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respect wrigleyThe Chicago Cubs are reportedly prepared to seek a permit to put up an advertising sign in right field, previously approved by the relevant Chicago bodies, which would impact the views of some of (one of?) the rooftop buildings with whom the Cubs currently have a revenue-sharing agreement. That decision emanates out of an apparently troubled negotiating session on Tuesday, and the rooftops’ decision to file a lawsuit implicating the Cubs.

I was able to get my eyes on a copy of the complaint filed by the rooftops (thanks to Matt Spiegel for the assist; give him a follow or a listen), and gave it a basic review. As has been reported, the gist is the rooftops suing Marc Ganis, a sports consultant, for allegedly defamatory statements he made to the Sun-Times last year. The thrust of the rooftops’ gripe is that Ganis’ statements – which commented on the rooftops’ “stealing” of the Cubs’ product – were both false and harmful. There are allegations concerning the renovation, but only as they relate to Ganis’s allegedly defamatory statements. To be quite clear, this is not a lawsuit about the outfield signage or the overall renovation and development plan.

However, I think that the Cubs are more strongly implicated in this suit than has been reported. The Cubs, including their owners and related entities, are named as “respondents in discovery,” which means they are not defendants at this time. But, the rooftops claim that, at the time Ganis made the allegedly defamatory statements, he was “acting within the scope of his employment or association with the Cubs in promoting the Cubs’ position with the City of Chicago and the public.” Further, the rooftops seek to hold the Cubs liable for Ganis’s statements should he be found to have been acting in the scope of such a relationship with the Cubs (if one actually existed).* For now, the rooftops seek only to include the Cubs in discovery – i.e., to be able to ask the Cubs questions and seek documents – so that they can determine whether the Cubs, or other entities, should be included in the suit as defendants. Depending on that discovery, or on the Cubs’ desire to litigate, the Cubs could at some point in the near future become defendants in this suit.

In part, adding the Cubs as potentially liable for Ganis’s actions is merely a “deep pockets” maneuver, common in litigation. But, because the allegation amounts to the rooftops claiming the Cubs smeared the rooftops publicly by way of Ganis, it’s easy to see why the Cubs could see the lawsuit as a shot across the bow. It wouldn’t surprise me to learn that, with the statute of limitations ready to run on Tuesday – the same day as the contentious meeting – this very suit was held on the table by the rooftops as a threat to get a deal done that day. A deal didn’t get done, and the lawsuit was filed. Time ran out.

That is all to say that, while this particular lawsuit is not about the renovation or the outfield signage, the existence of the suit is probably very much related to those issues. The rooftops may now have a touch more leverage than they did a week ago, but they’ve also probably got a very angry entity across the table.

*(It gets particularly thorny if you extend the rooftops’ argument further: what if they contend that statements like the one made by Ganis sufficiently swayed public opinion against the rooftops, thus pushing the various political entities involved in the planned development process to side with the Cubs? Could the rooftops then argue that, but for these kinds of statements, the planned development wouldn’t have been, and shouldn’t have been, approved? If you’re thinking that’s an extremely tenuous line of argument, I’d agree with you. But, in law, an argument is an argument, and if you’re backed into a corner, you’ll make any argument you can find.)

In the interest of fairness and balance, I am compelled to note that, because the statute of limitations was about to run on the rooftops’ ability to sue Ganis for his remarks (it literally would have expired the day they filed the suit, meaning if they waited another day, they could no longer file), the rooftops could simply have been looking to protect their rights here. And because all of the rooftops have joined in the suit, it is plausible that some of those rooftops’ primary concern with this suit really is the allegation that their businesses have suffered because of the Ganis statements (and the allegedly resulting negative feelings). In that instance, maybe for some of the rooftops, this suit really isn’t about needling the Cubs or gaining leverage in the renovation talks. It could simply be about believing someone did something wrong, and a business was hurt because of it.

As for the strength of the suit, I’m no longer a practicing attorney, so I don’t want to do too much lawyering. I did have a lawyer friend (and BN’er) take a look, and his opinion was that the claims are not particularly strong. In other words, there’s probably not a ton of exposure here for the Cubs, should things turn further sour, and litigation – in this suit – proceeds in force.

Setting aside the lawsuit, there has already been at least one modestly positive update (paired with some more fighting, of course).

The Tribune offers more on the negotiation impasse, with input from Alderman Patrick O’Connor, who had been serving as a kind of mediator. According to O’Connor, the two sides had agreed as of last week that the right field sign would actually be moved back onto one of the rooftops, but when final computer renderings of the left field sign were shown (that’s the video board), the rooftops said there was too much blockage. On the bright side, O’Connor opined that the sides will continue talking and trying to resolve things short of a full-blown court battle.

Hopefully this first lawsuit remains a side battle that never erupts into the big boy we’ve all been fearing. Hell, maybe this first lawsuit gets the sides even more motivated to hammer out a deal.

  • half_full_beer_mug

    Why not just get the permit, put the sign up and force their hand. I just can’t see how the rooftop owners could last in a drawn out legal battle with the Cubs. It seems to me the best result of that would be a legal settlement, and if that’s what their long game is, let’s get it started.

  • JB88

    It’s definitely an interesting suit and the claims against the respondents in discovery are particularly interesting (there is a copy of the suit embedded in a Crane’s article from yesterday).

    Putting aside how strong or weak the claims might be against Ganis (and I think they are pretty weak after reading the complaint), the claims against the Cubs are incredibly weak. If I represented the Cubs, I’d move to dismiss and I’d peg the chances of success at 80 or 90 percent. The only tortious conduct the Cubs are alleged to have engaged in is “employing” Ganis, who made the allegedly defamatory statement. The problem with that is it is pretty widely known (and reported) that Ganis was a consultant to the Cubs. In Illinois, a consultant or independent contractor relationship does not create an employment relationship. Only if the Cubs are Ganis’s employer could they theoretically be liable for defamation as his employer. And, honestly, I’m not even certain that Illinois recognizes respondeat superior liability for defamation.

    In other words, the Cubs should be arguing that the rooftops aren’t entitled to even discovery against the Cubs, because their argument will lose because the Cubs weren’t Ganis’s employer.

    • D-Rock

      Very interesting. Let’s hope you are right and this can be resolved quickly so the construction can begin ASAP!

      • JB88

        Well, just to be clear, I don’t know that resolving this litigation quickly will or won’t impact construction. As Brett points out, this lawsuit relating to Ganis has nothing to do with the construction—though, it is important to note that the rooftops do allege that their damages included their inability to fight back against the proposed renovations, but, equally important, the claims they allege wouldn’t allow them to stop the renovation through the Ganis lawsuit.

        Rather, if the rooftops seek to stop the renovation, they’ll need to file a new lawsuit, seeking a court order stopping the renovation. I think that would be particularly difficult though because damages could/would make the rooftops whole and they have 10 years or more of financial data off of which to base those alleged damages.

  • Abe Froman

    ” But, in law, an argument is an argument, and if you’re backed into a corner, you’ll make any argument you can find.”

    We know Brett we have all used the message boards. :I

    • mjhurdle

      ha! well played sir

  • sleepy

    I’ve just got a really bad feeling about this whole thing. Yet another in a long list of obstacles which need to be overcome before the team can benefit from much needed revenue streams. When will it ever end?

  • Cheese Chad

    I just read at mlbtraderumors.com that the Cubs refused to give Tanaka an opt-out clause after 4 years. I know this is kind of their mantra (just like no-trade clauses), and it probably wouldn’t have made a difference, but to me it shows a lack of confidence in their future. In 4 years if the Cubs are contending and have financial flexibility (which we all assume they should be) then don’t they think they could retain Tanaka for the remaining 3 years of his contract?

    • Jon

      My theory, it was about a precedent….Rizzo didn’t get an opt out clause(or no-trade), neither did Castro, and I”m sure they don’t want one with Baez, Brant, and Almora in the future. If they gave Tanaka one, those guys would ask for them too.

      • ari gold

        Soler got an opt clause though

        • http://fullcount1544.blogspot.com FullCountTommy

          Soler got an opt into arbitration clause, so the Cubs would still retain his rights, he would just be able to go through arbitration to figure his salary instead of what his initial contract was worth.

    • CubFanBob

      Retaining Tanaka for the last three years inst the issue. Tanaka and his agent would choose free agency if he was performing at a high level driving his price even more up on the open market. If he and his agent didnt declare free agency after those four years that would mean he sucks and the cubs would be stuck paying 22 mil + for three years. Ether way the Cubs get screwed and really is he worth $25 mill for four years to the Cubs in their current state ?

      • Cheese Chad

        I guess part of my point was, if he was good enough to think he’d make more by opting out than ideally the Cubs had benefited in those 4 years. If the Cubs had the money (like I said we believe they will) they wouldn’t mind spending more to retain him. Otherwise it would still be a worthwhile 4 year contract in which they were probably going to contend in the last two. Or he gets traded for some awesome prospects. in year 3;)

    • D.G.Lang

      It’s smartest not to give an opt-out clause.

      Consider if a team gives a player a heavily front loaded contract with an out clause the player could invoke it when he is eligible to do so and force the team into a new more expensive contract simply because he is capable of doing so.

      The net effect would not only be making the contract much more expensive over the original length but essentially would be forcing the Annual value of the years leading up to the “opt out” date to be much more than the team agreed to and/or was willing for it to be if the contract was shorter than the original length..

      The more front loaded a contract is the more likely the player would be to opt-out and avoid playing for less in the latter years of the contract. It is unlikely that any team would willingly sign a contract which allows a player to unilaterally raise the amount the team pays after a certain point. The whole point of the contract is to guarantee an agreed to price for the life of the contract.

      A player wouldn’t sign a contract which allows the team to cancel it after a set time and the union wouldn’t allow it anyways so why should a team put itself in the same undesirable position. Only out of desperation and any contract signed out of desperation is not a good contract.

      Unless there was a mechanism which allowed the team to recoup the extra money from the front loaded years or a “signing bonus” in excess of the original annual value, the team would essentially be robbed of that money in excess of the original annual value. The greater the amount of the front loaded years and/or the “signing bonus” the greater the loss to the team.

      Obviously, if the player wasn’t worth what he signed for and he couldn’t get more than the reduced annual value for the years after the opt out date he wouldn’t opt out to begin with even though the team would most likely be glad to get rid of him.

      The opt-out clause leaves the team holding the most risk if the player is good through the life of the contract.

  • Edwin

    Nice write up Brett. I think most situations involving legal disputes like this are tough because it’s hard to separate what we want the outcome to be and who we percieve to be “right” or “wrong” from what the actual law process dictates.

    • JB88

      Here the rooftops suit is tenuous at best. From the fact that Ganis doesn’t specifically identify anyone who owns a rooftops to the defense that a person making a statement of opinion is not liable, the rooftops have a VERY uphill battle. The invasion of privacy claim is a loser, no matter how you slice it because there is no allegation that Ganis disclosed a private fact (a necessary part of that claim).

      I know it is easy to downgrade our belief that this is a BS complaint because we want to account for our natural biases, but from my vantage point and years of practice, this is a BS complaint, no matter who the parties are.

      • Edwin

        I don’t doubt that it’s a BS complaint. I just think that it’s a BS complaint based on the law, not based on what I want for the Cubs. I guess that was the point I was trying to make. Maybe I’m splitting hairs.

        • JB88

          Fair distinction and I understand your point now.

  • D.G.Lang

    During this ongoing dispute I’ve seen a few comments here that the Cubs were being too nice to the rooftops and they should have been “harder” in their dealings and especially their public statements against the rooftops.

    I believe that this lawsuit displays the benefits of behaving with such restraint and it also show the potential for being sued even if groundless simply because someone said something that someone else didn’t like.

    I believe that the Cubs have been walking through a minefield filled with mines from the various parties and they have kept their mouths shut just to avoid complicating the situation and giving the rooftops an excuse to file lawsuits such as this one.

    I suspect that the rooftops would have proceeded with this lawsuit regardless of any settlement with the Cubs and they only held back until the last day to avoid really pissing off the Cubs which they seem to have done anyway.

    I believe that at this time the Cubs will erect a sign even more 0bstructive than the “see through” one they were originally going to erect and the rooftops will definitely sue the Cubs.

    At this point there is no point in the Cubs delaying any longer trying to avoid any lawsuits and if the rooftops do sue and win then the Cubs would not only take down the sign they would absolutely strongly consider moving out of Chicago to the suburbs where they won’t have to contend with all of these delays and restrictions.

    Timing is important in this in that if there is only a restraining order preventing the sign from going up before the season begins there would be no actual damages to the rooftops and no punitive damages allowed..

    On the other hand if the Cubs wait until the season begins the rooftops could claim some damages due to loss of sight and it could potentially be much more costly to the Cubs from both compensation and possibly punitive damages.

    I don’t think a restraining order without damages which my possibly be overturned will have a huger effect against the Cubs who seem determined to remain at Wrigley but losing a lawsuit and paying damages with the possibility of even more lawsuits in the future may very well spur them on to actually leave Wrigley.

    They want to remain and there are valid reasons for doing so but if it becomes apparent that they can’t do what they want and they will most likely lose any lawsuits I don’t see where they have any choice but to leave.

    It’s time for the city to step in and do some enforcement actions and maybe even some huge tax increases against the rooftops and force them to cooperate or be put out of business.

    It might hurt a little to lose the tax revenue from the rooftops but it would hurt the city immensely to lose the tax revenue from the Cubs entirely along with the planned development in the neighborhood along with the ongoing Cubs contributions within the city.

    • JB88

      Wearing the white hat in public opinion is always the best place to be. It gives you the ability to lean on other influential persons without having given them a reason to oppose you.

      You can bet that the rooftops have also been “holding back” from doing anything too rash for fear of the City’s reprisals. They’ve said some dickish things, to be sure, but I imagine that’s because you are dealing with a number of unsophisticated, albeit rich, rooftop owners, who don’t have PR persons advising them.

  • Jon

    Even the Red Sox had to threaten to leave Fenway to get what they wanted. The Cubs, WILL NOT, get the concessions they want from the rooftops unless they threaten with a legit serious move.

    • Jon

      Now, if the Ricketts owned the Cubs 10-15 years ago, they could have got the land where Cabrini Green was for pennies on the dollar I bet. That would have been a realistic scenario to keeping the Cubs in Chicago, and sticking it to those leaches…

  • mtcubfan

    When I heard about the suit, my first thought was what are the damages? Lost revenue? Was the lost revenue from the allegedly defamed statement or from the poor product on the field? Be that as it may, I think the suit is telling in that it should signal to the Cubs that a friendly resolution outside of litigation is unlikely. I am not familiar with Chicago politics or the parties, but from an outsider’s point of view, there are too many parties/people/owners for the Cubs to satisfy and when it comes to a person’s property or business often any rational thought is lost. Although litigation is expensive, it may be the only way to resolve the dispute. The Cubs should start with the renovation and install the signs to force the owners to file their injunction and complaint which will force the litigation.

    • baldtaxguy

      I’m too trying to connect the dots to what the damages are, or how to determine them. Is it attached to the statement portraying them (roofies) as “bad guys” and therefore impacting their business? I get that one would be pissed if another claimed that one was “stealing” someone’s else’s product, but clearly they are not, based on the existence of a revenue sharing arrangement, and it must be evident that such arrangement is clear to the public, and the roofies clearly cater to a different experience of the game. I guess this “theft” statement could impact sales but how do you go about proving it, especially when the on-field product is moving in a specific direction that would not necessarily yield a sales bump, i.e. a decrease in sales may not be because they were portrayed as a villan, but because the Cubs product has suffered in quality?

  • JM

    Is “rooftops” considered one entity, or are they all separate owners? If the latter, could there be multiple lawsuits? Seems like this scenario would be very long and drawn out.

    • JB88

      All of the owners of the rooftops are plaintiffs in this suit. This is the only litigation that is going to take place related to Ganis’s comments.

      • JM

        Thanks JB. You’re a handy guy to have around.

      • JM

        BTW, are you billing Brett for all these hours?

        • JB88

          Lulz and HA. No, all I ask in return is for a functioning “Edit” tab and the ability to block/ignore certain users on this site :)

          In all seriousness, I am just hoping to provide a bit of information so when readers of this site hear an idiot waxing intellectual about this suit at the bar, you’ll be armed with information about the suit and its deficiencies.

  • Internet Random

    I’m guessing that even if they prove liability, damages are either going to be minimal or extremely difficult (and therefore litigation-intensive) to prove up.

    It will cost both sides a fortune to keep it in court, and the rooftops will be ground down first. The Cubs have more resources and more at stake.

    In the meantime, the rest of us suffer.

  • No Longer JR

    Interesting read on the lawsuit, and the complaint is interesting also. I never took the Cubs PR campaign against the rooftops seriously, to me it was just posturing for negotiating purposes and creating a scapegoat for the refusal to start renovating. Sure the rooftops are looking after their own business interests, but so do the Cubs. I did not perceive either party as right or wrong, they just have differing, conflicting interests. But I started realizing, judging from the comments on this board over the past couple months, that I am in the minority and that, in fact, there is a lot of hostility directed toward the rooftops over what seems like nothing more than businesses protecting their contractual rights. I was not quite sure if the comments on this board were representative of the average Cub fan – this board has appeared to me to have transitioned into a largely pro-anything the Cubs do kind of community – but judging from the allegations in the complaint the rooftops appear to believe their reputation has been generally tarnished, and that accusations of them stealing have crossed the line. It will be interesting to see if that was the message that the Cubs hired this consultant to convey and, if so, whether there are any legal consequences. I guess the rooftops will have a year from the day that Ricketts made that Showtime comment to file a suit against him personally!

  • DarthHater

    Best Rosenboob line of the day: “Splitsville remains an option. See how the mayor likes the hole where his ridiculous amusement tax used to be. See how the rooftops like the view of baseball’s most famous ruin, although the quality of play there would improve.”

  • college_of_coaches

    Fukuoka SoftBank Hawks Release Bryan LaHair _ MLB Trade Rumors (@mlbtraderumors)

  • itzscott

    Again, IANAL but maybe the rooftops are claiming that a decline of rooftop attendance/revenue (?) was due to Ganis’ comments.

    If so, does the percent decline in rooftop attendance mirror the percent decline in Wrigley attendance? Is there an exact correlation between the two? Doubtful.

    If there was a decline, does it have to do with what Ganis said or the bad team/record of the Cubs themselves?

    If the decline was because the Cubs sucked, maybe it would be more fruitful for the rooftops to sue the Cubs for providing a bad product, which resulted in their lost revenue?

    If so, I think many of us would support the rooftops on that one!

  • ChrisFChi

    I wonder if there has been any digging into the rooftops. I would have to believe somewhere, at sometime, they breached their side of the contract with the Cubs.The how,when,why I don’t know, this is just a gut feeling on my part.

    Either way, the Cubs and rooftop owners seem to be locked into this for the long haul. The only real positive I see out of this is one more season I can get pics of Wrigley before the massive overhaul does begin.

    Its getting tough being an optimistic Cubs fan.

  • http://bleachernation.com woody

    The problem as I see it is that the former owners negociated a contract with these people which gave legitimacy to their obviously bogus position. So now they have a legal contract that Ricketts is telling everyone that it’s like having a neighbor watching TV through your window and charging admission or others to watch. So essentially the Tribune company screwed the pooch or the present ownership. I don’t see any way to get around a binding legal contract, but then I’m not a lawyer. Zell took Ricketts to the wood shed on the whole purchase deal IMO.

  • aaronb

    How many rooftops are going to be affected by the sign? If we are talking about just a couple of rooftop sight lines, why can’t the Cubs settle/buy out with those rooftops in particular?

    I don’t understand picking a fight with the entire group. Especially since you are supposedly “Partners” and are drawing 17% of their revenue.

    • mjhurdle

      The rooftops don’t want a rooftop here or there settling with the Cubs.
      Every rooftop that is bought out is less leverage/power for the rest of the rooftops. Individually, none of them can fight the Cubs. Their strength lies in numbers and unity.

      Im sure the Cubs would love to start picking off the rooftops one by one, but it is in the rooftops best interest to not allow that to happen.

    • D.G.Lang

      One major problem pointed out earlier in another thread is the “miller” sign on one of the buildings which would be blocked. If the brewery had prepaid for the life of the sign and the sign becomes blocked then the rooftop owner might be forced to repay a proportion of the original rent or lease based on the percentage of the original term the Miller sign is blocked.

      The purchaser of advertising on the new see through sign reportedly doesn’t want to see a competitors sign visible through it and therefore there might be some pressure on the Cubs to make that a solid sign rather than a see through one and indeed a larger solid sign may potentially bring in greater revenue than a see through sign.

      Much of the rooftops feet dragging may be to protect that single “rooftop” owner regardless if he only has a sign there but no fans in attendance.

  • Ballgame17

    Garza signs with Brewers

  • PolarBear

    Time to realistically look into moving. Tell the city they are going to stay taking bids from interested parties. Make the city finally pick a side and get this deal done or lose their cash cow. I, for one, am tired of all these self-serving idiots that cash in on the Cubs, but don’t want to let them operate there business. I would be more than happy to travel a little further to enjoy a game at an updated/modern park that isn’t benefiting these greedy fools.

    • sleepy

      Right. even if Ricketts doesn’t want to move, he needs to understand that he has some leverage if he wants to use it. Time to stop being a fanboy and became a businessman. He owes it to the fans.

      • mr. mac

        I wonder if there is a way to conduct a poll on this. I honestly feel like most of us are in the just move already camp.

  • Ill see you at Sluggers.

    I would hope at this point that the rooftops recognize just how badly they’re alienating the fans from their product. It’s already what, $150 for unlimited food/booze to barely be able to see the Cubs play?? Someone needs to inform Ms. Murphy that she will not have a business soon if she continues to piss off the Cubs fans over their greed.

  • NorthSideIrish

    Richard Durrett ‏@espn_durrett 6m
    Greg Maddux will not have logo on his Hall plaque. He’s glad about it. “For me, I couldn’t pick. Both places (Chi, ATL) mean so much to me.”

    Come on…should be a Brave…

    • TWC

      Wow. That’s fascinating. Surprising, too.

  • mosconml

    Oh c’mon, the rooftops aren’t flat-out stealing.

    They’re only 83% stealing.

    • mr. mac

      Right, 83% stealing but 100% screwing things up for the rest of us.

  • Eternal Pessimist

    The right plan:

    Step 1. Agree to “viable” stadium alternative (Rosemont, or elsewhere) with solid incentives/low financial risks and a one year opt out for the cubs. Could pay an opt out fee.

    Step 2. Start to plan stadium, traffic, sponsorships.etc…

    Step 3. Wait for roofies to come around

    Step 4. Buy the roofies, get non-suit agreement, or move.

    (If they move, then place minor lague team at wrigley)

  • https://www.facebook.com/AnotherSpaceSong Bret Epic

    There’s an article over on cubs den talking about boycotting the rooftops that I found both interesting and humorous. Also shared a Facebook group for those who plan to boycott. I’ll link to the group only, so it doesn’t seem like I’m overstepping bounds. https://www.facebook.com/pages/Boycott-Wrigleyville-Rooftops/431500950272989

  • smackafilieyo

    I’m listening to espn Chicago and they had a great idea for the cubs. So here’s what they said, “speed the renovations up by playing at white sox stadium for one year. That’ll move renovations up 4 years to one and knock it all out. This also screws the rooftop owners and will lose lots of money…and come back when the team is ready to hit it big with a new stadium and maybe the rooftop owners will sell their buildings.” Please poke holes at this….wanted to know feedback…

  • Cubsin

    On the topic of the rooftops as thieves, did they pay the Cubs for the years before they signed the contract with the Tribute Company? And did Bruce Springsteen (and others) receive payment from the rooftops for the customers who watched Wrigley Field concerts from the rooftops?

  • Diehardthefirst

    Libel and slander actionable but tougher to recover if Public figures- an argument can be made that Rooftoppers have crossed the line into the public domain

  • Old Fat Guy

    I have a question. At some point, when or if Chicago and Rahm decide or believe that the RTO’s are going to screw this deal up, could the city decide to use Eminent Domain to obtain/condemn the Rooftop Owners’ buildings?
    I realize that would be an extreme thing to do, but if the Cubs actually come across with a valid and likely location away from the city, it makes more sense to try and keep the tax revenue generated from the Cubs than in having a few pissed off small business owners that combined don’t support the city with the $’s that the Cubs do ( sorry for the run-on-sentence ).
    As I said, it may be extreme, but at some point, something’s gotta give. I just don’t know how likely that type of move would be. I know the lesser peons ( like most individuals ) don’t hold the political capital for it to matter if government comes down on them, I just don’t have a sense of how much clout they have ( other than with Tunney ).

  • Diehardthefirst

    One rumor is that the Rooftoppers would consider a settlement by giving up seating on the roofs in exchange for signage — stay tuned

    • https://www.facebook.com/AnotherSpaceSong Bret Epic

      That sounds like a great idea actually.

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