IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BENJAMIN C. ARP, No. 72613-7-1
Appellant, DIVISION ONE
PUBLISHED OPINION
JAMES H. RILEY and "JANE DOE"
RILEY, husband and wife and
the marital community composed
thereof; and SIERRA
CONSTRUCTION CO. INC.,
a Washington State Corporation,
FILED: December 28, 2015
Respondents.
Leach, J. — Benjamin C. Arp appeals the trial court's summary dismissal
of his personal injury action against James H. Riley and Sierra Construction
Company Inc. (collectively Sierra). The trial court decided that the judicial
estoppel doctrine barred this lawsuit because Arp failed to amend the schedules
in his Chapter 13 bankruptcy case to inform the court about a personal injury
claim he acquired after that court confirmed Arp's payment plan. Because
judicial estoppel is an equitable doctrine to be applied by the trial court through
its exercise of discretion on a case-by-case basis after evaluating the pertinent
factors and because the trial court did not do this, we reverse and remand for
proceedings consistent with this opinion.
NO. 72613-7-1/2
FACTS
Arp filed a Chapter 13 bankruptcy petition on July 22, 2008. The
bankruptcy court confirmed Arp's Chapter 13 plan on December 17, 2009. The
confirmation order required him to inform the Trustee of any change in
circumstances and allowed Arp to retain his property:
1. That subject to the terms of this order, the plan proposed by the
debtor dated 12-09-09 is hereby confirmed;
4. That the debtor shall inform the Trustee of any change in
circumstances, or receipt of additional income, and shall further
comply with any requests of the Trustee with respect to additional
financial information the Trustee may require;
6. That during the pendency of the plan hereby confirmed, all
property of the estate, as defined by 11 U.S.C. section 1306(a)
shall remain vested in the debtor, under the exclusive jurisdiction of
the Court, and further, that the debtor shall not, without specific
approval of the Court, lease, sell, transfer, encumber or otherwise
dispose of such property.
On October 5, 2010, Arp suffered serious injuries when a sports utility
vehicle (SUV) rear-ended his stopped car. James Riley drove the SUV while
working for Sierra Construction Company. Arp sustained physical injuries as well
as mental and emotional problems, including difficulty with memory. He cannot
engage in the physical activities he previously enjoyed. A neuropsychologist
described his symptoms as consistent with cognitive disorder NOS (not
otherwise specified) and adjustment disorder NOS, as well as depression and
anxiety.
NO. 72613-7-1/3
After the accident, Arp missed several payments on his Chapter 13 plan,
totaling $2,875.00. The bankruptcy trustee moved to dismiss Arp's bankruptcy
case in November 2011. Arp responded, stating that he forgot to make
payments because he experienced memory loss as a result of a car accident for
which he was not at fault. Arp also noted that he had paid $154,336.42 to his
creditors under his Chapter 13 plan. The trustee struck the motion to dismiss,
and in March 2012, the bankruptcy court granted Arp a discharge. Arp paid off
his remaining debts under the Chapter 13 plan, and the bankruptcy court closed
his case in April 2012.
Arp filed suit against Riley and later amended his complaint to include
Sierra Construction Company. In Sierra's amended answer, it asserted the
affirmative defenses of judicial estoppel and lack of standing. The trial court
dismissed Arp's case on summary judgment, concluding that because Arp's
personal injury claim against Sierra "is properly considered an asset of the
bankruptcy estate, as defined in 11 U.S.C. § 1306(a)(1)," Arp "had a duty to
disclose the post-petition asset in his bankruptcy action." It also decided that
Arp's response to the trustee's motion to dismiss did not satisfy the disclosure
obligation created by the confirmation order. The trial court denied Arp's motion
for reconsideration. Arp appeals.
NO. 72613-7-1/4
STANDARD OF REVIEW
This court reviews a trial court's grant of summary judgment de novo,
affirming only if no genuine issues of material fact exist, viewing the evidence in
the light most favorable to the nonmoving party.1 But "[w]e review a trial court's
decision to apply the equitable doctrine of judicial estoppel for abuse of
discretion."2 "A trial court abuses its discretion when it bases its decision on
untenable or unreasonable grounds."3
ANALYSIS
Arp challenges the trial court's decision that judicial estoppel bars this
lawsuit because he did not properly disclose his claim in his Chapter 13
bankruptcy proceeding. He also challenges its decision that his claim remained
an asset of the bankruptcy estate and could be pursued only by the trustee. Arp
contends that he had no duty to disclose the claim and that he owned it because
of the provisions of the confirmation order. Alternatively, he claims that he made
an adequate disclosure.
Sierra responds that both the bankruptcy code and the confirmation order
imposed a disclosure obligation. Because Arp did not disclose his claim, judicial
1 Cunningham v. Reliable Concrete Pumping, Inc., 126 Wn. App. 222,
226-27, 108 P.3d 147 (2005); Hamilton v. State Farm Fire & Cas. Co.. 270 F.3d
778, 782 (9th Cir. 2001).
2Arkisonv. Ethan Allen, Inc.. 160 Wn.2d 535, 538, 160 P.3d 13 (2007).
3 Harris v. Fortin. 183 Wn. App. 522, 527, 333 P.3d 556 (2014).
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NO. 72613-7-1/5
estoppel bars it. Sierra also asserts that Arp's claim remains part of the
bankruptcy estate and can only be pursued by the bankruptcy trustee.
Judicial estoppel "'precludes a party from asserting one position in a court
proceeding and later seeking an advantage by taking a clearly inconsistent
position."'4 It is intended to protect the integrity of the courts but is not designed
to protect litigants.5
A court looks to three factors to determine if judicial estoppel applies: (1)
if the party asserts a position inconsistent with an earlier one, (2) if acceptance of
the position would create the perception that a party misled a court in either
proceeding, and (3) if the party asserting the inconsistent position would derive
an unfair advantage or impose an unfair detriment.6 But this is not an exhaustive
formula nor are there inflexible prerequisites, thus "[additional considerations
may inform the doctrine's application in specific factual contexts."7 Indeed, courts
must apply judicial estoppel at their own discretion; they are not bound to apply it
but rather must determine on a case-by-case basis if applying the doctrine is
appropriate.8
4 Arkison. 160 Wn.2d at 538 (quoting Bartlev-Williams v. Kendall. 134 Wn.
App. 95, 98, 138 P.3d 1103 (2006)).
5 Ah Quin v. County of Kauai Dep't of Transp., 733 F.3d 267, 271 (9th Cir.
2013); Johnson v. Si-Cor Inc.. 107 Wn. App. 902, 907-08, 28 P.3d 832 (2001).
6 Arkison. 160 Wn.2d at 538-39 (quoting New Hampshire v. Maine, 532
U.S. 742, 750-51, 121 S. Ct. 1808, 149 L Ed. 2d 968 (2001)).
7 New Hampshire, 532 U.S. at 743.
8 Ah Quin. 733 F.3d at 272.
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NO. 72613-7-1/6
We first decide if Arp's nondisclosure of his claim as an asset in his
bankruptcy proceeding constituted a clearly inconsistent position. Nondisclosure
of a claim later brought in state court can support the application of judicial
estoppel because a party asserts two opposing positions.9 As a general rule, if a
debtor in a bankruptcy proceeding fails to report a cause of action and obtains a
discharge or confirmation, a trial court may apply judicial estoppel to bar the
action.10 This prevents a debtor from protecting the asset from creditors by
representing to the bankruptcy court that no claim exists and then asserting in
another court that the claim does exist.11 But "[a] party's nondisclosure of a claim
in bankruptcy does not automatically lead to estoppel in a future suit," especially
where a party lacks knowledge or has no motive to conceal the claims.12
Arp claims that he did not take any inconsistent position because the
bankruptcy code and the confirmation order made him the claim's owner with no
duty of disclosure. Sierra disagrees on both points. Deciding if property belongs
to the bankruptcy estate or to the debtor involves interpreting bankruptcy code
9 Harris. 183 Wn. App. at 528.
10 Ah Quin. 733 F.3d at 271 .
11 Ah Quin. 733 F.3d at 271.
12 Miller v. Campbell, 137 Wn. App. 762, 771, 155 P.3d 154 (2007), aff'd
on other grounds, 164 Wn.2d 529, 192 P.3d 352 (2008) (affirming the result
reached by Court of Appeals but applying a different analysis because of the
substitution of the trustee).
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NO. 72613-7-1/7
provisions.13 The parties' conflicting positions about the ownership of a claim first
acquired after a court confirms a Chapter 13 plan reflect a division among courts
about how to classify this category of property.14 When a court enters a
confirmation order in a Chapter 13 bankruptcy proceeding, it orders the debtor to
apply part of his future income to discharge debts.15 While a debtor in a Chapter
13 bankruptcy has an ongoing duty to disclose postpetition causes of action that
could become property of the bankruptcy estate,16 claims first acquired after
confirmation of a Chapter 13 plan do not always become estate assets. When a
court decides that property acquired after confirmation belongs to the debtor,
courts have held that the debtor need not disclose that property and therefore
have declined to apply judicial estoppel to bar undisclosed claims.17
The bankruptcy code does not clearly state what postconfirmation
property belongs to the bankruptcy estate. 11 U.S.C. § 1306(a) provides that the
bankruptcy estate includes the property specified in 11 U.S.C. § 541 and "all
property of the kind specified in such section that the debtor acquires after the
13 Nw. Wholesale. Inc. v. Pac Organic Fruit. LLC, 183 Wn. App. 459, 483,
334 P.3d 63 (2014) (citing In re Pettit. 217 F.3d 1072, 1078 (9th Cir. 2000)), affd,
184 Wn.2d 176, 357 P.3d 759 (2015).
14 See In re Jones. 657 F.3d 921, 927 (9th Cir. 2011).
15 11 U.S.C. §§ 1321-1325; In re Hannan, 24 B.R. 691, 692 (Bankr.
E.D.N.Y. 1982).
16 11 U.S.C. § 521: In re Flugence. 738 F.3d 126, 129 (5th Cir. 2013); !n_re
Foreman, 378 B.R. 717, 720 (Bankr. S.D. Ga. 2007).
17 Castellano v. Charter Commc'ns. LLC. No. 3:12-CV-05845-RJB, 2013
WL 6086050, at *6 (W.D. Wash. Nov. 19, 2013).
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NO. 72613-7-1/8
commencement of the case but before the case is closed, dismissed, or
converted to a case under chapter 7, 11, or 12 of this title, whichever occurs
first," and certain earnings from the debtor's services. But 11 U.S.C. § 1327(b)
states, "Except as otherwise provided in the plan or the order confirming the plan,
the confirmation of a plan vests all of the property of the estate in the debtor."
And unless the plan states otherwise, the debtor holds this property "free and
clear of any claim or interest of any creditor provided for by the plan."18 The
Ninth Circuit has noted the tension between these statutes: "Under § 1327(b),
property of the estate revests in the debtor upon confirmation of a Chapter 13
plan, but § 1306(a)(1) does not include confirmation of the plan as one of the
events defining the time period in which property acquired by the debtor
becomes estate property."19
Federal circuit courts and bankruptcy courts addressing this tension have
taken four different approaches.20 In re Jones21 outlines the four approaches
various courts have taken. The modified estate preservation approach requires
that property of the estate vests in the debtor at the time of confirmation, but
postconfirmation property becomes part of the bankruptcy estate under §
1811 U.S.C. § 1327(c).
19 Jones, 657 F.3d at 927.
20 Jones, 657 F.3d at 927-28; Barbosa v. Solomon, 235 F.3d 31, 36-37
(1st Cir. 2000).
21 657 F.3d 921, 927-28 (9th Cir. 2011).
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NO. 72613-7-1/9
1306(a).22 The estate transformation approach vests postconfirmation property
in a debtor under § 1327(b), but the estate retains property where necessary to
carry out the confirmation plan.23 The estate termination approach vests all
property in the debtor under § 1327(b) unless the confirmation plan states
otherwise.24 These three approaches proceed from the principle that property of
the estate revests in the debtor on plan confirmation unless the plan says
otherwise. With the fourth, the estate preservation approach, the bankruptcy
estate retains all property after confirmation until dismissal or discharge.25
Here, the trial court adopted the modified estate preservation approach:
This court is persuaded that the "modified estate preservation
approach," is the most appropriate, to determine whether the
. . . post-confirmation accident-related claim is an asset of the
bankruptcy estate, or whether it revested with Mr. Arp upon
confirmation. It remained an asset of the bankruptcy estate and
should have been properly disclosed for consideration by the
bankruptcy court.
The Ninth Circuit has affirmatively rejected the "estate preservation
approach," noting that no circuit court had adopted it.26 It declined to adopt any
of the other three approaches because it decided it did not need to adopt any
single approach to resolve the case before it.27 It held that the plain language of
22 Jones, 657 F.3d at 927-28; Barbosa, 235 F.3d at 36-37.
23 Jones, 657 F.3d at 928; Telfair v. First Union Mortg. Corp., 216 F.3d
1333, 1340 (11th Cir. 2000).
24 Jones, 657 F.3d at 928.
25 Jones, 657 F.3d at 928.
26 Jones, 657 F.3d at 928.
27 Jones, 657 F.3d at 928.
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NO. 72613-7-1/10
§ 1327(b) vests property of the bankruptcy estate in the debtor upon plan
confirmation unless the debtor chooses differently in the plan.28 Arp's plan and
the confirmation order vested the Sierra claim in Arp. Thus, Arp owns the claim
and has standing to assert it.
In Castellano v. Charter Communications, Inc.,29 the United States District
Court for the Western District of Washington held that a Chapter 13 bankruptcy
debtor whose discrimination claim arose postconfirmation had no duty to disclose
this claim, citing Johnson v. Si-Cor, Inc.30 The district court's reliance on
Johnson provides guidance here.
Sometime after Johnson filed a Chapter 13 case, he sustained injury when
he bit into a McDonalds sandwich.31 Johnson did not list his claim against
McDonalds on his Chapter 13 bankruptcy schedule or inform creditors upon
conversion to a Chapter 7 bankruptcy.32 When Johnson sued McDonalds, the
trial court dismissed his lawsuit as barred by judicial estoppel.33 Division Three
of this court reversed for three reasons: (1) the trial court questioned if Johnson
was obligated to amend his bankruptcy schedule to disclose his claim, (2) a
debtor's failure to amend a schedule of assets does not sufficiently involve the
28 Jones. 657 F.3d at 928.
29 No. 3:12-CV-05845-RJB, 2013 WL 6086050, at *6 (W.D. Wash. Nov.
19,2013).
30 107 Wn. App. 902, 910-11, 28 P.3d 832 (2001).
31 Johnson. 107 Wn. App. at 904.
32 Johnson. 107 Wn. App. at 905.
33 Johnson. 107 Wn. App. at 904.
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NO. 72613-7-1/11
court so that it accepts the debtor's position, and (3) the record did not show that
Johnson's nondisclosure provided him a benefit.34 Thus, judicial estoppel did not
bar his suit.35
Sierra contends that because Johnson is a Chapter 7 conversion case
and not a Chapter 13 case, the same analysis does not apply. It correctly argues
that under 11 U.S.C. § 348(f)(1)(A), the conversion to Chapter 7 caused all
postpetition Chapter 13 property to belong to the debtor.36 But in Johnson, the
defendant specifically argues that Johnson's failure to amend his Chapter 13
schedules to include his lawsuit supported the court's application of judicial
estoppel.37
The Johnson court did note that sometimes Chapter 13 can present a
strong case for judicial estoppel: as part of a Chapter 13 confirmation process,
the bankruptcy court may require a debtor to represent to it what creditors would
have received under a Chapter 7 liquidation, providing the court with evidence to
34 Johnson, 107 Wn. App. at 910.
35 Johnson, 107 Wn. App. at 912.
36 11 U.S.C. §348 provides,
(f)
(1) Except as provided in paragraph (2), when a case
under chapter 13 of this title is converted to a case under
another chapter under this title—
(A) property of the estate in the converted case shall
consist of property of the estate, as of the date of
filing of the petition, that remains in the possession of
or is under the control of the debtor on the date of
conversion.
37 Johnson, 107 Wn. App. at 910.
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NO. 72613-7-1/12
show that the creditors are doing at least as well under Chapter 13.38 But this
describes a debtor's duty existing during and before confirmation and not after
the bankruptcy court confirms the plan. As this court later explained in
Cunningham v. Reliable Concrete Pumping, Inc.,39 Johnson's conversion to
Chapter 7 did not change the fact that under Chapter 13 he did not have to
disclose or schedule his postconfirmation cause of action, and, "[tjherefore, his
omission had no effect on the court's valuation process or subsequent decision
to confirm his plan," and thus it "did not 'accept' his position that no claim was
available to his creditors."
Sierra also contends that Kimberlin v. Dollar General Corp.40 required Arp
to disclose his claim to the bankruptcy court. In Kimberlin, the plaintiff's claim
against her employer arose several years after a bankruptcy court confirmed her
Chapter 13 plan,41 and the district court applied judicial estoppel to dismiss her
claim because she did not disclose it to the bankruptcy court.42 On review, the
Sixth Circuit recognized but declined to resolve the conflict between 11 U.S.C. §
1306 and § 1327, deciding the judicial estoppel issue on the parties' shared
assumption that Kimberlin was required to disclose her cause of action.43 Thus,
38 Johnson, 107 Wn. App. at 909-10.
39 126 Wn. App. 222, 232, 108 P.3d 147 (2005).
40 520 F. App'x 312 (6th Cir. 2013).
41 Kimberlin, 520 F. App'x at 313.
42 Kimberlin, 520 F. App'x at 313.
43 Kimberlin, 520 F. App'x at 314.
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NO. 72613-7-1/13
Kimberlin does not support Sierra's assertion that the bankruptcy code requires
disclosure in Arp's case.
The bankruptcy code did not require that Arp amend his schedules to
disclose his claim. The trial court erred to the extent it reached a contrary
conclusion. Because Arp owned that claim, the trial court also erred when it
decided that he lacked standing to assert it.
Next, we read the confirmation order to see if it required disclosure. The
code allows for a plan to include "any other appropriate provision not inconsistent
with this title."44 The bankruptcy court has discretion to include provisions in the
plan requiring a debtor to amend a schedule of assets to disclose a newly
acquired postconfirmation property interest.45 And 11 U.S.C. § 1329 of the code
permits trustees and creditors to modify the payment plan postconfirmation and
before completion of a debtor's payments.46 Here, Arp's plan specifically
required that he inform the trustee of any change in circumstance or receipt of
additional income. And while the order vested all after-acquired property in Arp,
the bankruptcy court retained jurisdiction over these assets. Arp had to obtain
44 11 U.S.C. §1322(b)(11).
45 See In re Waldron, 536 F.3d 1239, 1246 (11th Cir. 2008); Fed. R.
Bankr. P. 1009.
4611 U.S.C. § 1329(a) provides that "[a]t any time after confirmation of the
plan but before the completion of payments under such plan, the plan may be
modified" at the request of a creditor to "alter the amount of the distribution to a
creditor whose claim is provided for by the plan to the extent necessary to take
account of any payment of such claim other than under the plan."
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specific permission from the court to exercise any right to "lease, sell, transfer,
encumber or otherwise dispose of such property." Sierra argues that this
language required Arp to disclose all assets he acquired after confirmation.
Arp asserts that because he owned any claim acquired after the court
confirmed his plan, the confirmation order did not impose a duty to disclose the
acquisition of that claim. Arp also contends that he satisfied any disclosure
obligation imposed by the confirmation order with his response to the trustee's
motion to dismiss. But his position that the order did not impose a disclosure
obligation ignores the plain language of the order requiring disclosure of "any
change in circumstance." Arp provides no credible interpretation of this
language. It clearly required that Arp disclose an injury affecting his ability to
work and fund his plan as well as his acquisition of an asset, his personal injury
claim that might provide a replacement for his lost earnings.
Additionally, Arp does not offer any persuasive explanation why his
response to a motion to dismiss provided a reasonable substitute for an
amendment to his schedule of assets. In a world of electronic filings where
creditors rely upon publicly available dockets to keep informed about the status
of cases, an entry disclosing a response to a motion to dismiss does not provide
the same notice as an entry disclosing a change in assets. The record
adequately supports the trial court's conclusion that Arp's response to the
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NO. 72613-7-1/15
trustee's motion to dismiss "cannot fairly be considered the type of notice
required by the confirmation order." Thus, for purposes of this opinion, we
assume that Arp has taken an inconsistent position.
But Arp's violation of a disclosure obligation does not, as the trial court
appears to have decided, mean that judicial estoppel bars Arp's claim as a
matter of law.47 Indeed, the record leaves unanswered serious questions about
the equity of applying judicial estoppel to bar his claim.
Judicial estoppel is an equitable doctrine courts apply to protect the
integrity of the judicial process,48 not to benefit a party. When considering
whether the doctrine applies in an individual case, a court must consider if the
litigant before it asserted inconsistent claims, if the bankruptcy court accepted
those claims, and if the litigant benefited from asserting inconsistent claims.49
And while a court need not make a finding of manipulative intent, usually this has
been implied in cases where a court applies judicial estoppel.50 The record
before us does not show that the trial court considered if the bankruptcy court
accepted any inconsistent claim made by Arp or if Arp benefited from making any
inconsistent claim. Certainly the record lacks sufficient evidence of undisputed
facts to allow the trial court to resolve these questions as a matter of law. The
47 Miller, 137 Wn. App. at 771.
48 Miller, 137 Wn. App. at 771.
49 Arkison, 160 Wn.2d at 538-39 (quoting New Hampshire, 532 U.S. at
750-51).
50 Miller, 137 Wn. App. at 771-72.
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NO. 72613-7-1/16
record also does not show that the trial court exercised discretion to decide if
allowing Arp to pursue his claim would affront the integrity of the judicial process.
Sierra identifies no evidence showing that the bankruptcy court accepted
any inconsistent claim asserted by Arp when it granted him relief. Arp had nearly
completed his plan payments when he was injured. At the time the trustee
moved to dismiss the bankruptcy, Arp had already paid creditors $154,336.42,
with only $2,875.00 left to pay. The trustee struck the motion to dismiss. The
bankruptcy court had already entered a confirmation order vesting in Arp
ownership of assets he acquired after entry of the order, including his claim
against Sierra. Sierra produced no evidence showing that any creditor would
have considered requesting a plan amendment if Arp had disclosed his claim in
an amended schedule. Neither has Sierra offered any persuasive reason to
believe the bankruptcy court would have changed the relief it granted Arp. Thus,
undisputed facts do not show that the bankruptcy court accepted an inconsistent
position or that Arp benefited from nondisclosure.
The trial court erred by resolving the application of judicial estoppel as a
matter of law on summary judgment. Before summarily deciding that judicial
estoppel barred Arp's claim, the trial court should have considered if undisputed
facts in this particular case established pertinent factors as a matter of law. If so,
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NO. 72613-7-1/17
it must also exercise discretion to decide if allowing Arp to pursue his claim
against Sierra would affront the integrity of the judicial process.
CONCLUSION
Because Arp owned any claim he first acquired after the bankruptcy court
confirmed his Chapter 13 plan, Arp did not have a statutory duty to disclose the
claim and had standing to pursue it. But the bankruptcy court's confirmation
order required disclosure of the claim, and we accept the trial court's decision
that Arp did not adequately disclose it. But the record does not establish by
undisputed facts the pertinent elements of judicial estoppel. Also, the record
does not establish that the trial court exercised individualized discretion to decide
that allowing Arp to pursue his claim would affront the integrity of the judicial
process. We reverse and remand for proceedings consistent with this opinion.
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WE CONCUR:
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