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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION IN RE: AMERICAN MEDICAL SYSTEMS, INC., PELVIC REPAIR SYSTEMS PRODUCTS LIABILITY LITIGATION MDL NO. 2325

AMS’S MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO QUASH SUBPOENAS ISSUED BY AMERICAN MEDICAL SYSTEMS, INC. AND FOR A PROTECTIVE ORDER The recipients of the subpoenas at issue (“movants”), led by convicted felon Vincent Chhabra, are at the center of an illicit enterprise that targets and cold calls women who have received vaginal mesh implants, solicits those women (many of whom have limited education or health care options) to sue manufacturers regardless of whether the women have issues with their implants, pressures those women to obtain explant surgeries from out-of-state doctors at exorbitant prices regardless of medical necessity, creates high-interest loans secured by the women’s lawsuits to pay for the unnecessary procedures and associated expenses, and then waits for the cases to be settled to achieve a payoff. At the Court’s urging, American Medical Systems, Inc. (and the current entity carrying on its mesh business, Astora Women’s Health, LLC, which are collectively referred to as “AMS”) has done its best to work out settlements for a substantial portion of the cases asserted against it. But that settlement process cannot be concluded unless and until AMS identifies the specific cases with meritless claims—or excessive damages claims—created by the movants. AMS is committed to working with the Court to resolve this mass tort, but AMS cannot and will not reward the movants’ scheme by paying

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claims for medically unnecessary surgeries—or inflated claims based on artificially created costs. In seeking to avoid AMS’s discovery about their enterprise, the movants attempt to normalize their activities by claiming their call centers only receive calls from potential plaintiffs and they act only as a referral service. The evidence gathered to date by AMS tells a far different story, however. As explained below, mesh patients are being solicited by cold callers armed with confidential medical information who employ distortion, exaggeration, and outright untruth to pressure these women to sign retention letters. Once signed up, the cases are bundled and sent by the movants to other law firms, and the plaintiffs are funneled to faraway surgeons they’ve never met for revision surgeries their own doctors never recommended (and, in some cases, recommended against). The surgeons are paid inflated cash fees (and substantial “bonuses” for each explant) – up to ten times the norm – by “funding companies” that insist that the plaintiffs avoid using insurance and then place exorbitant liens on the plaintiffs’ recoveries. By all appearances, a pyramid of businessmen, doctors and lawyers is orchestrating the exploitation of unsophisticated medical and legal consumers and seeking to perpetrate a fraud on AMS and the Court. And the moving parties are involved in every facet of this web. See Inside Massive Injury Lawsuits, Clients Get Traded Like Commodities for Big Money, Bloomberg Business, attached hereto as Exhibit 1. As it evaluates and defends these lawsuits, AMS is entitled to understand plaintiffs’ true injuries and the genesis of their damages claims, including the decision to undergo explant surgery. As this Court acknowledged during a December 29, 2015 hearing, “It would be interesting to know if [the Plaintiffs] decided on their own that they needed an explant surgery, and if that’s the case, how that went from [ ] their decision to get an explant to them having an

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explant because there certainly ought to be some analysis in between. And I think that AMS has the right to discover that.” See Transcript of Proceedings Before the Honorable Magistrate Judge Cheryl A. Eifert, Telephone Motions Hearing, Tuesday, December 29, 2015, 10:00 A.M., Huntington, West Virginia (“12/29/15 Hearing”), relevant portions of which are attached hereto as Exhibit 2, at 17:15-20. It is this very information that AMS seeks in its third-party subpoenas, and, as this Court has held on previous occasions, its relevance is beyond question. Moreover, none of the information sought is privileged or attorney work product, as it relates to substantive claims and damages asserted against AMS and to the movants’ business activities, not legal advice. AMS understands that discovery requires a delicate balance between fact-gathering and the protections of the attorney-client privilege and the work product doctrine, but the information AMS seeks is vital and appropriately discoverable. Accordingly, the Motion to Quash and for a Protective Order should be denied. I.

FACTUAL BACKGROUND A.

The Movants’ “Business Plan” to Solicit Plaintiffs for Lawsuits, Convince Them to Agree to Unnecessary Surgeries, and Thereby Inflate Damages

As this Court is aware, plaintiffs in this MDL claim that defective AMS mesh implants were used to treat their pelvic organ prolapse or stress urinary incontinence and caused them injury. AMS denies these allegations and maintains that its products are not defective and that the injuries plaintiffs claim are not medically caused by their implants. For hundreds of thousands of women, mesh implants have been effective and improved their quality of life. In defending against the claims of certain plaintiffs, AMS has uncovered a major source of suspect claims. Individuals and companies owned by or associated with Vincent Chhabra,

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who was convicted in 2004 of running an illegal online pharmacy1 and was then given additional prison time in 2009 for running an online puppy mill from prison2 have been making at least two types of “cold calls” to women who have AMS mesh implants. In the first, women are pushed to file lawsuits against AMS, by callers – sometimes with accents that indicate they may be working overseas – who somehow know the most private details of the women’s lives (including the fact that the women have mesh implants), and who promise them legal representation and financial recovery if they agree to sue. Affidavits of three women who have received these calls – Sally Donelson, Pat Thomas, and Jennifer Goodsoe – are attached respectively as Exhibits 3, 4, and 5. Each of these women reported receiving an initial cold call asking for information about any problems she had experienced with her AMS implant. Each woman answered that she was satisfied with her implant and had no problems, yet each continued to receive more calls “pressuring” her to complain about her mesh procedure and to agree that she had complications. All three reported being upset by the calls and shaken by the fact that the callers knew private medical information to which they had no legal access. The second category of calls – perhaps even more insidious – attempts to convince women to have their mesh implants removed – or “explanted” – whether or not their own doctors ever recommended such surgery. After months of investigation, including depositions of doctors, vaginal mesh plaintiffs, and employees of medical funding companies and surgery centers, it is clear that much of the recruitment and pressure to undergo explant surgery occurs before a patient ever consults a physician about such surgery.

1

See, e.g., Guilty Pleas Entered on FDA Case Involving Illegal Drug Trafficking, available at http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/2004/ucm108348.htm. 2

See “South Florida an Online Puppy Call Center Haven,” available at http://www.nbcmiami.com/news/local/South-Florida-a-haven-for-online-puppy-call-centers-118551519.html.

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In the typical scenario, a woman who has had her mesh implant for years with no history of complications is provided with frightening and inaccurate information about her implant and urged – without consulting her regular treating doctor or even against her doctor’s advice – to fly hundreds of miles from her home so a doctor she has met for the first time only the day of surgery (or sometimes the previous day) can perform major surgery on her. See, e.g. Deposition of Marjorie Elkins3, dated October 22, 2015 (“Elkins Dep.”), relevant portions of which are attached hereto as Exhibit 6, at 64:11-21; 68:18-69:6; Deposition of Florida Casias, dated October 19, 2015 (“Casias Dep.”), relevant portions of which are attached hereto as Exhibit 7, at 69:16-18; 76:22 – 77:3; 92:20 – 93:2; 112:4; Deposition of Julita Centola, dated October 20, 2015 (“Centola Dep.”), relevant portions of which are attached as Exhibit 8, at 52:1-9; 60:22 – 61:14; 63:14-18; Deposition of Judy Buzzell , dated January 25, 2016 (“Buzzell Dep.”), relevant portions of which are attached hereto as Exhibit 9, at 70:13 – 82:14. Even when a woman expresses a preference for a local doctor, she is assigned to one of the doctors who work with the funders. See, e.g., Exhibit 10, (fax from plaintiff Pauline Greenier to Surgical Assistance four months before she saw a physician, noting, “Would like to use this doctor” and naming a local Pennsylvania doctor. However, Dr. Christopher Walker performed the surgery in Florida four months later.) Part of the “pitch” to these women is the false assertion that there are no doctors to perform their explant surgeries locally and that they must travel to doctors affiliated with the movants. See Exhibit 11 (medical record from plaintiff Teri Elliott one month after her Florida explant, reporting to her regular doctor that she was told before surgery that “there are only three doctors in the country who remove the slings”).

3

Because AMS does not know whether the movants have obtained HIPAA releases from the plaintiffs, AMS is redacting identifying information from the documents and transcripts attached as exhibits to this Memorandum.

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Before any patient meets with a doctor, however, she has had multiple conversations with representatives from organizations run by the movants.4 For example, PRGI (which apparently is an acronym for “Perpetual Revenue Growth International”), an organization with call centers based in India whose registered agent and corporate officer is Vincent Chhabra, is involved in 1) assigning the plaintiff to a doctor; 2) making sure funding contracts are signed; and 3) obtaining authorizations from the new lawyers to whom the plaintiff’s claim has been “flipped.”5 See Florida Dept. of State Corporate Registration Information, Exhibit 13 (noting V. Chhabra ownership). See also PRGI Web Site Home Page, Exhibit 14 (explaining purpose of “Perpetual Revenue Group International”); Call Center Job Listing (Exhibit 15) (advertising opening for PRGI, Inc. Call Center Manager in Bengluru, India). All of the complicit doctors who have been deposed to date – Dr. Pescatore, Dr. Hulse, and Dr. Walker – testified that they met each plaintiff for the first time on the day of surgery (or sometimes the day before). Deposition of Earle M. Pescatore, M.D., dated December 5, 2015 (Pescatore Dep.”), Exhibit 16, at 73:12-25; Deposition of Michael Hulse, M.D., dated February 26, 2016 (“Hulse Dep.”), Exhibit 17, at 97:15-18, 99:11-15; 101:2-21; Deposition of Christopher Walker, M.D., dated May 3, 2016 (“Walker Dep.”), Exhibit 18, at 70:5-11. Although the women generally have health insurance (and often initially request to use it), at some point they are told by a call center that they cannot use insurance to pay for their explant surgeries. See, e.g. Elkins ep. (Ex. 6) at 62:17-21; 63:25 – 64:10; 76:19-21; Casias Dep. (Ex. 7) at 67:15-20; Buzzell Dep. (Ex. 9) at 157:5 – 158:24. Moreover, each participating doctor admits 4

The movants are closely related and share common officers and employees Based on information to date, it appears that The Law Firm Headquarters (“LFHQ”), a company of non-lawyers (or its offshore call center), makes the initial contact with each woman. LFHQ does “intake” on a prospect then funnels her to other movants down the line. 5

The series of e-mails attached collectively as Exhibit 12 illustrates the involvement of the movants and their affiliates (including Vincent Chhabra, his company PRGI, and his employee Amanda Lopez) in all of these processes.

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receiving payments and “bonuses” for performing surgery on women being referred to them by movants that are many times the going rate for such surgeries. Pescatore Dep., Ex. 15, at 23:724:5 (verbal contract with Tampa Women’s Clinic provided that he received a $1,000/day salary and a bonus for each surgery he performed, totaling $3,500 - $4,000 per case); Hulse Dep., Ex. 16, at 77:23-78:16 (admitting that he is paid significantly more for a “funded” case than for an insurance case); Walker Dep., Ex. 17, at 37:17-38:1, 98:24-100:18 (testifying that he receives between $3,500 and $4,000 per “funded” explant versus approximately $500 for performing the same procedure on an insured patient in his regular practice). The women are then required to “fund” these expensive surgeries, and the accompanying interstate travel, through “loans” or other complex financial arrangements involving various “middlemen” and other non-medical personnel. In the case of plaintiff Elkins, for example, she was induced to take out a “loan” for $21,000 to cover her surgery and related costs, see Elkins Dep. (Ex. 6) at 61– 67; 79 – 82, even though the cost of such surgery in her home state (if it had in fact been needed) would have been a small fraction of that amount. See Physician Fee Schedule Search for HCPCS Code 5287 (Revise/remove sling repair), (“Medicare/Medicaid Physician Fee Schedule”), Centers for Medicare & Medicaid Services (2016), https://www.cms.gov/apps/physician-feeschedule/search/search-results.aspx?Y=0&T=0&HT=0&CT=3&H1=57287&M=1, attached hereto as Exhibit x (showing cost range of mesh revision surgery to be between $589.35 $993.33). In its third-party subpoenas, AMS seeks to shed light on this two-stage effort to induce essentially uninjured plaintiffs to sue and to inflate the plaintiffs’ damages claims with unnecessary and overpriced explant surgeries. These activities not only exploit the women

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involved, but also harm AMS by generating meritless injury claims and inflating asserted damages.6 B.

The Movants’ Involvement in the Scheme to Solicit Women to Sue AMS and Inflate Damages 1.

The Movants Operate “Call Centers” That Solicit Women to File Lawsuits and to Undergo Explant Surgeries

In her deposition, plaintiff Judy Buzzell testified that she received two series of cold calls from two different “call centers,” both related to her AMS mesh implant. The first two calls warned her that her mesh implant was being recalled (it wasn’t) and that she needed to travel to Florida to have it removed. Buzzell Dep. (Ex. 9), at 70:11-71:1. The caller knew plaintiff Buzzell’s date of birth, Social Security number, and the date of her implant surgery, id. at 78:715, offered to fly her to Florida for explant surgery, and promised to help finance the trip if she could not afford it. Id. at 79:8-14. When Ms. Buzzell asked the name of the doctor who would perform the surgery, she was told that doctors were “in a pool of some sort.” Id. at 81:21. Before agreeing, Ms. Buzzell consulted her local obstetrician/gynecologist. The doctor examined Ms. Buzzell and found no evidence of pelvic pain, tenderness or extrusion, found the AMS mesh sling intact and in its normal position, and counseled Ms. Buzzell that she did not need to have the device removed. See generally, e.g. Deposition of [Treating Physician]7, dated April 1, 2016. relevant portions of which are attached hereto as Exhibit 21, at 110:1 – 124:8. Yet, contrary to the advice of her regular doctor, plaintiff Buzzell, a resident of Maine, traveled to Georgia for explant surgery by Dr. Michael Hulse, who was paid almost $10,000 in cash for the procedure. To pay for this, Ms. Buzzell incurred a $21,000 lien at 39% interest compounding 6

This exploitation is captured, from a plaintiff’s point of view, in an article entitled Special Report: Investors Profit by Funding Surgery for Desperate Women Patients, attached hereto as Exhibit 20 and available at http://www.reuters.com/article/2015/08/18/us-usa-litigation-mesh-specialreport-idUSKCN0QN1QT20150818. 7

AMS is withholding the name of Ms. Buzzell’s treating physician in deference to HIPAA concerns.

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monthly. See Judy Buzzell LawCash contract at LawCash 000090, attached hereto as Exhibit 22. The third call – from a caller who told her that his organization was “working together” with the prior callers – came from someone at the Sigma Law Firm, one of the law firm movants subpoenaed by AMS, soliciting Plaintiff Buzzell to file a mesh lawsuit. Buzzell Dep. (Ex. 9) at 85:21 – 87:5. Movant Michael Chhabra is a non-attorney partner in Sigma Law Firm (as well as subpoena recipients Alpha, MV, and Pegasus). Movants’ br., at 3.8 See also (Redacted) Letter to Plaintiff Buzzell from Sigma Law Firm, Exhibit 23; Smart Sheet entry for Plaintiff Buzzell, Exhibit 24, stating that the Law Offices of Albert Lazo represents her. Plaintiff Marjorie Elkins also received an unsolicited call offering “medical attention” to “correct problems” related to her mesh implant. The call came from the Law Firm Headquarters. See Marjorie Elkins Questionnaire, Exhibit 25.9 The movants state that the Law Firm Headquarters is not a law firm but “has provided traditional legal support services to the Law Firms separately, as the agent of each.” Movant’s br. at 3. Non-attorney Michael Chhabra is the Chief Operating Officer of The Law Firm Headquarters. Id. In fact, in an interview with Reuters, Chhabra conceded that The Law Firm Headquarters “purchases leads from offshore call centers.” See Medical Device Defendant Probes Origin of Mesh Claims, Reuters, March 10, 2016, attached as Exhibit x. What’s more, Chhabra admitted that some former call centers “used improper tactics such as asking prospective clients to wire them money or urging potential plaintiffs to sue.” Id. According to Chhabra, some of these call centers were “trying to cheat

8

The movants also state that “Ronald Lasorsa was a non-attorney partner in Alpha and MV,” Movants’ br. at 3.

9

The questionnaire, completed by a Surgical Assistance employee after “Carter” from The Law Firm Headquarters, transferred the call, asks, “How did you hear about the Law Firm.” The Surgical Assistance employee inserted the answer, “She was contacted.” Ex. 25, at No. 7.

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clients.” Id. AMS believes that Michael Chhabra and his father, Vincent Chhabra, operate these offshore call centers. What is undeniable is that call centers related to Chhabra-owned and operated companies, armed with personal information and spouting frightening untruths, have called women with AMS mesh implants, have solicited them to sue, and have convinced them to undergo surgeries that no one has recommended and that are performed by strangers.10 Beyond doubt, as this Court has previously held, the details of these calls are relevant to AMS’s defenses and its evaluation of cases. 2.

The Movants Are Involved with Funding Questionable Explant Surgeries for Mesh Plaintiffs

The movants’ involvement does not end with calls soliciting women to file suits and undergo mesh explant surgeries. Instead, the movants and their companies are involved with the funders’ scheme to circumvent insurance and supply over-priced loans to “fund” inflated cash payments to selected explant surgeons. As the emails attached as Exhibit 12 illustrate, PRGI, its employee Amanda Lopez, LFHQ, Michael Chhabra, and Vincent Chhabra were at the center of coordinated activities among patients, funding companies, and medical providers. In one e-mail, attached separately as Exhibit 28, Andy Fisher of LawCash (a litigation funder) asks, “Amanda, this file was sent to me via the Women’s Health Center of South Florida and the case is currently in review. . . . Please advise so we don’t have any issues with this one.” In another, Exhibit 29, Fisher e-mails Amanda and says, “Amanda, we are missing an attorney signature for Judy Buzzell. Since she 10

Vincent Chhabra, and companies he owns and their personnel, are also involved in internet advertising targeting women with mesh implants. For example, Dr. Hulse testified that he traveled to Miami and filmed an interview about mesh complications for posting on the web site of a company called “Medical Exposure, The Medical Awareness Headquarters.” Hulse dep., Ex. 17, at 46:12-47:5. Medical Exposure, to which Dr. Hulse has “lent his name,” id. at 48, is owned by Vincent Chhabra. See Medical Exposure Web Site Registration (listing Vincent Chhabra as owner), Ex. 26.

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lives in Maine, there is a second signature page required by the attorney. . . .” Finally, an e-mail attached separately as Exhibit 30 illustrates the rampant impropriety plaguing these funding transactions. In this e-mail, Dave Langevin, attorney for plaintiffs Elkins and Buzzell (and numerous other plaintiffs who have filed lawsuits against AMS), complains, This has turned into a total and complete train wreck. I was told everyone was going to make every effort to have the patients/clients speak with me, Rhett, or any attorney here at our office before the patients/clients signed the lien and certainly before surgery. I have been told several time no more surgeries would occur until the paperwork is complete. Nothing has changed. In fact, things have worsened. Now I am expected to sign something stating I, as the person’s attorney, reviewed and explained the documents prior to client signing. How is this possible if I am not retained as the person’s attorney until ten days later? This is very frustrating and we are all wasting too much time on a problem with an extremely simple solution. Do not book flights, hotels, and surgeries until an attorney has signed the attorney acknowledgment. See Ex. 30. As this e-mail makes clear--and as the documentation being sought by the subpoenas is expected to further reveal—the true underlying interests driving the explant surgeries in question are not doctors’ opinions or medical necessity, but instead are the pecuniary business interests of doctors, lawyers, and litigation financiers. Not surprisingly, the movants are not the first participants in this scheme to resist discovery about their activities. This Court has already compelled other third parties to produce similar documents and to appear for depositions, and has denied all of the third parties’ motions to quash AMS’s subpoenas. As the Court succinctly put it at the December 29, 2009 hearing: “Given that surgery is one aspect of Plaintiffs’ alleged damages, AMS has the right to explore the circumstances surrounding the surgery, including related payment information…” December 29, 2015 Order Granting Defendant’s Motion to Compel Answers to Deposition Questions and Documents Requested, attached hereto as Exhibit 31; see also id. (noting that the “questions posed and the documents requested are directly relevant to the medical necessity and

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reasonableness of Plaintiffs’ mesh removal surgery”); Transcript of Proceedings Before the Honorable Magistrate Judge Cheryl Eifert, Telephone Motions Hearing, Tuesday, April 12, 2016, 1:30 P.M., Huntington, West Virginia (“4/12/16 Hearing”), relevant portions of which are attached hereto as Exhibit 32, at 13:25 – 14:23 (ordering Broward Medical to produce a breakdown of the $22,000 Broward received for Plaintiff B’s explant surgery, because “it is an element of her damages, and the defendant has a right to know whether these are reasonable charges. They have a right to know whether the surgery was medically necessary. They have a right [to] know how that decision was made.”). As this Court also recognized at the December 29 hearing, discovery about the process of funding the surgeries at issue is also appropriate, as it has a significant impact on the calculation of damages and therefore AMS’s ability to fairly settle these cases. 12/29/15 Hearing, Exhibit 2, at 17:22-18:2. In sum, as this Court has held in the past, AMS is entitled to explore the roles the movants played in creating and inflating plaintiffs’ damages claims. The third-parties’ subpoenas seek information that is clearly relevant to AMS’s defenses and to its evaluation of plaintiffs’ cases for possible settlement. II.

THE MOVANTS HAVE NOT MET THEIR BURDEN OF PROVING THAT THE ATTORNEY-CLIENT PRIVILEGE OR THE WORK PRODUCT DOCTRINE SHIELDS THE DOCUMENTS AMS SEEKS The classic test for application of the attorney-client privilege was established in United

States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950). Under United Shoe, the privilege applies only when: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose - 12 -

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of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. United Shoe, 89 F. Supp. at 358-59, as cited in United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). The proponent of the privilege bears the burden of proving that the privilege applies. Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998), citing Jones, 696 F.2d at 1072. In this case, that means that the movants bear the burden of proving that their communications with mesh patients are privileged. Movants also bear the burden of showing applicability of the attorney work product doctrine. See, e.g., Solis v. Food Emp'rs Labor Relations Ass'n., 644 F.3d 221, 233 (4th Cir. 2011). They have not met these burdens here. A.

The “Law Firms” Are Law Firms in Name Only

As an initial matter, the nominal “law firms” do not practice law in any traditional sense, and, based on the record here, none provided legal representation to any of the women or even entered an appearance on any woman’s behalf. Instead, as explained below, the “law firms” engaged in the decidedly non-legal activities of gathering leads and setting the wheels in motion for the surgeries that would “raise the value” of the cases, then bundled the cases and “flipped” them to other law firms, like Akin Mears.11 It is axiomatic that an “Esq.” after a name does not a privileged communication make. Unless a communication relates to a client seeking legal advice and the attorney providing advice in response, the communication is not privileged. See, e.g., In re CFS-Related Securities Fraud Litigation, 223 F.R.D. 631, 635 (N.D. Okla. 2004) (“Business advice, unrelated to legal advice,

11

See, e.g, Inside Massive Injury Lawsuits, Client Get Traded Like Commodities for Big Money, Bloomberg Business, Ex. 1; Complaint, Shenaq v. AkinMears. G.P., et al, Harris County, Texas, No. 2015-57942, attached as Exhibit 33 (describing movant Alpha Law LLP’s sale of 13,837 mesh claims from its database to AkinMears. In turn, Akin Mears flipped the cases again, to other law firms including the McSweeney firm.)

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is not protected by the privilege even though conveyed by an attorney to the client.”); In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 798 (E.D. La. 2007) (“The test for the application of the attorney-client privilege to communications with legal counsel in which a mixture of services are sought is whether counsel was participating in the communications primarily for the purpose of rendering legal advice or assistance.”); Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 147 (D. Del. 1977) (“Only if the attorney is ‘acting as a lawyer’ giving advice with respect to the legal implications of a proposed course of conduct may the privilege be properly invoked.” In this case, the record to date shows that none of the “law firms” was providing legal advice to any of the women, and the movants have not established otherwise.12 Notwithstanding their misnomers, the “law firms’” communications with the women are not protected by the attorney-client privilege. B.

The Questionnaires and Related Materials Responsive to Requests 1 and 2 Are Not Shielded by the Attorney-Client Privilege

The movants argue that Requests 1 and 2, seeking questionnaires memorializing the movants’ communications with mesh patients and related materials, are “confidential communications with lawyers” shielded by the attorney-client privilege, “regardless of whether LFHQ provided phone support.” Movants’ br. at 12. In reality, the requested documents do not satisfy any of the elements of privileged communications. 1.

Law Firm Headquarters, Inc. Is Not an “Agent” that Preserves the Attorney-Client Privilege

The movants argue that communications between plaintiffs and LFHQ are privileged because, though LFHQ is not composed of lawyers, it “communicated with clients and

12

Accordingly, AMS is not seeking documents from McSweeney and Langevin, the lawyers who are actually involved in representing these plaintiffs in this MDL and in giving them legal advice.

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prospective clients and retained the data in confidence on behalf of the Law Firms . . . .” Movants’ br. at 12. It is true that, under certain circumstances, an agent communicating with a client on an attorney’s behalf is entitled to the protection of the attorney-client privilege. However, for the privilege to apply, the communication must be for the specific purpose of aiding a current client in obtaining legal advice. See, e.g., FTC v. GlaxoSmithKline, 294 F.3d 141, 148 (D.C. Cir. 2002) (consultants who were “integral members of the team assigned to deal with issues [that] ... were completely intertwined with [the client's] litigation and legal strategies” fell within the scope of the attorney-client privilege); Neighborhood Dev. Collaborative v. Murphy, 233 F.R.D. 436, 441 (D. Md. 2005) (stating that confidential communications between a client and its attorney, which were conducted through a third-party financial consultant for the purpose of obtaining legal advice, were protected). In contrast, solicitation materials--like the questionnaires filled in by employees of Surgical Assistance on behalf of LFHQ—are not privileged unless the communications were between a prospective client and an attorney. See, e.g., Devries v. Morgan Stanley & Co. LLC, No. 12-81223-CIV, 2013 WL 3243370 (S.D. Fla. June 26, 2013). In Devries, the court considered whether solicitation responses from potential opt-in plaintiffs were protected by the attorney-client privilege. The court held: Based on the nature of the solicitations, it is possible that the responses by potential opt-in plaintiffs may come within the umbrella of the attorney-client privilege. . . . [But the] privilege is designed only to protect confidential communications between the attorney and client regarding the matter of representation. . . . If any one of these elements is missing—if the communication is not confidential [or] if it is not between the attorney and client (or prospective client) . . . , the communication at issue is not covered by the privilege. Devries, 2013 WL 3243370 at *3 (emphasis added, internal punctuation and citations omitted).

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Here, it is undisputed that the solicitation communications were conducted by nonlawyers. They are not entitled to protection under the attorney-client privilege. 2.

The “Cold Calls” to Mesh Patients and Patients’ Calls Seeking Referrals to a Doctor Would Not Be Privileged Even If Conducted by an Attorney a.

The Women Were Not “Seeking to Become Clients”

Nor would the result change even if an attorney had been involved. In U.S. E.E.O.C. v. ABM Indus. Inc., 261 F.R.D. 503 (E.D. Cal. 2009), the court considered whether the EEOC’s questionnaires to potential claimants – employees of the defendant – were protected from discovery by the attorney-client privilege. One group of questionnaires was received from individuals whom the EEOC did not currently represent. Holding that responses to the questionnaires were not privileged, the court emphasized, Communications between an attorney and its client are privileged only if the requisite relationship exists. Regarding the questionnaire responses received from persons other than those whom the EEOC currently represents, the EEOC has not demonstrated that the persons who filled out and returned the questionnaires were seeking to become EEOC clients at the time they completed the document. ABM, 261 F.R.D. at 513. The cases cited by the movants illustrate the same proposition: when the communication involves someone who demonstrates that she “seeks to become a client,” typically by initiating contact with an attorney, the resulting communications may be protected by the attorney-client privilege. In United States v. Gumbaytay, 276 F.R.D. 671, 679 (M.D. Ala. 2011), the communications held to be protected occurred when “callers contacted the [Central Alabama Fair Housing Corporation] to explore the possibility of raising Fair Housing Act claims.” In United States v. Bennett, No. CR609-067, 2010 WL 4313905 at *4 (S.D. Ga. Oct. 5, 2010), the communications occurred when the defendant met with a lawyer, in the lawyer’s office, and explained the details of a fraudulent mortgage transaction. Bauman v. Jacobs Suchard, Inc., 136 - 16 -

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F.R.D. 460 (N.D. Ill. 1990), related to questionnaires completed and returned to the EEOC by prospective claimants seeking representation. In Barton v. Dist. Court, 410 F.3d 1104, 1112 (9th Cir. 2005), prospective clients completed and submitted a law firm’s online questionnaire. Even the Devries case discussed above, in which the judge was unable to make a privilege determination without seeing the documents at issue, involved potential opt-in claimants submitting questionnaires in their quest to become plaintiffs. Devries, 2013 WL 3243370. Here, however, as in ABM, we are dealing with unsolicited communications – cold calls – whether by lawyers or not. Two of the four women got calls completely out of the blue. Another plaintiff – Plaintiff Buzzell, who testified that she herself placed a call, was seeking a referral to a doctor, not for legal advice. The record before the Court demonstrates that these women were not clients and were not seeking to become clients; accordingly, these communications are not privileged. Compare Bauman v. Jacobs Suchard, 136 F.R.D. 460 (N.D. Ill. 1990) (fact that questionnaires were sent to individuals who had expressed an affirmative desire to be represented in EEOC action was critical to court’s finding that questionnaire was privileged). Furthermore, discovery to date suggests that the movant’s conduct implicates the socalled “crime/fraud exception” to the attorney-client and work product privileges. Under the crime/fraud exception, privilege does not shield documents from disclosure when: “(1) the client was engaged in or planning a criminal or fraudulent scheme when he sought the advice of counsel to further the scheme and (2) the documents containing [the privileged materials] ... bear a close relationship to the client's existing or future scheme to commit a crime or fraud.” Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999) citing In re Murphy, 560 F.2d 326, 338 (8th Cir. 1977). Moreover, courts have applied the exception to conduct that is not

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technically crime or fraud. See, e.g., Cleveland Hair Clinic, Inc. v. Puig, 968 F. Supp. 1227, 1241 (N.D. Ill. 1996) (exception applies to communications made in furtherance of “bad faith litigation conduct”); In re Sealed Case, 676 F.2d 793, 812 (D.C. Cir. 1982) (exception applies to “misconduct fundamentally inconsistent with the basic premises of the adversary system”). Here, from all appearances, the movants are engaged in conduct that is defrauding women into having unnecessary surgeries, or defrauding AMS and the Court by presenting concocted claims and/or falsely inflated medical costs, or all of the above. If discovery reveals that movants have engaged in fraudulent conduct – or in other conduct outside of the bounds of ethics and good faith – AMS reserves the right to brief the applicability of the crime/fraud exception to any privilege that might otherwise shield the movants’ documents from discovery. b.

The Women Did Not Have a “Reasonable Expectation” That Communications with the Call Center Would Be Confidential

As was the case in ABM, there is another key element of a privileged communication missing here – the “reasonable expectation” that a communication will be kept confidential. ABM, 261 F.R.D. at 510 (“[The questionnaire] does not promise or intimate in any way that the information disclosed in completing the questionnaire would remain confidential.”); see also, e.g., In re Wolbert, No. 09-30765, 2010 WL 8971772, at *4 (Bankr. W.D.N.C. Feb. 17, 2010), citing United States v. White, 950 F.2d 426, 430 (7th Cir. 1991). Movants assert that “of course” the solicitation calls to mesh patients were confidential, because the communications were not disclosed except to individuals who “furthered the rendition of legal services for the client.” Movants’ br. at 15. Even if this were an accurate description of the LFHQ callers (which, based on discovery to date, it is not), that is not the test. As courts have held, the fact that the communications were not actually disclosed is not dispositive. What matters is whether the communications were made under circumstances - 18 -

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giving rise to a reasonable expectation of confidentiality. See, e.g., In re Wilkerson, 393 B.R. 734 (Bankr. D. Colo. 2007). The case movants cite – United States v. (Under Seal), 748 F.2d 871 (4th Cir. 1984), emphasizes this distinction. As the Fourth Circuit held in that case: . . . [T]he privilege protects only confidential client communications; that is, communications not intended to be disclosed to third persons other than in the course of rendering legal services to the client or transmitting the communications by reasonably necessary means. We have recently said that the “essence” of the privilege is the protection of what was “expressly made confidential” or should have been “reasonably assume[d] ... by the attorney as so intended.” In determining whether it was to be reasonably “assumed that confidentiality was intended”, it is the unquestioned rule that the mere relationship of attorney-client does not warrant a presumption of confidentiality. United States v. (Under Seal), 748 F.2d at 874-75. Here, no reasonable expectation of confidentiality exists because the call centers made “cold calls” to women who had not reached out to hire a lawyer. Even if other indicia of privileged communications were present (which they are not), it would still be the movants’ burden to demonstrate that women receiving cold solicitation calls (or placing calls to call centers) believed that they were communicating in confidence. Obviously, the movants’ unsupported “of course” assertion fails to meet this burden. See, e.g., United States v. Duke Energy Corp., No. 1:00CV1262, 2012 WL 1565228, at *12 (M.D.N.C. Apr. 30, 2012), citing Byrnes v. Jetnet Corp., 111 F.R.D. 68, 71 (M.D.N.C. 1986) (court could not determine whether attorney-client privilege existed because the proponent of the privilege had failed to establish “the necessary factual predicate,” emphasizing that “[i]t is incumbent upon the proponent [of the privilege] to specifically and factually support his claim of privilege. . . .”).

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c.

The Facts in the Questionnaire Responses Are Not Privileged

Finally, even if the prior failings could be overcome, the attorney-client privilege still would not protect the factual statements in the questionnaires from discovery. As the ABM court explained: Not all communications between attorney and client are privileged. . . . Privilege attaches only if the communications constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence. Here, the form of questionnaire is very short, less than two pages, it seeks identifying information (name, address, age, and telephone number); it asks for broad, general and limited information relevant to the recipient’s employment with ABM; and it seeks broad and general information about the claims pursued by the EEOC. . . . ABM, 261 F.R.D. at 510 (citations omitted). In this case, the LFHQ questionnaire occupies less than one page and records only basic facts about the call recipient and her mesh implant. Like the responses in ABM, this is not the sort of confidential information protected by the attorneyclient privilege. C.

The Work Product Doctrine Does Not Shield the Documents AMS Seeks

The movants also argue that the work product doctrine shields documents responsive to Requests Nos. 1, 2, 3, 6, 7, 8 and 12-16 from disclosure. None of those documents is entitled to work product protection. 1.

Call Center Questionnaires, and Women’s Responses to Them, Are Not Protected Work Product

Though the movants list eleven requests that ostensibly seek protected work product, their arguments focus only on call center questionnaires and the women’s responses to them. Rule 26(b)(3) of the Federal Rules of Civil Procedure provides that, “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. . . .” Fed. R. Civ. P. 26(b)(3). To the movants, this means that AMS is not entitled to obtain LFHQ’s blank call center questionnaire - 20 -

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forms or its completed questionnaires with women’s responses inserted. Courts have emphatically held otherwise. In ABM, after holding that the attorney-client privilege did not apply, the court considered whether the EEOC’s blank questionnaire forms and the recipients’ responses to the questionnaires were protected attorney work product. The court held that, as an initial matter, “[t]he questionnaire was clearly prepared by the EEOC’s legal staff during the course of this litigation in order to pursue the interests it sought to vindicate by way of its lawsuit. As such, the [blank] questionnaire [form] itself is covered by the attorney work product doctrine.” ABM, 261 F.R.D. at 512. However, the court held that the EEOC waived protection for the questionnaire form when it disseminated to the form to the prospective claimants. Id. at 513. Here, notwithstanding the movants’ assertion that the questionnaires were “created by LFHQ call center agents and case managers under the direction and control of the Law Firms . . . ,” Movants’ br. at 17, the movants have not met their burden of proving that the non-lawyer LFHQ was acting under the “direction and control” of lawyers when it created the form of questionnaire. Moreover, the LFHQ questionnaires were not created “for a party” or “in anticipation of litigation.” As explained above, LFHQ, and other entities operated by the movants, initiate “cold calls” to women whose personal information they have received. These women are not “clients” or “parties”; instead, they are the targets of unsought solicitation and high-pressure sales tactics. The questionnaires are not prepared “in anticipation of litigation,” as there is no evidence that that any of the nominal “law firms” represents, or ever intended to represent, any of the women in mesh litigation. Instead, the information entered on the questionnaire facilitates the movants’ efforts to talk women into signing up for surgeries so the movants can maximize the prices they

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will be paid for “flipping” the women’s claims to firms that will actually represent them in litigation.13 Most importantly, even if the questionnaire form had been entitled to work product protection, that protection was waived. As courts have explained, “[b]ecause the work-product doctrine serves instead to protect an attorney's work product from falling into the hands of an adversary, a disclosure to a third party does not necessarily waive the protection of the workproduct doctrine. Most courts hold that to waive the protection of the work-product doctrine, the disclosure must enable an adversary to gain access to the information.” United States v. Duke Energy Corp., 214 F.R.D. 383, 387 (M.D.N.C. 2003). In this case, the questionnaire form was disseminated to multiple participants in the scheme with no reasonable expectation that it would never be disclosed. As a result, AMS “gained access to” plaintiff Marjorie Elkins’s LFHQ questionnaire in a production from the owner of the entity who scheduled her surgery, Mr. Bhojani. Because the questionnaire form is already disclosed and known to AMS, it cannot be entitled to work product protection. Even if the form itself had not already been produced, the work product doctrine would not protect the women’s responses. As the ABM court explained: “Nor would the questionnaire responses from this group of persons be protected by the work product doctrine. Having waived the protection with respect to the form of questionnaire, their responses are essentially verbatim witness statements made by third parties. As such, those responses are not protected by the work product doctrine.” Similarly here, the information recorded on the questionnaire forms is purely

13

The emails attached collectively as Ex. 12 illustrate this process, as Amanda Lopez, Vincent Chhabra, Michael Chhabra, and others fast-track the funding and logistics for women’s explant surgeries while simultaneously attempting to “flip” the women’s claims to lawyers who can represent them in litigation. As bemoaned by Dave Langevin of the McSweeney firm in the e-mail attached as Ex. 30, the resulting indifference to any proper sequence can result in women queued for surgery with no one to sign their paperwork as their “representing lawyers.”

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factual and is not shielded by the work product doctrine. Accord Agee v. Wayne Farms, L.L.C., No. 2:06CV268KS-MTP, 2007 WL 2903208, at *2 (S.D. Miss. Oct. 1, 2007) (“In addition, as for the answers to the questions, these are clearly facts which are not themselves protected by the work product doctrine.”) citing Gates v. Rohm & Haas Co., No. 06-1743, 2006 WL 3420591, at *5 (E.D. Pa. Nov. 22, 2006) (“the purely factual information contained on the completed questionnaires is not protected [by work product]”) (additional citations omitted). In sum, the LFHQ questionnaires and the women’s responses to them do not satisfy the elements of Rule 26(b)(3), and the work product doctrine does not shield them from discovery.14 2.

Even if Any of the Requested Documents Constitutes Fact Work Product, AMS Has Demonstrated Substantial Need for Those Documents

As the movants state, Rule 26 requires disclosure of fact work product when the requesting party can “show that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed R. Civ. P. 26(b)(3)(ii). Throughout this brief, AMS has explained that it must understand the details of the movants’ scheme to inflate women’s damages claims by funding assembly-line surgeries in order to defend against these lawsuits and to evaluate them for possible settlement. Movants’ supposed “work product” is nothing of the sort; however, even it were, this material is essential to AMS’s defenses and understanding of the movants’ scheme—information that AMS cannot obtain by any other means. Specifically, Requests 1 through 3 seek documents that illuminate the movants’ efforts to choose, contact, and communicate with vaginal mesh patients, and Request No. 6 seeks the

14

These arguments apply with equal force to the categories of supposed “work product” the movants list without argument, to the extent that any of these categories of documents would be entitled to work product protection in any event.

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advertising and marketing materials the movants used in those efforts. As demonstrated above, the movants are in the business of contacting mesh patients, pressuring them to file lawsuits, and convincing them to sign “funding contracts” so doctors they’ve never met can remove their mesh implants. Documents responsive to Requests 1, 2, 3 and 6 will enable AMS to learn how the movants chose the women they solicited and what the callers said to induce women to travel hundreds of miles and incur exorbitant debt to undergo surgery they may never have needed. As noted above, this Court acknowledged, during the December 29, 2015 hearing, that AMS “has the right to discover” the answers to these questions. 12/29/15 Hearing (Ex. 2) at 17:15-20. Similarly, AMS has a substantial need to obtain contracts involving the movants and relating to lead generation for mesh claims and the funding and financing of mesh explants, (Requests 7 and 8), as well as all communications the movants have had with doctors, funders, and facilitators regarding AMS mesh products, patients who were implanted with AMS mesh products, or ownership or interest in the proceeds from litigation brought against AMS (Requests 12-16). As AMS has explained, to discern whether the “funded” surgeries were medically necessary, or, conversely, whether they were performed to inflate plaintiffs’ damages, AMS needs a comprehensive understanding of the details and mechanics of what each plaintiff was told and where the money that supposedly was spent on her treatment went, including who is involved, how the surgery costs are determined, who is profiting from these surgeries, and the amount of that profit. AMS cannot obtain this information except from the documents it has requested. Accordingly, even if this Court holds that documents responsive to Requests 1, 2, 3, 6, 7, 8, 12, 13, 14, 15 and 16 contain fact work product, AMS has demonstrated that it has a

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substantial need for the information these documents contain and has no other means to obtain this information. In sum, the movants have failed to meet their burden of proving that, as a general matter, the attorney-client privilege or the work product doctrine shields the documents requested by AMS’s subpoenas. If, for any specific document, the movants can meet their burden of proving that any privilege applies, they are free to make those arguments to this Court. III.

IF THE COURT HAS CONCERNS ABOUT THE SCOPE OF THE SUBPOENAS, AMS CAN NARROW ITS REQUESTS Throughout their brief, the movants argue that AMS’s requests are overbroad because

they are not limited to documents related to AMS mesh plaintiffs. The movants assert, “Were the Court to entertain permitting AMS’s demands, that conclusion should follow only if the Court limits AMS’s request to documents concerning specific patients in this MDL for whom AMS can provide a valid proffer of relevance . . . .” Movants’ br., at 11. In meet and confer conversations, AMS told the movants that it was certainly willing to confirm that its subpoenas were limited to documents concerning AMS plaintiffs only. AMS also suggested that the movants offer suggestions to make the requests more manageable for them. The movants, however, chose not to offer any suggestions and instead apparently ignored those conversations. In order to resolve this motion, AMS is prepared to provide the movants with a list of 100 plaintiffs with cases pending in AMS’s mesh MDL and will accept, at least for now, production of documents (including recordings of call center conversations) related only to these 100 plaintiffs.

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IV.

CONCLUSION As this Court has repeatedly concluded, AMS is entitled to understand why its mesh

plaintiffs are traveling hundreds of miles and foregoing their health insurance so doctors they’ve never met can perform surgeries they may not need. AMS has taken discovery of funding sources, surgeons, and plaintiffs, and but needs to fill in the missing pieces of the puzzle – to learn what happens “one level down” in the process. The movants are involved in every phase of the effort to solicit these plaintiffs and to convince them to undergo “funded” mesh explant surgeries. The requested documents are unquestionably relevant to AMS’s ability to evaluate these cases and defend against them, and no valid privilege protects the documents from disclosure. The Motion to Quash and for Protective Order should be denied.

Respectfully Submitted,

/s/ Erik W. Legg, Esq. Michael J. Farrell, Esquire (WVSB # 1168) Erik W. Legg, Esquire (WVSB # 7738) FARRELL, WHITE & LEGG PLLC 914 Fifth Avenue Huntington, West Virginia 25701 (304) 522-9100 [email protected] [email protected]

/s/ Rachel B. Weil, Esq. Barbara R. Binis, Esquire (PA Bar # 62359) Michael T. Scott, Esquire (PA Bar # 23882) Rachel B. Weil, Esquire (PA Bar # 49844) REED SMITH LLP Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia, Pennsylvania 19103 (215) 851-8100 [email protected] [email protected]

Dated: May 12, 2016

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CERTIFICATE OF SERVICE I hereby certify that on May 12, 2016, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the CM/ECF participants registered to receive service in this MDL. A copy of the foregoing document was also sent via e-mail and UPS (overnight) to the persons listed below: Abbe David Lowell Michael A. Samalin Stacey L. Trimmer Chadbourne & Parke LLP 1301 Avenue of the Americas New York, NY 10019-6022 Attorneys for Michael Chhabra, Vincent Chhabra Ronald Lasorsa, Law Firm Headquarters LLC, Sigma Law Firm, LLP, Alpha Law LLP, The Law Offices of Albert J. Lazo, P.A., Martindale Voight LLP, and Pegasus Law LLP Rhett McSweeeny, Esquire McSweeney/Langevin LLC 2116 2nd Avenue South Minneapolis, MN 55404 Attorney for Plaintiffs

__/s/ Rachel B. Weil, Esquire___________ Rachel B. Weil

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