Q46 – How do I obtain E&O insurance as an RIA?

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How do I obtain Errors & Omissions (E&O) insurance as an RIA?

Obtaining Errors & Omissions insurance, commonly referred to as “E&O” is a best practice for any Registered Investment Advisor (RIA).  E&O insurance is professional liability insurance for your practice, similar to how doctors carry medical malpractice insurance. If you are getting paid to deliver a professional service and you make a mistake, or you do something that you’re not supposed to do, or you fail to do something that you should have done, and it results in a financial loss for your client, that is what E&O insurance is for.  It can cover not only potential financial settlements, but also the cost of a legal defense with respect to the matter.  Financial advisors that have historically only been affiliated with broker/dealers have generally had E&O coverage provided for them by the broker/dealer itself.  This coverage is paid for by the advisor either directly, or as part of their payout.  If you start your own RIA, you need to source this insurance yourself.  As with almost all aspects of running an RIA, there is a defined process for how to do this, as well as experts to guide you accordingly.

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Show Notes:

Windermere Insurance Group (website)

Scott Shannon (LinkedIn)

Scott Shannon email:  [email protected]

Scott Shannon phone #:  704-247-3038

Full Transcript:

How do I obtain errors and omissions insurance as a Registered Investment Advisor (RIA)? That is today’s question on the Transition To RIA question and answer series. It is question #46.

Brad: Hi, I’m Brad Wales with Transition To RIA. On today’s question, we’re going to talk about a very important topic and something most advisors have dealt with already their entire career.

If they’re moving from a broker-dealer model, where maybe they’ve been their entire career, into the RIA space, all of a sudden, this is a new variable that they would need to address. Perhaps the entire time they’ve been at a broker-dealer, it has been handled for them, and now they need to handle it on their own.

What I’m referring to is obtaining errors and omissions insurance, commonly referred to as E&O insurance. That’s what we’re going to be talking about on today’s episode. How as your own RIA, would you obtain that coverage on your own?

For those of you watching on video, I’m happy to be joined by an expert on this topic. Scott Shannon of Windermere Insurance Group is joining us. Scott, thanks for coming on.

Scott: Hey Brad, thanks for having me.

Brad: I’ll turn it back over to Scott here in a second to give an intro on himself and his firm. But I want to give some thoughts on this topic in general.

It’s very important in my opinion to have E&O insurance. For most of you that have been in that captive environment, you’ve had it all along. Your firm has either paid for it on your behalf – and don’t think that was free, that was included in your payout – or perhaps if you’re at an independent broker-dealer model, while they might’ve supplied the access to it, you were paying for it separately as a fee line item on its own.

Scott, you’ll probably mix in, unfortunately, some horror stories you’ve maybe come across along the way, but this is no different than any other insurance.

You can’t wait to be in a car accident to think you need car insurance. You can’t wait for your house to burn down to need home insurance.

And yeah, that 99% or whatever the stat comes to of the times it ends up being completely just an expense, and you never see any benefit from it, but that’s by design. That’s what insurance is. And hopefully, you never do have to use it, but you want to have that reassurance.

One quick example I’d give and certainly I won’t name names, but I remember years ago, an advisor in the RIA space did not have E&O coverage. I forgot exactly what the situation involved, but it was obviously a problem with a client.

It ended up being a complaint and it ended up going on for years and cost an enormous amount of money and the advisor did not have E&O insurance. He thought, “Oh, I will never need this. This is an unnecessary expense.”

I forgot what the specifics were, but it was the type of thing that E&O insurance would have generally covered. I remember distinctly the advisor saying to me, as he was emotionally and mentally drained from this process, he said, “I am for sure getting E&O insurance after I get over the other side of this hump.”

I remember thinking, you never want to be in that situation. You don’t wait till the house burns down to say, “Oh, I need some sort of coverage.” Hopefully you never have to use it, but the idea is that it is there to provide you that peace of mind.

We’re going to dive into that topic here. Scott, if you could get a little background on yourself and your firm, I think that’d be helpful.

Scott: Sure. Brad, thanks again for having me on today. I’ve worked for Windermere Insurance in Charlotte, a full-service insurance brokerage, personal lines, commercial lines, benefits, etc.

The area that I focus on is specifically financial services businesses. Within financial services, I would say it’s 90% investment advisory firms. We offer all types of insurance, as I mentioned a second ago, but the primary insurance coverages that are applicable to investment advisory firms are the professional and management liability coverages such as E&O (errors and omission), but also other coverages. Cyber is a big one, directors and officers.

We believe that RIAs are a specialized business and this type of coverage is specialized as well, which is why we set up a practice seven years or so ago to focus on this area.

Brad: I think it’s important to point out that this is a unique type of insurance. So much so, that’s why we’re doing a whole separate episode here just on this topic.

No offense to more broad-based insurance providers, but you definitely need and want that expertise to understand exactly this specific solution. So, I’m glad to have you on with your expertise and I’m looking forward to diving into questions with you.

To start with, if you could walk us through what technically is E&O insurance, errors and omissions? What does that cover? What does it not cover?

Most advisors have had it, whether they knew it or not, but what exactly are they getting when they pay for it? What is it in general?

Scott: Yeah, absolutely. E&O, it’s not limited to RIAs. It covers a lot of different industries. A nice way to think about this is, legal malpractice or doctors, medical malpractice. If you’re getting paid to deliver a professional service and you make a mistake, you do something that you’re not supposed to do or you failed to do something that you’re supposed to do, and it results in a financial loss for your client. Then that is what it (E&O) is.

It is also called professional liability. It’s basically to cover a client claim. In the context of investment advisors, it’s typically that you allegedly put them in the wrong investment, or you didn’t follow their orders, and it led to a financial loss.

This could be an actual mistake, or as I alluded to, it could be an alleged mistake. One of the real benefits of E&O is that if you got sued by somebody who felt that you made a mistake, even though it turned out that that was incorrect, the insurance will cover you in the event that you simply have to spend money with attorneys to make this go away.

If you get somebody that is unhappy with your service, and they feel like it’s warranted to take legal action and they do, then E&O is really designed to protect you from that.

Brad: What exactly does it pay for? I guess obviously if there’s a true error and there’s, you know, $50,000 that the market moved, but does it also cover things like the legal costs associated with defending such a claim? Or is it just more to pay whatever the resolution is?

Scott: No, that’s a good point. I should have clarified that too. A trade error, that is typically covered as well. Although typically E&O responds if you got sued by somebody who wasn’t happy and an action was taken.

In the context with a trade error – this has happened actually more recently with the volatility in the financial markets – if a mistake was made, you fat fingered a trade, and you realized it, and by the time you realized it and you go back in the market to fix it, the market’s moved against you and it cost you money to do that. That is typically included in an E&O policy.

You need to make sure it is because, to your nightmare scenario you’d mentioned earlier, Brad, we saw one not too long ago where that coverage was not included, and an advisory firm had made a mistake and they did not get coverage. So, that’s an important component.

That’s what a lot of people think of, a trade error. And that is true, that should be covered, but it’s also to cover the legal expenses. It would cover if there was a settlement, if there was a judgment, that resulted from the action. It’s money from the insurance company to cover you for the legal expenses, as well as any kind of settlement or judgment that happens related to that case.

Brad: That reminds me, I think that’s what the situation was with the advisor I had referenced. To make it even worse for him, it was a situation where he was eventually, exonerated is not the word, that sounds as if there was some criminal thing, but he was found not at fault at the end of the day, but it was the legal fees that absolutely crushed him to reach that point.

Here was a guy that should arguably never have been on the receiving end of this issue to begin with, and then he ends up having six figure type legal fees. He struggled with that, understandably.

How is E&O different in the RIA world versus the broker-dealer world? I worked at a large broker-dealer for a number of years in my career, and I believe they were self-insured (for E&O). They would still push the cost down to each individual advisor of what the cost of the coverage essentially was.

From what you’ve seen of someone maybe coming from that broker-dealer world to that RIA world, what have you seen is the difference in how E&O works? At a broker-dealer is it a group policy that they’re all tucked under and then it’s on an individual basis as an RIA? Or what have you seen and the difference there, broker-dealer to RIA?

Scott: That’s a good question. On one hand, with those policies the coverage is similar. Going back to the high level, it is designed to cover you if you made a mistake or were accused of making a mistake that led to a financial loss.

If you work for a broker-dealer and it was a commission trade or if you worked for an RIA and it was more on the advisory side, the purpose of the coverage is the same. To protect you from a financial loss for something that you did or that you allegedly did.

In RIA space, the policies are structured a little bit differently. They are basically written at the firm level and it covers all of the people that work for the firm. The folks that are coming from the BD space will probably be familiar with how they would be required to carry it through the broker-dealer.

They would tend to get a certificate that shows that they have coverage. Everybody that’s a rep with that firm is going to have that coverage. It’s shared with all these other reps that are working there.

With broker-dealers, there tends to be a lot more claims in the broker-dealer space than there are in the RIA space. So the cost can end up being higher on the broker, depending on how it is passed down. It can tend to be somewhat higher if you compare it to what an RIA – I would say an RIA firm with five advisors – what that might look like.

So, there definitely are differences, but at the end of the day, it is designed to cover the same type of risk that maybe your client takes action against you because they’re unhappy with something that you did or didn’t do.

Brad: There does sound like there are some differences there. That’s why it’s worth trying to understand what those differences are and how it plays out. We’ll dive into it here in a little bit, as to how that process looks to work with someone like you, how to actually get it (E&O).

At a more macro level…imagine I’m an advisor, maybe I’m with a team, we’re going to start an RIA, how do I know how much coverage I need?

The best example I thought of when I was taking notes was with health insurance. When I worked in a corporate environment for a number of years, health insurance was one of the company benefits. I didn’t really scrutinize exactly how much was covered under one thing or another because there was essentially one plan and that was it. Take it or leave it. So, for better or worse, that was what I got.

I think that might be the case with folks that have received E&O that have been forced to buy it from the company’s provided solution. Now, all of a sudden if they’re RIA and they’re coming to someone like you, it’s well, how much do I need?

When I started my own company and I went out to source health insurance, that was a whole new world for me. There’s all kinds of variables that I never paid attention to because I didn’t have a choice before.

So, if someone comes in and says, “Hey, how much coverage do I need,” how do you walk through that kind of decision process?

Scott: That’s a great question. And we get that question all the time. Our observation is that there’s not any real science in terms of how much you need. Typically, these policies are written with a million-dollar minimum. We have seen some where maybe it was half a million, but typically, it’s a million and goes up from there.

We have a table we put in our materials that shows our observation of coverage ranges, which is based mostly on AUM. So, if you’re a team that’s breaking away and you’ve going to take a couple hundred million dollars of AUM, we would normally say, $1 million of coverage, maybe $2 million.

I would also say that this is basically transferring risk and your comfort with insurance. And to your point earlier Brad, hopefully you never use this policy.

It’s a likelihood, a high likelihood you would never use this policy. And so, some people say, “Oh, I’m just going to get a policy with a minimum amount,” just checking the box. That (a claim) hadn’t happened to me in my career, I don’t think it will, but I know I’m going to need it so I’m just going to go to the lower end of the range.

Maybe your advisor that you mentioned earlier, or somebody whose been around a claim and seeing the insurance work, they might want to go for the higher end of the range. So, it really depends.

That’s what we normally would see with a team that’s breaking away with that kind of AUM, they have a couple of hundred million. We’ve seen breakaways as high as $2 billion or $3 billion that would obviously carry more coverage, but it’s mostly benchmarked to AUM.

It’s a very broad range because there’s not necessarily a science that says, “this is the right amount.” You want to make sure – like I alluded to earlier, the legal fees can eat up an awful lot of limit – if you got in a situation that was a complicated situation and you had to spend a lot of money to make it go away. You could eat through a million-dollar limit or a good chunk of a million-dollar limit reasonably quickly and then not have a whole lot left over to cover if there was indeed some kind of a settlement.

Brad: It’s a great point about not considering just the minimums. I always say, no matter what kind of insurance it is, when someone looks at the minimum, signs up for the minimum, pays for the minimum (the lowest price), that works absolutely wonderfully right up until it doesn’t! As long as you never need it, you luck out, you win. But if you are one of the percentiles where unfortunately, it does come into play, it generally does not work out after that point.

I’m not suggesting you have to go out there and get the max deal but I think it’s worth to look at that range. Talk to someone like you to understand what others are doing, what the exposure realistically is, and things like that.

Thinking of the coverage, if an advisor or advisors as a team goes out and sets up – let’s say they’re a team, there’s multiple advisors involved – they set up their RIA and then they come to someone like you to get coverage. Is the policy, and I think I know what the answer is because you kind of alluded to it earlier, but I want to make sure it’s clarified, is the policy at the RIA level, so it’s one policy for the RIA or are each of those individual advisors having to obtain policies on their own?

Scott: Yeah, that’s a good question. That is somewhat different than in the broker-dealer space. With an RIA, there’s one policy. It is written to – ABC Wealth Management Company is being set up – that’s where the policy is written.

Typically, the definition of who is covered is not just the advisors but all the employees. If you end up having a claim…say an individual advisor made the alleged mistake and now their client’s unhappy. They’re going to sue everybody in sight probably, and they’re certainly going to sue the firm because that’s where the presumption of deeper pockets is. So that’s why the policy is written at the firm level.

The advisors that work at the firm are almost always, they’re typically automatically covered for that. You would have kind of a core policy sitting at the entity’s name and then by definition, you’d pick up all the folks that work at the firm.

Brad: That dovetails perfectly into my next question. What happens if they add advisors over time or they double in size because they’ve grown over time?

That all comes back to the price and the kind of the exposure. So, how is something like E&O coverage priced out? I’m not expecting you to give any hard numbers because these things generally fluctuate as the marketplace shifts and risks rise or not. But if an advisor comes to you and says, “Okay, I have $500 million AUM,” how is it priced out? What are the variables that go into determining what that price will be?

Scott: Typically AUM is a big driver of that. And then within that, investment strategy is another one. If you are a plain vanilla RIA with limited alternatives, no private fund that you might be managing, no major client concentrations, that’s something that is looked at.

If you’re offering something that we call concierge services, if you’re doing bill pay or you’re doing some tax prep work, or you’re doing some trustee work, some policies exclude that or charge for it.

We’re not privy to any kind of a grid that says, “This is how the pricing works exactly.” But AUM is (generally) the main point. Also, is it price per rep or IAR in this context? And typically not. If you have an inordinate number of IARs based on your AUM, perhaps that comes into play. But generally speaking, it’s really AUM and investment strategy.

The more of the less liquid and more esoteric of the investment strategy, then the more you might end up paying. But it’s not as much based on the number of folks (advisors) involved. That’s considered, but it’s really not a main driver.

Brad: Those variables can change over time. How long is a typical policy? Is it written for one year, three years, five years? And then regardless, is it wise to revisit those variables on some sort of periodic basis to say, “The practice has changed, are we still getting the coverage we need?” What are you seeing there?

Scott: Almost always we see these policies written for one year. When you’re back at the renewal time you’re being asked some questions. Some of the carriers that we work with have expedited renewal process where they ask you like five questions. Big picture questions, like have you had a change in ownership, have you had an SEC claim, have you had a claim under this policy or, you know, revenue grown by more than 50%? Something like that, they might say, “Okay, if that’s the case, then we need an updated app. If not, then we don’t. And they’ll just be maybe a small increase.”

Today’s market pricing is a little challenged so they might increase it slightly, or they might not increase it at all. But other carriers might want an updated application. If you have a lot of growth during the year and you bring a team on and you’re adding more AUM, typically, that’s not something that’s going to trigger you having to go back to the carrier to let them know what’s going on.

If you make an acquisition, there tends to be some thresholds in there. If you buy a firm and it increases your revenue or AUM by more than say, 30% or 35%, then you might have to go back to them. They might reprice that because the risk has changed. But typically, if you’re just organic growth, you’re not going back. It would be factored in at the renewal.

If you’re doing an updated application, and things have changed meaningfully, then you might end up paying more. But generally speaking, you’ve got a year to kind of run on this, and not have to really change much of anything until you go through that renewal process.

Brad: You’ve mentioned carriers, plural. Does a firm like yours…if someone comes to get your expertise to have you help them with this, is Windermere itself an underwriter, or are you more of a broker where you’re going out to the marketplace and saying, “Hey, here’s the variables,” and coming back to that advisor or that team and saying, “Hey, here’s what we’re able to put together.” How’s that structurally look?

Scott: Yeah, Windermere is a broker. We’re not a carrier. Our job is to go to the various carriers that are out there. Being specialized and focused on RIAs and focused on cyber and these types of coverages, we know who the carriers are. It’s not like getting home insurance where you could have literally a hundred carriers that could potentially write that. It’s a more finite group of carriers that would write E&O for RIAs. We would know literally all of those carriers, and not all of them are going to be active at any point in time.

Our job is to understand the market, who’s out there, who’s being aggressive now, who’s not being so aggressive. Once we got an application and get the ball rolling, then we would go out to those carriers that we thought would provide the most attractive quote, and make sure that we’ve covered the market, and know who’s out there, and deliver what we think is the best fit for the client.

Brad: So, a couple steps then involved in that process. What does that whole life cycle look like?

If an advisor calls you up tomorrow and says, “Hey, I’m starting an RIA and four months from now is when we launch,” what is the process at that point? If someone calls you, maybe they’ve seen this episode, they’ve listened to it, they have a kind of a general idea, what’s the process from that first conversation with you until they’re getting their proverbial certificate or whatever the official terminology is that they have coverage?

Scott: Generally speaking, in this kind of situation, we’d have an early conversation with the team, because a lot of the folks may not have had to deal with this before. Like you said, they might be coming from a broker/dealer and they’ve got E&O. They then set up their own firm and want to know more about it and understand the timing and the process and the cost so they can manage their budget, things of that nature.

So, we would have a conversation, ideally relatively early, mostly to answer questions. To let them know what’s entailed and how long it might take, and what the process is. And the process is generally, you fill out an application, and then it takes two to three weeks to get that from start to finish.

We’ll have an early conversation, I’d say an educational conversation. And typically, the carriers won’t hold a quote for more than 30 days. So, in your example, Brad, if somebody was meaningfully down the road, but still has four months to be up and running, we might have more of an educational conversation.

We’ll say, “All right, let’s circle back within a couple of months, two to three months and we’ll get an application.” You fill that out, and then it takes two to three weeks. We’ve done some of these as fast as a couple of days if the carrier is able and willing to do that, but we generally advise that it takes two to three weeks once we get the applications back to get the quotes. We can common-size them. We talk to the advisor and say, “We think this is something you might want to think about. This is a good fit.”

We’ve had conversations where a group was a year away from setting up, and we’ve had conversations when it was a couple of days away from setting up. That’s not ideal but that can be done. It’s usually a three-week process, once we have the applications back.

The applications take a little bit of time. I know advisors who are setting up an RIA have a list as long as their arm of things that they need to do. So anytime is a little bit of a distraction. These are not terribly complicated applications, but they do take a little bit of time.

Once they’re back to us, then it’s a two to three-week process to be able to be ready to put coverage in place. That’s a comfortable time frame. Again, we’ve done it much quicker if need be. We prefer to have early conversations just to answer questions and make the advisors comfortable with what the process looks like.

Brad: Yeah, the fire drill approach is generally not good for anyone! And I am glad you certainly are cognizant of the fact that anyone going down the RIA path, setting up their own firm, there’s a lot of things they’re doing. It’s what I help advisors with as they go down that path. There are a lot of variables and things can get sideways and so, I think it is helpful to have that general idea of the timeline.

And so it sounds like, just to recap on the time, that education conversation can never be too early. You’re getting that started to get a lay of the land. But then it sounds like the rubber hits the road, you have to wait till the last 30 days to really get a quote.

I assume even beforehand, you can give people a general idea of what costs might look like. You can’t predict the future until ink is on paper, but that education session can at least help them be prepared for that.

Nearing the end here, and I think I might make this an entirely separate episode – maybe I’ll have you back on for a second one where we’ll talk about some of these other coverages – because there’s a lot to unpack with it, but at a high level, what other insurance coverages are you seeing or advising RIAs to be obtaining beyond just E&O?

Scott: That’s a great question. There are other coverages that are either worthy of consideration or potentially even required. In a typical breakaway situation, we would say there are four key coverages. They are not always in play, but they are in play in a lot of situations.

In addition to E&O, which is kind of the anchor, if you will, cyber is one that I’d say is critically important. Probably not required by anybody, but it’s a good coverage to have. The vast majority of our advisory firms, even the smaller ones, now carry cyber. It wasn’t the case three or four years ago but that is a coverage and it’s reasonably priced for the value that it offers. That could be a whole another session as well about cyber, and the claims and stuff that we’ve seen there. But that would be one.

General liability, which is also called slip and fall. If you have an office space and somebody’s coming to visit, clients coming to visit, then they slip on some water that was left out and they break their neck and they sue you, that’s the one that’s typically required by your landlord. It’s very cheap, very easy, no application but that’s something that you might have to have.

Then the other one you might have to have would be workers’ comp, which is if any of your employees got hurt on the job. Obviously, it’s not a construction job or something where there’s more risk of that but each state has a requirement and it varies based on if you have X number of employees then you have to have workers’ comp. It’s another one that doesn’t need an application. It’s very standard, very generic but again, that may be required.

Cyber, general liability, workers’ comp, that is the core package. There are other coverages like if you’re doing any kind of ERISA work, you might need an ERISA bond, and that’s something that comes into play. Directors and Officers can be added into the E&O. That’s a good coverage in certain situations.

There are a couple others as well that we could talk in more detail about at some point, but that’s kind of the core package, the four. Some carry a couple of them, or maybe carry all of them, depending on how many employees you have, what state you’re in, etc.

Brad: That’s helpful. We’ll definitely plan to do a whole separate episode because there’s a lot there. Cyber insurance is a meaningful topic to be discussed. We could dive into how that works, what that covers. We’ll plan for that, but I think it is helpful to at least keep in mind that there are things beyond just E&O.

With a lot of variables involved in starting your own RIA, some of it can seem daunting. How do I manage my compliance, or how do I manage in this case, the insurance I need? The reality is there’s an entire ecosystem out there to support advisors with this sort of thing, and there’s a process for this.

While a lot of this might be new (to an advisor) – and, oh gosh, there’s four different kinds of coverages and maybe there’s other ones – well, there’s a defined process for how to tackle this, how to work through it. There’s experts like you to help them understand it. This is nothing that should intimidate anyone.

Most of these things you’re paying for now, whether you realize it or not. It’s either a line item expense being pushed to your expense blotter or it’s effectively in your payout. These are not necessarily new expenses to be thinking about. It is just something new perhaps to have to work through this on your own.

Hopefully this has been helpful in that regard for folks to at least get an initial taste for how this process works, the kind of people they can work with.

Scott, I think you do a great job with this. That’s why I asked you to come on. I’ve seen some of the presentation decks I know you’ve gone out there and given. I think you’re a great resource.

So, if someone likes what they hear, likes your message, and wants to reach out, to connect, to discuss this with you, what’s the best way to get ahold of you?

Scott: The easiest way is to go to our website, Windermere Insurance Group. All of my contact information is on the website.

And to Brad’s point, we do an awful lot of this. The carriers have been through the startup process. We’ll get the question, “Hey, we’re a brand new firm. We’ve got to fill this application, we don’t have a real history as our own firm,” does that make it kind of awkward? And the answer is no. To Brad’s point, this is a system, if you will, and all the carriers we have seen, they’re comfortable with it. It’s a process.

We know you guys have a lot going on and a lot of other boxes you have to check. This is one that is not terribly time-consuming or terribly difficult. And it’s a road that’s been traveled many times before.

As I say, just call. We’re happy to get involved early in the process, so you can understand how it works, figuring out how you fill in the budget side of it. And then we can obviously circle back around as you get closer, but we’re always happy to get involved early. We love working with these kinds of startup situations. It’s very exciting to be able to support advisors that are leaving the mothership and getting out and getting started. We always love those opportunities.

Brad: Scott, I appreciate you coming on and joining us and giving us this education. In the show notes, I will include the website. I’ll include your contact information as well.

If you’re not already there, head on over to TransitionToRIA.com, you can see all the episodes. In the show notes, we’ll have the contact information specific for Scott, and his firm. Feel free to reach out to Scott to continue the conversation, and to dive into more details.

If you’re not already aware, if you’re watching this on video, you can also listen to all of these episodes, this one included, in podcast form. If you’re not aware of it, the “Transition To RIA Podcast.” It’s available on all major podcast platforms. I would love to have you subscribe and download episodes. I’m always open to feedback of any additional guests anyone would like to see on the show going forward.

For today though, Scott, I really appreciate you coming on, and sharing all this expertise with us.

Scott: Brad, thanks for having me. I very much enjoyed it and always happy to help any way we can.

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