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Sun Dec 6 2009 22:19:57

AuctionBytes on Location at eBay v Craigslist Trial

By: Ina Steiner

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AuctionBytes is in Georgetown, Delaware and will be covering the eBay versus Craigslist corporate governance trial that will kick off tomorrow. 

Georgetown is a quaint town housing the Sussex County Courthouse and Court of Chancery, a few antique shops and restaurants, a private airport, and little else, but decisions that affect some of the largest U.S. corporations are decided in this tiny town. 

Former eBay CEO Meg Whitman, eBay founder Pierre Omidyar, Craigslist founder Craig Newmark, and Craigslist CEO Jim Buckmaster will appear tis week before Chancellor William B. Chandler III. Follow AuctionBytes coverage in this blog and in the AuctionBytes Newsflash newsletter. 







Update 12/7/9: I'm sitting in the courtroom. Our photographer is outside hanging out with the AP and Reuters photographer, he got a shot of Jim Buckmaster walking into the building next store with his entourage. eBay's PR is in full force managing the media.

Just shook hands with Meg Whitman who is now in courtroom. I've asked for the opportunity to interview Meg and Pierre, we'll see what happens.

Meg is looking very composed, she's set to give testimony at 10 am, and then cross-examined this afternoon. This is the first time I'm aware she had to testify in a trial. When I covered the Supreme Court hearing in the MercExchange v eBay patent case, it was just the lawyers talking.

Update 9:58 am: Craigslist CEO Jim Buckmaster is here, but I don't expect Craig Newmark to show up today. Had a chat with Jim, he's sitting two rows ahead of me.

The Delaware Chancery courtroom is very small, it's being telecast and they have an overflow room with a tv. Dow Jones, AP, Reuters, Bloomberg and ClassifiedIntelligence are here. I had expected LA Times might have sent a political reporter given Meg Whitman is running for governor of CA, but they must be relying on the wire services.

Update 12/7/09 1:02 pm Meg Whitman gave testimony, now excused so she can get back to the campaign trail. Some significant factoids coming out. Meg said eBay paid Philip Knowlton $16 million for his 28% stake in CL shares, and paid Craig Newmark and Jim Buckmaster another $16 million for shareholder rights, such as a seat on the board.

eBay lawyer tried to establish that eBay was actively engaged in classifieds at same time negotiating with Craigslist, Craigslist lawyer tried to establish eBay was freely passing CL data around the company to help it make acquisition decisions etc.

Update: 3:48 pm: Craigslist lawyer getting to Pierre's fiduciary duty as a Craigslist director and whether he had a duty to inform CL of the competitive threat eBay posed. Pierre said he communicated urgency that eBay was developing a project and had an urgent commitment, but did not specifically say, here's a product, a name and a date.


Tuesday December 8, 2009


Notes from second day of eBay v Craigslist trial, Josh Silverman questioned by eBay lawyer and Craigslist lawyer. 1:45 pm

In late 2005, then eBay CEO Meg asked Josh Silverman, now CEO of Skype, to get involved with Craigslist business while still responsible for Marketplaatz and eBay's auction business in the Netherlands. In March 2006 went to become CEO of Shopping.com.

Meg Whitman asked Josh Silverman to replace Pierre Omidyar on Craiglist board. Josh said Meg wanted someone with operational experience. Meg, Josh and Craigslist CEO Jim Buckmaster had lunch in 2005 where Meg gave Jim Josh's background.

Josh Silverman said the New York Attorney General's antitrust investigation into eBay's ownership of Craigslist shares impacted the relationship - every contact he had with CL needed to be vetted by lawyers. 

In March 2006, Mr. Silverman said he made information available to Craigslist about the launch of two competitors that were launching - Google Base, Microsoft Expo. "We considered them very competitive threats in market, we wanted to be as helpful as possible to Craigslist to help them understand and continue to prosper in the face of that threat." He said Meg Whitman wanted to know what CL was doing to counter the attack.

He said Jim Buckmaster said he would check with his attorneys to see if he could talk about that.

Mr. Silverman said that in the few contacts he had with them, he said Craigslist always said, we don't think about competition. If someone comes along and can serve our community better, that's great.

Mr. Silverman seemed confounded about Craigslist's attitude toward competition. He said Craigslist was stockpiling revenues in the bank instead of investing them back into the company to make improvements to help serve its community, such as Trust and Safety and User Interface investments.

According to Silverman, CL's Craig Newmark and Jim Buckmaster were unresponsive to his efforts to reach out and provide them with information. CL's lawyer did show some emails that indicated Jim Buckmaster did respond to some of his responses, so this may be explored when Mr. Buckmaster takes the stand.

Silverman said the when eBay asked him about Craigslist while they were considering launching Kijiji in the U.S., he used a "train on tracks" analogy. The gist of what he said is:

If you take a snapshot and compare Craigslist to 5 years ago and 10 years ago, you'll struggle to notice anything that has happened in 10 years. If you fast forward, it is likely Craigslist would look exactly as it does today. If you think leading classified site will look like it does today then by all means, then they are the horse to bet on.

Craigslist lawyer asked if Silverman had ever disclosed to CL that eBay had asked them about CL management.

He asked if Mr Silverman was familiar with the term Chinese Wall, and asked about confidentiality requirements (keeping CL data confidential).

Update: 2:12 pm
In testimony today, Josh Silverman said he delayed Craigslist board meeting until eBay made decision to launch Kijiji in U.S. Craigslist lawyer shows there was some discussion about how much notice to give Craiglist (10 days or 2 weeks) and has asked Josh if he didn't delay the board meeting on purpose so as not to have to give greater advance notice to CL about the launch. Josh said eBay had not made the decision to launch, and he preferred to delay the meeting until a decision had been made.

Note about proceedings. Last night at 5pm, eBay lawyers told Judge Chandler that he had about an hours worth of questioning left for Josh Silverman, and that Craigslist likely wanted at least that much time to question him on the stand, so why not break for the evening. (The judge will go to 6pm latest if appropriate.)

But today at noon when Craigslist lawyer asked about breaking for lunch, eBay's lawyer said why not push through lunch because Josh Silverman had to go to an important meeting in Luxembourg tomorrow.

Craigslist lawyer said that was the first time she and the court heard of that, and they could have continued on last evening if they had known. Judge made lunch 40 minutes instead of an hour. At 3pm, we'll see if the judge accommodates Josh's schedule or Craigslists' lawyer's need to question JS.


Wednesday, December 9, 2009 12:25 pm

Craigslist lawyer cross-examined all morning eBay counsel Brian Levey who helped negotiate the deal between eBay and Craigslist in 2004. Mr. Levey was responsible for drafting the NDA agreement and other legal issues surrounding the deal. (He calls himself the Quarterback on the deal.)

Much of today's questioning has to do with Mr. Levey forwarding confidential Craigslist information to the eBay team responsible for eBay's classified strategy to aid them in deciding whether and how to launch classifieds site in U.S. Mr. Levey said that was allowed under the agreement.

Also touched on decision to give Craigslist only 10 days notice of Kijiji's U.S. launch (mid June, when decision to launch was made in April). Lawyer points out that eBay told its own community on the same day.

In 2007, Josh Silverman recommended Jacob Aqraou take over his seat on Craigslist Board. Jacob was taking over global classifieds at the time. Lorrie Norrington agrees in an email that "conceptually it is a cleaner way to proceed." John Donahoe's response was, "Let's settle this once we nail down our US classifieds strategy, it may not make sense to introduce a new face if we are going to compete."

Because this case is about eBay losing its seat on the board because of actions Craigslist took, the issue of the board seat is important. Craigslist lawyers show some emails show that Jacob Aqraou believed eBay would lose its Board seat if it launched classifieds site (with job postings) in US. Lots of delving into this issue.

Update 12/9/09 3:00 pm
eBay executive Garrett Price on the stand on Tuesday afternoon being questioned by eBay's lawyer. Mr. Price said Craigslists's Craig Newmark and Jim Buckmaster felt it unfair for Phillip Knowlton to get money from eBay for Knowlton's shares because they felt he had obtained the shares "in a fraudulent fashion" or did not warrant being rewarded for them. (Garrett Price's words.)

Mr. Price said Misters Newmark and Buckmaster made it clear to him that they would not approve a transaction with Phillip Knowlton receiving any funds if they did not receive the same amount of funds themselves.

According to Mr. Price, Newmark and Buckmaster did not want it known they received money. He said he thought they felt it would compromise their carefully crafted image that they weren't interested in monetary things and it would hurt their image.

Update: 3:49 pm:
I wanted to make sure I heard this right, I double-checked with Wall Street Journal. (Jerry DiColo of Dow Jones is sitting behind me.) Garrett Price characterized the payment to Jim Buckmaster and Craig Newmark for certain rights to invest in the company as "extortion." See last update above for context.


Update December 10, 2009 11:15 am

Google was other suitor in Craigslist shares in 2004!

Google was in talks with Craigslist in the summer of 2004 about acquiring Phillip Knowlton's shares of Craigslist. eBay ultimately purchased the shares in a 3-way deal between the parties.

Early testimony on Thursday revealed that Google had insisted on gaining controlling interest or full ownership in Craigslist.

Craigslist lawyer has been cross-examining eBay executive Garrett Price all morning. He asked Mr. Price about emails, slide decks, confidentiality agreements and the shareholder agreement.

Mr. Price said he had evaluated the likely untapped revenue potential of Craigslist across geographies and categories. (Craigslist is free in most categories.)

Be sure and follow the AuctionBytes Twitter feed to see real-time news coming from the courtroom proceedings.


Craig Newmark arrives Thursday morning to deliver his testimony in eBay/Craiglist case

Update 3:40 pm
Google and Warburg Pincus Vied with eBay for Shares in Craigslist

Craigslist founder Craig Newmark said he spoke to Google, eBay and Warburg Pincus in 2004 when disgruntled shareholder Philip Knowlton looked to sell his shares in the online classified site. Newmark was testifying at the eBay v Craigslist corporate governance trial on Thursday afternoon.

He said Google had only been interested in acquiring the whole company, and while he trusted Google and their Don't Be Evil philosophy, keeping control was the only way he could be sure.

He heard of the sale of company shares through some combination of Jim Buckmaster and Ed Wes.


Update December 11, 2009 11:15 pm
eBay's lawyer Mike Rhodes of Cooley Godward spent four hours cross-examining Craigslist founder Craig Newmark on Friday morning. Mr. Rhodes seemed frustrated at times with Mr. Newmark's deliberate approach to answering questions. Mr. Newmark remained calm and unflappable during what was sometimes grueling examination.

Summarizing and paraphrasing some of key points:

- Mr. Rhodes showed that Craigslist published some site metrics on its blog and that there were ways to get site metrics - however flawed or inaccurate - from sites such as Wayback machine and Compete.com. Craigslist has accused eBay of using Craigslist confidential and proprietary information inappropriately.

-  Mr. Rhodes pointed to evidence that eBay had offered to help Craigslist in October 2004, including emails from Kent Walker and Rob Chesnut with regard to Trust & Safety issues. Craig Newmark said the help was not of value and he wasted his time in unfruitful efforts as a result.

- Mr. Rhodes pointed that the shareholder agreement between Craigslist and eBay in August 2004 did not include promises that former eBay CEO Meg Whitman personally made to Craig Newmark, and asked if it was Craigslist's legal team's fault for not putting Meg's promise into contract. Mr. Newmark has stated that Ms. Whitman broke her promises to him and called it a "betrayal of trust."

- Mr. Rhodes went over some of the emails between Craig, CEO Jim Buckmaster, and media consultant Susan Mactavish Best in which they were developing public statements on what to say on certain matters, including about eBay's launch of Kijiji (its online classified site). Mr. Rhodes pointed that Craigslist publicly stated that it was not concerned about competition.

- Mr Rhodes delved into legal issues of the corporate governance activities that Jim Buckmaster and Craig Newmark put into place in 2007 that are the heart of the case.

- Mr. Rhodes tired to determine what Craigslist does with the cash it generates, he said because former eBay executive and Craigslist Board member Josh Silverman had testified he was concerned about Craigslist's use of cash. He asked if Craigslist business throws off a fair amount of cash, and Mr Newmark said, "I don't know if I can disclose that in a public setting. Mr. Rhodes asked if the company's operating margins were over 80%, Mr. Newmark said "We don't disclose that." At that point, Craigslist lawyer objected, stating that it was giving confidential information that was under seal.

- Mr. Rhodes asked Mr. Newmark if he understood that the corporate governance measures do not address eBay scraping the Craigslist site; the purchase of Craigslist keywords on Google Adwords; and eBay's misuse of confidential data (these are issues Craigslist has alleged in a lawsuit against eBay in California).

Mr. Rhodes expressed great surprise when he purported to learn this morning that Clint Powell was Mr. Newmark's  boss at Craigslist. ("Is he really your boss," he asked.)

Update: 3:00 pm
Craig Newmark answered a few questions on the steps of the courthouse after his testimony. He said he was pleased to be done testifying. "I'm pretty grateful for the Court's cooperation."

He then said he was going to Washington tomorrow to meet with Veterans Affairs and judge an innovation contest. The VA lost ground in prior years, there is a backlog in medical claims and the GI bill is in bad shape, and 120,000 people have not been paid, he said.

A reporter from Bloomberg asked if Mr. Newmark could talk about the David and Goliath reference in general, which came up in his testimony (see AuctionBytes news article). Craigslist lawyer would not let him answer the question.

AuctionBytes asked if Craig saw parallels in the Craigslist community and the eBay community, he said people have the same values in common, those who use both sites.

Craigslist lawyer then whisked him away.

Craigslist CEO Jim Buckmaster is now on the stand.


Update: AuctionBytes was on location in Georgetown, Delaware for the first week of the trial. I am now reading accounts from both the wire services including Reuters and Associated Press and other outlets who are watching via remote video coverage, as well as reports from Charles McKinney, a freelance writer who has been reporting daily from Georgetown for the AIM Group. I've got more to say on what's transpired in this case, more to come later.




Comments (116) | Permalink

Readers Comments

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: joe

Mon Dec 7 02:51:59 2009



I sure hope your able to interview both Whitman and Omidyar if you can ask why they (Omigyar) are allowing the butchering of marketplace sellers to continue by John Donahoe.

good luck out there.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Marvin

Mon Dec 7 05:35:13 2009

Joe,

I think every one would like that question answered.

The key to understanding why a company operates the way it does often lies with understanding the founder. Also a good deal of insight can be gleaned from understanding why those that run the company were chosen.

Ebays founder:
Born in France, of Iranian parents.
Emigrated to US at age 6 and later acquired U.S. Citizenship.
Created a site devoted to the ebola virus which was later used to host AuctionWeb that was later renamed ebay.

Started the Omidyar network (mysteriously shut down in 2007) whose mission statement was ''enable individual self-empowerment on a global scale'' and employ ''business as a tool for social good,''

Controversy and deceit began early at ebay.
Supposedly the code that started the site was written over a weekend but questions as to how much of it was “borrowed” arose. In 1997 a public relations manager falsely created a PR story that ebay was started to aid the founders wife in trading PEZ dispensers to garner media attention.

Trivia. For those wondering what the “E” in ebay stands for it’s “echo”.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Ebay Pays My Minimum Monthly Payment

Mon Dec 7 09:53:15 2009


Right idea but wrong trial.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Big Al

Mon Dec 7 10:32:05 2009


Ina Knows what questions to ask of Omidyar, just as long as she can get to interview him.

The ''E' in ebay stands for
''Ecdemomanian'' which means
''abnormal compulsion for wandering''.

The ''bay'' in ebay stands for the display of merchandise which in India is..

''The bottom shelf in a retail aisle''

Expensive merchandise was always kept on the bottom shelf in India. Mainly because merchants squated on the ground to barter or rest and always had their expensive merchandise at eye level to prevent theft.



AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: nora

Mon Dec 7 11:09:39 2009

Thank you Ina for covering this.

I don’t believe for a moment that eBay had someone sitting on Craigslist Board of directors and didn’t try to suck out every bit of information that they could to start up their own classified site and to compete.

I believe that from the beginning the relationship with Craigslist was all lies.  

I’d like to see what Meg Whitman (it will reflect on her character), and the others say about back-stabbing Craigslist and setting up a competing classified site while being too privileged to Craigslist proprietary information.

I hope that Craigslist will dig up all sorts of dirt on eBay and expose them for the liars they are.  

It’ll be interesting if justice prevails or if the billionaire’s money will buy off the judicial system.

Here’s craigslist’s pre-trial brief, interesting:

http://blog.craigslist.org/craigslist.pretrial.bri
ef.pdf

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: fast freddy

Mon Dec 7 11:14:58 2009

Whitman has no character unless you call queen of back stabbing character. You go craigslist. Bankrupt Whitman and the ebay cohorts.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: On Lies and Secrets

Mon Dec 7 11:25:31 2009

Great reporting Ina! Also great citizenship for bearing witness to the events unfolding in a public court of law. I hope that justice is served in this proceeding.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Patricia

Mon Dec 7 12:03:44 2009

Yes, Ina I sure would like Joe's question answered especially since each of Whitman's commercials here gushes about how "she created" thousands of jobs for us small sellers.  I can just puke every time I hear it!  Californians are eating that up and she's said to be the front runner here...as though the state doesn't have enough trouble!

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Ebay Pays My Minimum Monthly Payment

Mon Dec 7 12:43:41 2009


Looks like somebody else should be going to court. The AB poster who went by the name of EBay Pays My Bills is back at it again listing on Ebay and mentions that he is accepting ''Chks MO's & Csh on Pickup'' in his listings. That's against the rules.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: unknown

Mon Dec 7 13:49:30 2009

@Ebay Pays My Minimum Monthly Payment you might want to familiarize  yourself with the checks/money order policy. It does not apply to multiple categories - like ebay motors and business and industrial among others. Here's the policy:

http://pages.ebay.com/help/policies/accepted-payments-p
olicy.html

Good
luck, ina. Nail Pierre's feet to the floor and get the real story.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Ebay Pays My Minimum Monthly Payment

Mon Dec 7 14:13:47 2009


To unknown: Thanks for the clarification......wait.......hang on.....OK, I doubled checked again just in case Ebay changed the policy within the last few seconds.

Go get 'em Ina!!!

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: John

Mon Dec 7 15:26:41 2009

You people need to get a life and stop mentioning me here because the Steiners don't let me defend myself.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: elle cole

Mon Dec 7 16:19:17 2009

Thank you Ina! So grateful for your good work.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: nora

Mon Dec 7 19:47:44 2009

Meg on the stand, arms folded, biting her lip, fidgety, shifty eyes and squirming around in her seat.  They should have grilled her more, but fortunately for her she has a bad memory and can't remember details.


http://www.youtube.com/user/CourtroomView#p/u/0/p5ChpnenzI
s

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Ron

Mon Dec 7 20:05:46 2009

Thanks to Nora for the link to Craigslist's pre-trial brief (http://blog.craigslist.org/craigslist.pretrial.bri
ef.pdf).  I just finished reading the document and it's both an interesting insight into the mindset of eBay's upper management and a confirmation of what most small sellers already knew, or at least suspected, regarding eBay's attitudes and methods.  Assuming that Craigslist's narrative is factual, which I'm sure it is, one can only characterize eBay management as dishonest, sleazy, arrogant, ruthless, unethical,and with a sense of entitlement and a greed that knows no bounds.  What a study in contrast:  Craigslist, with its focus on providing value to all of its stakeholders (i.e. users of the website) and a commitment to the long term core proposition of the website as originally conceived, as opposed to eBay, acting as a money whore, abandoning its business model and its core constituency in pursuit of short-term profit, mostly for the benefit of a select subset of parties involved.  I'm as much of a capitalist as anyone else, but one just has to look at the abuses committed by Wall Street before and after the bailout.  It's not going to be the small shareholder that will benefit from eBay's focus on short term profits, never mind the other stakeholders that have been screwed over by eBay's tactics (the small sellers that were the financial backbone of eBay for all of its formative years).  Corporations are organizations with profit making being their primary goal, but when money becomes the only focus, and the organization forgets their mission and is willing to ignore moral or ethical considerations, by lying about their true intentions and reneging on contractual or verbal commitments, that is when they lose their way.  eBay has lost its way.  It's just too bad that more people aren't aware of it

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Raia

Tue Dec 8 00:33:17 2009

Thanks for covering this so closely, Ina, we all appreciate you very much!

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Another Wronged Seller

Tue Dec 8 01:21:04 2009

Again Ina, THANKS for your great coverage!

I've read about 2/3 of the craigslist document and it's a real eye opener. I have no reason to doubt that the craigslist document accurately reflects ebays duplicity. I don't know why I'm so surprised at their tactics when I've seen their lack of honor firsthand.

I hope ebay gets their *ss handed to them....

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Et tu, Brute!

Tue Dec 8 01:51:13 2009

I'm a Californian and we aren't buying Meg's campaign propaganda AT ALL!

When it comes to politics, the multitudes in media get to hunting and digging!

I've a feeling once the heat gets turned up all kinds of rocks are going to get turned over, and it won't be pretty!

Can't wait.  Haven't looked forward to an election in quite awhile but this might be interesting.  

I left eBay a LOOOOOONG time ago.  Got a growing presence elsewhere.

But I sure wouldn't mind the ebay sewage exposed for what it is!

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

by: Foothill Web Design

Tue Dec 8 03:02:46 2009

My guess is they're both guilty of the accusations. Craigslist would never have let eBay see its books if CL knew eBay was already working on Kijiji. On the other hand, CL promised eBay a seat on the board, then diluted the shares from 28% to 24% so eBay no longer got the seat.

To Joe and the others who love to slam Donahoe: eBay stock is up 70% this year. Wall St. loves Donahoe. If it's not working for you, find another venue.

AuctionBytes on Location at eBay v Craigslist Trial   AuctionBytes on Location at eBay v Craigslist Trial

This user has validated their user name. by: Ming the Merciless

Tue Dec 8 03:20:35 2009

Don't get your investment advice from Foothill Web Design if he/she thinks this year's ebay stock price increase is an improvement.

Sandeep Agarwal of Collins Stewart loves The Ho though the bloom may be off the rose somewhat due to ebay's recent critical shopping day outage.

IMO, there's considerably more here than meets the eye, and it probably doesn't smell very sweet.

Sounds like another ebay toolbox troll at work.

The fact of the matter is that The Ho drove the stock down drastically and only PayPal keeps ebafia afloat. The marketplace is a disaster and no longer works for most including buyers.

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