Shut your mouth, child! A lawyer might hear you!
Sightings from The Catbird Seat
~ o ~
The United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are often sued for exercising these constitutional rights.
These suits are known as "SLAPPs," or "Strategic Lawsuits Against Public Participation."...
- The Anti-SLAPP Resource Center
* * * * *
WHAT ARE SLAPP's?
Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern.
SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.
Most SLAPPs are ultimately legally unsuccessful. While most SLAPPs lose in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect is a "chill" on public participation in, and open debate on, important public issues. This "chilling" effect is not limited to the SLAPP target(s): fearful of being the target of future litigation, others refrain from speaking on, or participating in, issues of public concern.
The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where the both cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined.
For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues.
Every year, thousands of people are sued for participating in government or for speaking out on public issues. SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:
> writing a letter to the editor
> circulating petitions
> calling a public official
> reporting police misconduct
> erecting a sign or displaying a banner on their property
> complaining to school officials about teacher misconduct or unsafe conditions in the school
> speaking at a public meeting
> reporting unlawful activities
> testifying before Congress or state legislatures
> speaking as an officer of an active public interest group
> filing a public interest lawsuit
In California, a new law to protect people from SLAPPs, Code of Civil Procedure section 425.16, took effect in 1993. The law allows a judge to decide at the outset of the suit whether the SLAPP has a "probability" of winning. If the judge finds that it does not, the SLAPP must be dismissed, and the SLAPP target wins his or her legal defense costs and attorneys' fees.
The expressive activity which is protected under the new California law is broad. Code of Civil Procedure section 425.16 states that activity which is protected under the law includes:
> any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
> any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
> any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
Other states have similar protections against SLAPPs. Washington and New York have "anti-SLAPP" statutes: Washington Revised Code sections 4.24.500 - 520; New York Civil Practice Law, Rule 3211(g) and Rule 3212(h), and New York Civil Rights Law sections 70-a and 76-a. The Colorado Supreme Court has ruled that citizens of that state are protected from SLAPPs. Protect Our Mountain Environment v. Superior Court, 677 P.2d 1361 (Colo. 1984).
August 19, 2005
Free Speech: Going, Going ...
By Molly Ivins, AlterNet
Eternal vigilance is the price of ... um, well, guess we can't say that anymore. We might get sued.
Mostly when we think of threats to free speech, it's government actions or laws we have in mind -- the usual bizarre stuff like veggie libel laws or attempts to keep government actions or meetings secret from the public.
Sometimes you get a political case, like then-Gov. George W. Bush's effort to stop a Bush-parody site on the Internet. The parody, run by a 29-year-old computer programmer in Boston named Zack Exley, annoyed Bush so much that he called Exley "a garbageman" and said, "There ought to be limits to freedom." (That's not a parody -- he actually said that.)
Bush's lawyers warned Exley that he faced a lawsuit. Then they filed a complaint with the Federal Elections Commission demanding that Exley be forced to register his parody site with the FEC and have it regulated as a political committee.
This fits in with the four instances in which faculty members at the Bush School of Government and Public Service in our fair state were reprimanded at the behest of Bush associates for saying less-than-glowing things about our then-governor.
But this is petty stuff compared to corporate efforts to curb free speech.
SLAPP suits (for "strategic lawsuits against public participation") are a serious menace to free speech. The latest example is a real prize: The Consumers Union, publisher of Consumer Reports, has already spent $10 million defending itself against a lawsuit filed by Isuzu Motors Ltd. because, eight years earlier, Consumer Reports rated the Isuzu Trooper "not acceptable" for safety reasons. And the case has not yet reached trial.
And that is the real menace of SLAPP suits. It's not that corporations win them, but that they cost critics so much money that the critics are silenced -- and so is everyone else who even thinks about raising some question about a corporate product or practice.
Isuzu claims that CU's reports are "not scientific or credible," but the company's internal memos state that the "lawsuit is a PR tool" and "when attacked, CU will probably shut up." According to a study by two University of Denver law professors, "Americans by the thousands are being sued, simply for exercising the right to speak out on public issues, such as health and safety."
New York Supreme Court Judge J. Nicholas Cobella told PR Watch in Madison, Wis.: "The longer the litigation can be stretched out ... the closer the SLAPP filer moves to success. Those who lack the financial resources and emotional stamina to play out the 'game' face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. ... Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."
PR Watch also quoted George Pring and Penelope Canan, authors of the 1996 book "SLAPPs: Getting Sued for Speaking Out."
"Initially, we saw such suits as attacks on traditional 'free speech' and regarded them as just 'intimidation lawsuits,'" the two authors say. "As we studied them further, an even more significant linkage emerged: The defendants had been speaking out in government hearings, to government officials or about government actions. ... This was not just free speech under attack. It was that other and older and even more central part of our Constitution: the right to petition government for redress of grievances, the 'Petition Clause' of the First Amendment."
Some examples of SLAPP suits from PR Watch:
In Las Vegas, a local doctor was sued for his allegation that a city hospital violated the state's cost-containment law.
In Baltimore, members of a community group faced a $252 million lawsuit after circulating a letter questioning the property-buying practices of a local housing developer.
In West Virginia, an environmental activist was sued for $200,000 for criticizing a coal-mining company for activities that were poisoning a local river.
In Pennsylvania, a farmer was sued after testifying to his township supervisors that a low-flying helicopter owned by a local landfill operator caused a stampede that killed several of his cows.
In Washington state, a homeowner found that she couldn't get a mortgage because her real-estate company had failed to pay taxes owed on her house. She uncovered hundreds of similar cases, and the company was forced to pay hundreds of thousands of dollars in back taxes. In retaliation, it sued the woman for slander and dragged her through six years of legal harassment before a jury found her innocent.
In Missouri, a high-school English teacher was sued for $1 million after complaining to a weekly newspaper that an incinerator burning hospital waste was a health hazard.
Unlike the average citizen, Consumers Union has the resources to defend itself against the Isuzu suit. It's a nonprofit organization, and Consumer Reports accepts no advertising, lest there be any appearance of bias, and never grants permission for any commercial use of its name or test results.
It accepts no contributions from corporations or law firms or even individuals if the check bears a business imprint. The 60-year-old magazine is supported by the generations of smart consumers who always consult Consumer Reports before making any major purchases.
As we have seen with tort deform, it is not difficult to close off access to the courts for certain kinds of lawsuits. I can't think of a more meritorious and constitutional cause.
- Molly Ivins writes about politics, Texas and other bizarre happenings.
© 2006 Independent Media Institute. All rights reserved.
View this story online at: http://www.alternet.org/story/24293/
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From NO CONTEST, Corporate Lawyers and the Perversion of Justice in America, by Ralph Nader and Wesley J. Smith:
SLAPP: TAKING CARE OF BUSINESS
San Francisco Lawyer Richard B. Spohn specializes in representing corporations in their dealings with the government. His clients include some of the nation’s largest health care corporations. He says, “The world is an extremely complicated place. Our nation has more than 250 million people, who generate billions of dollars in economic activity. Without lawyers, the system would not work. We are engineers of order, counselors of the ordered state. We are the weavers of social processes.”
Spohn believes firmly that corporate lawyers must not fall prey to client pressure to engage in improper conduct or questionable uses of the legal system. “Corporate lawyers ill-serve their clients when they accede to improper client demands, and they ill-serve themselves,” he says. “Lawyers must be willing to lose clients rather than compromise their professional ethics.” Unfortunately, many lawyers don’t adhere to the standard Spohn advocates. Yet, when their win-at-all-costs tactics are questioned, these lawyers hotly assert that they are acting ethically and within the parameters permitted by the law.
Are these lawyers following the rules or not? Legal ethics expert Michael Josephson, a adviser to federal and state governments on ethics issues, says that attorneys like to follow rules, “but they are competitors. They tend t look at what they do as a sport. So they will try and bend the official rules and see that process as merely following the ‘real’ rules of the way the game is played.”...
Josephson has put his finger on an attitude and value system that permits corporate attorneys to pillage opponents and still get a good night’s sleep. When litigation is perceived as sport, winning justifies almost anything, including, as we have seen, improperly obstructing discovery and hiding the truth about client wrongdoing behind walls of secrecy.
But corporate attorneys don’t just play defense. They are quite adept at using the law as an offensive weapon to punish those who get in the way of a corporation’s business strategies and agendas or to deter others from doing so. For those in the path of stampeding power lawyers, the law is all too real. Aggressive corporate legal strategies and tactics can place their jobs, their investments, their homes, and their piece of mind at risk.
“It was one of the most traumatic experiences of my life,” says seventy-six-year-old Walter Moser of Salinas, California, a farm city twenty miles east of Monterey.
“When we received the letter, our hearts fell down to our shoes,” recalls Walter’s wife, Alice. “We had no choice by to knuckle under and not pursue our democratic rights.”
“It” was a letter from a corporate lawyer threatening to sue them for hundreds of thousands of dollars.
The Moser’s ordeal began in 1989 when Alice saw a notice in the local paper stating that an application to build an electric cogeneration plant in Salinas would be available for public review. A cogeneration plant uses agricultural waste to generate electricity for sale to the local utility company. The Mosers were stunned to hear such a plant was going to be built in Salinas. This was the first they had heard of it. They decided to investigate. The application itself made the Mosers uneasy. In their view, the document was short on facts but full of assurances that the plant would create no negative effects whatsoever for the community.
That sounded a little too good to be true, so the Mosers did some research. They discovered, much to their dismay, that the cogeneration plant would contain large tanks of chemicals and water to be used in the generation of steam for sale to the Pacific Gas & Electric Company, the local utility, and for use by food processing plants nearby. Noise pollution was also a big concern. The sound emanating from the plant would be equal to that of a fully powered Boeing 747 jet engine, and the plant would be in operation twenty-four hours a day. The Mosers were also concerned about increased air pollution and the potential effects should the plant be destroyed by an earthquake. Worst of all, there hadn’t even been an environmental impact report published to gauge the overall effect on the community.
The Mosers’ concerns were all reasonable... But O’Brien Cogen Ltd. II, the firm behind the project, was anxious to get the plant built. Federal law at the time required PG&E to buy any electricity produced by the plant, whether it needed it or not, at a price that was considerably above the fair-market price of electricity prevailing at that time. Thus, the investors were almost guaranteed a substantial profit once the plant began operating.
The Mosers were determined to act. They began engertically to organize the community against the project, walking their neighborhood, knocking on doors, writing letters, circulating a petition signed by four hundred neighbors, and otherwise building a devoted campaign of opposition....
Seeing its project threatened, the O’Brien firm began to make concessions....
The Mosers and other grassroots opponents were not placated.... They continued to question whether the company could operate without adversely affecting a community as small as Salinas. Moreover, by this time, the energy crisis of the late 197s had long since passed. Pacific Gas & Electric didn’t need the extra electricity and was then selling electricity below the price projected for that generated by the project....
As the political controversy raged, O’Brien brought in a platoon of lawyers, engineers, and various consultants to push the project through....
Jane Haines, a lawyer from nearby Pacific Grove who describes herself as “cause oriented,” had earlier enter the fray as the lawyer for a local farmer. Then she began to represent the Mosers, for no fee. Haines recalls what happened next. “The accommodations that had been agreed to by O’Brien forced them to change the proposed site of the plant. Now, it would be located much nearer to residential areas, making the noise issue even more important... So, we hinted that we might seek an injunction against proceeding with the plant, which would allow a court to decide whether O’Brien had complied with the law.”
O’Brien lawyer Lloyd W. Lowrey, Jr., of the firm Noland, Hamerly, Erinne & Hoss wrote to Jane Haines on April 18, 1990. warning her not to pursue those plans. The letter began by stating that comments made on April 17 in opposition to the plant were “without basis in law or in fact.” It then warned that a review of applicable legal authority “leads us to conclude that a lawsuit by you and your clients at this time to delay construction activities on the cogeneration facility would necessarily be regarded as a bad faith attempt to interfere with O’Brien’s legitimate expectations.”...
The Mosers were stunned by this letter sent to their attorney. The letter seemed to be threatening to sue them, perhaps for hundreds of thousands of dollars. Alice told us, “When we saw the letter we felt we could win the case, but we could not afford to defend a suit like that with the level of power arrayed against us. We were being told, “Stand up for your legal rights at your own risk. Assert your First Amendment rights and get sued.”
Rather than risk litigation and incur the costs of defense, the Mosers made a very painful decision. They surrendered, immediately and unequivocally, ceasing their efforts to oppose the project. Indeed, fear that they could be sued for being politically active caused the Mosers to stop participating publicly in their community altogether....
According to Haines, the impact of the letter was not limited to the Salinas controversy. “The news of the letter and the subsequent capitulation by the Mosers spread very quickly. I began receiving notes from activists involved in many different types of issues telling me they were not afraid to speak out.”...
(Despite O’Brien’s tough tactics, the plant was never built. The company ran into water-delivery and other problems that delayed construction. When the mandatory purchase requirement of the federal energy law expired, O’Brien abandoned the project.)
Alice and Walter Moser were just two victims of a power-lawyer hard-ball approach: using legal threats or lawsuits to stifle public participation. It is known as the SLAPP suit. The term, coined by University of Denver professors George Pring and Penelope Canan, stands for Strategic Lawsuit Against Public Participation. SLAPP suits are legally questionable or meritless lawsuits aimed at intimidating critics into silence. SLAPPs punish people for exercising their right, guaranteed by the First Amendment to The Constitution, to participate in public discourse....
The impact of a SLAPP on an individual can be devastating. Professor Canan told us, “A SLAPP is one of the most life-changing experiences a target can go through. Victims experience intense pressure, leading to physical illness, divorces, and emotional dysfunction. Perhaps the worst part is a loss of idealism. That can be very depressing. Victims come to lose their belief in American justice.”...
HAWAII ANTI-SLAPP STATUTE
Hawaii Revised Statutes
Vol. 13, Chap. 634F
... "SLAPP" means a strategic lawsuit against public participation and refers to a lawsuit that lacks substantial justification or is interposed for delay or harassment and that is solely based on the party's public participation before a governmental body. [L 2002, c 187, pt of §2]
For the complete text of the Hawaii Anti-SLAPP statute...
* * * * *
August 21, 2006
KESSNER DUCA UMEBAYASHI
BAIN & MATSUNAGA
Attorneys at Law
A Law Corporation
220 South King Street, 19th Floor
Honolulu, Hawaii 96813
United States District Court
For the District of Hawaii
JAMES B. NICHOLSON SUCCESSOR TRUSTEE, Plaintiff
vs. “EVERYMAN” (obvious alias), Defendant
- - - - -
JUDGE: The Honorable David Alan Ezra
... Judgment is hereby entered under which Defendant “EVERYMAN” shall within ten (10 days) from the date of entry of this Final Judgment permanently and forever remove and/or delete from any web-site owned, managed or operated by Defendant “EVERYMAN” all offensive materials which contains any reference to “Protected Subject Matters”, as that term is described and defined in the Arbitration Award dated October 6, 2004. Defendant “EVERYMAN” is also ordered to provide the Court with written confirmation, a copy of which shall be served on Plaintiff, that all offensive materials have been removed and/or deleted from any web-site owned, managed or operated by Defendant “EVERYMAN”.
“Post-judgment interest runs on the total Judgment amount of FOUR HUNDRED TWENTY-TWO THOUSAND NINE HUNDRED SEVENTY DOLLARS AND 54/100 ($422,970.54) at the legal rate of ten percent (10%) per annum on the unpaid principal balance, or $115.88 per day, from the date of entry of this judgment until the judgment is fully satisfied....”
~ ~ ~
The website that was found to contain such outrageously “offensive materials” to warrant such drastic punishment is THIS WEBSITE:
~ ~ ~
A SAMPLE “OFFENSIVE LETTER”???
May 17, 1999
Federal Bureau of Investigation
Prince Kuhio Federal Building, Rm. 4307
300 Ala Moana Blvd.
Honolulu, Hawaii 96850
Re: Racketeer Influenced & Corrupt Organizations Act (RICO) Lawsuit:
Civil No. CV 99 00304 - U. S. District Court for the District of Hawaii - [Name Redacted] vs. Federal Insurance Company; P&C Insurance Company; Marsh & McLennan Companies; PriceWaterhouse, Coopers & Lybrand; Trustees of Bishop Estate; Nathan Aipa, et al.
On September 17, 1998, I wrote to your office requesting that an investigation be made into apparent racketeering activities of Federal Insurance Company, the trustees of the Bishop Estate, et al. The purpose of this letter is to inform you that on April 27, 1999, I filed a civil lawsuit against a number of these entities.
A copy of this lawsuit is being provided to you in hopes that this information will assist you in any criminal investigations that your office may be conducting with respect to alleged racketeering activities involving these organizations.
Please feel free to contact me at the address shown above if I can be of any further assistance in this matter.
Very truly yours,
< NAME WITHHELD > CPCU, ARM
cc: Internal Revenue Service
Office of the Attorney General, State of Hawaii
Colbert Matsumoto, Esq., Master, KSBE
For more, GO TO > > > Confessions of a Whistleblower
February 18, 2004
ACLU Supports Taxi Company President
Against SLAPP Suit Which Violates
American Civil Liberties Union Hawaii
Honolulu - The ACLU of Hawai'i today filed a friend-of-the-court brief in the Hawai'i Supreme Court to support an individual for speaking out against alleged abuses in the Honolulu International Airport taxi concession.
The ACLU argues that such a lawsuit – commonly referred to as a SLAPP suit – violates the First Amendment by punishing individuals petitioning the government to remedy illegal activities. This is the first time a SLAPP suit is being challenged in Hawai'i courts.
The president of Charley’s Taxi, Dale Evans, had written State officials asking them to investigate reports of misconduct and possible illegal activities engaged in by TheCab, the company that holds a revocable permit for the concession at the airport.
TheCab responded by suing Charley’s Taxi for defamation for sending a letter to State officials. Charley’s Taxi moved to dismiss the lawsuit on the grounds that it violated federal and state constitutional rights to petition the government for redress of grievances. The Circuit Court rejected their claims stating the proper forum to decide the issue was the Supreme Court. The ACLU argues that this delay is unjustified and only furthers the harm of SLAPP suits.
"SLAPP suits endanger the First Amendment because their goal is to target people exercising their constitutional right to have the government investigate and remedy possible illegal or harmful activities. The object of SLAPP suits is to wear people down with frivolous and protracted litigation. Such targets understandably become more reluctant to speak out in the future. The case law is clear that the courts have a duty to swiftly to dismiss these suits," said interim legal director Susan Dorsey.
The ACLU brief argues that SLAPP lawsuits that seek to attach legal liability upon the legitimate exercise of First Amendment rights unduly chill and deter protected expression by forcing the targets individuals and organizations who seek to petition the government for redress of grievances regarding a matter of public importance to endure the expense and burden of defending themselves in a protracted court proceeding. Therefore the ACLU considers it imperative that Hawai'i courts quickly identify and dismiss such lawsuits.
Dorsey said, "these kinds of lawsuits must be stopped immediately because they diminish every person’s fundamental right to bring their grievances to the government on important public issues. Citizen participation and civic activism are vital elements of a functioning democracy. SLAPP suits cripple that very function."
July 18, 2003
Talking Back to the Ganglords
Free speech activist defeats computer industry
by Ted Nace, Gangs of America
Computer giant Intel lost a major lawsuit against a fired employee who sent email protest letter to thousands of his former colleagues in a court decision that experts say is a major victory for free speech and workers’ rights.
The California Supreme Court decision last month marks the end of a five-year battle between Intel, the world’s largest semiconductor manufacturer and Kourosh (Ken) Hamidi, a 56-year-old engineer, who was let go by the company after nine years of service.
“He no more invaded Intel’s property that does a protester holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter through the mail, or telephoning to complain of a corporate practice,” Justice Kathryn Werdegar wrote on behalf of the judges who ruled in his favor.
Hamidi, who immigrated to California from Iran in 1978, organized a group called Former and Current Employees, or FACE Intel (www.faceintel.com), soon after being fired in 1995. The organization claims that Intel’s demands on its employees created health problems, stress on families, and even suicide. Using a company email list that he had received from an anonymous source, Hamidi sent six emails to between 8,000 and 35,000 Intel employees, detailing what he claimed were Intel’s abusive practices.
Among the practices objected to by Hamidi and FACE Intel were: forced overtime, a ranking system used to routinely winnow the ranks of employees, discrimination against older workers, and unhealthy conditions in the company’s fabrication facilities.
In response, Intel first tried to block the emails, then sued Hamidi. Two lower courts ruled in favor of the company. But Hamidi, who now had been forced into bankruptcy and was struggling to support his family of four on odd jobs and disability payments, refused to abandon the case.
Said the chagrined Hamidi: “I worked extremely hard and achieved the ‘American Dream’. I was proud of being privileged with my constitutionally guaranteed freedoms as an American citizen ... such as freedom of speech. I lost all of the material side of my ‘American Dream’ only because I stood up and fought for rights that were taken away from me by Intel.”
In its lawsuit, Intel claimed the letters to its employees constituted a “tresspass to chattels.” Hamidi’s lawyers countered that the emails were the equivalent of “peaceful pamphleteering,” a form of communication protected from court interference by the First Amendment....
Read the complete article at...
December 14, 2000
ACLU Hails Rhode Island Supreme Court
Decision Protecting Victims
of Legal Intimidation
American Civil Liberties Union
PROVIDENCE, RI--In an important victory for free speech rights, the Rhode Island Supreme Court today issued a strong ruling supporting the broad scope of the state's anti-SLAPP suit act, in a case brought by the American Civil Liberties Union.
SLAPP or "Strategic Lawsuits Against Public Participation," is the name given to lawsuits brought to chill people from exercising their freedom of speech on matters of public concern.
"The Court's opinion is a ringing endorsement of the state's anti-SLAPP law," said Steven Brown, Executive Director of the Rhode Island affiliate of the ACLU. "It will help ensure that all Rhode Islanders can address matters of public concern in their community without fear of retaliation."
The case arose in 1997, when a Coventry couple, Henry and Marcia Mallette, were sued for defamation after publicly raising environmental concerns about Global Waste Recycling, a local recycling facility. The ACLU argued that the lawsuit brought against the Mallette's was a classic SLAPP suit and an attempt to intimidate Coventry residents from speaking out against the facility.
The ACLU noted that the town council itself has questioned the facility's legal right to operate under town zoning ordinances, and the Department of Environmental Management had sent "letters of deficiencies" to the recycling facility.
The Court unanimously agreed that the statements made by the couple were protected free speech activity, and rejected as "without merit" the facility's arguments that the SLAPP law should not apply.
In its appeal to the state supreme court, Global Waste Recycling argued that the statute should be limited only to protecting public comments made at governmental meetings or hearings, and not to the media.
The Court today rejected that reasoning, and ordered an award of attorneys fees to the Mallettes.
# # #
WHERE TO LOOK FOR HELP IF YOU’RE BEING SLAPPED!
THE FIRST AMENDMENT CENTER
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