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Diocese Sued, ... Again!

August 23, 2010

SAN FRANCISCO - A man claiming he was molested as a child by a priest sued the Roman Catholic Diocese of Santa Rosa on Thursday for fraud and negligence, saying the church knew the priest had been accused of abusing boys but failed to warn the parish. The suit, filed in Sonoma county Superior Court, alleges that the Bishop of Santa Rosa misrepresented then-Rev. Patrick McCabe's fitness to serve when the Irish priest was assigned as assistant pastor at St. Bernard's Church in Eureka, California, from 1983 to 1985. Irish officials say Dublin church authorities had sent McCabe to a treatment centre for sex offenders shortly before 1983, the year he was assigned to St. Bernard's — a church with an attached school. That's when McCabe pulled the alleged victim, then 9, out of his third-grade classroom and molested him in the church. It happened again over a period of several months, said his attorney. The attorney said his client found out recently through news reports that Mark Hurley, then the Bishop of Santa Rosa, knew McCabe had been accused of child sex abuse in Ireland. The man wishes to remain anonymous, his attorney said. "He is livid over the fact that Bishop Hurley dumped in their lap a known pedophile without telling anyone about it," said the atorney. "They misrepresented the qualifications of the priest. They knew they had a live wire." The lawsuit seeks damages and costs related to therapy and the distress suffered by the alleged victim.

The diocese referred questions to their attorney, who did not immediately return calls. McCabe's attorney also did not return calls.

The current bishop, Daniel Walsh, sent a letter Tuesday to St. Bernard's parishioners saying he had just learned of McCabe's past and urged anyone harmed by McCabe to contact the church. "Past clergy sexual abuse of minors is a great shame for the Church that we all love," he wrote. "But it is something that the Church must face and deal with in compassion and understanding for the innocent victims." Advocates for childhood victims of clergy sex abuse called Walsh's letter disingenuous.

The bishop is urging potential victims to come to the church with any allegations of abuse, instead of telling them to go to the police, said Joey Piscitelli, Northern California director of the Survivors Network of Those Abused by Priests. In April 2006, Walsh suspended a priest who admitted to sexual abuse with a 12-year-old, but took three days to notify law enforcement. The delay gave that priest, Xavier Ochoa, time to flee, said church and law enforcement officials.

Ochoa still has not been found. The diocese later settled a sex abuse lawsuit involving Ochoa by agreeing to pay more than $5 million to 10 alleged victims. Accusations of abuse first surfaced against McCabe in Ireland in 1982, according to a 2009 report by Irish officials. The Dublin archbishop then asked Hurley for help dealing with a problematic priest. Hurley placed McCabe in St. Bernard's.

Thursday's suit is one of several using arguments of fraud and negligence, not molestation or sexual battery, to bring charges against the church for alleged sex abuse. The legal strategy seeks to circumvent the statute of limitations for sex abuse charges, which requires the suits be filed within three years of discovery, or by the time the alleged victim is 26. The validity of this approach has yet to be decided in California court. Church attorneys in California have submitted opinions saying the theory does not pass legal muster.

LAPD Sued, ... Again!

August 1, 2010

This week, the parents of Sherri Rasmussen filed a wrongful death lawsuit against the Los Angeles Police Department and former detective Stephanie Lazarus (pictured above). Nels and Loretta Rasmussen claim that LAPD officials deliberately overlooked evidence implicating Lazarus in the 1986 murder of their daughter. It wasn't until last year that Lazarus was charged in the killing of Sherri Rasmussen. Found in the Van Nuys townhouse where Rasmussen lived with her new husband, John Ruetten, Rasmussen had been badly beaten and shot in the heart and spine. Lazarus, an LAPD officer, had dated Ruetten for several years, and was reportedly extremely upset about his marriage to Rasmussen.

Despite the fact that Ruetten had told criminal investigators that Lazarus had repeatedly threatened Rasmussen before the murder, Lazarus was never even questioned in the investigation. "If I cannot have John, nobody can," Lazarus had allegedly stated. The murder victim had apparently told her parents that Lazarus had threatened her at her workplace. But when Sherri's father pointed to Lazarus as the perpetrator, LAPD officials allegedly told him he was "watching too much TV." Instead, the murder was treated as a burglary gone wrong, even though the only items missing from Rasmussen and Ruetter's house were the couple's marriage certificate and Rasmussen's car. Lazarus was never a suspect, and was eventually promoted to detective.

Rasmussen's murder was treated as a cold case until new DNA technology recently tied Lazarus to the killing. Arrested last year, Lazarus, 50, has pleaded not guilty to capital murder charges. She is in custody awaiting trial. In their Los Angeles wrongful death complaint filed in L.A County Superior Court, Nels and Loretta Rasmussen reject the LAPD's insistence that the delay in charging Lazarus sprang from mere ineptitude, rather than a deliberate coverup.

Greyhound Sued!

Six people injured in a horrific crash of a Greyhound bus that was en route to Sacramento from Los Angeles have filed suit against the transportation company, attorneys for the plaintiffs announced Wednesday. Although it was alleged that a driver of an SUV that apparently caused the Thursday crash was drunk, the lawsuit contends that the driver of the bus was in the wrong lane when it hit the other vehicle on a highway in Fresno. Six people died in the accident.

"What started as a simple trip from L.A. to my home in Sacramento has turned into a life-altering nightmare," stated passenger and plaintiff Maurice Campbell. "I now have extreme difficulty walking due to an injury to my Achilles tendon and one of my shoulders is causing me extreme pain. The doctors haven't figured out yet what they will need to do to get me back on track."

The crash was reported on State Route 99 near McKinley Avenue was reported at 2:15 a.m July 22. The bus apparently careened into the SUV, which was stopped on the highway for some reason. Authorities said 18-year-old Sylvia Lopez Garay, the driver, had been drinking at a dance party before the accident.

A statement from the plaintiffs' attorneys reads:

According to eye witnesses, visibility was severely impeded by dense fog and the driver of the Greyhound bus was travelling in the inside lane, which is typically reserved for fast-moving traffic. When the driver came upon a stopped SUV that was on its side on the freeway, he lost control of the bus and hit both the SUV and forced another vehicle off the road. The driver and two passengers in the SUV were killed, as were the bus driver and two of the bus passengers. Dozens of other Greyhound passengers suffered injuries, some of them very severe.

"As a common carrier - that is, a private company that transports members of the public for a fee - Greyhound is held to the highest standards of safety," said the Principal Trial Lawyer. "Regardless of what was happening with the other vehicles involved in this accident, the bus driver had a duty to drive with excessive caution." The suit was filed in Sacramento Superior Court.

NYC Folds!

July 27, 2010

New York (WLSB) -- New York City will pay more than $7 million to settle a civil lawsuit brought by the estate of a man killed by police outside a Queens' nightclub in 2006 and by his two friends, who were seriously wounded, a spokeswoman for the city's Law Department said Tuesday. The estate of Sean Bell, who was killed in the shooting, will receive $3.25 million, Joseph Guzman receive $3 million and Trent Benefield will get $900,000, said Kate Ahlers. "The city regrets the loss of life in this tragic case, and we share our deepest condolences with the Bell family," Michael Cardozo, attorney for the New York City Law Department. "We hope that all parties can find some measure of closure by this settlement." Bell, Guzman and Benefield were shot after an altercation with plainclothes detectives outside the Queens nightclub where Bell's bachelor party was held on the night before his wedding. Bell died at the scene, and Guzman and Benefield were seriously wounded.

Accounts of the incident varied. Undercover officers, who were investigating the club regarding prostitution allegations, said they identified themselves as police, but witnesses and the wounded men said they did not. Police said they believed at least one of the men had a gun, but no gun was found. And one of the officers said the Bell, instead of obeying his command to stop, hit him with his vehicle. The incident quickly became a touchstone for those who believe police -- in New York and elsewhere -- have a record of excessive force, particularly against black men. Bell, 23, was African-American, as were the two men wounded and two of the three police officers. The officers fired 50 shots in just a few seconds. The shooting sparked street protests, and Mayor Michael Bloomberg called it "inexplicable" and "unacceptable," saying "it sounds to me like excessive force was used."
In March 2007, three of the police officers were indicted on multiple charges.

Detectives Gescard Isnora, Marc Cooper and Michael Oliver -- who fired his gun 31 times that night, pausing to reload his weapon -- were acquitted of all charges in April 2008 Justice Arthur Cooperman of New York State Supreme Court said inconsistent testimony and other problems "had the effect of eviscerating the credibility" of key prosecution witnesses, and that some testimony "just didn't make sense." "The police response with respect to each defendant was not proved to be criminal -- i.e., beyond a reasonable doubt. Questions of carelessness and incompetence must be left to other forums," Cooperman said, according to a transcript released by his office.

Citing insufficient evidence, the Department of Justice announced in February that it would not pursue federal civil rights charges against police officers involved. The department issued a statement saying that after a "careful and thorough" review, there is not enough evidence to prove that New York Police Department detectives "acted willfully" when they opened fire on Bell and his friends. In May, Rev. Al Sharpton led a large protest in response to the Department of Justice decision. Sharpton and Bell's fiancee and parents were among more than 200 people arrested in New York City. Sharpton responded to Tuesday's decision in a written statement. "This in no way mitigates or repairs the permanent damage done to them and the pain it has caused them forever nor does it diminish the outrage in the community," Sharpton said. "We will always pursue justice for the family of Sean Bell, Joseph Guzman and Trent Benefield."

Grand Junction PD Rapist!

July 28, 2010

A woman who alleges she was raped in her home by a Grand Junction police officer claims the department ignored evidence of the officer’s “propensity for violence against women,” and that the department had systemic problems investigating its own, according to a lawsuit filed in Mesa County District Court. “There was a pattern and practice of reckless and heedless investigations; and/or deliberate and intentional disregard of evidence showing an officer’s abuse of power,” reads a complaint filed by an attorney for a local woman who said she was victimized by the late Glenn Coyne (pictured left). The woman, through her Denver-based attorney, has filed a lawsuit naming the department, former Chief Bill Gardner, current Chief John Camper, Coyne’s former supervising sergeant and 10 “John and Jane Does” inside the department, all of whom she alleges collectively violated her protections under the 14th Amendment. “Specifically, plaintiff had a constitutional right not to be sexually assaulted and raped by a police officer in her home,” the lawsuit reads.

Coyne, who was 35, committed suicide Oct. 6, 2009, five days after he was arrested on suspicion of burglary and sexual assault related to the incident that happened at her home around midnight Sept. 29. The officer was fired by Camper on Oct. 1, the same night Coyne was booked into Mesa County Jail.

The woman’s lawsuit alleges the Police Department was deficient in screening potential new officers, as well as training, monitoring and administering discipline. It also takes specific aim at Gardner in the handling of an internal investigation involving Coyne, which stemmed from December 2008 allegations that Coyne had sexually assaulted another woman. The case was investigated criminally by the Mesa County Sheriff’s Department, but District Attorney Pete Hautzinger cited a lack of proof in declining to bring charges. Coyne in March 2009 was placed on probationary status and returned to work at the conclusion of an internal investigation. “Officer Coyne should have been terminated,” attorneys wrote in the lawsuit.

Coyne was among a group of officers who responded to the woman’s home Sept. 27. She had called 911 to report problems with her juvenile son, who had been suspected of making small bombs and detonating them. Coyne made multiple trips to the woman’s home over the hours and days that followed, making sexual jokes and flirting with the woman, telling her on two of the visits, “he expected her to be in pajamas already, or in the process of changing,” the lawsuit reads. On Sept. 28, the lawsuit alleges, Coyne received permission from his sergeant to get off work at midnight, an hour before his shift was scheduled to end. “Upon information and belief, Officer Coyne’s supervisor told Officer Coyne that he could go to the plaintiff’s home, while on duty, and that (supervisor) would ‘cover for him,’ ” the lawsuit alleges. The supervisor “knew that Officer Coyne was searching for excuses to return to plaintiff’s home,” the lawsuit reads. The woman was sexually assaulted in her living room, and that Coyne at first pinned her on a couch as her five children were asleep in other rooms at the home, the lawsuit alleges. “When Officer Coyne was done with plaintiff, he threatened her that if she told anyone about the rape, he would ‘not be so kind on her son,’ ” the lawsuit reads. “If you talk about police officers, they have connections,” Coyne told her, the suit alleges.

According to a formal notice of claim to city by the woman’s attorney, she suffered a broken shoulder, fractured ribs, other contusions and bruises, aside from injuries consistent with sexual assault. Grand Junction City Attorney John Shaver said the city will file a formal response to the allegations. Shaver said the city will seek to move the matter into federal court in Denver. Specific monetary damages sought from the city are not specified in the lawsuit. In a notice of claim filed earlier this year, an attorney for the woman wrote those amounts, “are expected to be significant and well in excess of $500,000.

Oakland Settles ... Again!

July 21, 2010

OAKLAND — The Oakland City Council voted Tuesday night to pay $6.5 million in two search warrant cases from 2008 that claimed several Oakland police officers falsified sworn affidavits resulting in illegal raids on homes in East and West Oakland. The two federal civil rights lawsuits, representing 104 people, stemmed from allegations that a number of officers had misstated facts in sworn affidavits over a period of several years to Alameda County judges, indicating they had tested substances bought on the street to determine if they were drugs even though no test was ever conducted on the substances. The sworn statements were then used by judges to issue search warrants on homes and apartments which, in many instances, resulted in the arrest of residents in a variety of felony crimes. Most of the criminal cases that resulted from the illegal searches were dismissed. Four police officers were subsequently fired. Attorneys and the union representing the officers who were fired argued that the problems were caused by a lack of training and not intentional misconduct by the officers. But an internal investigation found otherwise. In the settlement, $2 million will come from city coffers, and the remaining $4.5 million will be paid by the city's insurance carrier, city officials said. Oakland attorneys who represented the plaintiffs, issued a statement Wednesday saying the settlement is "another move in the right direction in improving the quality of policing in Oakland and building trust between the police and the community." "There has been change, but we still have a long way to go," one of the attorneys said.

24 Hour Unfitness!

July 18, 2010

A civil rights group filed a class-action lawsuit Tuesday on behalf of workers at 24 Hour Fitness USA Inc., claiming the San Ramon-based company's workers have been victims of discrimination on the basis of race, color, national origin and gender. The Alameda County Superior Court lawsuit claims the largest privately owned U.S. fitness chain has systematically discriminated against minority and female workers regarding promotions to management jobs and equal pay, violating the California Fair Employment and Housing Act and the California Business and Profession Code. The suit demands that 24 Hour Fitness end its alleged discriminatory practices and provide back pay and damages to the employees who say they were treated unfairly.

The company issued a statement saying it's "deeply committed to providing a work environment that is free from unlawful discrimination and retaliation. "24 Hour Fitness makes its hiring and promotional decisions without regard to race, national origin, gender or any other protected basis," it said. "We firmly deny the allegations made in the complaint and we expect to prevail when all the facts are heard." The Mexican American Legal Defense and Education Fund and the Oakland law firm of Lewis, Feinberg, Lee, Renaker & Jackson represent the plaintiffs. "I am a competitor and I strive to be my best, but at 24 Hour Fitness that is not recognized," lead plaintiff Raoul Fulcher, who says he was passed over for promotions because he's African-American, said in a Legal Defense and Education Fund news release.

An attorney for the plaintiffs who was the nation's top civil rights prosecutor as an assistant attorney general during the Clinton administration, said the company "promises customers a family fitness environment" but "does not treat its minority and women employees as part of the family. Qualified, experienced minorities and women work lower-level jobs, but don't get a chance at management jobs. Breaking the promise of equal opportunity is against the law." 24 Hour Fitness serves more than 3.5 million members in more than 400 clubs nationwide, of which about 200 employ more than 10,000 people in California; it has more than 20 sites in Alameda and Contra Costa counties.

Abuse of Process!

July 18, 2010

As millions of Americans have fallen behind on paying their bills, debt collection law firms have been clogging courtrooms with lawsuits seeking repayment. Few have been as prolific as Cohen & Slamowitz, a Woodbury, N.Y., firm that has specialized in debt collection for nearly two decades. The firm has been filing roughly 80,000 lawsuits a year. With just 14 lawyers on staff, that works out to more than 5,700 cases per lawyer. How is that possible? The answer to that question is at the heart of a growing debate over the increasing use of the nation’s legal system to collect on bad debts.

Like many other firms, Cohen & Slamowitz relies on computer software to help prepare its cases. While many of the cases represent legitimate claims, critics say the lawsuits are too often based on inaccurate or incomplete information about the debtor or the amount owed. Already, some state legislators and judges have tried to crack down on collection lawsuits, and on Monday, the Federal Trade Commission weighed in, saying the system for resolving disputes over consumer debts was broken and in need of “significant reforms.” The commission, which says debt collection is its top consumer complaint, proposed that states require collectors to include more information about debts in their lawsuits, including a breakdown of the current balance by principal, interest and fees, and the relevant terms of the original credit contract, if not the contract itself. The agency also urged states to adopt measures to make it more likely that consumers would show up in court to defend themselves; currently, most do not, resulting in default judgments. “We are pushing very hard to make certain that debt collectors have sufficient substantiation, particularly when a consumer challenges the debt,” said David Vladeck, director of the commission’s Bureau of Consumer Protection. The commission, which has limited authority to write debt collection rules, urged states to take action because most collection cases are filed in state courts.

The litigation boom has been propelled by fundamental changes in the way debts are collected, particularly for credit cards. In recent years, credit card companies have increasingly sold off debt they have considered uncollectible to debt buyers, usually for 5 cents or less on the dollar. The debt buyers, in turn, may try to collect the debt themselves using traditional practices like sending letters or making phone calls to a consumer to try to arrange a payment plan. Increasingly, they are choosing to sue instead. Collection law firms are able to handle such large volumes of cases because computer software automates much of their work. Typically, a debt buyer sends a law firm an electronic database that contains various data about consumers, including name, home address, the outstanding balance, the date of default and whether interest is still accruing on the account.

Once the data is obtained by a law firm, software like Collection-Master from a company called Commercial Legal Software can “take a file and run it through the entire legal system automatically,” including sending out collection letters, summonses and lawsuits, said Nicholas D. Arcaro, vice president for sales and marketing at the company. No group has definitive statistics on debt collection lawsuits, but federal regulators, collection lawyers and judges say the numbers have increased and are straining the court system. Most consumers fail to show up in court, and those who do rarely have a lawyer. A court judgment gives debt buyers the ability to collect on the debt through actions like wage or property garnishment. “What they are hoping to recover is the full dollar on some of it,” said Robert J. Hobbs, deputy director of the National Consumer Law Center, an advocacy group. “On most of it, they are hoping to recover 40 or 50 cents on the dollar. And they are hoping to do it with as little work as they can.”

Critics say the business model for some debt buyers and law firms relies on such huge volumes of legal actions that mistakes and abuses are inevitable, in part because the lawsuits are often based on little more than a defendant’s name, address and alleged balance. “It’s the factory approach to practicing law,” said a New Mexico lawyer who represents consumers against debt collectors.

Help Your Attorney Help You

July 21, 2010

Even the sharpest lawyers can't do justice to your case without your full cooperation throughout. Two commercial trial attorneys explain

By Matthew A. Taylor and Matthew M. Ryan

In our years as commercial trial lawyers, we've encountered clients of every stripe and character. Not surprisingly, the representation proceeds much more smoothly when the client cooperates and actively engages in the matter. Allow us to explain what makes the difference between a good and bad client.

Good clients reveal everything about the case, warts and all. During the initial consultation and throughout the life of the litigation, clients need to speak candidly to their counsel and not outsmart themselves by telling their lawyer what they think the lawyer wants to hear. While we certainly want you to emphasize and focus on the most relevant and helpful information, your cause will ultimately suffer if you censor yourself. Always err on the side of disclosing information, even the embarrassing and unflattering variety. Your attorneys need to hear it in order to prepare for its disclosure and minimize any negative consequences.

Good clients listen to everything about the case. Your attorney needs to speak candidly to you and be comfortable advising you where you went wrong. A good client remains receptive to the constructive criticism and the tough-love feedback. Moreover, a good client is open to whatever instructions the attorney might give. For instance, responding to discovery requests might be cumbersome and embarrassing, but a good client listens to and follows counsel's advice on which documents and records to collect.


Good clients introduce us to the necessary players. Who made the decisions at issue in the lawsuit? For example, when a contract negotiation goes sour and litigation ensues, your attorney needs to talk to the people who actually sat at the bargaining table. Who prepared the negotiators? Which employees compiled materials for the negotiation? Who originally created those materials? There are also many administrative employees your attorney needs to meet. For instance, presuming you communicate via e-mail at work, you should identify who runs the client's IT department. Your attorney needs to talk to your IT director to ensure that necessary and relevant e-documents are retained and easily reproduced.

Good clients install litigation holds. A litigation hold requires an organization to preserve data relating to a specific legal action. Once you can reasonably anticipate litigation, even before a complaint is actually filed, you must take reasonable, good faith measures to preserve evidence, including documents and electronically stored information relevant to the litigation. Severe consequences, including monetary or even evidentiary sanctions, can result from failing to preserve this evidence. For example, a court could instruct a jury that an adverse inference may be drawn if the judge is convinced the client has failed to preserve relevant evidence. Document preservation may mean laying out some cash, but the penalties of not doing so far exceed the cost.

Good clients understand the territory. For better or worse, litigation is a protracted and expensive process (perhaps to encourage all parties to settle early and cut their losses). Your attorneys will always strive to keep your lawsuit moving expeditiously through the legal system. But even with these best practices, your lawsuit might still take years to resolve. Trial dates are often rescheduled. Civil suits in particular tend to drag. An individual judge might have hundreds of lawsuits on her docket. Her time is at a premium, which makes it a challenge for your attorney to schedule a hearing, conference, or trial with her. The opposing side is also entitled to develop and prepare its side of the argument. Conflicts and emergencies—for the parties, the attorneys, and the court—arise frequently, and a good client accepts it when a January trial date unexpectedly moves to March or June.


Bad clients fail to tell their attorney what a "win" means to them. As trial lawyers, we train and prepare to exhaust all steps en route to a successful trial and, if necessary, a successful appeal.But before we review every document and depose every witness, we need to know the client's strategic goal. Does the client have liquidity issues and need a quick, discounted settlement payment in order to stay afloat? Does the client want to remain in the case just long enough so third-party observers conclude the client is not an easy mark for would-be litigation trolls? Or does the client want to extract a pound of flesh from the other side, regardless of time or cost? Your attorney's idea of a "win" might not always mirror yours.

Bad clients neglect to pay the bills. Your attorneys are surely willing to discuss the bills and each line item with you, and any client is entitled to raise concerns about bills with his lawyer. Nonetheless, clients need to pay the bills, and pay them regularly. Obviously, a delinquency might strain the ongoing relationship between the attorney and the client. Furthermore, a delinquency could compromise the relationship with third parties (retained expert witnesses, paralegals, e-discovery firms, photocopying services, etc). Litigation incurs many costs. A client who fails to pay the bills might lose favorable expert testimony, crucial administrative support, access to document databases and repositories, and even the necessary photocopies for filing and service upon opposing parties and the court.

Bad clients refuse to get involved in the case. Ignoring a lawsuit will not make it go away. Clients know more about the factual underpinnings of a case than their attorneys do. Never hesitate to contact your lawyer and share as many details as possible. Be sure to return your attorney's telephone calls when he asks for your assistance in drafting pleadings, discovery requests, or discovery responses. And share your knowledge of the interrelationships between the litigants and third parties. A bad client, for example, might fail to mention that an "impartial" third-party witness actually has known a litigant for decades and that, possibly, that personal or professional relationship might unravel that witness's testimony and prove a terrible embarrassment before the court.

Bad clients don't show up. Too frequently, corporate clients dispatch their "usual" corporate representatives or lower-level employees whose knowledge of the specific issues is less than desired. Your attorney must (and will) make clear to you which people should attend a deposition, hearing, or trial. In our experience, however, we have had too many depositions rescheduled, meetings postponed, and conference calls canceled, because a client knowingly sends the wrong representative to appear. This type of behavior ultimately hurts the client in wasted time, money, and credibility. Nothing remains in a judge's mind more than the unfavorable impression acquired early on due to juvenile gamesmanship.

Clients who want to succeed must do everything possible to make their lawyers winners. Much of the end result hinges on how you perform your responsibilities for your litigation.

Matthew A. Taylor is chairman of Duane Morris' trial practice group and serves on the firm's executive committee. The trial practice group consists of some 350 attorneys in 18 offices. Taylor practices in the area of commercial litigation, handling matters in state and federal courts across the U.S. Matthew M. Ryan is a Duane Morris litigator who represents corporate entities and individual clients in commercial litigation matters, with emphasis on contracts, commercial fraud, and business tort cases.


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