August 22, 2023
On July 12, 2023, United States Senators Cynthia Lummis (R-WY), a member of the Senate Banking Committee, and Kirsten Gillibrand (D-NY), a member of the Senate Agriculture Committee, reintroduced the Lummis-Gillibrand Accountable Monetary Innovation Act (the “RFIA”).[1] Though it’s unclear whether or not the RFIA will cross the Senate in its present kind, sure client safety provisions had been modified from the prior 2022 model to choose up extra votes. Whatever the RFIA’s future viability, the RFIA is driving a broader dialog inside Congress. For instance, shortly after reintroduction, provisions of the RFIA addressing crypto asset anti-money laundering examination requirements and nameless crypto asset transactions had been added to the 2024 Nationwide Protection Authorization Act (“NDAA”).[2]
As such, the RFIA’s “enhanced” strategy sheds gentle on the priorities of the U.S. Congress and, in flip, makes clear these areas that warrant consideration. The RFIA addresses trade uncertainty surrounding the position of federal regulators; the classification of, and subsequent restrictions to, sure property; and the interplay of those property with the present anti-money laundering and tax regimes.
In comparison with the preliminary 2022 model of the RFIA,[3] the 2023 model displays revisions to regulate to the altering cryptocurrency market, notably in gentle of the string of 2022 cryptocurrency change bankruptcies. Particularly, for functions of this consumer alert, we give attention to the next provisions of the RFIA that symbolize important departures from the preliminary 2022 model:[4]
- Attracts a transparent division between Securities and Change Fee (“SEC”) and Commodity Futures Buying and selling Fee (“CFTC”) jurisdiction over cryptocurrencies, and creates the Shopper Safety and Market Integrity Authority;
- Supplies substantive rules rooted in client safety ideas for each Crypto Asset Intermediaries and Fee Stablecoin Issuers (every as outlined under);
- Prioritizes combating illicit finance; and
- Revises the federal tax code to extra exactly replicate crypto asset and securities transactions.
We overview every of those developments in flip under, highlighting the provisions of the RFIA that symbolize important updates from 2022. Following this overview, we offer our ideas on the potential implications to coated entities ought to the RFIA, or different related payments, be enacted.
1. Altered Federal Regulatory Framework
As at the moment drafted, the RFIA proposes a brand new federal framework for the regulation of crypto property[5] and crypto asset intermediaries.[6] The framework strives to make clear and differentiate the governing position of the CFTC and SEC by offering the required statutory authority, directing the businesses to have interaction in rulemaking whereas additionally introducing the idea of a Buyer Safety and Market Integrity Authority. These provisions could have a notable affect on these businesses, as figuring out whether or not a sure asset is a safety will dictate the regulator, restrictions and obligations of the crypto asset and the associated entity.
1a. Enhanced CFTC Authority
The CFTC’s present statutory authority over spot market commodities, together with cryptocurrencies, is proscribed to enforcement authority over fraud and manipulation in these markets; nevertheless, the CFTC’s regulatory authority is proscribed to the derivatives markets (e.g., futures and swaps). As at the moment drafted, the RFIA gives the CFTC the statutory authority to control the spot crypto asset markets, together with crypto issuers, crypto property and different points of the crypto asset markets, leaving the SEC an outlined, however extra restricted position.
Spot Market Jurisdiction
The RFIA grants the CFTC spot market jurisdiction over all commercially fungible crypto property that aren’t outlined as securities, together with endogenously referenced crypto property (colloquially often known as “algorithmic stablecoins,” although these property are prohibited from referring to themselves as stablecoins; notably, the CFTC doesn’t regulate stablecoins, as additional mentioned under).[7] This may mark the primary time that the CFTC would have broad jurisdiction over a category of spot market commodities. Particularly, the RFIA gives the CFTC with unique jurisdiction over any settlement, contract, or transaction involving a sale of a crypto asset, together with ancillary property.[8] Notably, along with limiting the CFTC’s jurisdiction to crypto property that aren’t securities and which can be commercially fungible, the RFIA excludes from the CFTC’s jurisdiction digital collectibles and different distinctive crypto property.[9] Accordingly, the RFIA would carve many non-fungible tokens (“NFTs”) exterior the scope of the CFTC’s jurisdiction. Nonetheless, this expansive jurisdiction marks the CFTC as the first crypto asset regulator.
Crypto Asset Exchanges
The RFIA defines “crypto asset change” as a buying and selling facility that lists for buying and selling a minimum of one crypto asset.[10] Any buying and selling facility that seeks to supply a market in crypto property or fee stablecoins should register with the CFTC, besides actually decentralized protocols.[11] The RFIA duties every crypto asset change with establishing and imposing its personal guidelines, guaranteeing solely property that aren’t readily vulnerable to manipulation, and defending the security of buyer property.[12] Moreover, every crypto asset change should segregate buyer property from change property.[13]
Below the RFIA, the CFTC has new regulatory oversight over registered crypto asset exchanges. Though crypto asset exchanges are banned from conducting proprietary buying and selling, the CFTC might interact in rulemaking to determine requirements for permissible market making.[14] Additional, any change of management of a crypto asset change leading to a person or entity gaining possession of larger than 25 p.c should first obtain approval from the CFTC.[15]
Lined Associates
Below the RFIA, “coated affiliate” means, primarily based on the totality of the information and circumstances as decided by the CFTC, an individual with substantial authorized or monetary relationship to an entity registered below the Commodity Change Act that’s primarily engaged in crypto asset actions.[16] The RFIA empowers the CFTC to order the examination of a coated affiliate and to restrict coated associates from offering providers to a registered entity or getting into into authorized relationships or specified transactions with a registered entity.[17]
Threat Administration Requirements for Self-Hosted Wallets
The RFIA additionally duties the CFTC with promulgating guidelines to undertake danger administration requirements regarding cash laundering, buyer identification, and sanctions for self-hosted wallets that conduct transactions with a futures fee service provider. The time period “self-hosted pockets” means a digital interface used to safe and switch crypto property, by which the proprietor of the property retains unbiased management in a fashion that’s secured by that interface.[18]
1b. The Function of the SEC
Though the RFIA establishes the CFTC as the first federal regulator of most crypto property, the SEC would have jurisdiction over digital property which can be securities. To the extent that the digital asset in query gives the holder of the asset with a debt or fairness curiosity, liquidation rights, a proper to a dividend fee, or different monetary curiosity in a enterprise entity, the asset wouldn’t be handled as a “crypto asset” or an “ancillary asset” topic to the CFTC’s jurisdiction and, as a substitute, could be topic to the SEC’s jurisdiction.[19]
Notably, ought to battle come up as as to if a digital asset needs to be handled as a crypto asset, the RFIA grants the U.S. Court docket of Appeals for the D.C. Circuit authority to resolve the battle by figuring out whether or not the asset represents a monetary curiosity in a enterprise entity and thus is a safety.[20] The RFIA is silent on which occasion should convey the battle to the U.S. Court docket of Appeals for the D.C. Circuit.
These provisions symbolize a serious change from the established order and are an try to offer a clearer regulatory regime than the earlier model of the RFIA. As at the moment drafted, the SEC wouldn’t have the position of the first digital asset regulator, however would nonetheless have the authority to deal with sure property as securities and problem the CFTC’s claimed jurisdiction over different property. An aggressive SEC, reminiscent of the present one, may use that authority to keep up a outstanding position in crypto regulation.
1c. Buyer Safety and Market Integrity Authority
As at the moment drafted, the RFIA creates a Buyer Safety and Market Integrity Authority (“Authority”), which is a self-regulatory group (“SRO”) for crypto asset intermediaries that’s collectively chartered by the SEC and the CFTC.[21] Membership within the Authority is proscribed to solely crypto asset intermediaries. The Authority is tasked with regulating, supervising, and disciplining crypto asset intermediaries,[22] primarily serving as a Self-Regulatory Group, although the RFIA doesn’t outline it as such.
Below the RFIA, the Authority should have the next allocation of a 13-member board of administrators: three governmental administrators (the Director of the Workplace of Monetary Innovation of the CFTC, the Director of the Workplace of Monetary Innovation of the SEC, and the Director of FinCEN), 4 unbiased administrators appointed by the President, and 6 administrators appointed by the members of the Authority.[23]
SROs are nothing new within the monetary trade—the Nationwide Futures Affiliation oversees points of the derivatives trade, and the Monetary Trade Regulatory Authority (“FINRA”) oversees points of the securities trade. Certainly, an middleman of a crypto commodity or a crypto safety would already be required to affix a type of SROs. The institution of a particular SRO for crypto not solely imposes distinctive prices on crypto intermediaries, but additionally dangers pointless overlap between the necessities of the brand new SRO and the previous ones.
2. Substantive Regulation of Crypto Asset Intermediaries and Stablecoin Issuers
Past proposing a brand new federal statutory framework below which businesses would interact in rulemaking, the RFIA proposes concrete restrictions and obligations. Particularly, these substantive necessities development towards client safety beliefs and notably goal Crypto Asset Intermediaries and Stablecoin Issuers.
2a. Shopper Safety
The brand new said function of the RFIA is “to offer for client safety and accountable monetary innovation to convey crypto property inside the regulatory perimeter.”[24] This new give attention to client safety is discovered all through provisions within the RFIA and is probably going influenced by the aftermath of the 2022 cryptocurrency change bankruptcies.
Proof of Reserve Requirement
The RFIA gives that each one crypto asset intermediaries should keep a system to show cryptographically verifiable possession or management of all crypto property below custody or in any other case supplied for safekeeping by a buyer to the middleman.[25] The system have to be protected towards disclosure of buyer knowledge, proprietary data, and different knowledge that will result in operational or cybersecurity danger.[26] The crypto asset middleman should retain an unbiased public accountant to confirm possession or management of all crypto property below custody.[27] This verification should embody an examination of the system and shall happen at a time chosen by the unbiased public accountant with out prior discover.[28] Ought to the accountant determine any materials discrepancies, they need to inform the suitable regulator and the Authority inside in the future.[29]
Permissible Transactions
The RFIA gives that every crypto asset middleman should be certain that it clearly discloses the scope of permissible transactions that the middleman might undertake involving crypto property belonging to a buyer in a buyer settlement.[30] Additional, every crypto asset middleman should present clear discover to every buyer and require acknowledgement of the next: (i) whether or not buyer crypto property are segregated from different buyer property and the way of the segregation; (ii) how the crypto property of the client could be handled in a chapter or insolvency state of affairs and the danger of loss; (iii) the time interval and method by which the middleman is obligated to return the crypto asset of the client upon request; (iv) relevant charges imposed on a buyer; and (v) the dispute decision technique of the middleman.[31]
Lending
The RFIA gives {that a} crypto asset middleman should disclose any lending association to clients earlier than any lending providers happen, together with the potential chapter therapy of buyer property within the case of insolvency.[32] In any lending association, the crypto asset middleman should additionally disclose whether or not the middleman permits failures to ship buyer crypto property or different collateral, and within the occasion of a failure to ship, the time period by which the failure have to be cured.[33] Notably, the RFIA expressly prohibits the rehypothecation of crypto property by a crypto asset middleman.[34] This final provision originates from the collapse of FTX, which rehypothecated clients’ crypto property with out informing these clients.[35] Such a ban would drawback crypto intermediaries vis-à-vis conventional lenders. In conventional finance, lenders use rehypothecation to entry credit score for their very own use, thereby pursuing their very own objectives. A ban for crypto intermediaries will restrict their potential to take related dangers for their very own functions.
2b. Stablecoins
Below the RFIA as at the moment drafted, no entity aside from a depository establishment[36], or a subsidiary thereof, might problem a fee stablecoin.[37] This has the potential to have an effect on present stablecoin issuers, lots of which aren’t depository establishments. The time period “fee stablecoin” means a declare represented on a distributed ledger that’s: redeemable, on demand, on a one-to-one foundation for devices denominated in United States {dollars}; issued by a enterprise entity; accompanied by an announcement from the issuer that the asset is redeemable from the issuer or one other individual; backed by a number of monetary property, excluding different crypto property; and meant for use as a medium of change.[38]
Depository establishments want to use to problem stablecoins by submitting an utility to the suitable Federal banking company or State financial institution supervisor. The Federal banking company or State financial institution supervisor should approve the applying until the fee stablecoins will not be prone to be carried out in a protected and sound method; the depository establishment lacks assets and experience to handle the stablecoin; or the depository establishment doesn’t have required insurance policies and procedures associated to the stablecoin.[39]
Ought to a present stablecoin issuer maintain a non-depository belief firm constitution or a State license that solely individuals engaged in crypto actions might receive, the stablecoin issuer might in impact “skip the road” upon utility to obtain a constitution as a depository establishment and problem fee stablecoins.[40] These purposes, whereas nonetheless reviewed, will probably be reviewed earlier than purposes from different entities.
As soon as authorized, the issuing depository establishment should clearly speak in confidence to clients {that a} fee stablecoin is neither assured by the U.S. authorities nor topic to deposit insurance coverage by the Federal Deposit Insurance coverage Company.[41] Although fee stablecoins will not be assured or insured, within the occasion of the receivership of the issuing depository establishment, an individual who has a legitimate declare on a fee stablecoin is entitled to precedence over all different claims on the establishment with respect to any required fee stablecoin property, together with claims with respect to incurred deposits.[42]
Restrictions
The RFIA gives that stablecoins might solely be utilized in permissible transactions. They might not be pledged, rehypothecated, or reused, apart from the aim of making liquidity to satisfy cheap expectations of requests to redeem fee stablecoins.[43]
Additional, the RFIA restricts which property might correctly use the time period “fee stablecoin” or “stablecoin.” Endogenously referenced crypto property can not use the phrases fee stablecoin or stablecoin in promoting advertising supplies.[44] Endogenously referenced crypto property are property that will probably be transformed, redeemed, or repurchased for a hard and fast quantity of financial worth, or property for which a mechanism exists to realize such conversion, redemption, or repurchase, and property that both rely solely on one other crypto asset to keep up the mounted quantity of financial worth or depend on algorithmic means to keep up the mounted quantity of financial worth.[45]
3. Combatting Illicit Finance
As at the moment drafted, the RFIA contains new provisions to fight illicit finance dangers, starting from enhanced oversight of cryptocurrency ATMs to rising efforts to fight illicit finance throughout authorities businesses.
Cryptocurrency ATMs
The RFIA gives a refreshed regime for combatting illicit finance. Notably, the RFIA directs the Monetary Crimes Enforcement Community (“FinCEN”) to require crypto asset kiosk house owners to submit and replace the bodily addresses of the kiosks owned or operated.[46] Additional, FinCEN should require crypto asset kiosk house owners and directors to confirm the id of every kiosk buyer through the use of authorities issued identification.[47] These provisions are just like these in one other invoice sponsored by Senator Elizabeth Warren (D-MA), which has been closely criticized by the crypto trade.[48]
Monetary Expertise Working Group
Moreover, the RFIA establishes the Impartial Monetary Expertise Working Group to Fight Terrorism and Illicit Financing, consisting of the Secretary of the Treasury, senior-level representatives from FinCEN, the Inside Income Service, the Workplace of International Belongings Management, the Federal Bureau of Investigation, the Drug Enforcement Administration, the Division of Homeland Safety and america Secret Service, the Division of State, and 5 people to symbolize monetary expertise firms, distributed ledger intelligence firms, monetary establishments, and establishments engaged in analysis.[49]
The Impartial Monetary Expertise Working Group has a broad mandate and is tasked with conducting unbiased analysis on terrorists and illicit use of latest monetary applied sciences; analyzing how crypto property and rising applied sciences might bolster the nationwide safety and financial competitiveness of america in monetary innovation; and creating legislative and regulatory proposals to enhance anti-money laundering, counter-terrorist, and different illicit financing efforts in america.[50]
4. Tax Implications
As at the moment drafted, the RFIA proposes an alternate tax therapy of crypto property. Gross revenue doesn’t embody acquire from the sale or change of any crypto asset, until the sale or change is for money or money equal; property utilized by the taxpayer within the lively conduct of a commerce or enterprise; or any property held by the taxpayer for the manufacturing of revenue.[51] Notably, this exclusion doesn’t apply if the worth of such sale or change exceeds $200 or if the overall acquire exceeds $300.[52] At backside, this exclusion will be certain that shoppers who transact in small quantities of crypto don’t face the identical sort of tax legal responsibility as those that transact in massive sums.
The RFIA additionally disallows loss deductions from wash gross sales. No deduction is allowed with respect to any loss claimed to have been sustained from any sale or different disposition of specified property the place it seems that, inside a interval starting 30 days earlier than the date of such sale or different disposition and ending 30 days after such date, the taxpayer has acquired considerably similar specified property, or entered right into a contract or choice to amass, or lengthy notional principal contract in respect of, considerably similar specified property.[53] Below present regulation, these restrictions apply to securities transactions. Thus, even when a crypto asset is a commodity below the remainder of the RFIA’s provisions, it might nonetheless be handled like a safety on this occasion.
Concluding Ideas
As mentioned on the onset of this alert, the RFIA goals to resolve for sure trade ache factors surrounding the rules, restrictions, and protections relevant to the cryptocurrency trade. Nevertheless, the effectiveness of the up to date provisions inside the RFIA stay to be examined and will current some evident points for the trade to deal with. Particularly, we notice just a few provisions:
- The duty to change into a depository establishment with a view to problem a fee stablecoin would symbolize a major—and maybe insurmountable—burden for a lot of Fintech trade contributors. There may be not presently a single stablecoin issuer in america that could be a depository establishment. The provisions within the RFIA may render present stablecoins impermissible in a single day and topic all issuers to the regulation, supervision, and enforcement authority of federal and state banking regulators. Additional, fiat-backed stablecoins inherently require 100% reserves, whereas banks function on a enterprise mannequin that’s predicated on fractional reserves. These distinctly totally different enterprise fashions and use instances elevate questions surrounding whether or not stablecoins will even be palatable to banks. These factors definitely advantage additional dialogue amongst all trade stakeholders and policymakers by way of the legislative course of.
- The RFIA, in impact, deems the CFTC the first federal regulator of practically all crypto property, crypto asset exchanges, and associates. Whereas the trade might welcome this provision as the popular regulatory regime, we don’t anticipate a seamless transition of regulatory authority from an aggressive SEC, which nonetheless retains jurisdiction, albeit extra restricted jurisdiction, over digital property which can be securities. The competing businesses might create friction within the trade, as entities work in the direction of determining their correct classification below the RFIA and modify to a probably new regulator.
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[1] Lummis-Gillibrand Accountable Monetary Innovation Act, S. _, 118th Cong. (2023).
[2] S. Amdt. 1000, 118th Cong. (2023).
[3] Lummis-Gillibrand Accountable Monetary Innovation Act, S. 4356, 117th Cong. (2022).
[4] This consumer alert focuses on provisions of the RFIA which can be utterly new, or symbolize main adjustments from the 2022 model of the invoice. For a piece by part abstract of the RFIA, together with new and legacy provisions alike, see Cynthia Lummis & Kirsten Gillibrand, Lummis-Gillibrand Accountable Monetary Innovation Act of 2023: Part-by-Part Overview, https://www.lummis.senate.gov/wp-content/uploads/Lummis-Gillibrand-2023-Section-by-Section-Final.pdf
[5] The time period “crypto asset” means a natively digital asset that (1) confers financial, proprietary, or entry rights or powers; (2) is recorded utilizing cryptographically secured distributed ledger expertise or any related analogue and (3) doesn’t symbolize, derive worth from, or keep backing by, a monetary asset (besides different crypto asset). Crypto property don’t embody fee stablecoins or different pursuits in monetary property represented on a distributed ledger or any related analogue. RFIA, § 101(a). “Crypto asset” additionally excludes an asset that gives the holder of the asset with any of the next rights in a enterprise entity: (1) a debt or fairness curiosity in that entity; (2) liquidation rights with respect to that entity; (3) an entitlement to an curiosity or dividend fee from that entity; and (4) some other monetary curiosity in that entity. RFIA, § 401.
[6] Crypto asset middleman is outlined by the Invoice as an individual who holds or is required to carry a license, registration, or some other related authorization that conducts market actions regarding crypto property and isn’t a depository establishment. RFIA, § 101(a).
[7] RFIA, § 403(a).
[8] Id. The time period “ancillary asset” means an intangible, fungible asset that’s supplied, bought, or in any other case supplied to an individual in reference to the acquisition and sale of a safety. Ancillary property profit from entrepreneurial and managerial efforts that decide the worth of the property, however don’t symbolize securities as a result of they aren’t debt or fairness or don’t create rights to earnings, liquidation preferences, or different monetary pursuits in a enterprise entity. RFIA, § 301(a)(1).
[9] RFIA § 403(a).
[10] RFIA, § 401(a). We notice a possible inconsistency: the RFIA limits the definition of crypto asset exchanges to these exchanges which commerce crypto property. Fee stablecoins are expressly exempt from the definition of crypto property. Nevertheless, the RFIA requires these providing a market in fee stablecoins to register as a crypto asset change.
[11] Id. The RFIA creates a definition of “decentralized crypto asset change”: (i) software program that includes predetermined and publicly disclosed code deployed to a public distributed ledger; (ii) permits a consumer or group of customers to create a pool or group of swimming pools for crypto property; (iii) allows a consumer or group of customers to conduct crypto asset transactions from a pool or group of swimming pools, with such transactions occurring pursuant to the code described in clause (i), and; (iv) no individual, or group of individuals, identified to 1 one other who’ve entered into an settlement (implied or in any other case) to behave in live performance, can unilaterally management or trigger to manage the software program protocol by way of altering transactions, capabilities, or actions on the protocol, or blocking or approving transactions on the protocol.
[12] RFIA, § 404(a).
[13] RFIA, § 705(c).
[14] RFIA, § 404(a).
[15] Id.
[16] RFIA, § 405(a).
[17] Id.
[18] RFIA, § 403(a).
[19] RFIA, § 501.
[20] Id.
[21] RFIA, § 601(a).
[22] Id.
[23] Id.
[24] RFIA, § 101.
[25] RFIA, § 203(a).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30]RFIA, § 205. The Invoice additionally advises the Shopper Monetary Safety Bureau to problem steerage setting forth greatest practices for normal crypto asset middleman buyer agreements, in session with the SEC and CFTC.
[31] Id.
[32] RFIA, § 205.
[33] RFIA, § 206(a).
[34] Id.
[35] See Jonathan Chiu & Russell Wong, What’s a Crypto Conglomerate Like FTX? Economics and Laws, No. 23-09 (March 2023). https://www.richmondfed.org/publications/analysis/economic_brief/2023/eb_23-09.
[36] The time period depository establishment contains: an insured financial institution or any financial institution which is eligible to make utility to change into an insured financial institution, any mutual financial savings financial institution, any financial savings financial institution, any insured credit score union or any credit score union which is eligible to make utility to change into an insured credit score union, or any financial savings affiliation which is an insured depository establishment.
[37] RFIA, § 701. Word that the Invoice neither defines “stablecoin issuer” nor considers what actions are thought of issuance.
[38] RFIA, § 101(a).
[39] RFIA, § 701.
[40] RFIA, § 706(a).
[41] RFIA, § 701.
[42] Id.
[43] Id.
[44] RFIA, § 702(c).
[45] RFIA, § 702(a).
[46] RFIA, § 303(b).
[47] RFIA, § 303(c).
[48] Digital Asset Anti-Cash Laundering Act of 2023, S. _, 118th Cong. (2023).
[49] RFIA, § 304(b)(1)-(3).
[50] RFIA, § 304(c)(1)-(3).
[51] RFIA, § 801(a).
[52] Id.
[53] RFIA, § 805(a).
The next Gibson Dunn attorneys ready this consumer alert: Sara Weed, Jason Cabral, Jeffrey Steiner, Karin Thrasher, Alexis Levine, Roscoe Jones Jr., Amanda Neely, and Christian Dibblee.
Gibson Dunn’s attorneys can be found to help in addressing any questions you might have relating to these developments. Please be at liberty to contact the Gibson Dunn lawyer with whom you normally work, any member of Gibson Dunn’s FinTech and Digital Assets, Financial Institutions, or Public Policy apply teams, or the next authors:
Monetary Establishments Group:
Jason J. Cabral – New York (+1 212-351-6267, jcabral@gibsondunn.com)
FinTech and Digital Belongings Group:
Jeffrey L. Steiner – Co-Chair, Washington, D.C. (+1 202-887-3632, jsteiner@gibsondunn.com)
Sara K. Weed – Washington, D.C. (+1 202-955-8507, sweed@gibsondunn.com)
Public Coverage Group:
Roscoe Jones, Jr. – Co-Chair, Washington, D.C. (+1 202-887-3530, rjones@gibsondunn.com)
Amanda H. Neely – Washington, D.C. (+1 202-777-9566, aneely@gibsondunn.com)
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