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White v. Chevron Corp.

United States District Court, N.D. California

May 31, 2017

CHARLES E. WHITE, et al., Plaintiffs,
v.
CHEVRON CORPORATION, et al., Defendants.

          ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT

          PHYLLIS J. HAMILTON United States District Judge.

         Defendants' motion to dismiss the first amended complaint came on for hearing before this court on January 18, 2017. Plaintiffs appeared by their counsel Jamie L. Dupree, James Redd, and Heather Lea, and defendants appeared by their counsel Catalina J. Vergara. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion.

         INTRODUCTION

         This is a case brought as a proposed class action, under ERISA § 502(a)(2), (3), 29 U.S.C. § 1132(a)(2), (3), alleging breach of fiduciary duty. Plaintiffs filed the complaint on February 17, 2016. On August 29, 2016, the court granted defendants' motion to dismiss the complaint for failure to state a claim, with leave to amend. Plaintiffs filed the first amended complaint ("FAC") on September 30, 2016.

         Plaintiffs are participants in the Chevron Employee Savings Investment Plan ("the Plan" or "the ESIP Plan") - a § 401(k) defined contribution, individual account, employee pension benefit plan under 29 U.S.C. § 1002(2)(A) and § 1002(34).[1] FAC ¶¶ 1-3, 8-9, 13- 18, 25. As of December 31, 2014, the Plan had over $19 billion in total assets and more than 40, 000 participants with account balances. FAC ¶ 12.

         Defendants are Chevron Corporation, the ESIP Investment Committee (the "Investment Committee"), and 20 DOEs (alleged to be “current and former members of the Investment Committee). FAC ¶¶ 19-24. Chevron Corporation is the Plan Sponsor and Plan Administrator, and is the sole named fiduciary of the Plan, with the authority to control and manage the operation of the Plan, which includes the authority to designate one or more actuaries, accountants, or consultants as fiduciaries to carry out its responsibilities under the Plan. FAC ¶¶ 19-20. The duties that have not been delegated are carried out on behalf of Chevron Corporation by its directors, officers, and employees, including the Investment Committee. FAC ¶ 20.

         The Investment Committee is a group of Chevron Corporation executives who are responsible for establishing and maintaining the Plan's Investment Policy Statement ("IPS"), which provides the criteria for selecting, monitoring, and removing Plan investment options. FAC ¶ 21. The members of the Investment Committee are the General Manager of Benefit Plan Investments, the Manager of Reporting and Control, and the Investment Strategist from Chevron Corporation's Treasury Department. Id. The Investment Committee was not named a fiduciary in the Plan document, but plaintiffs allege that it is nonetheless a fiduciary under 29 U.S.C. § 1002(21)(A) because it has and exercises discretionary authority and control over the administration of Plan investments and investment-related expenses. FAC ¶ 22.

         BACKGROUND FACTS

         During the proposed class period, which began on February 17, 2010, the Plan offered a broad range of investment options for participants, who, pursuant to the Plan's IPS, bear sole responsibility “to make his or her own investment decisions.” IPS, Exh. J to Declaration of Catalina J. Vergara in support of motion to dismiss original complaint (“1st Vergara Decl.”), at 1. While the mix of investments varied over the years comprising the proposed class period, as of December 31, 2014, the Plan offered participants a choice of 13 Vanguard mutual funds, 12 Vanguard collective trust target-date funds, three non-Vanguard mutual funds, a Dodge & Cox fixed-income separate account, a State Street collective trust, and a Chevron common stock fund. FAC ¶ 27.

         Plaintiffs allege that defendants “caused the Plan's investment lineup to remain largely unchanged” since 2002. FAC ¶ 28. But that assertion is contradicted by other allegations showing that during the proposed class period, defendants moved certain funds to different share classes, added funds, and removed funds, see FAC ¶¶ 28, 79-80, 82-84, 86, 101, 102, 109; as well as by the Plan's judicially noticeable IRS Form 5500s for the years 2010-2014, see Defs' Request for Judicial Notice (“RJN”) in support of motion to dismiss FAC; Declaration of Catalina J. Vergara in support (“2nd Vergara Decl.”) ¶¶ 6-10 & Exhs. D-H thereto; Defs' RJN in support of motion to dismiss original complaint; 1st Vergara Decl. ¶¶ 7-11, Exhs. G-I.

         Participants could also choose to allocate up to 50% of the funds invested in their accounts among additional investments offered through Vanguard Brokerage Services, which included several thousand mutual funds from Vanguard and other companies. See 2nd Vergara Decl. & Exhs. D-H; 1st Vergara Decl. & Exhs. G-I; IPS at 6.

         In addition to selecting the funds in the Plan's investment lineup, defendants also chose Vanguard to serve as the Plan's recordkeeper. FAC ¶ 29. Plaintiffs allege that Vanguard mutual funds cast proxy votes on behalf of their shareholders for the securities in their portfolio, and that Vanguard “typically votes its proxies ‘as a block' to ensure ‘the same position being taken across all of the funds.'” FAC ¶ 32 (citation omitted).

         Plaintiffs assert that in voting its proxies, Vanguard “overwhelmingly” supports “management sponsored proposals regarding executive compensation and matters of corporate governance of companies in the Standard & Poor's 500-stock index.” FAC ¶ 33. They also claim that “[i]n the past year, ” Vanguard rejected 100% of shareholder- sponsored proposals seeking to require appointment of an independent chairman of the company's board.” FAC ¶ 34. Plaintiffs allege that in casting these proxy votes, Vanguard generally either abstains or votes against proposals requesting financial information regarding risks of climate change to a company or other environmental issues. FAC ¶ 35. Plaintiffs contend that Vanguard "holds" $13 billion of Chevron stock, which makes it the largest institutional holder of Chevron stock, and that Vanguard has consistently voted in favor of Chevron management proposals and against Chevron shareholder-originated proposals. FAC ¶¶ 36-39.

         Plaintiffs claim that "conflicts of interest" arose from the fact that Vanguard both owned significant amounts of Chevron stock, and also was doing business with Chevron as the Plan's investment provider. FAC ¶ 40. They assert that defendants could at any time have hired “a pure recordkeeper to provide the same level of services to Plan participants to avoid an arrangement 'infected by conflicts of interest.'" Id.

         Plaintiffs assert that defendants breached their fiduciary duties in choosing certain funds in the Plan lineup, and in failing to monitor those funds that were selected for the Plan lineup. First, as in the original complaint, plaintiffs assert that the Vanguard Prime Money Market Fund (the "Money Market Fund") - the Plan's sole conservative capital preservation investment option - was an imprudent choice because of its low return starting in 2008. FAC ¶¶ 41-46. Plaintiffs claim that stable value funds[2] generally outperform money market funds, and that in this case a stable value fund would have been a more prudent choice than a money market fund. FAC ¶¶ 46-70.

         Second, plaintiffs allege that a number of the funds in the Plan lineup - including Vanguard funds - imposed unreasonably high investment management fees, including fees that were excessive compared to lower-cost share classes of identical mutual fund options. FAC ¶¶ 79-92. Plaintiffs assert further that certain non-Vanguard funds charged excessive fees compared to what would have been charged for "separate accounts" tailored to the Plan, FAC ¶¶ 93-105; and that certain non-Vanguard funds charged excessive fees compared to "collective trusts, " FAC ¶¶ 106-110.

         Third, plaintiffs allege that the Vanguard Group, the Plan's recordkeeper, charged excessive fees during the time period it had a revenue-sharing arrangement with Chevron, although they also concede that recordkeeping paid out of revenue sharing is not a per se violation of ERISA's fiduciary requirements. See FAC ¶¶ 112-126. They assert, however, that if recordkeeping is paid for with revenue sharing from asset-based charges, there is a “potential” for excessive recordkeeping fees when assets or contributions increase, and that fiduciaries thus have duty to monitor revenue-sharing amounts to make sure that any increase in assets does not result in excessive recordkeeping fees. FAC ¶¶ 117-120.

         Plaintiffs allege that the Plan's recordkeeping fees were excessive because Chevron failed to monitor and control the amount of asset-based revenue sharing fees Vanguard received, and failed to investigate obtaining recordkeeping and investment management services available from other Plan service providers. See FAC ¶¶ 125-126. They also allege that in enabling Vanguard to generate significant revenue from revenue sharing (based on having placed Plan participants in higher-cost funds) Chevron made it possible for Vanguard to offer lower-cost or below-cost services to Chevron for its nonqualified corporate plans, which they claim created a conflict of interest because Chevron used the same recordkeeper for its 401(k) plan. FAC ¶¶ 127-128.

         Fourth, plaintiffs allege that Chevron breached its fiduciary duty by imprudently retaining the Artisan Small Cap Value Fund (ARTVX) as an investment option. They claim that this fund "paid an extremely high amount of revenue sharing to Vanguard, " and that "retaining this fund in the Plan drove an extremely high amount of revenue sharing to Vanguard." FAC ¶ 130. Plaintiffs assert that this fund significantly underperformed its benchmark, and that Chevron failed to monitor its performance and should have removed it earlier than April 2014, when they did remove it. FAC ¶¶ 131-140.

         In addition, plaintiffs allege that the Chevron defendants breached their duty to act in accordance with the Plan documents in failing to comply with the Plan's IPS with regard to their choices of the Plan's investment options, in particular, the selection of the Money Market Fund in lieu of a stable value fund, and failure to monitor it, FAC ¶¶ 42, 43, 45, 67-69, 154, and the retention of the ARTVX Fund past the date they removed it from the Plan lineup, and failure to monitor it during that time period, FAC ¶¶ 131, 139, 170. Plaintiffs assert that "[f]iduciaries who are responsible for plan investments governed by ERISA must comply with the plan's written [IPS], insofar as those written statements are consistent with the provisions of ERISA[, ]" and that failure to follow a written IPS constitutes a breach of fiduciary duty. FAC ¶ 144 (citing Cal. Ironworkers Field Pension Trust v. Loomis Sayles & Co., 259 F.3d 1036, 1042 (9th Cir. 2001)).

         In sum, plaintiffs contend that the value of their 401(k) retirement accounts - and those of other Plan participants - would have been significantly higher had defendants acted more prudently and chosen funds with higher returns or lower administrative and management fees (or both). They assert that the Plan fiduciaries are personally liable to make good to the Plan any losses resulting from the alleged breaches of fiduciary duty.

         Plaintiffs assert six causes of action in the FAC: (1) a claim of breach of duties of loyalty/prudence, and failure to comply with the IPS, under 29 U.S.C. § 1104(a), in connection with the selection of a money market fund instead of a "stable value fund;" (2) a claim of breach of duties of loyalty/prudence under 29 U.S.C. § 1104(a), based on unreasonable investment management fees; (3) a claim of breach of duties of loyalty/prudence under 29 U.S.C. § 1104(a), based on excessive administrative fees charged by the Vanguard Group, Inc. (the Plan's recordkeeper); (4) a claim of breach of duties of loyalty/prudence under 29 U.S.C. § 1106(a), based on causing the Plan to engage Vanguard as recordkeeper - alleged to be a “prohibited transaction” constituting an exchange of property between the Plan and a party in interest; (5) a claim of breach of duties of loyalty/prudence, and failure to comply with the IPS, under 29 U.S.C. § 1104(a), in connection with failing to remove the ARTVX Fund from the Plan lineup before they did remove it; and (6) a claim of breach of fiduciary duty by failing to monitor fiduciaries. See FAC ¶¶ 153-179. Defendants now seek an order dismissing the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

         CLAIMS OF BREACH OF FIDUCIARY DUTIES UNDER ERISA § 404(a)

         Under ERISA, plan fiduciaries are charged with the duty of loyalty, the duty of prudence, the duty to diversify investments, and the duty to act in accordance with the documents and instruments governing the plan. 29 U.S.C. § 1104(a)(1). Plaintiffs allege that the Chevron defendants breached the first, second, and fourth of these.

         In accordance with the duty of loyalty, “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and . . . for the exclusive purpose of . . . providing benefits to participants and their beneficiaries[ ] and defraying reasonable expenses of administering the plan.” Id. § 1104(a)(1)(A). As defined in the Restatement (Third) of Trusts, which is helpful in “determining the contours of an ERISA fiduciary's duty, ” Tibble II, 135 S.Ct. at 1828, the duty of loyalty prohibits trustees from “engaging in transactions that involve self-dealing or that otherwise involve or create a conflict between the trustee's fiduciary duties and personal interests.” Rest. (Third) of Trusts § 78 (2007).

         ERISA also requires that plan fiduciaries use “the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” Id. § 1104(a)(1)(B); see also Tibble II, 135 S.Ct. at 1828 (citing Fifth Third Bancorp v. Dudenhoeffer, 134 S.Ct. 2459, 2465 (2014)). Under this “prudent person” standard, courts must determine “whether the individual trustees, at the time they engaged in the challenged transactions, employed the appropriate methods to investigate the merits of the investment and to structure the investment.” Donovan v. Mazzola, 716 F.2d 1226, 1232 (9th Cir. 1983); see also Pension Benefit Guar. Corp. ex rel. St. Vincent v. Morgan Stanley Inv. Mgmt., 712 F.3d 705, 716 (2nd Cir. 2013) (prudence analysis focuses on fiduciary's “conduct in arriving at an investment decision, not on its results, and ask[s] whether a fiduciary employed the appropriate methods to investigate and determine the merits of a particular investment”).

         This duty of prudence extends to both the initial selection of an investment and the continuous monitoring of investments to remove imprudent ones. Tibble II, 135 S.Ct. at 1828-29. The Uniform Prudent Investor Act confirms that “[m]anaging embraces monitoring” and that a trustee has “continuing responsibility for oversight of the suitability of the investments already made.” Id. at 1828 (citation omitted). Further, "[w]hen the trust estate includes assets that are inappropriate as trust investments, the trustee is ordinarily under a duty to dispose of them within a reasonable time.” Id. (citation omitted).

         Finally, plan fiduciaries are required to act “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter.” 29 U.S.C. § 1104(a)(1)(D). However, the duty of prudence “trumps the instructions of a plan document.” Fifth Third Bancorp v. Dudenhoeffer, 134 S.Ct. 2459, 2467 (2014).

         DISCUSSION

         A. Legal Standard

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). To survive a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, a complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007); Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013).

         While the court is to accept as true all the factual allegations in the complaint, legally conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); see also In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'" Id. at 679. Where dismissal is warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).

         In addition, while the court generally may not consider material outside the pleadings when resolving a motion to dismiss for failure to state a claim, it may consider matters that are properly the subject of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001); Fed.R.Evid. 201(b). Additionally, the court may consider exhibits attached to the complaint, see Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), as well as documents referenced extensively in the complaint and documents that form the basis of a the plaintiff's claims. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); No. 84 Employer-Teamster Jt. Counsel Pension Tr. Fund v. America W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003). The court “may take judicial notice on its own, ” and “must take judicial notice if a party requests it and the court is supplied with the necessary information.” Fed.R.Evid. 201(c).

         Here, defendants request that the court take judicial notice of several Plan-related documents, including IRS Form 5500 filings for the Chevron Employee Savings Investment Plan (“ESIP”), submitted to the U.S. Department of Labor; a February 2012 Chevron ESIP participant newsletter entitled “Change is Coming to the ESIP: Your Wealth;” a U.S. Government Accountability Office Report (“GAO Report”) dated March 2011, entitled 401(k) Plans: Certain Investment Options and Practices that May Restrict Withdrawals Not Widely Understood; an August 2016 Vanguard newsletter entitled Money Market Reform and Stable Value: Considerations for Plan Fiduciaries; a July 2012 article by Karen P. LaBarge for Vanguard, entitled Stable Value Funds: Considerations for Plan Sponsors; a summary prospectus for the Vanguard Windsor II Investor Shares (“VWNFX”), dated February 24, 2011; a Morningstar report regarding equity ownership of Chevron stock as of September 30, 2016; and the 2011 instructions for IRS Form 5500. See Defs' RJN; Exhs. A-L to 2nd Vergara Decl. Plaintiffs do not oppose the request or otherwise claim that the documents are inaccurate, and the court finds that judicial notice is appropriate.

         B. Defendants' Motion

         Defendants argue generally that the FAC realleges the same claims of breach of fiduciary duty as in the original complaint, but still fails to plead cognizable claims. They contend that even with the substantial increase in length from the original complaint, none of the amendments is materially different from the original insufficient allegations, with the exception of the new “prohibited transaction” cause of action, and none cures the deficiencies that the court found required dismissal of all causes of action asserted in the original complaint. Thus, they argue, the FAC should be dismissed for failure to state a claim.

         Underlying the arguments in plaintiffs' opposition is an assertion that the court erred in its analysis and rulings in the August 29, 2016 order dismissing the original complaint. As such, it appears to be a procedurally improper motion for reconsideration. For example, plaintiffs contend that the court erroneously required plaintiffs to plead highly detailed factual allegations of the deficiencies in the process by which defendants failed to discharge their fiduciary duties, in order to state their claims. Plaintiffs assert that they should not be required to plead more facts than they did in the original complaint, because it is defendants - not plaintiffs - who have access to the "inside information" necessary to make out the claims in detail. Nevertheless, plaintiffs argue, their breach of fiduciary duty claims are now clearly plausible, as they have alleged "substantial additional detailed facts" in support of their six causes of action in the FAC, demonstrating that whatever fiduciary process defendants engaged in was "inadequate."

         1. Claims of breach of duty of loyalty

         In the original complaint, plaintiffs alleged that defendants breached their fiduciary duty of loyalty in connection with the selection of a money market fund instead of a stable value fund; with regard to the selection of fund options with high administrative and investment-management expenses; and with regard to the failure to replace the ARTVX Fund prior to the date they actually did so.

         In the order dismissing the original complaint, the court noted that plaintiffs had alleged throughout the complaint that defendants had breached their fiduciary duties of “loyalty and prudence.” The court noted that ERISA § 404(a) distinguishes the duty of loyalty from the duty of prudence; and found that as to the duty of loyalty, the complaint pled no facts sufficient to raise a plausible inference that defendants had engaged in self-dealing or had taken any of the actions alleged for the purpose of benefitting themselves or a third-party entity with connections to Chevron Corporation, at the expense of Plan participants, or that they had acted under any actual or perceived conflict of interest in administering the Plan. See Aug. 26, 2016, Order (“Order”) at 8-9.

         Defendants argue that the claims of breach of the duty of loyalty should be dismissed for the reasons stated in the August 26, 2016 Order. They contend that, with the exception of the claim regarding the selection of fund options with high administrative expenses, plaintiffs have added no new allegations sufficient to state a claim, and that with regard to that claim, they have alleged no facts showing any “conflict” on the part of the fiduciaries.

         In the FAC, plaintiffs allege that defendants breached their “duties of loyalty and prudence” in connection with the selection of a money market fund instead of a stable value fund (first cause of action), see FAC ¶ 154; with regard to the selection of funds with unreasonably high management fees and funds with excessive administrative fees (second and third causes of action), see FAC ¶¶ 158, 162; and with regard to the failure to replace the ARTVX Fund prior to the date they actually did so (fifth cause of action), see FAC ¶¶ 170-171. Each of these four causes of action is alleged in a purely summary and conclusory fashion, and, as in the original complaint, plaintiffs do not distinguish between “prudence” and “loyalty.”

         Nor do plaintiffs do so in the section of the FAC entitled “Facts Common to All Counts, ” at least with regard to the first, second, and fifth causes of action. For example, with regard to the selection of the money market fund instead of a stable value fund, plaintiffs allege that “Chevron imprudently and disloyally . . . failed at any time in the past six years to meaningfully investigate the prevailing and persisting economic circumstances and evaluate the prudence of retaining the Money Market Fund as the Plan's only conservative investment option . . . .” FAC ¶ 68. Indeed, the gist of the allegations is that by offering the money market fund as the Plan's only conservative, capital preservation option, from February 2010 to December 31, 2015, defendants breached the duty of prudence. See, e.g., FAC ¶ 70. They allege no facts supporting a claim of breach of the duty of loyalty.

         Second, with regard to the allegations of unreasonable investment management fees, plaintiffs allege, for example, that defendants “imprudently and disloyally” provided Plan participants with the more expensive share class of certain funds (instead of a cheaper identical investment). FAC ¶ 79. They also allege that defendants “imprudently and disloyally” offered non-Vanguard mutual funds that charged far higher fees than the fees Vanguard charges for similar investments. FAC ¶ 89. However, these allegations do not distinguish between the duty of prudence and the duty of loyalty, and plaintiffs allege no facts showing a breach of the duty of loyalty.

         Third, with regard to defendants' failure to remove the ARTVX Fund from the Plan lineup prior to April 2014, plaintiffs do not allege any facts sufficient to state a plausible claim of breach of the duty of loyalty. Indeed, most of the allegations regarding the ARTVX fund do not relate to the duty of loyalty, as distinguished from the duty of prudence. See, e.g., FAC ¶¶ 131-134, 139. The only allegation that appears to relate to the duty of loyalty is that “retaining this fund in the Plan drove revenue to Vanguard.” See FAC ¶ 130.

         However, this new allegation that defendants were motivated to retain the ARTVX Fund until April 2014 (despite poor performance in 2012 and 2013) in order to drive more revenue-sharing money to Vanguard for its recordkeeping role, allegedly in compensation for its proxy-voting policy, is contradicted by materials on which plaintiffs rely. Beginning in 2012 (and before the time plaintiffs claim defendants should have removed the ARTVX Fund from the Plan lineup), all revenue sharing from ARTVX was rebated to the Plan. The 2012 recordkeeping agreement that plaintiffs submitted with their opposition states, "Effective January 1, 2012, an administrative fee reimbursement equal to the amount of all fund subsidies (of any kind) received by Vanguard attributable to a plan's investment in the non-Vanguard funds are to be credited to the applicable Plan." Declaration of Heather Lea, Exh. 6 at 7.

         And even if Vanguard had continued to receive ARTVX revenue-sharing, plaintiffs do not and cannot allege that there were no equivalent small-cap funds paying just as much. Plaintiffs provide no factual basis for their speculation that Plan fiduciaries tolerated ARTVX's alleged underperformance for the purpose of ...


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