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IN RE SAFETY COMPONENTS

September 27, 2001

IN RE: SAFETY COMPONENTS, INC. SECURITIES LITIGATION.


The opinion of the court was delivered by: Lechner, District Judge.

      OPINION

This was a consolidated class action brought on behalf of all purchasers of the common stock of Safety Components International, Inc. ("SCII") during the period 28 May 1997 to 10 April 2000, inclusive (the "Class Period") against defendants SCII, Robert A. Zummo ("Zummo"), Jeffrey J. Kaplan ("Kaplan"), George D. Papadopoulos ("Papadopoulos"), and Francis X. Suozzi ("Suozzi") (collectively, the "Defendants").

The consolidated amended complaint (the "Complaint") alleged violations of Section 10(b), as amended 15 U.S.C. § 78j(b), and Section 20, as amended 15 U.S.C. § 78t, of the Securities Exchange Act of 1934 and Rule 10b-5; promulgated thereunder, 17 C.F.R. § 240.10b-5;. A proposed second consolidated amended class action complaint (the "Proposed Amended Complaint"), which was not filed, would have alleged violations of Federal securities laws by Arthur Andersen LLP ("Arthur Andersen").

A settlement (the "Settlement") was agreed to on or about 16 April 2001 by lead plaintiffs Joseph LaMotta and Jay Langner (the "Lead Plaintiffs"), the Defendants and Arthur Andersen. The Settlement was preliminarily approved by way of order, dated 10 May 2001 (the "10 May 2001 Order").

Currently pending is an unopposed motion to approve the Settlement and to approve the application for an award of attorney's fees and reimbursement of expenses (the "Application for Attorneys' Fees") (collectively, the "Motion for Approval").*fn1 For the reasons set forth below, the Motion for Approval is granted, except to the extent the Application for Attorneys' Fees is modified below.

Facts and Procedural History

A. The Purchase of Vatentec

SCII is a low-cost supplier of fabric and cushions used in automotive airbags with operations in North America, Europe and Asia. Complaint, ¶ 3; Fleischman Decl., ¶ 17. Zummo, Kaplan, Papadopoulos, and Suozzi (the "Individual Defendants") are current or former officers and/or directors of SCII. Complaint, ¶ 12; Fleischman Decl., ¶ 19. Zummo was the Chairman of the Board, Chief Executive Officer and President of SCII from January 1994 until March 1999. Fleischman Decl., ¶ 19. Kaplan was the Executive Vice President and Chief Financial Officer of SCII. Id. Papadopoulos was the Corporate Controller and Principal Accounting Officer of SCII. Id. Suozzi was a director of SCII. Id. Arthur Andersen was the outside auditor of SCII during the Class Period. Id., ¶ 3.

During the Class Period, SCII stock traded as high as $19 per share. Complaint, ¶ 5; Fleischman Decl., ¶ 17. By the close of the Class Period, however, SCII stock had been de-listed by NASDAQ and was traded on the "pink sheets" for approximately $.50 per share. Complaint, ¶ 5; Fleischman Decl., ¶ 17. Lead Plaintiffs allege the sharp drop in the price of SCII stock resulted largely from the Individual Defendants' pursuit of their personal financial interests to the detriment of the interests of SCII and its shareholders. Complaint, ¶ 27; Fleischman Decl., ¶ 18. Lead Plaintiffs allege that the Individual Defendants pursued their own interests by effecting the purchase of Valentec International Corporation ("Valentec"), a related entity controlled by Zummo, despite their knowledge of its poor financial condition. Fleischman Decl., ¶ 18; Transcript of 14 September 2001 Hearing (the "Fairness Hearing Transcript") at 7:23-24.

SCII originated as a wholly owned subsidiary of Valentec. Fleischman Decl., ¶ 20. Valentec spun off SCII as a separate entity through an initial public offering in May of 1994. Id.; Fairness Hearing Transcript at 7:18-19. Lead Plaintiffs allege that, even after the spin-off SCII and Valentec continued to function as one entity and employees believed the two entities to be divisions of the same company. Complaint, ¶ 19; Fleischman Decl., ¶ 20.

Lead Plaintiffs allege that Valentec was experiencing severe financial difficulties by 1997. Complaint, ¶ 20; Fleischman Decl., ¶ 21. These difficulties included a history of losses, a retained earnings deficit, an excess of liabilities over assets and a working capital deficiency. Complaint, ¶ 20; Fleischman Decl., ¶ 21. Lead Plaintiffs further allege that Valentec had undisclosed contingent liabilities stemming from a Department of Justice investigation and a pending civil suit. Complaint, ¶¶ 44-46; Fleischman Decl., ¶ 21. The Department of Justice investigation, Lead Plaintiffs assert, concerned bid-rigging and kick-back antitrust violations committed by Valentec. Complaint, ¶¶ 44-46; Fleischman Decl., ¶ 21. Lead Plaintiffs further allege that SCII advanced $5.6 million to Valentec by May of 1997 to address these financial difficulties. Complaint, ¶ 23; Fleischman Decl., ¶ 21.

Lead Plaintiffs allege that the Defendants orchestrated the purchase by SCII of Valentec (the "Transaction") at a grossly inflated price that could not have been obtained in the open market through arm's length negotiations. Complaint, ¶ 24; Fleischman Decl., ¶ 22. Lead Plaintiffs argue that the Transaction was effected to prevent Zummo from losing his interest in SCII and to avoid substantial financial losses on the part of the Individual Defendants. Complaint, ¶ 24; Fleischman Decl., ¶ 22. Lead Plaintiffs further allege that the debt load of Valentec had grown to the point where SCII's lenders, in the absence of the Transaction, would have required a debt pay-down by Valentec. Complaint, ¶ 24; Fleischman Decl., ¶ 22. Valentec could have accomplished this pay-down only by selling its sole asset — 1,379,200 shares of SCII common stock. Complaint, ¶ 24; Fleischman Decl., ¶ 22.

Lead Plaintiffs allege that the Defendants actively concealed, from the public and the SCII shareholders, their knowledge of the financial difficulties facing Valentec. Complaint, ¶ 27; Fleischman Decl., ¶ 23. Lead Plaintiffs further allege that the Defendants employed the following practices to hide the probable financial condition of SCII following the transaction:

1. The Defendants filed financial statements that did not conform to Generally Accepted Accounting Principles ("GAAP"). Complaint, ¶¶ 32-51; Fleischman Decl., ¶ 23.

2. The Defendants artificially inflated net sales and net income on the financial statements of SCII for the fiscal years 1998 and 1999 and for the first quarter of fiscal year 2000 by "double-booking' approximately $4.6 million worth of its purported revenue. Complaint, ¶¶ 47-51; Fleischman Decl., ¶ 23.

3. The Defendants made statements about the benefits of the acquisition of Valentec, concerning cost efficiencies and economies of scales, that were. false and misleading because the two companies were already operating as one entity. Complaint, ¶¶ 47-51; Fleischman Decl., ¶ 23.

4. The Defendants attributed $19.9 million of goodwill to the purchase of Valentec despite their knowledge that the company was worthless. Complaint, ¶¶ 40-43; Fleischman Decl., ¶ 23.

5. The Defendants concealed, until after the transaction, material contingent liabilities, including the Department of Justice investigation and a pending civil claim. Complaint, ¶¶ 44-46; Fleischman Decl., ¶ 23.

6. The Defendants shipped products that they knew would be returned for non-conformity with customer specifications in order to recognize improperly revenue with respect to those shipments. Complaint, ¶¶ 33-35; Fleischman Decl., ¶ 23.

7. The Defendants back dated contracts and shipping documents to report improperly revenue in the quarter prior to that in which it should have been reported. Complaint, ¶ 36; Fleischman Decl., ¶ 23.

8. The Defendants overbilled and overaccrued the revenue of SCII with respect to a contract with a major customer, resulting in an overstatement of revenue and the carrying of fictitious receivables. Complaint, ¶ 37; Fleischman Decl., ¶ 23.

9. The Defendants materially overstated SCII's assets by failing to accurately account for depreciation of equipment. Complaint, ¶ 38; Fleischman Decl., ¶ 23.

10. The Defendants instructed the controllers of SCII to manipulate SCII's results. Complaint, ¶ 39; Fleischman Decl., ¶ 23.

On 9 November 1999, SCII issued a press release announcing that it would restate its financial reports for two fiscal years and one quarter of another fiscal year. Complaint, ¶ 102; Fleischman Decl., ¶ 24. On 10 November 1999, SCII was delisted from NASDAQ. Complaint, ¶ 105; Fleischman Decl., ¶ 24. Lead Plaintiffs assert SCII acknowledged, on 8 February 2000, it had improperly accounted for the goodwill attributed to Valentec. Complaint, ¶ 105; Fleischman Decl., ¶ 24. By 8 February 2000, SCII stock was trading, via the "pink sheets," at approximately $.50 per share. Id. SCII filed for Chapter 11 bankruptcy protection on 10 April 2000. Complaint, ¶ 105; Fleischman Decl., ¶ 24.

B. Investigation and Commencement of Suit by the Plaintiffs

Prior to the filing of the Individual Actions, counsel for the plaintiffs ("Plaintiffs' Counsel") conducted an extensive investigation of the facts surrounding the Transaction. Fleischman Decl., ¶ 25; see also Desmond Aff., ¶ 2(a); Tullman Aff., ¶ 2; Brody Aff., ¶ 3. This investigation continued after the filing of the Individual Actions, permitting the filing of a detailed and particularized class complaint. Fleischman Decl., ¶ 25.

Plaintiffs' Counsel reviewed a wide variety of publicly available information, including relevant press releases, financial statements, Securities Exchange Commission (the "SEC") filings, analyst reports and news reports. Id., ¶¶ 25, 26; Fairness Hearing Transcript at 14:10-14. Plaintiffs' Counsel also sought to identify and interview former SCII employees with relevant information. Fleischman Decl., ¶ 26; Fairness Hearing Transcript at 14:14-19. Plaintiffs' Counsel interviewed and consulted with several non-SCII employees familiar with the airbag component industry. Fleischman Decl., ¶ 26.

Plaintiffs' Counsel hired a forensic accountant to analyze the available data in order to determine whether SCII's accounting practices violated Federal secunties laws. Id., ¶ 27; Fairness Hearing Transcript at 7:6-8. Lead Plaintiffs allege that the forensic accountant helped identify precisely the nature of the accounting improprieties that resulted in the false and misleading nature of the public statements of SCII. Fleischman Decl., ¶ 27; Fairness Hearing Transcript at 15:24-25. Lead Plaintiffs further allege that the forensic accountant assessed the possible liability of Arthur Andersen, as a result of its audits of the SCII financial statements for 1998 and 1999. Fleischman Decl., ¶ 27.

Following the initial investigation, Lead Plaintiffs filed the Complaint on or about 21 March 2000. Id., ¶ 28. Lead Plaintiffs allege that Plaintiffs' Counsel continued to investigate during the pendency of the action. Id., ¶ 29. Plaintiffs' Counsel obtained and analyzed all publicly available information, including records of court, SEC proceedings, the quarterly and annual SEC filings of SCII, analyst reports, and SCII press releases. Id.

C. Reaction to the Complaint

On 3 April 2000, Defendants informed Plaintiffs' Counsel by letter of their intention to file a motion to dismiss the Complaint (the "Motion to Dismiss"). Id., ¶ 30. The Defendants intended to argue in the Motion to Dismiss that (1) the Complaint did not adequately plead scienter, (2) the Complaint improperly lumped all the Defendants together, (3) facts alleged as omitted were actually disclosed, (4) the Complaint improperly attempted to convert "mismanagement" claims into "fraud" claims, (5) no claims could be stated based upon forward-looking statements, (6) the Complaint did not adequately allege claims "on information and belief," and (7) the Complaint did not adequately allege causation. Id., ¶ 30. Although the Defendants never filed the Motion to Dismiss, Plaintiffs' Counsel assert they were prepared to respond to each argument raised by the Defendants. Id., ¶ 31.

Following the investigative efforts of Plaintiffs' Counsel, the Proposed Amended Complaint was drafted; it would have further alleged that Arthur Andersen violated Federal securities laws in connection with its audits of the financial statements of SCII for the fiscal years 1998 and 1999. Id., ¶ 32. As mentioned, the Proposed Amended Complaint was not filed. Id. Arthur Andersen informed Lead Plaintiffs that it would assert numerous defenses to the Proposed Amended Complaint, including a statute of limitations defense and a defense on the merits. Id., ¶ 33.

D. Informal Discovery, Negotiation and Settlement

Settlement discussions commenced after the filing of the Complaint and the parties were able to reach an agreement before the commencement of formal discovery. Fleischman Decl., ¶ 35; Fairness Hearing Transcript at 5:9-13. Prior to the Settlement, Lead Plaintiffs interviewed many former employees of SCII. Fleischman Decl., ¶ 39; Fairness Hearing Transcript at 14:14-15. Plaintiffs' Counsel also requested, and received, from the Defendants various documents relevant to the reasonableness of any proposed settlement. Fleischman Decl., ¶ 39; see also Stipulation and Agreement of Settlement, dated 16 April 2001 (the "Stipulation of Settlement"), at 3. These documents included, inter alia, minutes of SCII board meetings during the Class Period, written consents relating to the Class Period, and documents related to the 22 May 1997 purchase agreement entered into in connection with the Transaction. Id. Plaintiffs' Counsel also interviewed Zummo prior to the Settlement. Id.

Following the preliminary agreement to settle, the parties began negotiations of a draft stipulation of settlement. Id., ¶ 40. The drafting period lasted several weeks, during which the draft stipulation underwent many changes. Id. The Stipulation of Settlement was entered into by the Lead Plaintiffs, the Defendants and Arthur Andersen on or about 16 April 2000. Id.; Stipulation of Settlement at 1. Pursuant to the Stipulation of Settlement, $4,500,000 has been deposited by the Defendants and Arthur Andersen into an interest-bearing escrow account for the benefit of the plaintiff class (the "Settlement Fund").*fn3 Fleischman Decl., ¶ 40; Stipulation of Settlement at 13. The proposed plan of allocation mandates that each Class Member who files an acceptable proof of claim will receive a pro rata share of the Settlement Fund. Memorandum in Support of the Settlement at 26.

E. Class Certification and Notice of the Settlement

By way of the 10 May 2001 Order, the Settlement was preliminarily approved and this matter was certified to proceed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. 10 May 2001 Order at 1-2; Fleischman Decl., ¶ 44. The class was defined as "all persons who purchased the common stock of SCII during the period between May 28, 1997 and April 10, 2000, inclusive" (the "Class"). 10 May 2001 Order at 2; Fleischman Decl., ¶ 42. The 10 May 2001 Order excluded from the Class (1) the Defendants and Arthur Andersen, (2) the heirs and member of the immediate family of any [I]ndividual [D]efendant, (3) the subsidiaries, affiliates, officers and directors of SCII, (4) the partners, principals and employees of Arthur Andersen, and (5) the successors and assignees of any Defendant or Arthur Andersen. 10 May 2001 Order at 2; Fleischman Decl., ¶ 42.

The 10 May 2001 Order scheduled a hearing on the fairness of the Settlement (the "Fairness Hearing") for 14 September 2001. Id. at 3. The 10 May 2001 Order stated that objections and comments to the Settlement as well as any requests to optout of this class action, had to be filed no later than 14 August 2001. Id. at 6, 7. The 10 May 2001 Order also required Lead Plaintiffs to mail a notice of settlement (the "Notice of Settlement") and a proof of claim (the "Proof of Claim") to all members of the Class on or before 24 May 2001. Id. at 4. On 24 May 2001, Lead Plaintiffs mailed 4,430 copies of the Notice of Settlement and the Proof of Claim to all those members of the Class who could be identified on or before that date. Fleischman Decl., ¶ 44; Garr Aff., ¶ 3. A summary notice of the pendency of the class action (the "Summary Settlement Notice") was also published in the national edition of The Wall Street Journal on 4 June 2001. Fleischman Decl., ¶ 44; Garr Aff., ¶ 4.

The Notice of Settlement described the Settlement in detail. Fleischman Decl., ¶ 44. The Notice of Settlement also explained that Plaintiffs' Counsel would apply for attorney's fees not to exceed one-third of the Settlement Fund, plus reimbursement of their expenses not to exceed $190,794.63, together with interest from the date the Settlement was funded. Id. The Notice of Settlement contained the deadlines for the filing of objections, comments and requests to opt-out. Id.

No objections to the Settlement or the Application for Attorneys' Fees were received by the 14 August 2001 deadline or to date. Memorandum in Support of the Settlement at 4; Fairness Hearing Transcript at 4:7-11. Only one request to optout of the class action has been received to date. Memorandum in Support of the Settlement at 4; Fairness Hearing Transcript at 4:7-11.

F. Fairness Hearing

As a result, a telephone conference was arranged with counsel on the scheduled hearing date. Id. The conference call was conducted from chambers and was delayed until 10:30 A.M. to provide any objectors who were traveling additional time to arrive at Court, or otherwise communicate with the Court. Id. at 4:7-8. No class members or objectors arrived at the courthouse, or otherwise communicated with the Court before the commencement of, or during, the telephone conference. Id.

At approximately 10:35 A.M., the Fairness Hearing commenced via conference call. Id. at 4:2. The Fairness Hearing lasted approximately an hour, during which time the Settlement was thoroughly discussed. Counsel were questioned on the fairness of the Settlement and provided an in-depth response to all matters discussed. At the conclusion of the Fairness Hearing, counsel were requested to provide additional briefing regarding the requested attorneys' fees. Id. at 30:9-11. Discussion

A. Approval of the Settlement

Lead Plaintiffs seek final approval of the Settlement as agreed to in the Stipulation of Settlement, signed 16 April 2001. Memorandum in Support of the Settlement at 1. Federal Rule of Civil Procedure 23(e) provides the basic framework for approval of a class action settlement. Fed. R. Civ. Pro. 23(e). The Rule provides: "A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." Id. This rule requires a court to "`independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interest of those whose claims will be extinguished.'" In re Cendant Corp. Litig., 264 F.3d 201, 231 (3d Cir. 2001) (quoting In re General Motors Corp. Pick-Up Truck Fuel Tank Prod. Liability Litig., 55 F.3d 768, 782 (3d Cir. 1995)). In conducting this inquiry, "the District Court acts as fiduciary guarding the rights of absent class members, and must determine that the proffered settlement is `fair, reasonable, and adequate.'" Id. (quoting In re General Motors, 55 F.3d at 782).

Determining whether a settlement is fair, reasonable and adequate requires the application of the nine-factor test articulated in Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975). Id. (citing Girsh, 521 F.2d at 157); see e.g. Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 588 (3d Cir. 1999) (court appropriately analyzed the settlement under the Girsh factors). The nine Girsh factors are:

(1) the complexity, expense and likely duration of the litigation;

(2) the reaction of the class to the settlement;

(3) the stage of the proceedings and the amount of discovery completed;

(4) the risks of establishing liability;

(5) the risks of establishing damages;

(6) the risks of maintaining the class action through the trial;
(7) the ability of the defendants to withstand a greater judgment;
(8) the range of reasonableness of the settlement fund in light of the best possible recovery; and
(9) the range of reasonableness of the settlement fund in light of all the attendant risks of litigation.

Girsh 521 F.2d at 157; In re Cendant, 264 F.3d at 232. The proponents of a settlement bear the burden of demonstrating that the Girsh factors weigh in favor of approval of the settlement. In re Cendant, 264 F.3d at 264; In re General Motors, 55 F.3d at 785.

The Circuit has explained that "[i]n order for the determination that the settlement is fair, reasonable, and adequate to survive appellate review, the [D]istrict [C]ourt must show it has explored comprehensively all relevant factors." Lazy Oil 166 F.3d at 588. However, "[t]he decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the [D]istrict [C]ourt." In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 317 (3d Cir. 1998). In general, an award of attorneys' fees will be reviewed "for an abuse of discretion, although there are clear error and plenary aspects in a review including examination of factual findings and legal conclusions." Zucker v. Westinghouse Elec. Corp., 265 F.3d 171, 178 (3d Cir. 2001) (examining an award of attorneys' fees in a derivative suit).

1. The First Girsh Factor Complexity, Expense & Likely Duration of Litigation

The first factor to be considered under the Girsh analysis is "the complexity, expense and likely, duration of the litigation." Girsk 521 F.2d at 157; see also In re Cendant, 264 F.3d at 232; In re Prudential Ins., 148 F.3d at 317. This factor "captures the probable costs, in both time and money, of continued litigation." In re Cendant, 264 F.3d at 264. Examining the costs "of continuing on the adversarial path, a court can gauge the benefit of settling the claim amicably." In re General Motors, 55 F.3d at 812.

This factor weighs strongly in favor of approval of the settlement as to both the Defendants and Arthur Andersen. As Lead Plaintiffs explained, absent settlement, Plaintiffs' Counsel likely would have had to defeat not one, but two motions to dismiss — one from the Defendants and one from Arthur Andersen. Fleischman Decl., ¶¶ 31, 34; Memorandum in Support of the Settlement at 14; Fairness Hearing Transcript at 19:21-23. The Defendants had already informed Lead Plaintiffs that the Defendants were prepared to argue numerous grounds for dismissal. Fleischman Decl., ¶ 30. Arthur Andersen had also indicated that it would argue several defenses in a motion to dismiss. Id.

If Lead Plaintiffs defeated both motions to dismiss, they would then have faced the task of obtaining class certification. Fairness Hearing Transcript at 19:21-23. This would have resulted in additional motion practice and likely require the depositions of the class representatives. Memorandum in Support of the Settlement at 15.

Expensive and exhaustive discovery would have ensued if litigation of this matter continued. Id. Substantial document production would have been required, necessitating the continued employment of an accounting expert, as well as an expert in the airbag industry. Id. at 15-16. A significant number of depositions would have been necessary given the allegations of fraud and knowledge of Valentec's financial difficulties. Id. at 15. It is likely each of the Individual Defendants would have been deposed to explore his or her knowledge of the facts underlying the Transaction. Id. Other SCII personnel would have been deposed to determine whether the Individual Defendants concealed material information from the rest of SCII. Id. Depositions of Arthur Andersen employees would have been required to ascertain Arthur Andersen's knowledge of the alleged violations. Id.; Fairness Hearing Transcript at 21:11-16.

It also appears there was the strong possibility that some or all of the Defendants and Arthur Andersen would have moved for summary judgment at some later point. Memorandum in Support of the Settlement at 16. Lead Plaintiffs speculate that trial on the issue of liability alone would have taken several weeks, requiring the introduction of vast amounts of documentary evidence, deposition testimony, and expert testimony. Id.; Fairness Hearing Transcript at 17:9-14.

At the Fairness Hearing, Plaintiffs' Counsel argued that this matter is more complex than the "normal" Rule 10b-5 class action. Fairness Hearing Transcript at 7:1-4. Plaintiffs' Counsel represented that SCII had several military contracts that required the application of special accounting rules. Id. at 8:5-7. Plaintiffs' Counsel also explained that the military accounting required for these contracts is an arcane subset of GAAP and would present particular difficulties in its presentation. Id. at 9:10, 11:12-23.

In addition to the inherent complexity of litigating a class action alleging Federal securities laws violations, this matter became more complex due to the fact that SCII filed for bankruptcy under Chapter 11 of the Bankruptcy Code. Fleischman Decl., ¶ 24; Fairness Hearing Transcript at 26:7-9. SCII's pending bankruptcy petition would have added further procedural hurdles; Plaintiffs' Counsel would have had particular difficulty overcoming the automatic stay imposed by the bankruptcy proceeding. Fleischman Decl., ¶ 24; Fairness Hearing Transcript at 26:7-9.

There would have been additional complexity with regard to proving liability on the part of Arthur Andersen. Fairness Hearing Transcript at 20:15-16. Arthur Andersen would have had the defense that SCII withheld relevant information. Id. at 20:19-25. Plaintiffs' Counsel represented that this is a strong defense that is usually available to outside auditors. Id. Plaintiffs' Counsel likely would have encountered difficulty demonstrating scienter vis- a-vis Arthur Andersen given this defense. Id. at 21:5-10. As well, it appears that Arthur Andersen would have asserted a defense based upon the applicable statute of limitations. Fleischman Decl., ΒΆ 33; Fairness Hearing Transcript at 20:11-12. Responding to this ...


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