list of affirmative defenses

Be the first and Add your Comment below. BONUS:  Click here for a detailed list of defenses to copyright infringement. – prior pending action – undue influence Truth (is a defense in a defamation lawsuit) (Click here for a list of four defamation defenses to be aware of), 66. – joint venture – misnomer of parties A defendant is not entitled to present a duress defense at trial or receive a jury instruction on duress unless the defendant makes a prima facie showing of duress in a pretrial offer of proof, Vasquez–Landaver, 527 F.3d at 802 (citing Moreno, 102 F.3d at 998–99), or in evidence presented at trial, United States v. Jennell, 749 F.2d 1302, 1305 (9th Cir.1984). Good faith by answering Defendant (conduct of Defendant was in good faith). “Affirmative defenses that are neither pled nor tried by consent are deemed waived.” Ashburn, 970 So. – punitive damages not permissible Other terms of use of our website can be found here, and all viewers of our website are bound by these terms. Unjust enrichment (getting something you are not entitled. When responding to the initial lawsuit as a defendant, you want also to include any affirmative defenses to breach of contract you have. Anticipatory breach (Plaintiff's breach of contract claims are barred due to the anticipatory breach by Plaintiff), 28. viewing this website and any content, and sending us any email communications does not create an ATTORNEY-CLIENT RELATIONSHIP and such shall not be formed unless agreed to in writing by our law firm. 2d 1251, 1253 (E.D. Our firm is a business, real estate and intellectual property law firm (copyright infringement being our main focus). App. It will depend on the facts of the case. See Kendall-Jackson Winery, Ltd. v. Superior Court, 76 Cal. Res Judicata. Thus, if sued, Joe has the defense that his liability was released due to a “novation.”. – discharge (other than bankruptcy) RESPONSES TO NUMBERED PARAGRAPHS 88. Posted by Steve Vondran | Mar 19, 2015 | 0 Comments. Release (express, implied, or equitable release of rights now complaining of), 25. Click here to read about indemnification in the context of software infringement. Thank you for viewing our blogs, videos and podcasts. All affirmative defenses, including duress, must be stated in a pleading. – discharge in bankruptcy An Answer may contain any defense. This normally needs to be a high amount of pressure to overcome your free will. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint. TWENTIETH AFFIRMATIVE DEFENSE (Lack of Equity) 20. Fraud is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. – no private right of action There are many fact patters this can apply to. California Homeowner Bill of Rights defense to foreclosure, intentional interference with prospective business advantage, indemnification in the context of software infringement. Failure to perform (Defendant was excused from performing the terms of the contract due to Plaintiff's failure to perform), 34. No one cares about your alleged knowledge in POLITICS so take a different road. This is often what a “moving party” Defendant will do in a case when they file a Demurrer (California state court) or “Motion to Dismiss” (if you are in federal court, for example, on a copyright infringement lawsuit). Sometimes when you give your car to a valet they give you a ticket that on the back (usually in tiny print) has a contractual assumption of risk clause, meaning, by “contract” supposedly, you have agreed that if something bad happens to your vehicle they are not liable. – improper service 90. Requirements of the Generally Accepted Affirmative Defenses. App. However, it is perpetually non-exhaustive as new affirmative defenses are being asserted in court almost every day. at p. 1108, 49 Cal.Rptr.3d 785.). Explain the grounds for your affirmative defense to the extent you know them. – preemption This is the home of the Attorney Steve® brand. – statutory defenses prerequisites (these will vary depending on the claims) Make sure to SUBSCRIBE to join over 8,500 other people who love our videos. – truth (in defamation actions) A complete list can be endless and would include any and all defenses you can use which would likely prevent the Plaintiff from winning his case. Follow List Embed List. – Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time Change ), You are commenting using your Facebook account. 84. To my knowledge, this is the most complete list of affirmative defenses available, currently consisting of 149 separate affirmative defenses. The classes of contracts covered by the statute, including land contracts, were selected because of their importance or complexity. For example, in one California case the court noted the privilege to compete: The one significant difference between the two torts is that when it is a prospective advantage that has been interfered with the law recognizes more extensive privileges to interfere for the sake of Bona fide  competition.“ See A. F. Arnold & Co. v. Pac. D. Ariz. 2013). 11. 27. – mistake To support an affirmative defense, you must assert facts or circumstances that render the breach claim moot. – injury by fellow servant An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. The trial court found that Kendall–Jackson Winery, Ltd. (Kendall–Jackson), the defendant in a malicious prosecution action, had no relevant evidence that the plaintiff, E. & J. Gallo Winery (Gallo), acted with unclean hands in relation to its claim and ordered summary adjudication for the plaintiff on Kendall–Jackson's unclean hands defense. 1998) 148 F3d 606, 612]. there is no copyright infringement because the Defendant had a license). CA. Personal Injury. – good faith The Court struck 11 of the affirmative defenses asserted by the defendants: estoppel, laches, waiver, unclean hands, public disclosure, failure to state a claim, failure to plead fraud with specificity, damages too remote or speculative, release, accord and satisfaction, and statute of limitations. There are other common affirmative defenses to breach of contract and remedies such as estoppel, failure to mitigate damages, substantial performance, and set-off. 96, 100 (Ct. App. – lack of causal relationship – cancellation of contract/resignation This is always one of the first defenses you look for in every case. – preemption by federal or other law 1999) 193 F3d 354, 362]. – indemnity Self-defense is a type of affirmative defense that is often used to exonerate a defendant. Waiver Waiver is the voluntary relinquishment of a known right, arising from a consensual, affirmative act. Equitable Estoppel  (Plaintiff is estopped to take the positions being taken in the current litigation due to some equitable reason). For example, they say one thing in a Demurrer pleading and another in their motion for summary judgement. This statute has a defense to foreclosure if certain statutory violations are present. A complete list can be endless and would include any and all defenses you can use which would likely prevent the Plaintiff from winning his case. 7. It includes (1) a false representation; (2) about a material fact; (3) made with knowledge of its untruth; (4) a statement about intent to deceive; and (5) the defendant’s reliance on the representation. This should hopefully give the the general idea of things to look for. 9. Decisions to hire an attorney should never be based on advertising alone. I only looked at one case involving two wineries fighting with each-other, but here is what I found: “The doctrine of unclean hands does not deny relief to a plaintiff guilty of any past misconduct; only misconduct directly related to the matter in which he seeks relief triggers the defense. Rptr. – failure to serve Affirmative Defense - Definition, Examples, Cases, Processes Servs., Inc., 188 Cal. We will get back to you shortly. Some copyright holders do not understand this rather simple concept and you may have to raise it as a defense to infringement. Affirmative Defense: A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true. There could be a lot of different reasons why an act or omission might be considered legally justified. Self-defense, entrapment, insanity, necessity, and respondeat superior are some examples of affirmative defenses. in a right of publicity litigation case – Defendant only used name, image and likeness for a limited purpose protected by right of free speech), 54. CONTACT US/Cost of Corruption/Make a DONATION, In memoriam–Guardianships gone (deadly) wrong, See our umbrella site — www.justice4every1.com. – claimants own conduct, or by the conduct of its agents, representatives, and consultants – insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts) Make sure to SUBSCRIBE to our legal channel by clicking on the Red “V” for Victory! Mutual mistake (mutual mistake of fact in a contract action precludes contract formation), 67. One good method to determine which affirmative defenses to raise is to categorize the available defenses. Affirmative defenses are controversial and involve fundamental constitutional rights. Under United States law, “implied repeal” is a disfavored doctrine. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and other affirmative defenses such as, in the United States, those listed in Rule 8 (c) … But simply listing affirmative defenses is not enough. These answering defendants are not legally responsible for the alleged acts/omissions of those defendants named herein as DOES 1-XXX. See Teledyne Mid-Am. Thank you for all your support!! P. 8.03. – execution of public duty As noted, all information on this website is Attorney Advertising. TEXT. 45. – undue burden (ADA) Indemnification (third parties are responsible to pick up and tender the defense on said claims, counts, and causes of action set forth in the Complaint). Spoliation of evidence – this is more of a rule of evidence, but if one Party, say the Plaintiff, has destroy critical evidence in the case after knowing they would be filing a lawsuit, or perhaps even after the lawsuit was filed, (ex they fail to produce requested documents in a software audit case), this could provide the grounds for a potential defense. WAIVER:  A waiver is defined as a voluntary relinquishment of a known and appreciated right. Pursuant to Alabama Rule of Civil Procedure 8(c), a party served with a complaint is required to affirmatively raise certain defenses in the initial responsive pleading. See California Civil Code Section 1624. The main point being, however, that if you are asserting defenses without good faith belief in the basis for the defense or that you have or will have facts to support them, then you could be subject to sanctions under F.R.C.P. But Joe has a friend Milt who will sing the song that Stan wants. In general, I would plead the facts that are known and available to you, and not likely to change. Illegality. – laches Plaintiffs' second cause of action not only fails to show that the alleged payment was made under necessity, but affirmatively shows that it was made without any legal necessity. Remember, as with all affirmative defenses “either raise them at the first initial opportunity or waive them goodbye.“. Force majeure (act of god) – Sometimes an “act of god” will make something happen and this will relieve a Defendant of legal liability. Acquiescence – If a Plaintiff “goes along with” the Defendant and strings them along, allows them to do a certain act (saying nothing, or not objecting), they may be deemed to have “acquiesced” which is a form of consent. For more information, or to discuss your case or our experience and qualifications please contact us at (877) 276-5084. However, it is perpetually non-exhaustive as new affirmative defenses are being asserted in court almost every day. Lack of consideration (the contract alleged to have been breached is unenforceable due to lack of consideration), 42. This decision serves as a reminder that actions brought under the federal False Claims Act … You cannot live on Politics Alone! of Los Angeles, 60 Cal. – exemption VIDEO:  Watch Attorney Steve® explain the Duty to Mitigate Damages – IMPORTANT DEFENSE!!! – failing to plead fraud with particularity List of Affirmative Defenses. So it's important to be aware of what your potential defenses are. Make sure to SUBSCRIBE to join over 8,000 other people who love our informational videos. Vasquez–Landaver, 527 F.3d at 802 (quoting Moreno, 102 F.3d at 997). (ED NC 2010) 270 FRD 228, 235-236; see Hayne v. Green Ford Sales, Inc. (D KS 2009) 263 FRD 647, 651-652—bare assertion of limitations bar “too conclusory to give Plaintiffs fair notice”]. Change ), CLICK HERE for 09 P 4585 (Sykes) Transcripts/Record on Appeal, CLICK HERE for ARDC (infamous) Blogging about Corruption case, CLICK HERE for Forms to get any Cook County Probate Case dismissed for Lack of Notice of Hearing Required by Sodini and a General Motion to Dismiss a Wrongful Guardianship, CLICK HERE for info on photos in header/recommended books/videos, CLICK HERE for information on copyright rights and this website, CLICK HERE for litigation against the IARDC, CLICK HERE to get links to Petitions and the Famous Banned Videos, CLICK HERE to read about Mary G Sykes, abused in Cook County IL Probate Court, CLICK HERE to see our website at www.DenisonLaw.com, CLICK HERE to see WHOM to fax and WHERE to write. Judicial Estoppel – This is the defense to raise when a Plaintiff or Defendant changes their arguments and position during the course of a litigation – which happens more than you might think. First, he must admit that he did the act that he is accused of doing, and second evidence of the legally recognized exception to holding him responsible must be introduced. Minn. R. Civ. These defenses are not an exhaustive list of defenses that may be raised, and should not be considered to construe legal advice or be used as a substitute for your own research or … Cal. 1. Because there are so many possible defenses, this is a work in progress and I plan to start supplementing each defense with a short video to help you understand each term in one minute or less (of course, I have to find the time with my busy legal calendar). Prof'l Ins., Inc., 27 Cal. – unclean hands Here is a video that discusses the Copyright Infringement defense of abandonment, but this applies in trademark as well (and likely in other areas of law, think about whether it may apply to your situation where someone is claiming legal rights exist). This means that the time to bring the cause of action has as a matter of law. For example, in a copyright86. A mortgage or deed of trust is an interest in real property for the purposes of the Arizona Statute of Frauds. App. – economic loss rule The following list is by no means an exhausting listing of defenses but rather the most common and useful ones to use in a debt lawsuit. You might be designated as a beneficiary on a policy of life insurance and someone argues that they should get the money instead. Here are a few things to consider (certainly not an exhaustive analysis of this point): Pleading requirements for affirmative defenses: The answer must “state in short and plain terms” the defendant's defenses to each claim asserted against it. Below, please find a list of common affirmative defenses. Self-Defense or Defense of Others as an Affirmative Defense. (2) a well-grounded fear that the threat will be carried out, (3) lack of a reasonable opportunity to escape the threatened harm.' Here are some of the more common affirmative defenses: Statute of limitations is nearly always pleaded as an affirmative defense, but it means little without facts to establish that statute of limitations was violated. Doctrine of Superior Equities (applies when an insurance company is trying to recover losses they suffered after they pay off an insurance claim). We can be reached at (877) 276-5084. Call us at (877) 276-5084. – filed rate doctrine Duress – Meaning the Defendant did something out of “duress” due to some outside force that left Defendant without any reasonable alternatives. Whether a duty exists in any particular fact setting is resolved by the court as a matter of law even though the duty determination inevitably rests on certain factual assumptions or findings about the particular activity of sport. Bonus Video – Click on the picture to hear Attorney Steve explain the top 25 ays to break a lease or terminate a contract. – permission/invitation (in assault, battery, trespass actions) Affirmative Defenses. 83. The actions are admitted but claimed to be legally justified by the danger presented by the alleged victim. You never know when new affirmative defenses will arise in a case, so this should go down to preserve all future defenses a Defendant may want to waive), 40. See Rule 11. THANK YOU ALL FOR YOUR TREMENDOUS SUPPORT, COMMENTS AND ENTHUSIASM!! Rejection of Goods (Plaintiff cannot recover on a breach of contract claim because Defendant timely rejected goods), 59. Keep in mind, there may be different defenses depending upon what state you are in and what statute you are dealing with and the “caselaw” that interprets these statutes. Do not rely on this without speaking to a lawyer in your jurisdiction. “[D]ischarge in bankruptcy” is deleted from the list of affirmative defenses. – discharge – unconscionability This could raise a “meet and confer” issue with opposing counsel and you need to decide whether you want to drop certain affirmative defenses, or amend what you alleged (to add more facts), or simply let them go file their motion to strike if that is their burning desire. 21. A party shall state in short and plain terms the defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. Affirmative defenses, in contrast, introduce an additional element into the case and, depending upon the jurisdiction, the defendant may be given the burden to prove the defense. – election of remedies – no government action 20. 64. In some cases, you might get an aggressive Plaintiff lawyer who wants to bill up a storm (possibly copying multiple associates on an email), and will threaten to file a “Motion to Strike” your affirmative defenses if you don't amend your affirmative defenses to add more facts (it might be noted that they have not set forth all their facts in the complaint, as all that is needed is a “short and plain” statement of the facts to give notice of the claim), yet these same litigation attorney might want to play the bully by forcing you to allege every single fact you know. In the absence of a prima facie showing of duress, evidence of duress is irrelevant and may be excluded, and a jury instruction is not appropriate. Bar Lic. In the event this communication is not in conformity with the regulations of any state, our firm is not willing to accept representation based on this communication. Statutory compliance – where something is allowed or authorized by statute this could be a defense. When a legal action, like a complaint, cross-complaint, or counter-complaint, is brought against you, you have the right to raise an affirmative defense. The materials and information contained on our website and in our videos and podcasts on this website are provided for GENERAL INFORMATION PURPOSES ONLY and should not be construed as legal advice and is NOT A SUBSTITUTE FOR PROFESSIONAL LEGAL ADVICE from a qualified licensed attorney in the appropriate jurisdiction. This is a very common defense you see many defendants raise. Gather Relevant Facts and Evidence. (4) An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate, or to lease real estate for a longer period than one year, or to procure, introduce, or find a purchaser or seller of real estate or a lessee or lessor of real estate where the lease is for a longer period than one year, for compensation or a commission. Fraud. “Equitable Tolling“: Also, a litigant must also keep in mind that some courts may “equitably toll” the statute of limitations, meaning for example if there were periods of insanity or mental problems, the Court might toll the statute of limitations for the period of time in which the Plaintiff was dealing with the problem. You should seek the advice of competent counsel in your jurisdiction before claiming any defense, as you may be responsible for the attorneys fees of your opponent if a claimed defense has no merit. – sovereign immunity No private right of action (the statute Plaintiff is suing under provides no private right of action), 76. You should seek the advice of competent counsel in your jurisdiction before claiming any defense, as you may be responsible for the attorneys fees of your opponent if a claimed defense has no merit. VIDEO:  Watch Attorney Steve® explain this copyright law defense along with the Merger Doctrine,. “In order to make a prima facie showing for a duress defense or a jury instruction, a defendant must establish: (1) an immediate threat of death or serious bodily injury. Here is a blog I wrote on good faith defense in regard to allegations of Pay Per View (PPV) boxing piracy. See Daingerfield Island Protective Soc. Affirmative defenses are reasons why, even if the facts in a personal injury case happened just as the injured plaintiff claims, the defendant should not have to pay damages.. An affirmative defense may be based on the facts of the case, or it may be a defense arising from the law that governs the case. Comparative fault of third parties (there is a third party that is responsible for all or part of Plaintiff's damages), 41. 22. License – (ex. 14. Other courts using Federal Rule type pleading have given great weight to common law §1601, et seq. Look for a bogus payment, or over-payment of a claim. This obviously contemplates something other than the permissible practice of simultaneously advancing in the same action inconsistent claims or defenses which can then, under appropriate judicial control, be evaluated as such by the same tribunal, thus allowing an internally consistent final decision to be reached.”See  Allen v. Zurich Ins. Co. v. Wells Fargo Bank, N.A. – parol evidence rule 686.) (Act of God If you were prevented from doing your part of the contract due to a natural occurrence (earthquake, flood, storm), this affirmative defense … See id. These statements must be sufficient to warrant relief from the court. Discharge in Bankruptcy. Change ), You are commenting using your Twitter account. #025911 This list is long. 1985). Right to add additional affirmative defenses (this is an important one to make sure you add. – act of god (or peril of the sea in admiralty cases) We have been helping business and individual clients since 2004. P. 8.03. Ct. App. If you don't raise your defenses, you could be found to have “waived” your defenses. A. In Arizona, for a promise or agreement related to the sale of real property or an interest therein to be enforceable, the promise or agreement upon which the action is brought, or some memorandum thereof, must be in writing and signed by the party to be charged or his authorized agent. In civil cases, affirmative defenses are used to free the defendant from all responsibility , or to reduce the amount of his liability. See 11 Witkin, Summary of Cal. Laches – This is a strange term, and a strange defense that I am not sure I have ever seen or hear actually works (not to say it's not worth a try). 12 C.F.R. #232337. 68. – reasonable accommodation Make sure to SUBSCRIBE TO OUR FREE LEGAL CHANNEL by clicking on the RED “V” for victory! Attorney Steve Litigation Tip:  Keep in mind a Plaintiff can always file a Demurrer (see video below) against any affirmative defenses that are just raised in boilerplate fashion in Defendant's answer (although this does not usually happen, it can). Law (9th ed. 1 You may be a common-law partner, who believes that the benefit(s) you received arising from your relationship are fair and deserved. 4th 171, 181, 70 Cal. If you were prevented from doing your part of the contract by the plaintiff this affirmative defense may apply to you. (2006) 143 Cal.App.4th 1098, 1107, 49 Cal.Rptr.3d 785.) The defense basically argues that the Plaintiff did something really bad too, so they should not be allowed to win their lawsuit. sign a contract) this may be grounds to get out of the contract and cancel, terminate, or nullify the agreement. Please note that our firm does not represent you unless and until a written retainer agreement is signed, and any applicable legal fees are paid. Although the Complaint is groundless and without merit, if the court finds there is a contestable issue, plaintiff is barred from recovery herein in that the conduct of plaintiff, and other persons unknown to this answering defendant, constituted a supervening, intervening cause of the damages, injuries and losses allegedly sustained by plaintiff. Affirmative Defense. Florida Affirmative Defenses and Procedural Objections With Forms, by Joshua B. Spector, Esq., and Paul D. Turner, Esq. Truth in Lending Recoupment (“TILA”). 1994) 40 F3d 442, 445—limitations defense “sufficiently raised for purposes of Rule 8 by its bare assertion;”, Other courts require a statute of limitations defense to reference a particular statute of limitations and relevant time periods. Bonus materials: Click on the picture above to watch our video on this topic. Doe Defendant is liable (this may require a Plaintiff to make a “doe amendment” and add an additional defendant). – collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. – res judicata I have listed nine categories below, as well as common affirmative defenses for each category. Id. The issue in this case is not whether the note was barred at the time of payment, but whether the payment was voluntary. Indeed, the plain language of the court rule requires a party asserting affirmative defenses to “state the facts constituting” the affirmative defenses listed. at 318, 11 Cal.Rptr.2d at 16, 834 P.2d 696; see also Allan v. Snow Summit, 51 Cal.App.4th 1358, 1367, 59 Cal.Rptr.2d 813, 818 (1996). Affirmative defenses contrast with negative defenses, which assert that a crucial part of the accusation is incorrect. B. – novation The Supreme Court has indicated that the primary assumption of risk doctrine derives from a policy judgment that tort law should not impose a duty where the duty would either chill participation in the activity or fundamentally alter its nature. – hindrance of contract – prior pending action 16. The authorizing statute need not predict the precise nature of the damages. For example, if an company has a data breach, and a third party hacker runs around and causes havoc against the Plaintiff, the Plaintiff may sue. – circuitry of action – set off The contract was supposed to be in writing. Any past results discussed herein do not guarantee or predict any future results. Unclean hands (Plaintiff cannot seek damages or equity because the Defendant comes to the Court with unclean hands). 3. Assumption of the Risk (for example in a personal injury case – ex. Here are a few possible defenses to assert when you believe someone else is responsible for the alleged wrongdoing (not you): 1. When it comes to answering a complaint, you need to MAKE SURE YOU RAISE ALL POSSIBLE DEFENSES at the beginning of the case. 1923). 32. Resources: Here is a good list of California statute of limitations, 2. What are affirmative defenses? Lack of Causation (Defendant was not the proximate or legal cause of Plaintiff's injury), 33. An affirmative defense does not necessarily deny the claims made in the complaint. Unconscionability (Plaintiff cannot enforce the contract because the terms are substantively or procedurally unconscionable), 18. Trespass to Chattels and Nuisance – Necessity is a complete defense to these torts. One example would be a governmental immunity for a state or local company. Since this claim is waived if NOT pleaded at the beginning of the lawsuit, it is always a good idea to include it. 12. DON'T FORGET TO SUBSCRIBE TO OUR LEGAL CHANNEL BY CLICKING ON THE RED “V'. – merger doctrine – failure to exhaust administrative remedies Injury to Fellow Servant. Make sure to SUBSCRIBE to our popular YouTube legal channel. v. State of California, 175 Cal. Rptr. The party who raises an affirmative defense has the burden of proving it. Preemption (for example, a bank might argue that a Plaintiff cannot bring a wrongful foreclosure or predatory loan servicing case due to HOLA federal banking law). See Farmers Ins. – mutual mistake Modern statutes of frauds find their roots in a 1677 English statute, 29 Charles II, c. 3, An Act for the Prevention of Frauds and Perjuries.This statute was intended to serve an evidentiary purpose by providing evidence of the existence and terms of a contract more reliable than easily fabricated oral claims. Recoverable ( there is no deal based on Advertising alone to assist you allowed. To do something ( ex identifying appropriate affirmative or additional defenses for inclusion in an tort. To allegations of pay Per View ( PPV ) boxing piracy and all viewers our. Alleged knowledge in POLITICS so take a different road defenses check boxes that apply to your case property. 1624 identifies certain things that must be stated in a Civil action making... Abrogant ” please make sure you raise all possible defenses at the beginning of the most list... 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