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Friday, February 22, 2008

Call for Nominations – Most Screwed Victims in Caselaw History

Johnny_automatic_corkscrewIf the law’s central theme is justice, why do we teach law students with a canon of cases that leave the reader with one common refrain: “Wow. That person got screwed.”

Why? Because, to borrow a phrase from my own Contracts teacher, Prof. Gerald Frug, “It’s delicious.”

Who is your favorite tragic figure from the casebooks? I invite your nominations in the comments to this post. After receiving your input, I’ll compile a list of candidates, and then we will elect the Greatest All-Time Victim in Caselaw History. (Come back to this post to see the results - I’ll append a link to follow-on reports.)

To qualify, your luckless loser must have been left substantially without the remedy sought in court. In other words, the qualifying event is not the original injury that occasioned the lawsuit, but, rather, the magnitude of tragedy occasioned by that person’s being let down by our system of laws.

And one other note. The point here is not to find someone whose misfortune resulted from a misapplication of the law or bad judging. Quite to the contrary, the ideal victim would, I think, be found in a case where the law was correctly applied, albeit with tragic results.

I’ll kick it off with my one nomination of my own:

From Civil Procedure the married couple of E.L. and Annie Mottley, from the case of Louisville & Nashville Railroad Co. v. Mottley. Seriously injured in a train collision in 1871, the Mottleys released their claims against the railroad in exchange for two lifetime railroad passes. When the federal government banned such passes in 1906, the railroad reneged on its deal, and the Mottleys sued in federal court. Their case wound up in the U.S. Supreme Court, which dismissed the case for lack of federal-question jurisdiction. See 211 U.S. 149 (1908). So the Mottleys re-filed in Kentucky state court and won back their passes, only to wind up in the U.S. Supreme Court AGAIN. See 219 U.S. 467 (1911). This time, the high court ruled on the federal question (i.e., the one that wasn’t important enough to confer federal-question jurisdiction a few years prior) and decided the Mottleys couldn’t have their railroad passes after all.

I hope they got a good deal on attorneys fees.

Jump to related future posts:
Most Screwed Victims in Case Law History - Time to Vote - April 16, 2008
The Peevyhouses: The Most Screwed Victims in Case-Law History - May 9, 2008

Posted by Eric E. Johnson on February 22, 2008 at 06:06 AM in Teaching Law | Permalink


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Gonzales v. Castle Rock. Lady gets restraing order against ex-husband, state mandates law enforcement uphold the restraining order. Ex kidnaps kids. Gonazales knows he has them, and knows where he is. For HOURS she tries to get the police to do something, they refuse. Ex shows up at the police station, kids shot dead in his backseat, and instigates a fatal shootout. Held, the police were under no duty to enforce the restraining order. Guess what victims of domestic violence--you're SOL.

Posted by: Anon | Apr 16, 2008 7:18:49 PM

No one, and I mean no one, has been screwed worse in or out of court than Joshua DeShaney, of DeShaney v. Winnebago County (1989). No contest.

Posted by: Karen | Mar 21, 2008 4:17:27 PM

We read an old case in torts about a woman who sued after she fell through the rotting wooden floor of her host's outhouse and landed in the sewage. My torts professor used to refer to it as "the scuba diving case." I have no idea how this woman's law suit came out, but I think she was the most screwed just getting there.

Posted by: Greg May | Mar 1, 2008 12:09:03 AM

If Korematsu was "just bullshit," then it really falls outside the criteria, doesn't it? Similarly, while there is no doubt that Dred Scott got screwed, I wonder if the law was already too set against him. The law wasn't really set up to provide relief to that class of plaintiffs (slaves against their masters), was it? Dred Scott didn't really get screwed any worse than any other slave. By contrast, the law would generally seem to provide remedies for people who get screwed by their insurance companies--unless ERISA preemption applies, in which case the court takes a turn after the insurer. The reason I love Peeveyhouse is precisely that the court did purport to grant them a remedy, but one that was just so laughably inadequate that they might as well not have sued.

Al Gore in Bush v. Gore might qualify, however, when we take into account what happened immediately on granting cert. The "remedy" the Supreme Court crafted for the Fourteenth Amendment violation it had made up was just to declare Bush the winner, rather than allow a recount to proceed. Why couldn't it proceed? Because they had earlier enjoined all ballot-counting, immediately upon taking the case, and by the time they decided it, it was too late to begin anew. Taking the alleged 14th Amendment violation seriously, however, we could say that the voters of Florida were the ones who got screwed: the "remedy" for potential disfranchisement due to the purported Equal Protection violation was actual disfranchisement, as their ballots were not counted.

For my last nomination, however, I would like to present for your consideration United States v. Carter, 481 F.3d 601 (8th Cir. 2007), cert. granted, 128 S.Ct. 829 (2008), where the circuit court not only denied Mr. Greenlaw the reduction in sentence he sought on appeal, but actually sua sponte (there was no gov't cross-appeal) increased the sentence due to a miscalculation in the statutory mandatory minimum that the district court had made in the defendant's favor. (They did it on plain error analysis too, b/c the gov't didn't object below.) Talk about getting screwed!

Posted by: Andrew Carlon | Feb 28, 2008 12:27:21 AM

Korematsu by far.

Also, Moore in Moore v. Board of Regents traveled on the Board's dime. That part never made sense, but he did get screwed.

I think he was able to recover under another case, but was not granted a portion of the patent.

Posted by: Cody Wms | Feb 27, 2008 10:35:42 AM

How could anyone have been more screwed than Korematsu? Even Dredd Scott was pretty harshly screwed, but as ignoble as the decision was, it had some foundation in the existing law. Korematsu was just bullshit.

Of course, America might be a good candidate for the most screwed award. See Bush v. Gore.

Posted by: Marc J. Randazza | Feb 26, 2008 7:46:50 PM

Here's another vote for Dred Scott. It's no contest, really.

Posted by: daffddfa | Feb 26, 2008 6:29:21 PM

I second Corcoran v. United HealthCare, Inc.; pretty much any ERISA preemption cases leaves the plaintiff without a real remedy--all he can recover under ERISA is the benefit owed. In health care benefit cases the plaintiff is often already dead.

Posted by: Marissa | Feb 25, 2008 10:16:42 AM

Briney of Katko v. Briney, 183 N.W.2d 657 (Iowa 1971) (the spring gun case).

Also, Dred Scott. Obviously.

Posted by: 2005 | Feb 25, 2008 9:21:42 AM

Patricia Garrett, in Board of Trustees of the Univ. of Alabama v. Garrett. Ms. Garrett, a nurse at the U of Alabama hospital, got demoted for having breast cancer, only to be told by the Court that, while the ADA protected her, sovereign immunity prevented her from recovering damages. Discrimination against those with disabilities, Chief Justice Rehnquist wrote, adding insult to injury, may be hard-hearted, but it is perfectly rational. I think this case is of a piece with Poor Joshua.

Another contender -- Prigg, the fugitive slave in Prigg v. Pennsylvania, who was forced to return to slavery.

Posted by: Dude | Feb 25, 2008 2:20:36 AM

Native Americans have had a rough time over the years in both state and federal courts – but for this purpose, I am going to go with the Cherokee Nation. Recall they lost in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), when the Supreme Court decided they lacked original jurisdiction, thus allowing Georgia’s removal laws to stand (at least in the short term). Later, in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Cherokee Nation “won” when the Supreme Court ruled that Georgia could not impose state law on tribal lands. Then President Andrew Jackson famously said something to the effect of, "John Marshall has made his decision; let him enforce it now if he can.” A good victory on the law, but as history made pretty clear, they were still screwed.

Posted by: Joshua Fershee | Feb 24, 2008 11:26:10 PM

Kuntz v. Montana Thirteenth Judicial District, 995 P.2d 951 (Mon. 2000)

"You're guilty, not for defending yourself by killing your boyfriend who was trying to kill you, but for not satisfying your duty to rescue him though he was trying to kill you ... yah, sorry."

Posted by: Jason | Feb 24, 2008 10:45:43 PM

Here's one from the corporate department.

I know nobody ever feels for those Master of the Universe, the hedge or private equity or venture capital funds guys, but Benchmark really got screwed over in a remarkable exercise of form over substance in Benchmark Capital Partners IV, L.P. v. Juniper Financial Corp., an unpublished Delaware Chancery opinion. Benchmark had rights under its preferred stock terms to be able to veto a change in the certificate of incorporation; CIBC got around it by causing a merger, the terms of which included exactly the change Benchmark would have been able to veto.

On the other hand, they probably drowned their sorrows in $200 bottles of Barolo.

Posted by: Jeff Lipshaw | Feb 24, 2008 5:29:53 PM

USFL v. NFL - yeah, the NFL has a monopoly. Here's a dollar.

Posted by: Jeff | Feb 24, 2008 4:30:51 PM

Definitely Corcoran v. United HealthCare, Inc. 965 F.2d 1321. Woman has difficult pregnancy. Doctor prescribes her complete bed rest and constant supervision. Her insurance refuses to approve it--says she only gets supervision 10 hours a day. Woman has complication while no one is supervising her--baby dies. Tries to sue--oops, all causes of action, state and federal, are pre-empted by ERISA, and ERISA remedies as drafted do not allow recovery for these particular harms. So the woman has no remedy of any kind in any court.

Good job with the whole ERISA pre-emption thing, Congress.

Posted by: Mike | Feb 24, 2008 4:18:41 PM

Fiege v. Boehm. "You are...NOT the father! (But you still have to pay child support)"

Posted by: p.d. | Feb 24, 2008 1:40:02 PM

One more: How about Marbury?

Posted by: Howard Wasserman | Feb 24, 2008 8:08:07 AM

i'm surprised nobody's mentioned United States v. Stanley, 483 U.S. 669 yet -- no cause of action for US soldier who was deliberately given LSD by the Army as an involuntary, unknowing test subject, causing flashbacks and violent outbursts that destroyed his family

Posted by: anon | Feb 24, 2008 12:30:35 AM

Be sure to look up Mussivand v. David 544 N.E.2d 265 (Ohio 1989). Let's just say somebody's doing it with someone's wife and they all wind up with STD's. Ouch. (Thanks to Prof. John Goldberg for this one).

Posted by: SMA | Feb 23, 2008 11:18:07 PM

I'll second the Peevyhouse nomination. Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109. Those guys got hosed.

Posted by: JohnA | Feb 23, 2008 7:44:01 PM

Raleigh to axe-wielding executioner - "Strike a match man, strike!" - best last gasp FU ever

Posted by: Geoff Neri | Feb 23, 2008 6:45:52 PM

Sir Walter Raleigh, whose inability to confront his own accusers led the framers of our Bill of Rights to include the Confrontation Clause.

Posted by: Popozudo | Feb 23, 2008 6:39:33 PM

SC, thanks for the clarification. Military hanging evildoers by the hundreds: Good. Judges quoting from non-binding authority: Bad.

Posted by: jdr | Feb 23, 2008 4:44:06 PM

I nominate Reed v. Allen, 286 U.S. 191 (1932). Suit filed to determine which of respondent or petitioners inherit a piece of property. Respondent loses at the trial court level. Petitioners file second suit for ejectment (to kick respondent off property), base their case on the previously described trial court opinion, and win possession of the property. Respondent fails to appeal case #2. Later, court of appeals reverses the initial inheritance decision from case #1 and holds that respondent is the rightful inheritor. Respondent brings suit to recover his rightful property. Supreme Court says: Nope, case #2 (based entirely on the original holding in case #1 which has been overturned) is res judicata, so even though we realize the property is properly yours, you can't get it back. You should have appealed. Tough luck.

Posted by: DC atty | Feb 23, 2008 3:50:46 PM

Vermando, Steenberg Homes got almost exactly what it deserved. They deliberately violated the property of another after being told "No." Justice for a premeditated trespass would actually involve the a justifiable use of deadly force by the land owner; a judgment that would (hopefully) cause bankruptcy is a decent silver medal.

Posted by: AisA | Feb 23, 2008 2:31:08 PM

I also nominate the Robinsons from Robinson v. WW Volkswagon Co. My CivPro textbook had an entire footnote describing their miserable injuries...

Posted by: Andy | Feb 23, 2008 12:25:54 PM

Teague v. Lane and all others whose claims on collateral review are Teague-barred.

Posted by: Tom Monaghan | Feb 23, 2008 11:04:45 AM

Teague v. Lane and all others whose claims on collateral review are Teague-barred.

Posted by: Tom Monaghan | Feb 23, 2008 11:03:17 AM

Pennzoil v. Texaco: $10.53 billion verdict on wildly inappropriate economic theory of contract damages (reduced on judgment to $8.53 billion), loser can't afford to post appellate bond.

This case dwarfs by several orders of magnitude every other case mentioned here combined.

Posted by: Ted | Feb 23, 2008 10:10:56 AM

To: Supremacy Claus

You still haven't explained your use of the phrase "unconstitutionally quoted." Courts can quote (as persuasive to their reasoning) anyone and anything they want in their opinions. Yes, the ALI treatments are secondary materials that are too frequently treated with inappropriate deference. But don't be so dogmatic that you take absurd positions that undermine your credibility. Since you're not an attorney, but a party, perhaps your attorney could explain that general rule to you.

But back to the great topic. How about the plaintiffs in Boomer? Concrete company moves into a residential neighborhood, destroying the quality of life by shooting air and noise pollution into the surroundings. Neighbors try to get an injunction on the grounds of private nuisance, and the court grants them only money damages, reasoning that to hold otherwise would stand in the way of economic progress. Recourse? Move, suckers.

Posted by: jdr | Feb 23, 2008 9:06:33 AM

Let's not forget family law cases.

I vote for Harold Painter of Painter v. Bannister, 140 N.W.2d 152 (Iowa 1966). Painter's wife and daughter were killed in a car crash and then he lost custody of his seven-year-old son to his dead wife's parents because he was a hippie.

Posted by: Stephen Aslett | Feb 23, 2008 4:22:57 AM

Great topic. One nominee: Steenberg Homes in Jacques v. Steenberg Homes. Property case in which a mobile home company wants to deliver a trailer in rural wintery Wisconsin. Two options - take a snow-covered, arguably inaccessible / certainly at least slightly dangerous road with a sharp U-turn or go across a field that is right between the road and the property they need to deliver the road to.

The catch? The field is owned by a crotchety old guy who will not allow the mobile company across. His reason? Does not want them to establish adverse possession - he apparently lost some land that way back in his youth. I kid you not - won't let these guys drive across his land once in the middle of winter for less than an hour (max) because of fears of adverse possession.

What's the company do? Not the nice thing - they go across the land anyway, causing no damage. They willingly pay the criminal trespass fine which the state has sensibly set low (perhaps a bit too low) at something like $25.

The result in the case? $100,000 judgment against the company, a mobile home sales company in rural Wisconsin mind you for doing that. The case is in the casebooks as a vindication of Absolute property rights - perhaps so, but you also gotta think that those guys got jobbed.

A less conventional choice - Gulf Oil in Eastern Airlines v. Gulf. I remember it so clearly because it runs all throughout the Farnsworth casebook, and every one of their arguments gets denied. The deal is that they had a long-term supply contract with Eastern, with the price set by a published guide, but with the deal clearly being that price increases are passed along to the buyer (Eastern).

Of course, 70's roll around and our genius government, for the first time ever, bifurcates the price, such that there is a market price and the official government price; the guide they were using stops publishing prices all together (if I remember correctly). So, old system falls, Gulf says they won't supply Eastern oil at the government price because the OPEC guys have jacked up their prices, and it was clear - as had been done throughout the relationship - that Eastern was supposed to absorb price increases.

Eastern sues for specific performance and wins. Gulf was screwed royally by the government. I remember it so clearly, though, because the court kept applying little legal doctrines against Gulf, like 'interpret contracts against the drafter when the allocation of risk is unclear' when the only unclarity existed because this was an utterly unprecedented government act and everybody in the industry knew Eastern was getting away with a fast one. Likewise, the court just said at one point, when evaluating some claim (impracticability, I think, based on the fact that the contract was silly unprofitable when you are forced to buy on the open market and sell at the government price Zimbabwe style) that Gulf was making so much money that all such claims as to the unprofitability of this particular contract would be disregarded.

Again, correct in terms of demonstrating all the little interpretation tricks one finds in the casebooks, but man, to the extent that we can say it of an oil company in the era of an oil embargo (I'm sure that didn't influence the court's thinking...) Gulf got screwed.

Posted by: Vermando | Feb 23, 2008 4:14:42 AM

John Moore of Moore v. Regents of the University of California fame.

UCLA made half a billion off this dude's spleen and forced him to travel at his own expense from Seattle to Los Angeles for unnecessary procedures so they could take more of his valuable cells.

Posted by: JM | Feb 23, 2008 1:44:54 AM

Anytime you see SOL (erm, statute of limitations). Might as well throw in the statute of frauds while we're at it.

Posted by: Miriam Cherry | Feb 23, 2008 12:28:36 AM

Susan Wassell in Wassell v. Adams (865 F.2d 849).

Posted by: Aggrieved Victim | Feb 23, 2008 12:26:25 AM

I think Hawkins in Hawkins v. McGee was screwed.

Posted by: Hawkins | Feb 22, 2008 11:49:46 PM

Korematsu, where in 1944 the Supreme Court held that the Japanese petitioner had to report to a Japanese interment camp in California (or some state on the west coast, I forgot!).

Posted by: 3L | Feb 22, 2008 11:03:16 PM

This is terrific question. My first instinct was poor Joshua. One is also tempted to go for magnitude (certain class actions) or historical significance.

But to take a slightly more obscure choice, what about nonretroactivity cases? Say, cases like Johnson v. New Jersey, where the Supreme Court refused to apply the ruling in Miranda to cases that were pending on direct review at the very same time. The consequence, as I recall, was that one or more defendants remained sentenced to death -- simply because their cases, though in fact subject to Supreme Court review, were not the first fish that the Court happened to pluck from the stream.

Such results are terrible, I guess, because they are instances in which a court deliberately and nearly at random applies what it knows to be the wrong law. But I think they fall within the question's terms.

Posted by: Edward Swaine | Feb 22, 2008 10:17:00 PM

to: Supremacy claus
re: "unconstitutionally quoted"

What exactly are the consitutional limitations on quotations? Where do they appear? How do they apply to state court judges deciding?

Your history is also shakey. The case you allude to (but obscure) is Vosburg v. Putney (Wis. 1891). Ten years earlier than Dulieu and from a domestic court. It does not involve a skull, I will admit, nor an eggshell, but it clearly establishes the principle: you take the victim as you find him.

From one defense lawyer to another: blatant bias doesn't help.

Let's get back to the victims ... this is a great topic.

Posted by: JAH | Feb 22, 2008 7:49:13 PM

Walker v. Birmingham always fit in this category for me.

Posted by: anon | Feb 22, 2008 7:21:28 PM

I don't have a cite, but I remember hearing that the Mottleys were a set up. The railroads, which didn't like the new federal law, asked the Mottleys to sue them so that the law would be struck down.

The Mottleys (two old people suing about train tickets, even thought they didn't even ride the train anymore) were represented by one of the best lawyers of the day.

As I said, that's just my recollection. If it's true, however, I think it knocks them out.

Posted by: Chris Bell | Feb 22, 2008 7:21:18 PM


1. Anytime the court so much as utters the words "sovereign immunity."

2. Netscape in United States v. Microsoft.

3. Winterbottom in Winterbottom v. Wright.

4. Keith Bowles.

Posted by: TJ | Feb 22, 2008 7:04:42 PM

Williams v. Georgia, 349 U.S. 375 (1955): A black guy is convicted of murder and sentenced to die in Georgia by all-white jury selected via a method ruled unconstitutional in Avery v. Georgia (1953). Georgia's Supreme Court agrees that there was a constitutional defect but refuses to overturn using a shady procedural argument. SCOTUS says that the decision was wrong and that the Supreme Court could overturn it, but decides to give the Georgia Supreme Court another chance to get it right. On remand, Georgia writes a 3-paragraph "F@*& you SCOTUS" opinion. SCOTUS denies cert. Williams is put to death.

Posted by: That guy | Feb 22, 2008 6:56:08 PM

Dred Scott

Posted by: Ignorantia Legis | Feb 22, 2008 6:50:34 PM

Actually, Miranda did get convicted and sentenced for the rape in a subsequent trial. They just didn't use his confession to the police to convict him.

Posted by: Deb Ahrens | Feb 22, 2008 6:02:05 PM

Further note on Erie v. Tompkins: this may be apochryphal, but the story is that while the case was pending prior to argument in SCOTUS, the railway offered a sizable settlement. The attorney reportedly refused because he wanted to argue a case in the Court of courts. Attorney 1, Tompkins 0.

Posted by: JMH | Feb 22, 2008 5:53:30 PM

The nameless victim of Ernesto Miranda. Everyone agrees (even Miranda himself) that he kidnapped and raped a fourteen year old girl. Not only did Miranda walk away scott free, his name is now everywhere: on cop dramas, index cards police must carry around, everywhere. His name is even a verb. To Mirandize. To this day, the girl who was raped has received nothing.

Posted by: Paul G | Feb 22, 2008 5:45:33 PM

Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (Okl.1962). The Peevyhouses entered into a contract to permit Garland to strip mine their farm, provided that Garland would restore the land at the end of the mining. Garland didn't do so. Held: plaintiffs were only entitled to the diminution of market value ($300), rather than cost of performance bargained-for ($25,000).

That description of Boyd, though is certainly the best squib for any case I've ever seen.

Posted by: Andrew Carlon | Feb 22, 2008 5:02:35 PM

Tort law is about righting wrongs. Without a magic wand to undue the wrong we are left to right the wrong by compensating the wronged with an amount of money equal to the amount of damage caused by the wrong. When wrongs result in tremendous damages they can never be righted without the availability of sufficient funds.

Besides wouldn't a genetic predisposition to being in an accident fall under the eggshell plaintiff rule?

Posted by: Jim Green | Feb 22, 2008 1:11:22 PM

All of these are good choices, and I agree with Aaron that fed courts is replete with them. I would just add, in support of Howard's allusion to Helen Palsgraf, that she did not just lose her verdict. Cardozo also imposed costs on her. She is just standing on a RR platform and gets hit with scales, causing massive head injury, and despite winning against the RR at two levels, she -- at the end of the day -- owes the RR their costs for the inconvenience of being sued. At least the Mottleys did not have to reimburse the RR for all the passes they already used.

Posted by: Alan Childress | Feb 22, 2008 11:17:42 AM

This is a great topic.
I have to say I have trouble working up *too* much sympathy for the Mottleys, considering that they lived forever and had free passes for about 40 years.
I feel worse for Harry Tompkins (of Erie RR v. Tompkins fame). Poor guy gets dismembered by a train while walking home from visiting his sick mother-in-law. It seems like he should have a right to recovery against the RR under the general federal common law, and he wins a good judgment in the lower courts. But then the Supreme Court decides to abolish the general federal common law, even though the parties didn't really brief the issue. Tompkins lost his judgment and went onto welfare because he could not work. (So reports the great Civ Pro Stories entry on the case by Edward Purcell.) I guess he was the sacrifice the legal gods exacted for establishing modern federal-state choice of law.
The course in Federal Courts provides so many contenders it is hard to pick one -- practically every case is somebody with a compelling claim who loses for some "technical" reason.

Posted by: Aaron Bruhl | Feb 22, 2008 9:54:18 AM

Poor Joshua! DeShaney v. Winnebago County, 489 U.S. 189 (1989).

Posted by: anon | Feb 22, 2008 9:51:54 AM

In no particular order:

1)Mrs. Palsgraf
2)Mrs. Kirksey (brother-in-law promised widow she could stay with him, then kicked her out--the one contracts case that has stuck with me).
3) For a different civ pro case: The entire Robinson family from World-Wide Volkswagen. See 72 NE L. Rev. 1122 (1993) for the full story of their litigation adventures.

Posted by: Howard Wasserman | Feb 22, 2008 9:20:45 AM

Boyd v. Racine Currency Exchange, 56 Ill. 2d 95, 306 N.E.2d 39 (1973) (teller under no duty to accede to robber's demands, when robber held gun to head of customer, plaintiff's decedent).

Harry Shulman et al., Cases and Materials on the Law of Torts 625 (3d ed. 1970). Not the most tragic case of all time, but perhaps the most concisely tragic.

Posted by: James Grimmelmann | Feb 22, 2008 8:37:02 AM

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