Are Dual Agency Realtors Acting Ethically?

Asked by Doug Zeller, *, CA Thu May 19, 2011

Please view this VIDEO and express your oponion: http://tbwsdailyshow.com/

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Answers

40
Bill Eckler, Agent, Venice, FL
Sun May 29, 2011
BEST ANSWER
Douglas,

The fact of the matter is that each individual situation brings its own set of circumstances and challenges that need to be confronted.

Dual Agency is one of real estate's most controversial issues and is considered an acceptable practice in some states while not being allowed in others. In view of the fact that "dual agency" carries with it enough of a concern regarding a conflict of interest to disallow its practice, in my opinion, is enough of a concern to avoid these situations.

The best measure is probably to put yourself in a "dual agency" situation as the customer and honestly evaluate if you would feel comfortable with one agent representing both parties involved.....to me the answer is eminently clear!

In locations allowing the practice of "dual agency" ....this is obviously something that should be weighed carefully...

Bill
0 votes
Shanna Rogers, Agent, Murrieta, CA
Thu May 19, 2011
Hi Douglas,

Dual agency Realtors can act ethically but they can also not act ethically. But, that can also be said for any Realtor - dual or not. It all depends on the Realtor. I personally don't like to do dual agency just to avoid the whole possibility of either the buyer or seller thinking one party is being 'favored' over the other. I know alot of agents do dual agent so they can have both sides of the commission.....

Shanna Rogers
SR Realty
http://www.RealtyBySR.com
3 votes
Debra (Debbi…, Agent, Livingston, NJ
Sat May 21, 2011
The point of my answer to Doug's question was to simply state that dual agents can act ethically...... and that a title, whether it be "buyer's agent", "seller's agent" or "dual agent" doesn't guaranty a consumer is receiving ethical or "proper" representation.

To answer your question Dawn - none.

In my opinion, many of the more minor violations of the Code of Ethics result from misunderstanding, or lack of awareness of ethical duties by otherwise well-intentioned Realtors.

Other more severe violations can result from greed. Those agents clearly aren't well-intentioned.

Yes, Ignorance is no excuse........however............
In the case of ignorance - I think an agent is better served by having his or her Broker notified (which I have done and continue to do) when any infraction occurs.

I hardly think an off the cuff, albeit, inappropriate comment, like the one I referenced, warrants filing a formal ethics violation complaint.
I think the agent is better served by having his or her Broker informed so he or she can "re-educate" them in relation to the inappropriate comment.
We do need to police each other, but that can be done in various ways.

For more egregious infractions, I wouldn't hesitate to file a formal complaint.
2 votes
John Souerbry, Agent, Fairfield, CA
Sat May 21, 2011
Geez, Gerard - we as agents better not have any "control" over our clients. As adults, they are able to - and darn well should - make their own decisions. Any other situation would be an insult to their intelligence. As professionals, all we can do is give them advice. They have to make their own decisions. Regarding dual agency, I don't know an agent with more than 2 years experience who doesn't have a story about how "their client" went to an open house and got the "work with me in dual agency and get a better deal" pitch. I got that pitch myself recently from an agent who cornered me at an open house, not knowing that I was a broker checking out the property for an out-of-town client (he didn't even give me the chance to disclose my status until he had bombarded me with the pitch). I'm not saying that Lance is right and it happens most of the time, and I'm not making a legal or ethical judgement of the situation, but I know for sure that it happens. But to say we should "control" our clients, or "allow" our clients to talk to anyone, that's just plain psychotic. Clients stay loyal when they have a trusting relationship built on mutual respect, not robotic, mind-numbing control. I yield the soapbox...
2 votes
Pamela Smith, Agent, Sacramento, CA
Fri May 20, 2011
Your so sharp Sue Archer for pointing out, dual agency vs dual representation.
We do dual agency all day long.
Dual representation~OOh, sticky, ethical yes, with disclosures, inspections and double inspection, but it can be done. I must add each situation will be different.
2 votes
John Souerbry, Agent, Fairfield, CA
Fri May 20, 2011
It's a conflict of interest regardless of the circumstances.
My job isn't to help buy or sell at "market value" or to do "win-win" deals. My job is to get the best possible deal I can for my client. Period. I seek to create circumstances in which my client has the strongest negotiating leverage based upon the property, the market, and what I know about the party on the other side of the transaction. My clients give me their trust, provide confidential information about their lives, and rely on me to use my knowledge of the market, my knowledge of the buy/sell process, and my negotiating skills to act in their singular best interest. To me, to promise both sides I will act in their singular best interest would be an impossibility and a lie, thus unethical.
2 votes
Sue Archer R…, Agent, Palm Harbor, FL
Fri May 20, 2011
The question isn't so much dual agency, ss dual representation, assuming the agent is not the broker.

In the video, there's a question of reality and perception- did the agent actually push for their OWN or ONE SIDE's best interest at the detriment to theother? And second, did one of the parties feel unfairly treated (not only now but in the future?) such that they want to sue for the mistreatment? (that's easier to measure than ethics)

I tell all clients that 50% of my effort on their behalf is in negotiating so that I will represent only one side. In that way they have their own negotiator in the transaction. I will refer the buyer to another agent in my office, (who's goal is to work on behalf of THEIR client). So it's dual agency, but not dual representation.
Even if you're acting ethically, the majority of lawsuits involve dual representation/dual agency transactions.
Web Reference:  http://www.suearcher.com
2 votes
Joseph Hasti…, Agent, Bayside, NY
Sun May 22, 2011
Hi Douglas. It is difficult to know what is in someone's heart or what thier motives are other than closing the deal and making some money. With that said (written?) I would agree with those that say, if it is legal and allowed in a specific state and there is informed consent by all parties, go for it.

I see this issue coming about through a listing broker that has an interested customer who is not represented by another broker. Initially, the agency agreement comes into the picture (first substantive contact) and that would happen as soon as the customer shows up without a broker in tow. That being done, the customer is immediately put on notice that the listing broker solely represents the seller ( their client). The listing broker can tell the customer that they are entitled to representation. This would be honest and fair.

Here's where things can change. Many customer think that if they don't use a broker to represent their interests, they may be able to get a better price as there is no other broker to share in the commission. An unethical broker may welcome this as they stand to get more money for the same reason, no splitting of the commission. That (IMO) is the mindset wherein unethical behavior can occur. There is always the property disclosure form that is required to be given to the customer prior to any contract signing. A home inspector can always check for any specific problems not stated in the disclosure (latent defects).

Personally, I don't and have not ever been involved in dual agency. The line are blurred and I don't want to be bothered (quite frankly) with the customer. Hence any sale I have been involved in where the customer chooses to not be represented and I am the listing agent, I remain as the seller's broker and the agency agreement that the customer signed is testament to that.. The customer can expect fairness and honesty but I don't represent their interests plain and simple.

In New York we are a lawyer state hence, an Attorney is required for the purchase of real property and coops. I may recommend a home inspector or an Attorney (everyone here knows one anyway) and they can represent the customer.

Lastly, I did enjoy the video and posted it to my facebook page in the hope of starting a dialogue. I did think the resultant compromise was a very good solution. Regards.
1 vote
Alan May, Agent, Evanston, IL
Sun May 22, 2011
yes, Doug... viewed it.. (love those guys)... and expressed my opinion after viewing it...

maybe you're misunderstanding my comment... I didn't say that I recommend it, nor that I think it's a good idea... in fact, even though it's legal in Illinois, I refuse to practice dual agency... i think it's a tremendous conflict-of-interest. But that's not what you (or they) asked. You asked if it's "ethical", and I stand by my answer.
1 vote
Debra (Debbi…, Agent, Livingston, NJ
Sun May 22, 2011
Dawn, I am not really sure why you are purusing me in this way, but since this isn't the Debbie and Dawn thread - rather, it is a question asked by Doug, and involves other points of view shared by various agents here - I'd be happy to discuss your thoughts and ideas privately, so feel free to reach out to me if you'd like to continue this discussion.

I am not going to spend any more time here or take up any more space while you mince everything I say by copying it, and commenting on each specific phrase.
I am sure everyone appreciates having you define the word ethical for us.
Thank you, and.............
Have a great day!
1 vote
Lance King, Agent, San Francisco, CA
Sun May 22, 2011
Let me clarify my remarks. I'm not saying that happens all the time. But it happens a lot, and I know we aren't the only firm this happens to. But can an agent/broker act ethically in a dual agency situation? Of course. But in my view, the buyer needs to be fully informed of the potential ramifications of making this choice, which is something we always do. In the event that a buyer wants us to represent them on one of our listings we explain the situation, how this would be different from individual representation, and offer to recommend an outside agency who we know to be reputable to if they prefer. Then they make an informed decision. In my opinion, that's how it should be done.

And Gerard, with all due respect, while you may be the most ethical person in the world, are you really suggesting that an agent couldn't act a particular way because no agent ever acts in an unethical manner? I have also had the "better deal pitch" under the same circumstances as John.

With regards to your control remark, John nailed it well enough for me to use his response.
1 vote
Maria Morton, Agent, Kansas City, MO
Sat May 21, 2011
Dual Agency is not allowed in Kansas; it is allowed in Missouri (Kansas City straddles the two states). Beyond that, my broker does not allow dual agency and I would not personally participate if he did. We do allow for transaction brokerage if the buyer refuses to have his own representation. I tell any buyers who call on my signs that they should have their own buyer's representative. I have seen several agents up late fretting over a situation that involves them handling both sides of the transaction. They started with the sellers and now something has come up that they have knowledge of but cannot reveal. These are the ethical agents; the ones that care about their clients and professional conduct. I know of agents in the area who are wheelers and dealers; I don't want to know specifically what they say to both sides - the stories I've heard (hearsay) from buyers and sellers is as close as I want to get.
1 vote
Gerard Carney, Agent, Spring Hill, FL
Sat May 21, 2011
Totally untrue Lance! where do you get off saying most say!
Most Duel Agency deals end up from customers calling our number off of our sign on the lawn, our ads in realtor.com or our listing on places like trulia.com and zillow.com. How could you possibly think that telling customers we'll get them better deals by using one agent for the entire sale. That statement alone would violate Realtor Ethics. as well as transaction rules. My question with you is why are your agents allowing their customers to talk with the seller's agent, have you no control in your customers?
1 vote
Sue Archer R…, Agent, Palm Harbor, FL
Fri May 20, 2011
Interesting point Jim. I would never vote for any new law as I feel most individuals are much more intelligent than our politicians who write them...but that's another story. I also don't want some lawyer trying to find some fault with my business practices so I make a personal choice not to do dual representations in all but rare instances. What anyone else does is their business, in my book.

I didn't know we were voting... :)
Web Reference:  http://www.suearcher.com
1 vote
Jim Walker, Agent, Carmichael, CA
Fri May 20, 2011
The count after 19 answers: 15 agents do not like disclosed dual agency under any circumstances for themselves. 3 agents say let the principals in the transaction be educated, disclosed, and allow the principals to make the decision. I would have thought that the score would be closer.

Dual agency usually occurs when the buyer makes a deliberate decision to approach the sellers listing agent directly on a property rather than hiring a buyers agent to search and negotiate. In the process of disclosure the listing agent is duty bound to inform both principals that the buyer is voting a preference for properly disclosed dual agency and that either principal may refuse that arrangement if either is uncomfortable, uneasy or opposed to it on principle.

I am disappointed to see that so many agents are so distrustful of themselves, consumers, and of all of their fellow agents that they would advocate for a law that would needlessly limit the freedom of choice for consumers.

This vote for DISCLOSED dual agency also stands as a vote AGAINST Un-disclosed Dual Agency.
1 vote
James, Home Buyer, 95670
Fri May 20, 2011
Several individuals have noted that it is ethical because an agency NAR, Real Estate Board, etc has said it is. By that logic, Slavery, The oppression of women, and humans of different races and religions have in many cases been ethical because the controlling agency has said it is.

Legal and Ethical are NOT the same thing. That is in part why we are in the mess we are.

I applaud those realtors who have recognized this fact and more so those who recognize that it is nearly impossible to represent the best interests of 2 competing parties.

Dual Agency makes about as much sense as having someone coach two competing football teams and saying they are doing their best to see that both sides win. They can’t tell one team what the best strategy should be and than with that knowledge tell the other team what their best strategy is.
1 vote
Lance King, Agent, San Francisco, CA
Fri May 20, 2011
I don't even understand why dual agency is legal, because in my view it is virtually impossible to act on two parties' behalf who are on opposite sides of a deal. I have personally only done it twice in my career, and that was because the parties begged me to do so and the situations made sense:

One was a deal where the buyers had been tenants in the house for 10 years so they knew the property, and they had looked extensively at other properties before deciding to buy.

Another was where the seller already had a buyer and not much equity so I brokered the deal at a reduced rate, but only after explaining the pitfalls of dual agency. Typically we refer to another agency.

The cornerstone of our business has always been about looking out for clients' interests, Period. Too many agents seem to focus on the extra money, and that has nothing to do with client interests.

Best Regards,

Lance King/Owner-Managing Broker
lance@fixedrateproperties.com
415.722.5549
DRE# 01384425
1 vote
Dp2, , Virginia
Fri May 20, 2011
Yes, they are, and I've worked with several that way. I've also worked with my own agent, and I've had good and bad experiences with both arrangements.
1 vote
Bill Eckler, Agent, Venice, FL
Mon May 30, 2011
Douglas,

Thank you for recognizing my response in such a positive light.....
I found your post to be thought provoking and one that brought an important issue to the forum for discussion.

Your point is well taken....because something is acceptable, doesn't nake it right.

Best regards,

Bill
0 votes
Doug Zeller, Agent, *, CA
Sun May 29, 2011
Bill Eckler presents some interesting facts like:
"In locations allowing the practice of "dual agency" ....this is obviously something that should be weighed carefully..."

Case laws, existing or probably coming from many states, is likely to provide the answers?
0 votes
Bud Zeller, Agent, Folsom, CA
Fri May 27, 2011
"Dual Agency" in California is legal as referenced by some of the answers. However, the interesting points referenced in the VIDEO (hopefully viewed by all) should be consinered!
Plus, eventual answers seem to relate to; "Can a licensee really serve two masters and to each, their best interest "?
0 votes
Dorene Slavi…, Agent, Torrance, CA
Mon May 23, 2011
Hi Douglass,
As a Realtor I can see the issues that arise when trying to assure all sides of a Real Estate Transaction are well represented and satisfied with the outcome.
I often dispair when I see some of the poor service some consumers receive from their agents. I actually have had agents come to my office asking me to educate their buyers on my community and or do other aspects of their job for them.
Dual Agency is legal in the state of California as long as all parties are aware and have agreed in writing, but in my personal opinion..it would be in the buyer's best interest to be properly represented by their own agent.
Web Reference:  http://www.doreneslavitz.com
0 votes
Paul Howard, Agent, Cherry Hill, NJ
Mon May 23, 2011
It may be that they were willing to pay 15k over value and be happy with it but negative equity to the tune of 15k is not a good way to go into home ownership. A buyer with their own agent is much more likely to look at other options. In the environment they were in they had no one to say 'step back and think first'.

More often than not a buyer with a GOOD buyers agent will purchase for less than appraised value - not more.
There is no need for grandstanding or being adversarial - it is counter productive, but a buyers agent should not be looking for the 'win-win'. They only have ONE client to represent -the buyer. That's why I always recommend that buyers go to the National Association of Exclusive Buyers Agents to find representation. http://www.naeba.org .
0 votes
Doug Zeller, Agent, *, CA
Sun May 22, 2011
Interesting answers / responses!

Wonder if everyone viewed the VIDEO before expressing their oponion: http://tbwsdailyshow.com/ OR?
0 votes
Kamal Randha…, Agent, El Sobrante, CA
Sun May 22, 2011
Simple answer is, dual agency IS allowed here. However, weather or not Realtors are acting ethically depends on the individual realtor. Of course, if the realtor discloses everything, they are acting ethically...if not, that is unethical.

I, personally, do NOT do it. Just too much of a headache.
0 votes
Mack McCoy, Agent, Seattle, WA
Sun May 22, 2011
Maria, what's the agency relationship when you have a buyer for one of your company's listings?
0 votes
Debra (Debbi…, Agent, Livingston, NJ
Sat May 21, 2011
Well Doug - I have acted as a dual agent numerous times over the years, and, to respond to your question, yes, I have acted ethically.

I can't, however, tell you whether other agents act ethically, when acting as dual agents....or even as buyer's agents for that matter!

I'd like a dolar every time a buyer's agent told me their offer was only a starting point, and that their buyer "would go up in price".
One isn't assured their agent will be ethical just because they call themselves a buyer's agent.

That being said.please note, since we are discussing this, that in NJ, in order to show any COMPANY listing, the buyer has to agree to dual agency, All agents are considered dual agents when showing any company listing and are bound by the rules involved in dual agency. If you work for a large company, as I do, invariably you will be in that postion when working with a buyer.

So..it's legal, and almost necessary here, to work in that capacity when the opportunity presents itself.
0 votes
Lance King, Agent, San Francisco, CA
Sat May 21, 2011
As a follow up, the way most buyers end up in dual agency is not because they approach the listing agent and say, "hey, listing agent, I'd like you to represent me to buy this property." One of the industry's dirty little secrets is that listing agents frequently tell buyers that they'll get a better deal if they use them or that the seller can only afford a certain price if they handle both ends because of equity position. I can't count the number of times that listing agents have done that to our clients, many times even after being informed the buyers were already represented. Fortunately our clients are smart enough to know better.

And all dual agencies must be disclosed because it is required to have buyer and seller consent to engage in this kind of transaction.
0 votes
John Souerbry, Agent, Fairfield, CA
Fri May 20, 2011
Sue - you betcha, banks will reduce commission in a dual agency short sale transaction. As long as they get the $$$ they want - they don't care.
0 votes
Sue Archer R…, Agent, Palm Harbor, FL
Fri May 20, 2011
Does anyone else experience the policy on a short sale that the lenders will discount the commission if you show as dual representation? Many seem to, or at least state that it's their policy. I've never argued that fact but I was curious.
Web Reference:  http://www.suearcher.com
0 votes
Gerard Carney, Agent, Spring Hill, FL
Fri May 20, 2011
I feel that because our listings have a seller commission and a buyer commission on it, that it was truly expected for buying customers to have found their own Realtor to be part of the transaction. I feel that anytime a buyer calls a sellers agent and wants to look at the home, that it is okay to show the home, act as a transaction briker throughout the whole deal, but as far as how ethical can it be, in some cases not very ethical at all, since this Realtor will make out twice by the actions he does. So buyer says what is the best price the seller will go, Why lose commission, Say the asking price is solid! This would save the agent from losing an commission. Not all Realtors are as honest as they should be. But as for me I still hand out the transaction agency cards here in Florida to everyone I work with, even though it is no longer required in the state of Florida. I want an educated customer.
0 votes
Terri Vellios, Agent, Campbell, CA
Fri May 20, 2011
What is legal is not necessarily ethical and visa versa. I was not a party to that transaction so I do not know if that agent handled that transaction ethically or not. Based only on what was presented it appears all parties worked out an agreement to their own satisfaction. When the appraisal came in lower that seriously threw a wrench in the deal. That is the neutral third party who is to protect the buyer's (lenders) financial interest. Because it was a dual representation it put the listing/buyer agent was in a precarious situation because in order to fulfill his duty to his seller he really needs to fight for the value of his seller. Then how does that play out with the buyer?

One way to have handled this would have been to refer the buyer to another agent. Sometimes thought, the seller likes to have the dual agency and the buyer as well because it minimizes the party involved.

I had a short sale once where a buyer wanted me to represent them, I had my concerns with dual representation especially in a short sale. Then another offer was coming in from another agent, that put another layer of issues in the transaction so I referred the buyer out. That buyer, unfortunately didn't get the property because their agent fought so hard on price and terms so the other agent's offer was accepted and it did appraise and close.

On another listing I had a similar situation it was not a short sale but I had written an offer then another offer came in I told the other agent we had an offer, and my buyers asked what it was. I said that it would not be fair to those buyers to reveal it, respectively my buyers knew their offer would not be shared either. The seller countered both and my buyers asked how much to offer back. I gave them the comps and said the decision is theirs as I have a duty to both the seller and buyer. I explained to the sellers that my buyers offer would net them a only a bit more but it was not as strong as the other offer who had a lot more money down and financing would probably be less of a problem with the other offer. Also, obviously I had a financial incentive and the decision was theirs. My sellers decided to take my buyer's offer because they felt that since I was closer to the situation I would know what was going on and I would work harder to get it to close. It closed and all was happy.

I have also had other sellers who said, absolutely no! We want you to only represent us.

I truly believe if honest information is given, without any manipulation of the facts, the client will make a choice which they feel is in their best interest.

In any event, it is impossible to give 100% to anyone when you are also giving something to another. And I explain that to my clients that as well.
Web Reference:  http://www.terrivellios.com
0 votes
Christine Lo…, Agent, Sterling, MA
Fri May 20, 2011
My opinion of this video is that the main point of it should not have been dual agency but listing agent pricing. That is what spoke volumes to me. Not to say that the dual representation wasn't in there, because it was. However, if the listing agent had done an accurate and correct CMA (which you would take into consideration the neighborhood) the listing price wouldn't of been an issue and the buyers wouldn't of had to negotiate or compromise. That is just my opinion.
As far as dual agency goes it is a tricky position to try to do. My agency doesn't subscribe to it just because it far too difficult. So in the video situation the listing agent would of given the buyers an agency disclosure that specifically states we work for the seller. Giving the buyer the option to get a buyer's agent or to represent themselves.
0 votes
Teri Andrews…, Agent, Auburn, CA
Fri May 20, 2011
If you use this definition of ethics: ( functioning as plural ) a social, religious, or civil code of behaviour considered correct, esp that of a particular group, profession, or individual

and your state and board allow dual representation then yes it is ethical.
Can an agent still act inappropriately especially in their fiduciary duty to the parties? Why yes they can. Can they act inappropriately without the complication of dual representation, yes to that also.

It is a fine line to walk when one agent represents both sides. If you are not comfortable and/or your clients are not comfortable it shouldn't be done.

In the video piece, would the result have been any different if two agents were involved? Sounds like the buyer really wanted the property and the seller wanted to sell, it appears to the buyer the home was worth the extra $15000. and if the agent properly explained what it meant to pay over appraised value, sounds like everyone was happy.

Happy Friday!
0 votes
Alan May, Agent, Evanston, IL
Fri May 20, 2011
Dual agency, if legal in your state, is ethical. If it's legal, then there's nothing unethical about practicing it.

In my opinion it can be a conflict of interest, but it is ethical.
0 votes
Phil Rotondo, Agent, Melbourne, FL
Fri May 20, 2011
It's ethical if your Real Estate Board says it is.
Now whether your Board is ethical is another story.
Web Reference:  http://www.321property.com
0 votes
Dan Tabit, Agent, Issaquah, WA
Fri May 20, 2011
Douglas,
If the NAR Code of Ethics permits it, by definition it can be ethical. Is it wise? I don't believe so. As human beings we all have our faults and favorites. We might start out loving our listing client, but over time we become disenchanted with them. Along comes a buyer who has a lot in common and we like them better. If we believe we can be impartial and completely fair to all involved, we are likely deceiving ourselves.
I will gladly sell my own listings to someone I meet at an open house or through a sign call. I will be courteous, professional and provide good data for the buyer to make an informed decision, but I will only represent the seller. All parties agree to this in writing and it's clearly explained at our first meeting. As long as buyers are okay with this, I believe it's my obligation to the seller to do my best and represent them well.
In the example in the video, based on the limited facts, all parties seemed happy with the outcome. The buyer may not have had sufficient funds to pay more than they did.
0 votes
Jim Walker, Agent, Carmichael, CA
Thu May 19, 2011
I favor allowing the consumer to make their own informed decision as to who will write their offer.
0 votes
Michele Pete…, Agent, Rocklin, CA
Thu May 19, 2011
Douglas,
I have to agree with Shanna.

Many agents have no problem representing both sides of a transaction.
It is my opinion that you can truly only represent one client side in the transaction.

As a fiduciary, a real estate broker is held by law to owe specific duties to his/her principal (the person who they are representing), in addition to duties or obligations set forth in a listing agreement, buyer representation agreement, or other contract of employment. Subagents of the broker also owe the same fiduciary duties to the broker's principal. These specific fiduciary duties include:

Loyalty
Obedience
Disclosure
Confidentiality
Reasonable Care and Diligence
Accounting

Confidentiality, disclosure, reasonable care, etc would all be up in the air as you discussed options with the Buyer and Seller based on the offer presented/received/countered, etc. It is hard to negotiate with yourself to get your buyer's offer accepted.
0 votes
Doug Zeller, Agent, *, CA
Thu May 19, 2011
Thanks, great points and information.

Let's hope for more opinions!
0 votes
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