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November 4, 2008 DOL Home > SOL |
Milofsky Amicus Brief
STATEMENT OF THE ISSUES INTEREST OF THE SECRETARY OF LABOR STATEMENT OF THE CASE SUMMARY OF ARGUMENT ARGUMENT I. The District Court Erred in Holding that the II. The District Court Erred by Requiring the Federal Cases: Amato
v. Bernard, 618
F.2d 559 (9th Cir. 1980) Bowerman
v. Wal-Mart Stores, Inc., 226
F.3d 574 (7th Cir. 2000) Chailland
v. Brown & Root, Inc., 45 F.3d
947 (5th Cir. 1995) Denton
v. First Nat'l Bank of Waco Tex., 765 F.2d 1295 (5th Cir. 1985) FMC
Med. Plan v. Owens, 122
F.3d 1258 (9th Cir. 1997) Great-West
Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) Hall
v. Nat'l Gypsum Co., 105
F.3d 225 (5th Cir. 1997) Helfrich
v. PNC Bank, Kentucky, Inc., 267 F.3d 477 (6th Cir. 2001), cert. denied,
535 U.S. 928 (2002) Izzarelli
v. Rexene Prods., Co., 24 F.3d 1506 (5th Cir. 1994) In re
Enron Corp. Secs., Derivative & ERISA Litig., 284 F. Supp. 2d 511 (S.D.
Tex. 2003) In re
Unisys Sav. Plan Litig., 74 F.3d 420 (3d Cir. 1996) Kerr
v. Charles F. Vatterott & Co., 184 F.3d 938 (8th Cir. 1999) Kling
v. Fid. Mgmt. Trust Co., 270 F. Supp. 2d 121 (D. Mass. 2003) Kuper
v. Iovenko, 66 F.3d 1447 (6th Cir.
1995) . Massachusetts
Mut. Life Ins. Co. v. Russell, 473
U.S. 134 (1985) passim Matassarin
v. Lynch, 74 F.3d 549 (5th Cir. 1999) Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) Milofsky v. American
Airlines, Inc.,
2003 WL 22398799, at *1 (N.D. Tex. Sept. 24, 2003) Radford
v. Gen. Dynamics Corp., et al., 151 F.3d 396 (5th Cir. 1998) Rego
v. Westvaco Corp., 319 F.3d 140 (4th Cir. 2003) Simmons
v. Willcox, 911 F.2d 1077 (5th Cir. 1990) Steinman
v. Hicks, 352 F.3d 1101 (7th Cir. 2003) Strom
v. Goldman, Sachs & Co., 202 F.3d 138 (2d Cir. 1999) Varity
Corp. v. Howe, 516 U.S. 489 (1996) Federal Statutes: Employee Retirement Income Security
Act of 1974, as amended, 29 U.S.C. § 1001, et seq. Section 3(34), 29 U.S.C. § 1002(34) Section 409, 29 U.S.C. § 1109 passim Section 409(a), 29 U.S.C. § 1109(a) Section 502, 29 U.S.C. § 1132 Section 502(a)(1)(B), 29 U.S.C. §
1132(a)(1)(B) Section
502(a)(2), 29 U.S.C. § 1132(a)(2) passim Section
502(a)(3), 29 U.S.C. § 1132(a)(3) passim Section 502(a)(5),
29 U.S.C. § 1132(a)(5) Section
503, 29 U.S.C. § 1133 Section
510, 29 U.S.C. § 1140 Other Authorities: Fed. Res. Bd., Flow of Funds
Accounts of the United States: Flow and Outstanding Third
Quarter 2003,
Fed. Res. Statistical
Release 2.1 (Jan. 15, 2004) Federal Rules
of Appellate Procedure 29 29
C.F.R. § 2509.75-8, D-2 29
C.F.R. § 2560.503 1. Whether participants in individual account pension plans have standing to sue plan fiduciaries under section 502(a)(2) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(2), for relief to the plan when the alleged violations affected some, but not all, of the plan participants' accounts. 2. Whether participants are required to exhaust internal plan
remedies before bringing suit to recover losses resulting from fiduciary
breaches under section 502(a)(2) of ERISA, 29 U.S.C. § 1132(a)(2). INTEREST OF THE SECRETARY OF LABOR The Secretary of Labor is
charged with interpreting and enforcing the provisions of Title I of the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et
seq. As the federal agency with
primary interpretation and enforcement authority for Title I of ERISA, the
Department of Labor has a strong interest in ensuring that courts correctly
interpret ERISA. This case presents an
important and recurring issue – whether participants in individual account
plans may obtain relief to the plan under section 502(a)(2) of ERISA when the
alleged violations affected some, but not all, of the plan participants'
accounts. Because several courts have
held that participants may not obtain losses for fiduciary breaches which harm
individuals under section 502(a)(3) of ERISA, participants in individual
account plans, including many who have been harmed by plan investments in
employer stock, may be unable to recover losses caused by fiduciary breaches if
the district court’s decision is affirmed.[1] At the end of 2002, over $1.8 trillion of
all pension plan assets were held in individual account plans, representing
well over half of all pension plan assets.
Fed. Res. Bd., Flow of Funds Accounts of the United States: Flow and Outstanding Third Quarter 2003,
Fed. Res. Statistical Release 2.1, at 113 (Jan. 15, 2004). The Secretary also has an interest in assuring that plan
participants are not required to exhaust internal plan remedies before bringing
suit in federal court alleging breaches of fiduciary duty. To require exhaustion of remedies for suits
involving fiduciary breaches would serve no useful purpose and would hinder the
participants' ability to recover losses to their plans, placing a greater
burden on the Secretary to obtain such recoveries. The Secretary believes that the district court erred in
dismissing the case for the reasons stated in the opinion and, therefore,
pursuant to Federal Rules of Appellate Procedure 29, respectfully submits this
brief as amicus curiae. I. The District Court erred in holding that the plaintiffs do not
have standing under sections 409(a) and 502(a)(2) of ERISA to recover losses to
a plan if the losses are allocated to some, but not all, of the participants'
accounts The district court erred
when it held that the plaintiffs do not have standing under sections 409(a) and
502(a)(2) of ERISA to seek losses if those losses are ultimately allocated to
individual accounts. If a fiduciary
breach results in a diminution of the total amount of assets held in trust,
there is a resulting loss to the plan, even if not every individual participant
is affected by the loss. Any recovery
is a recovery to the plan, even if it is only allocated to individual accounts
that were affected by the violation.
Otherwise, participants in a typical 401(k) or other individual account
plan with an array of investment options could never sue for plan losses caused
by a particular investment unless every single participant had chosen that
particular option. The majority of plan
assets today are held by individual account plans -- pension plans in which the
entire trust corpus is held in trust by one or more trustees, see
section 403, 29 U.S.C. § 1103, and the plan's investment income, expenses,
gains, and losses are allocated to participant accounts. See section 3(34) of ERISA, 29 U.S.C.
§ 1002(34). If the defendants' view of
the law is correct, participants of these plans would be left without a loss
remedy under section 502(a)(2). This
result is unsupported by the statute and could leave untold numbers of plan
participants with no legal protection from plan losses caused by breaching
fiduciaries, a result Congress could not have intended. Section 502(a)(2) of ERISA
provides that a civil action may be brought by a participant for
"appropriate relief under § 409."
29 U.S.C. §
1132(a)(2). Section 409(a) provides: Any person who is a fiduciary with respect to a plan
who breaches any of the responsibilities, obligations, or duties imposed upon
fiduciaries by this title shall be personally liable to make good to such plan
any losses to the plan resulting from each such breach, and to restore to such
plan any profits of such fiduciary which have been made through use of assets
of the plan by the fiduciary, and shall be subject to such other equitable or
remedial relief as the court may deem appropriate, including removal of such
fiduciary. 29 U.S.C. § 1109(a). By its terms, section 409 requires fiduciaries to make good
"any losses" to the plan, not just losses that have an impact
on every single participant of the plan. The Supreme Court's decision
in Massachusetts Mut. Life Ins. Co v. Russell, 473 U.S. 134, is not to
the contrary. In Russell the
plan's disability committee terminated a participant's disability
benefits. After the benefits were
reinstated, the participant brought suit, alleging that "[t]he
interruption of benefit payments . . . forced [her] disabled husband to cash
out his retirement savings which, in turn, aggravated the psychological
condition that caused [the participant's] back ailment." Id. at 137. She brought suit under section 502(a)(2) seeking punitive
damages, as well as damages for mental or emotional distress, to be paid
directly to her. Id. at
138. After reviewing the text of
Section 409, the provisions defining the duties of a fiduciary and the
provisions defining the rights of a beneficiary, the Supreme Court held that
the participant did not have standing to seek extra-contractual compensatory or
punitive damages for improper or untimely processing of a benefit claim under
sections 409 and 502(a)(2) of ERISA. In
so holding, the court stated "that recovery for a violation of § 409 inures to the benefit of the plan as a
whole." Id. at 140. The district court made too
much of Russell's reference to "the plan as a whole" in
concluding that relief under section 409 is not available when it is allocated
to some, but not all, of the participant accounts in a plan. Russell was simply distinguishing
between relief paid directly to the plan for losses that occurred inside the
plan (such as damages for plan asset mismanagement) from relief to be paid
directly to individuals for losses occurring outside of the plan (such as
damages for personal pain and suffering caused by a benefit payment delay). The plaintiff in Russell did not
allege that the plan had suffered a loss, that the fiduciaries had mismanaged
plan assets, or that the amount of plan assets had been reduced. Rather, she alleged that her claim for
benefits had been handled improperly and that she had suffered losses outside
of the plan as a result. Thus, Mrs.
Russell's claim was premised on individual losses flowing from the alleged
mishandling of a benefit claim, and not from any alleged losses to the plan
within the meaning of sections 409 and 502(a)(2). The Court in Russell
acknowledged that "the fiduciary obligations of plan administrators are to
serve the interest of the participants and beneficiaries and, specifically, to
provide them with the benefits authorized by the plan." 473 U.S. at 142. The Court explained, however, that section 503 of ERISA, 29
U.S.C. § 1133, and not section 409, protects participants from untimely and
improper benefit determinations and section 502(a)(1)(B), 29 U.S.C. §
1132(a)(1)(B), authorizes a beneficiary to enforce her rights under a
plan. Id. at 143-44. Accordingly, Mrs. Russell had not stated a
claim for relief authorized by sections 409 and 502(a)(2) of ERISA, which
addresses injuries to the plan and mismanagement of plan assets, rather than
individual benefit disputes that do not reduce the plan's assets or otherwise
injure the plan. In contrast, the Supreme
Court noted that the language of section 409 focuses on the relationship
between the fiduciary and the plan as an entity. 473 U.S. at 140 ("Thus, not only is the relevant fiduciary
relationship characterized at the outset as one 'with respect to a plan,' but
the potential personal liability of the fiduciary is 'to make good to such
plan any losses to the plan … and to restore to such plan any
profits of such fiduciary which have been made through use of assets of the
plan'") (emphasis in the original).
The Court found further support for its conclusion that section 409
provides relief running directly to the plan in other statutory provisions revealing
that "the principal statutory duties imposed on the trustees relate to the
proper management, administration, and investment of assets, the maintenance of
proper records, the disclosure of specified information, and the avoidance of
conflicts of interest." Id.
at 142-43. Surveying the legislative
history, the Court noted that the floor debates revealed "that the
crucible of congressional concern was misuse and mismanagement of plan assets
by plan administrators and that ERISA was designed to prevent abuses in the
future." Id. at 140
n.8. The Court concluded that "[a]
fair contextual reading of the statute makes it abundantly clear that its
draftsmen were primarily concerned with the possible misuse of plan assets, and
with remedies that would protect the entire plan, rather than with the rights
of an individual beneficiary." Id.
at 141. In the present case, the
plaintiffs argue that plan fiduciaries mismanaged the transfer of plan assets
and misrepresented the process by which those assets would be transferred. As a result, the plan allegedly has fewer
total assets and the participants' individual accounts are reduced. Although the plaintiffs' case would more
clearly involve the mismanagement of plan assets if it turned primarily on the
fiduciaries' decisions with respect to the investment of plan assets, rather
than on alleged misrepresentations, the plan has nevertheless allegedly
suffered a loss. If the allegations are
true, the plan and its fiduciaries hold fewer assets in trust, the value of the
plan is diminished, and the plan, therefore, has suffered a loss within the
meaning of section 502(a)(2). The
plaintiffs do not seek to recover losses they have incurred outside of the
plan, but rather to restore losses incurred within the plan. Because any recovery will increase the
overall assets of the pension plan, such recovery will inure to the benefit of
the plan, even if not every participant benefits. Thus, Russell fully supports the availability of a remedy
under section 502(a)(2) here. This understanding of Russell
is supported by the Supreme Court's decision in Varity Corp. v. Howe,
516 U.S. 489 (1996). The Court there
contrasted the various enforcement provisions contained in section 502, noting
that each served a specific purpose. Section
502(a)(1)(B) provides relief "that runs directly to the injured
beneficiary" with respect to benefit claims. Id. at 512.
Section 502(a)(2), on the other hand, provides the enforcement provision
for "fiduciary obligations related to the plan's financial
integrity," id. at 512, in accordance with "a special
congressional concern about plan asset management" reflected in section
409, id. at 511. Finally,
turning to sections 502(a)(3) and (5), 29 U.S.C. § 1132(a)(3) and (5), Varity
held that these sections are "catchall" provisions "which could
include an award to 'participants and beneficiaries,' rather than to the
'plan,' for breach of fiduciary obligation." Id. at 510. [4] Thus, Varity clarifies that Russell's
reference to "relief to the plan as a whole" simply stands for the
proposition that relief under sections 409 and 502(a)(2) must run directly to
the plan. There is, therefore, no
basis for reading Russell so broadly that losses caused by fiduciary
mismanagement, that significantly diminish the retirement security of
participants or the amount of assets held in trust, cannot be recovered unless
all of the participants are affected.
In the typical 401(k) plan, participants are given several investment options
with differing degrees of risk and return.
See, e.g., In re Unisys Sav. Plan Litig., 74 F.3d
420, 426 (3d Cir. 1996) (describing the various investment options in the
Unisys Savings Plan). Although
participants exercise control over their account balances, the plan fiduciary
is responsible, among other things, for choosing the investment options, for
monitoring those options, and for providing accurate information to plan
participants. See In re Enron
Corp. Secs., Derivative & ERISA Litig., 284 F. Supp. 2d 511 (S.D. Tex.
2003). If the defendants' broad
arguments are correct, participants in 401(k) plans and other individual
account plans, such as the Enron plans, would be unable to recover losses to
their accounts unless all of the participants in the plans chose the same
investment options, even if the majority of the plans' participants lost most
of their retirement savings as the direct result of fiduciary breaches. The Sixth Circuit recognized
the absurdity of such a reading in Kuper v. Iovenko, 66 F.3d 1447 (6th
Cir. 1995). Kuper also involved
a delay in the transfer of assets of a group of participants from one plan to
another and a diminution in the value of the assets during the delay. The defendants alleged that the plaintiff
class failed to state a claim for breach of fiduciary duty under section 409
because the class did not include all of the plan's beneficiaries. Id. at 1452. The Sixth Circuit cited cases holding that
recovery under section 409 must go to the plan, and stated that the cases
"distinguish between a plaintiff's attempt to recover on his own behalf
and a plaintiff's attempt to have the fiduciary reimburse the plan." Id. at 1452-1453. The Sixth Circuit concluded that a subclass
of plan participants may sue for a breach of fiduciary duty under section 409
and noted the policy reasons for the result: Defendants' argument that a breach must harm the
entire plan to give rise to liability under § 1109 would insulate fiduciaries
who breach their duty so long as the breach does not harm all of a plan's
participants. Such a result clearly
would contravene ERISA's imposition of a fiduciary duty that has been
characterized as "the highest known to law." Id. at 1453 (citations
omitted). Accord Kling v. Fid. Mgmt. Trust Co.,
270 F. Supp. 2d 121, 126-27 (D. Mass. 2003) ("Kling does sue on behalf of
the Plan, and thus meets the requirements of § 409 as interpreted by the
Supreme Court in Russell. That the harm alleged did not affect every
single participant does not alter this conclusion. To read such a requirement into § 409 that the harm alleged must
affect every plan participant would, as the Sixth Circuit observed, 'insulate
fiduciaries who breach their duty so long as the breach does not harm all of a
plan's participants.'"). See
also Steinman v. Hicks, 352 F.3d 1101 (7th Cir. 2003) (clarifying
that a claim for losses relating to financial mismanagement is properly brought
under section 502(a)(2) even if the relief ultimately flows to individuals). The district court's
reliance on Matassarin v. Lynch, 174 F.3d 549 (5th Cir. 1999), is
likewise misplaced. The plaintiff in Matassarin
was a beneficiary in an ESOP by virtue of a qualified domestic relations order
("QDRO") obtained at the time of her divorce. She brought suit alleging that her account
balance was miscalculated and that she should be entitled to an immediate cash
distribution. She additionally alleged
that the plan fiduciaries had breached their duties by failing to comply with
the tax code, which jeopardized the plan's tax qualified status, by buying back
shares of stock from participants who cashed out of the plan for less than fair
market value and by failing to diversify her account. As the court correctly noted, only the allegation concerning the
tax-qualified status of the plan was properly brought under section 502(a)(2)
because it involved the interest of the plan as a whole. Id. at 565-6. The court held that the allegation that the
stock was purchased back from those who received distributions for less than
fair market value, even if true, only harmed those who cashed out, not the plan
itself. Id. at 567. Finally, the court found that the failure to
diversify the plaintiff's account was consistent with the QDRO's terms and did
not cause any losses to the plan. Id.
at 567-8. Therefore, unlike this case, Matassarin
did not involve an alleged violation that resulted in the diminution of current
participants' accounts and the resulting diminution of the amount of plan
assets held in trust. Accordingly,
Matassarin provides no support for the proposition that relief under section
502(a)(2) for fiduciary mismanagement of plan assets must inure to the benefit
of every participant in a 401(k) plan.[5] The
decision of the district court should be reversed. .
CERTIFICATE OF SERVICE I
hereby certify that two (2) copies of the Brief of Amicus Curiae Elaine L.
Chao, Secretary of the United States Department of Labor Supporting the
Plaintiffs-Appellants and Requesting Reversal of the District Court's Decision,
along with a diskette in PDF format, was mailed, via federal express overnight
delivery, on this 27th day of February 2004 to the following
parties: Jani
K. Rachelson, Esq. Bruce
S. Levine, Esq. Elizabeth
O'Leary, Esq. Cohen,
Weiss and Simon LLP 330
West 42nd Street New
York, NY 10036 Edward
P. Perrin, Jr., Esq. Jennifer
R. Poe, Esq. Hallet
& Perrin, P.C. 2001
Bryan Street Dallas,
TX 7520l _______________________ Karen
L. Handorf CERTIFICATE OF COMPLIANCE As
required by Fed. R. App. 32(a)(7)(B), I certify that this brief is proportionally
spaced, using Times New Roman 14-point font size, and contains 5,140 words. I
relied on Microsoft Word 2000 to obtain the word count. Dated: February 27, 2004 _____________________________ Karen
L. Handorf [1] This court has not considered the
question whether section 502(a)(3) of
ERISA authorizes participants to recover direct monetary losses caused
by a fiduciary breach. Both the Second
and Seventh Circuits have held that participants can obtain such relief. Strom v. Goldman, Sachs & Co.,
202 F.3d 138, 144 (2d Cir. 1999); Bowerman v. Wal-Mart Stores, Inc., 226
F.3d 574, 592 (7th Cir. 2000). The
Fourth, Sixth, Eighth and Ninth Circuits have held the opposite. Rego v. Westvaco Corp., 319 F.3d 140
(4th Cir. 2003); Helfrich v. PNC Bank, Kentucky, Inc., 267 F.3d 477 (6th
Cir. 2001), cert. denied, 535 U.S. 928 (2002); Kerr v. Charles
F. Vatterott & Co., 184 F.3d 938 (8th Cir. 1999); FMC Med. Plan v.
Owens, 122 F.3d 1258 (9th Cir. 1997).
As discussed in footnote 4, the Secretary believes that participants may
recover direct monetary losses under section 502(a)(3) of ERISA. Absent a finding by this court that
compensatory relief is available under section 502(a)(3), however, private
plaintiffs and the Secretary could be without any adequate remedy if a case
involving alleged losses cannot be brought unless all of a plan's participants
have incurred a reduction in their account values. [2] The Secretary takes no position on the factual matters
presented by this case. The Statement
of the Case is taken from the plaintiffs' complaint and is not intended to
express the Secretary's opinion about how the Court should rule on any
particular fact. [3] The theory and factual allegations in the complaint are
complicated and need further development before disposition of the case. The
alleged violations, misrepresentations and mismanagement of account transfers,
involved two separate plans and two separate sets of fiduciaries. Whether, and when, the Super Saver Plan
fiduciaries owed ERISA obligations to the plaintiff participants may depend on
the factual resolution of issues concerning the plaintiffs' status as
participants of the Super Saver Plan, as opposed to the BEX Plan, and the
defendants' assumption of fiduciary responsibilities with respect to the
participants of either one or both of the plans. For these and other reasons, it is also unclear whether Towers Perrin was acting as a fiduciary with respect to either Plan. The complaint alleges that Towers Perrin provided administrative services to the Super Saver Plan, including "operating and maintaining an '800' service number to assist Super Saver Plan participants with questions concerning the Super Saver Plan, distributing forms and other information in connection with the Super Saver Plan, providing personalized online account information and responding to questions concerning the Super Saver Plan." Complaint ¶ 16. Although the complaint alleges generally that Towers Perrin exercised discretion over the administration of the Super Saver Plan, id., the specific allegations in the complaint, in and of themselves, may not be enough to establish that Towers Perrin was a fiduciary either to the Super Saver Plan or the BEX Plan. See 29 C.F.R. § 2509.75-8, D-2 (explaining that persons providing ministerial services for a plan, including preparation of employee communications materials and advising participants of their rights and options under the plan, are not in and of themselves fiduciaries if they operate within a framework of policies, interpretations, rules, practices and procedures made by other persons). [4] Towers Perrin argues that the plaintiffs have not brought
this suit under section 502(a)(3) because compensatory damages are not
available under that section. Section
502(a)(3), however, provides relief directly to plan participants rather than
the plan. The plaintiffs here are
seeking relief which would be directly deposited to the plan corpus and not a
direct payment to themselves personally.
Moreover, as stated in footnote 1, this Court has not determined whether
section 502(a)(3) authorizes compensatory relief for fiduciary breaches that
harm individuals. Although Towers
Perrin argues that the Supreme Court definitively answered the question in Great-West
Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) and in Mertens
v. Hewitt Assocs., 508 U.S. 248 (1993), neither of those cases involved
suits against fiduciaries for fiduciary breaches. Great-West instructs the courts to determine whether a
remedy is "equitable" by determining whether the remedy was typically
available in courts of equity at the time of the divided bench. The Department of Labor has argued in two
pending cases in other circuits that relief against a fiduciary is always
equitable because historically suits against fiduciaries could only be brought
in courts of equity during the days of the divided bench. See I. A.
Scott, The Law of Trusts, § 1, at 4; III. Scott, The Law of Trusts,
§ 197, at 188. Because the
plaintiffs have not brought this case under section 502(a)(3), this court need
not decide that issue in this case. [5] Contrary to Towers Perrin's argument, Izzarelli v. Rexene
Prods., Co., 24 F.3d 1506, 1523 (5th Cir. 1994), does not hold that relief
is not available under section 409 if it is allocated to a subclass of plan
participants. It is not clear from the
decision that the participants in Izzarelli even brought their claim
under sections 502(a)(2) and 409.
Moreover, there is no indication that this Court considered whether the
plaintiffs had standing under those provisions. Instead, this court simply held in Izzarelli that a
fiduciary breach did not occur when one subset of participants was treated
differently than another because fiduciaries have an obligation to consider the
interest of the plan as a whole rather than a particular group of plan
participants. Id. at 1523-24. [6] This Circuit's decision in Radford v. General Dynamics
Corp., et al., 151 F.3d 396 (5th Cir. 1998), suggested that a participant
bringing a fiduciary breach claim under section 502(a)(3) may be required to
exhaust administrative remedies. The
court, however, concluded that it need not reach the issue because the statute
of limitations had already run on the alleged violation. |
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