have to do or not do something ("consideration"), and there's nothing illegal.

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7 minutes ago, randall146 said:

Sure.  Other possibilities are 1 side can't confirm anything at all, but one side can confirm payment; or one side can't say anything at all, and the other side can deny everything; or it could have been a full mutual NDA, but they have since re-negotiated.

There is no standard "official" NDA - it's a contract between two free parties.  They can essentially frame it however they want, as long as both sides agree, both sides have to do or not do something ("consideration"), and there's nothing illegal.

Sorry, but is it just "between two parties"?

If Stormy breached the agreement who would get to sue? Cohen who has no damages? His shell LLC which is just a paper thing with no office and no business? Or Donald Trump, who is inherently the only person protected by the NDA, even though not technically a party? 

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6 minutes ago, SaintsInDome2006 said:

Sorry, but is it just "between two parties"?

If Stormy breached the agreement who would get to sue? Cohen who has no damages? His shell LLC which is just a paper thing with no office and no business? Or Donald Trump, who is inherently the only person protected by the NDA, even though not technically a party? 

You make an excellent point, and again we'd have to see the contract.  I don't deal with contracts other than plea agreements.

Most likely the contract is between Trump and Stormy, and Cohen is just lying.

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STORMY!!!!!!!!!!!!

Quote

Stormy Daniels, the porn star whom President Donald Trump’s personal attorney acknowledges paying $130,000 just before Election Day, believes she is now free to discuss her alleged sexual encounter with Trump.

A manager for the adult film actress told The Associated Press on Wednesday that Daniels believes Trump’s lawyer invalidated a non-disclosure agreement by publicly discussing the payment.

Gina Rodriguez says the actress, whose real name is Stephanie Clifford, will discuss her alleged 20006 extramarital affair with Trump.

https://www.apnews.com/7511e7654b2f476489be235327843280?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP_Politics&__twitter_impression=true

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1 minute ago, Sammy3469 said:

A manager for the adult film actress told The Associated Press on Wednesday that Daniels believes Trump’s lawyer invalidated a non-disclosure agreement by publicly discussing the payment.

Now she can get paid... again. 

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25 minutes ago, SaintsInDome2006 said:

Now she can get paid... again. 

Good point.  Heck of a bargaining chip for a demand letter. 

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She needs to hold strong and get paid for TV interviews, not get paid to remain quiet.

Come on, Stormy, be the patriot we need!

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Happy Valentine's day to Melania!

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1 hour ago, SaintsInDome2006 said:

Sorry, but is it just "between two parties"?

If Stormy breached the agreement who would get to sue? Cohen who has no damages? His shell LLC which is just a paper thing with no office and no business? Or Donald Trump, who is inherently the only person protected by the NDA, even though not technically a party? 

This is a good point. 

Regarding damages, the agreement could provide for liquidated damages, which is an amount that the parties agree to in the contract as representative of the amount of damages the non-breaching party would incur as a result of the breach.  So, the liquidated damages could be $130,000 (or more), which Stormy would have to pay if she breached instead of the LLC having to calculate and show the actual damages it suffered.  Liquidated damages provisions are regularly used and enforced.  The primary reason why they are not enforced is if they are penalties rather than actual estimations of damages a party is likely to suffer as a result of a breach.  So, you can't have an agreement with a liquidated damages provision for $100,000,000 for a deal that was for $130,000.  The $100,000,000 is not a fair estimation of damages, but is rather used as a penalty (don't breach this or else!).  

Theoretically, Trump could be a third party beneficiary of the agreement between the LLC and Stormy.  So you could have an agreement between 2 parties where the benefit of the agreement flows to a 3rd party.  (Quick example: We enter into a contract pursuant to which I will pay you $50 to mow my parent's yard.  My parents are the third party beneficiaries of our agreement.)  For a third party to enforce an agreement as a third party beneficiary, the third party has to show that they were the intended beneficiary of the agreement when it was written.  So you'd usually see a provision that expressly identifies the third party as an intended beneficiary.  I can't imagine how monumentally stupid it would be for the NDA with Stormy to expressly identify Trump as the third party beneficiary.    

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49 minutes ago, The Indestructible said:

This is a good point. 

Regarding damages, the agreement could provide for liquidated damages, which is an amount that the parties agree to in the contract as representative of the amount of damages the non-breaching party would incur as a result of the breach.  So, the liquidated damages could be $130,000 (or more), which Stormy would have to pay if she breached instead of the LLC having to calculate and show the actual damages it suffered.  Liquidated damages provisions are regularly used and enforced.  The primary reason why they are not enforced is if they are penalties rather than actual estimations of damages a party is likely to suffer as a result of a breach.  So, you can't have an agreement with a liquidated damages provision for $100,000,000 for a deal that was for $130,000.  The $100,000,000 is not a fair estimation of damages, but is rather used as a penalty (don't breach this or else!).  

Theoretically, Trump could be a third party beneficiary of the agreement between the LLC and Stormy.  So you could have an agreement between 2 parties where the benefit of the agreement flows to a 3rd party.  (Quick example: We enter into a contract pursuant to which I will pay you $50 to mow my parent's yard.  My parents are the third party beneficiaries of our agreement.)  For a third party to enforce an agreement as a third party beneficiary, the third party has to show that they were the intended beneficiary of the agreement when it was written.  So you'd usually see a provision that expressly identifies the third party as an intended beneficiary.  I can't imagine how monumentally stupid it would be for the NDA with Stormy to expressly identify Trump as the third party beneficiary.    

Your point is good, but I've negotiated or reviewed several hundred of these and never seen an NDA with a liquidated damages provision, which is not to say they don't exist.  It's possible there's a third-party beneficiary clause, but that would be unusual in this context as well.  To Saints' question, the answer is that the party seeking to enforce the agreement will be given the power to seek an injunction to compel the other party to abide by it, so they don't have to show "damages" to have it enforced.  Now, that doesn't help a lot in a case where the other party has already breached the agreement with a disclosure, but in this case a threatened breach (i.e., the public statement that they think it's no longer binding) should be enough for the Trump/Cohen folks to go to court for a temporary injunction.

As titillating as Stormy's position is (yes, I chose those words), I've also never seen a situation where one party breaching an NDA means that the whole thing becomes null and void.  From a legal perspective, that doesn't seem at all compelling.  Then again, these are not exactly the kind of NDAs I've been involved with, so I hope I'm wrong.

Edited by krista4
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17 minutes ago, krista4 said:

Your point is good, but I've negotiated or reviewed several hundred of these and never seen an NDA with a liquidated damages provision, which is not to say they don't exist.  It's possible there's a third-party beneficiary clause, but that would be unusual in this context as well.  To Saints' question, the answer is that the party seeking to enforce the agreement will be given the power to seek an injunction to compel the other party to abide by it, so they don't have to show "damages" to have it enforced.  Now, that doesn't help a lot in a case where the other party has already breached the agreement with a disclosure, but in this case a threatened breach (i.e., the public statement that they think it's no longer binding) should be enough for the Trump/Cohen folks to go to court for a temporary injunction.

As titillating as Stormy's position is (yes, I chose those words), I've also never seen a situation where one party breaching an NDA means that the whole thing becomes null and void.  From a legal perspective, that doesn't seem at all compelling.  Then again, these are not exactly the kind of NDAs I've been involved with, so I hope I'm wrong.

Yes, good clarification.  I have seen plenty of NDAs too and only once did I ever see a liquidated damages provision.  (We told the client it was likely unenforceable as a penalty, but the client wanted it in nevertheless.)     

Rescission should be a remedy for contractual breach, but I've never actually seen that play out.  Everybody just files suit.

  

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34 minutes ago, krista4 said:

Your point is good, but I've negotiated or reviewed several hundred of these and never seen an NDA with a liquidated damages provision, which is not to say they don't exist.  It's possible there's a third-party beneficiary clause, but that would be unusual in this context as well.  To Saints' question, the answer is that the party seeking to enforce the agreement will be given the power to seek an injunction to compel the other party to abide by it, so they don't have to show "damages" to have it enforced.  Now, that doesn't help a lot in a case where the other party has already breached the agreement with a disclosure, but in this case a threatened breach (i.e., the public statement that they think it's no longer binding) should be enough for the Trump/Cohen folks to go to court for a temporary injunction.

As titillating as Stormy's position is (yes, I chose those words), I've also never seen a situation where one party breaching an NDA means that the whole thing becomes null and void.  From a legal perspective, that doesn't seem at all compelling.  Then again, these are not exactly the kind of NDAs I've been involved with, so I hope I'm wrong.

Out of curiosity, wouldnt damages be at least $130,000? I mean if you paid somebody 130k to keep something quiet and they don't keep it quiet, haven't you been damaged for at the very least 130k? 

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21 minutes ago, parasaurolophus said:

Out of curiosity, wouldnt damages be at least $130,000? I mean if you paid somebody 130k to keep something quiet and they don't keep it quiet, haven't you been damaged for at the very least 130k? 

Yes, but if your damages are $130,000, then you have an adequate remedy at law for the breach and an injunctive relief would be inappropriate.  Trump - errr, Cohen - shouldn't want that.  That is, they shouldn't want the $130K back, they should want Stormy's continued silence.  

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2 hours ago, The Indestructible said:

Yes, but if your damages are $130,000, then you have an adequate remedy at law for the breach and an injunctive relief would be inappropriate.  Trump - errr, Cohen - shouldn't want that.  That is, they shouldn't want the $130K back, they should want Stormy's continued silence.  

Gotcha. Thanks.

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4 hours ago, krista4 said:

Your point is good, but I've negotiated or reviewed several hundred of these and never seen an NDA with a liquidated damages provision, which is not to say they don't exist.  It's possible there's a third-party beneficiary clause, but that would be unusual in this context as well.  To Saints' question, the answer is that the party seeking to enforce the agreement will be given the power to seek an injunction to compel the other party to abide by it, so they don't have to show "damages" to have it enforced.  Now, that doesn't help a lot in a case where the other party has already breached the agreement with a disclosure, but in this case a threatened breach (i.e., the public statement that they think it's no longer binding) should be enough for the Trump/Cohen folks to go to court for a temporary injunction.

Yep. Liquidated damages are rare for an NDA because in most jurisdictions they undermine the ability to get injunctive relief, which is typically the most important relief (i.e., a judicial order to keep the secret info secret).  In many, if not most, jurisdictions, a prerequisite to injunctive relief is showing that money damages aren’t adequate to remedy the harm. Well, if you’ve already contractually negotiated the monetary damages, it’s a bit difficult to make that argument. 

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3 hours ago, The Indestructible said:

Yes, but if your damages are $130,000, then you have an adequate remedy at law for the breach and an injunctive relief would be inappropriate.  Trump - errr, Cohen - shouldn't want that.  That is, they shouldn't want the $130K back, they should want Stormy's continued silence.  

Beat me to it. 

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6 hours ago, The Indestructible said:

Yes, but if your damages are $130,000, then you have an adequate remedy at law for the breach and an injunctive relief would be inappropriate.  Trump - errr, Cohen - shouldn't want that.  That is, they shouldn't want the $130K back, they should want Stormy's continued silence.  

Let's say that Trump/Cohen gets the injunctive relief.  Let's then say Stormy (presumably because she's offered boatloads) continues to breach by talking.  What's the remedy, civil contempt?

Edited by Zow

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2 minutes ago, Zow said:

Let's say that Trump/Cohen gets the injunctive.  Let's then say Stormy (presumably because she's offered boatloads) continues to breach by talking.  What's the remedy, civil contempt?

Most likely.  At that point she is violating a court order that enjoins her from talking.  I'd also wonder if anybody that offers her boatloads to violate a court order could be facing some problems as well.

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9 minutes ago, The Indestructible said:

Most likely.  At that point she is violating a court order that enjoins her from talking.  I'd also wonder if anybody that offers her boatloads to violate a court order could be facing some problems as well.

Good point.  Didn't think of that. 

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21 hours ago, Bayhawks said:

Since he is disclosing information about the agreement, is Daniels now free to disclose information, as well?

Hey Bayhawks, what do you think of just making this a "Stormy Daniels Scandal" thread?

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I think this was missed:

- Slate actually published the side letter or exhibit.

Here it is.

Quote

 

Given what was going on in the final weeks of the campaign, during which Trump was facing a torrent of accusations of sexual abuse, I didn’t think an extramarital affair would be a highly significant story. What interested me more was Daniels’ allegation that Trump had negotiated to buy her silence. Daniels said that, through intermediaries, she and Trump had worked out an agreement for the presidential candidate to pay her a six-figure sum to keep quiet. More specifically, she said her lawyer Keith Davidson, a Beverly Hills–based attorney who specializes in claims against celebrities, had worked out the terms with Trump’s lawyer Michael Cohen.

Daniels told me that agreement involved a complicated arrangement to shield the real names of the parties. She texted me an unsigned two-page document spelling out this arrangement, the title of which was “Exhibit ‘A’ to the Confidential Settlement Agreement and Release: Assignment of Copyright and Non-Disparagement Agreement.”*

The document she texted me indicated that in the main agreement—a document I never saw—“Stephanie Gregory Clifford aka Stormy Daniels is referred to by the pseudonym ‘Peggy Peterson,’ and ___________ is referred to by the pseudonym ‘David Dennison.’ ” The document Daniels sent me included two additional pseudonyms, “David Delucia” and “RCI,” but did not indicate which person and/or entity those pseudonyms referred to. Another provision in the document I saw stated that only Daniels’ lawyer Keith Davidson and a lawyer for the other party would be allowed to retain copies of the side-letter agreement identifying the parties by their actual names.

 

 

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18 hours ago, The Indestructible said:

So you'd usually see a provision that expressly identifies the third party as an intended beneficiary.  I can't imagine how monumentally stupid it would be for the NDA with Stormy to expressly identify Trump as the third party beneficiary.

If you look at the side letter I just posted, while not filled in, it's clear that the alias was to have been filled in by Donald Trump. But it also has a provision that says that Stormy must destroy the signed version (though not sure if that's true for her lawyer also...). And it also references a prior alias which would almost certainly have also been Trump as well. 

SO and ALSO the actual contract refers to two parties - "Peterson" and "Dennison" - who don't exist, thus Cohen can say with a straight face and forked tongue that yes indeed there is a contract between two parties and Donald Trump is not one of them.

Voila.

Edited by SaintsInDome2006

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1 hour ago, SaintsInDome2006 said:

If you look at the side letter I just posted, while not filled in, it's clear that the alias was to have been filled in by Donald Trump. But it also has a provision that says that Stormy must destroy the signed version (though not sure if that's true for her lawyer also...). And it also references a prior alias which would almost certainly have also been Trump as well. 

SO and ALSO the actual contract refers to two parties - "Peterson" and "Dennison" - who don't exist, thus Cohen can say with a straight face and forked tongue that yes indeed there is a contract between two parties and Donald Trump is not one of them.

Voila.

The title to the side letter agreement mentions Exhibit A.  When parties have a contract, it is not uncommon for them to say in the contract that one or both of them will also sign other documents.  So that it is clear what other documents the parties have agreed to sign, the contract will contain exhibits, which are the forms of the documents to be signed, and the contract will say that the parties will also sign the documents  substantially in the form attached hereto as Exhibit A (or some similar language).  Then, as Exhibit A, you attach what is essentially a form document.  The parties sign that document separately, but don't sign Exhibit A.  The language "substantially in the form" means that you can attach the form, but the document that the parties actually sign may have some minor non-material differences or have blanks that will need to be filled out.  Usually, these blanks are things like dates, addresses, dollar amounts, etc.  Here, the blanks are for Trump's name, which would have been filled out in the executed version.  This side letter also says that the only person who will keep a copy of the signed document is Keith Davidson, who was apparently Stormy's lawyer.  So, at least under the terms of the document you linked, only Keith Davidson would have a fully executed version of a document signed by Stormy and Trump.

I have questions about the reference a copyright assignment.  That implies that Daniels was or could be the author of a copyrightable work, and the parties want Daniels to transfer all rights in that work to Trump/Cohen/LLC etc.  In this situation, it would be really odd that Daniels would have or own any copyrightable work.  Perhaps it refers to the letter that Cohen produced denying the affair?  That seems really flimsy, but I can't think of anything else.    

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Just change the name of this thread to the Stormy Daniels Scandal.  

Quote

 

Brian Krassenstein 🐬‏ @krassenstein

KABOOM!! Those close to Stormy Daniels tell the media that Daniels has her very own “Monica Lewinsky dress,” which she has kept in 'pristine condition' and that she is now going to have it tested for DNA as evidence to back up her story. The story is forthcoming! Oh Boy!!


 

 

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1 hour ago, The Indestructible said:

Just change the name of this thread to the Stormy Daniels Scandal.  

 

I'm with you and SID on changing the thread to a Stormy one, but as gross as that thought is, I don't really see it making the slightest difference in his standing among Republicans. They sold out whatever passed for morality long ago. 

Should be an amusing side train wreck from the dozens of other train wrecks though, so :popcorn:

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7 hours ago, SaintsInDome2006 said:

Hey Bayhawks, what do you think of just making this a "Stormy Daniels Scandal" thread?

How?

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14 minutes ago, Bayhawks said:

How?

Edit your first post. You can change the thread title there to some Stormy weather related puns or whatever you feel is appropriate. 

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6 minutes ago, Hilts said:

Edit your first post. You can change the thread title there to some Stormy weather related puns or whatever you feel is appropriate. 

Stormy’s dress gets rained on during Trumpical Storm.

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28 minutes ago, Bayhawks said:

How?

You did great, thanks.

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6 hours ago, The Indestructible said:

KABOOM!! Those close to Stormy Daniels tell the media that Daniels has her very own “Monica Lewinsky dress,” which she has kept in 'pristine condition' and that she is now going to have it tested for DNA as evidence to back up her story. The story is forthcoming! Oh Boy!!

This guy is with CNN/Boston Globe & he's picked it up.

- It's originally from a gossip/entertainment site but then I'd guess that's exactly where this kind of news gets reported...

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Where’s the scandal?

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Watching how this is playing out, and knowing who is involved...

Wouldn't the shark move by Cohen/Trump/Stormy be to purposely do this and have a second agreement that Stormy cash in on an interview only to say "nothing happened" or to lessen the drama?  The only thing that's been confirmed is an initial payment.  She gets paid, the story deflates and in the end the trump team has deniability.

Another stained dress?  Seems hyperbolic that a woman that gets paid to be covered in goo on camera would keep a dress from a guy that was at that time a joke.  Or she was smart enough to keep it for 12 or more years as an investment for future blackmail material.

The whole thing seems suspicious to me.

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4 minutes ago, boofatty said:

Watching how this is playing out, and knowing who is involved...

Wouldn't the shark move by Cohen/Trump/Stormy be to purposely do this and have a second agreement that Stormy cash in on an interview only to say "nothing happened" or to lessen the drama?  The only thing that's been confirmed is an initial payment.  She gets paid, the story deflates and in the end the trump team has deniability.

Another stained dress?  Seems hyperbolic that a woman that gets paid to be covered in goo on camera would keep a dress from a guy that was at that time a joke.  Or she was smart enough to keep it for 12 or more years as an investment for future blackmail material.

The whole thing seems suspicious to me.

If I were single and Paula Abdul left DNA on my clothes, I can’t promise I wouldn’t make that suit a party discussion piece.  

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