Heldt v. The Guardian Life Insurance Company of America

Filing 36

ORDER Denying Defendant's 33 Motion to Dismiss. Signed by Judge Cynthia Bashant on 11/8/17. (dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES HELDT, v. 13 15 ORDER DENYING DEFENDANT’S MOTION TO DISMISS Plaintiff, 12 14 Case No. 16-cv-00885-BAS-NLS [ECF No. 33] THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Defendant. 16 17 18 Plaintiff James Heldt filed his First Amended Complaint (“FAC”) alleging 19 (1) a violation of California’s Confidentiality of Medical Information Act 20 (“CMIA”), Cal. Civ. Code §§ 56-56.37; (2) negligence; and (3) invasion of privacy. 21 (FAC ¶¶ 22–49, ECF No. 25.) In response, Defendant The Guardian Life Insurance 22 Company of America filed a motion to dismiss. (Mot., ECF No. 33.) Plaintiff 23 opposes the Motion. (Opp’n, ECF No. 34.) 24 The Court finds Defendant’s Motion suitable for determination on the papers 25 submitted and without oral argument. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 26 For the following reasons, the Court DENIES Defendant’s Motion to Dismiss. 27 /// 28 /// –1– 16cv0885 1 I. BACKGROUND 1 2 “Plaintiff obtained health care services through Defendant’s health care 3 service plan from on or about 2008.” (FAC ¶ 24.) As part of a disability claim, 4 Plaintiff alleges he submitted confidential information to Defendant, “including his 5 name, personal information, social security number, age, address, and health 6 information.” (Id. ¶ 13.) Plaintiff claims he did not authorize Defendant to disclose 7 his private medical information. (Id.) 8 “Defendant hired a private investigator to conduct a 1-2 day surveillance of 9 Plaintiff.” (FAC ¶ 16.) Defendant’s file allegedly “contains a surveillance report and 10 surveillance video purportedly of Plaintiff prepared in April 2015 by the private 11 investigator hired by [Defendant].” (Id.) This report allegedly contains a description 12 of Plaintiff’s medical diagnosis and other medical information. (Id.) 13 Plaintiff alleges Shaunte W. Austin, a Disability Management Coordinator 14 with Select Medical Corporation, contacted him. (FAC ¶¶ 8, 17.) Ms. Austin 15 allegedly informed Plaintiff that Defendant had requested Select Medical perform a 16 functional capacity evaluation on Plaintiff. (Id. ¶ 17.) Select Physical Therapy, a 17 division of Select Medical Corporation located in San Diego, California, was to 18 conduct the evaluation. (Id. ¶¶ 8, 17.) During the telephone call, Plaintiff claims Ms. 19 Austin asked him “personal medical questions that [Ms. Austin] represented” were 20 part of a questionnaire for the functional capacity evaluation. (Id. ¶ 17.) Additionally, 21 he alleges Ms. Austin requested he “send confidential medical documentation as to 22 his condition” to Select Medical. (Id.) Plaintiff alleges he requested an 23 accommodation for the evaluation on account of his disability, and Ms. Austin 24 represented that she was working with Defendant and had the authority to facilitate 25 Plaintiff’s request. (Id.) Plaintiff alleges he “had an expectation he was working with 26 27 28 1 All facts are taken from the FAC. For this Motion, the Court assumes all facts alleged in the FAC are true. See, e.g., Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). –2– 16cv0885 1 [Defendant] and was not revealing private information to a party with no duty to 2 protect such information.” (Id.) 3 Thereafter, Ms. Austin allegedly forwarded two emails from Plaintiff to one 4 of Defendant’s employees, Kimberly Stauder, “a Vocational Rehabilitation 5 Specialist on the Professional Resources Team in the Group Life, Absence, and 6 Disability Management Solutions Department for Defendant.” (FAC ¶¶ 7, 18.) Ms. 7 Stauder allegedly forwarded the emails to two employees, Michael Corcoran and 8 Chad Heffelfinger. (Id. ¶ 18.) Plaintiff asserts the emails “contain[ed] medical 9 information and a discussion of a phone call from Ms. Austin to Plaintiff during 10 which medical information was requested.” (Id.) 11 In addition, Plaintiff alleges one of Defendant’s employees sent Select 12 Physical Therapy the aforementioned surveillance report on Plaintiff. (FAC ¶ 19.) 13 The report “contain[ed] a diagnosis description and other medical information.” (Id.) 14 Plaintiff also alleges he is not the “individual in the surveillance video.” (Id.) 15 Plaintiff alleges he “reported to Defendant the unauthorized release of 16 Plaintiff’s confidential medical and personal information to [Ms. Austin] and Select 17 Physical Therapy.” (FAC ¶ 20.) Plaintiff contends “Defendant did nothing” in 18 response to Plaintiff’s report. (Id.) Following Plaintiff’s report of the unauthorized 19 release, Plaintiff alleges “Defendant wrongfully terminated Plaintiff’s policy” 20 instead of conducting an investigation. (Id. ¶ 21.) 21 Based on the foregoing, Plaintiff brings claims against Defendant for (1) 22 violation of the CMIA; (2) negligence; and (3) invasion of privacy. (FAC ¶¶ 22–49.) 23 Defendant moves to dismiss Plaintiff’s first and second causes of action for 24 violation of the CMIA and negligence. (Mot. 1:2–5.) First, Defendant argues 25 Plaintiff’s CMIA claim is defective because the CMIA does not apply to insurance 26 companies. (Id. 3–6.) Second, Defendant argues Plaintiff’s negligence claim fails 27 because Defendant does not owe Plaintiff a duty of care and this claim is conflict 28 preempted by ERISA. (Id. 7.) –3– 16cv0885 1 II. LEGAL STANDARD 2 A motion to dismiss pursuant to 12(b)(6) of the Federal Rules of Civil 3 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. 4 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court 5 must accept all factual allegations pleaded in the complaint as true and must construe 6 them and draw all reasonable inferences from them in favor of the non-moving party. 7 Cahill, 80 F.3d at 337–38. To avoid a Rule 12(b)(6) dismissal, a complaint need not 8 contain detailed factual allegations; rather, it must plead “enough facts to state a 9 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 10 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual 11 content that allows the court to draw the reasonable inference that the defendant is 12 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 13 (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely 14 consistent with’ a defendant’s liability, it ‘stops short of the line between possibility 15 and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). 16 “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 17 relief’ requires more than labels and conclusions, and a formulaic recitation of the 18 elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in 19 original) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court need not 20 accept “legal conclusions” as true. Iqbal, 556 U.S. at 678. Despite the deference the 21 court must pay to the plaintiff’s allegations, it is not proper for the court to assume 22 that “the [plaintiff] can prove facts that it has not alleged or that the defendants have 23 violated the . . . law[] in ways that have not been alleged.” Assoc. Gen. Contractors 24 of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 25 // 26 // 27 // 28 // –4– 16cv0885 1 III. DISCUSSION 2 A. California’s Confidentiality of Medical Information Act 3 Defendant moves to dismiss Plaintiff’s first claim on the grounds that the 4 CMIA does not apply to it because Defendant is an insurance company. (Mot. 1:6– 5 8.) Plaintiff argues that the CMIA applies because Defendant provided him with a 6 health care service plan. (Opp’n 5:14–16.) 7 The CMIA prohibits health care providers, health care service plans, and 8 contractors from disclosing confidential medical information without authorization. 9 Cal. Civ. Code § 56.10. A health care provider “does not include insurance 10 institutions as defined in subdivision (k) of Section 791.02 of the Insurance Code.” 11 Id. § 56.05(m). A health care service plan is “any entity regulated pursuant to the 12 Knox-Keene Health Care Service Plan Act of 1975.” Id. § 56.05(g). The definition 13 of an insurance institution explicitly excludes health care service plans governed by 14 the Knox-Keene Act. Cal. Ins. Code. § 791.02(k) (explaining that an insurance 15 institution “shall not include agents, insurance-support organizations, or health care 16 service plans regulated pursuant to the Knox-Keene Health Care Service Plan Act”). 17 Based on the above definitions, Defendant argues that Plaintiff makes “bogus 18 contention[s]” and “adventures into fiction” in his claim that Defendant provided 19 him with a health care service plan. (Reply 4:12–14, 20; see also Mot. 4:25–5:4.) 20 The Court acknowledges Defendant’s argument that by definition the CMIA may 21 not encompass an insurance institution in this context. However, the Court is not 22 convinced that this issue can be resolved at the motion to dismiss phase in light of 23 Plaintiff’s allegations. 24 Plaintiff’s FAC contains factual allegations to support his argument that the 25 CMIA applies to Defendant. (Opp’n 5:19–20.) For example, Plaintiff alleges that he 26 “obtained health care services through Defendant’s health care service plan from on 27 or about 2008,” (FAC ¶ 24), and that Plaintiff “was a patient who obtained health 28 care services provided by Defendant,” (id. ¶ 23). Thus, Plaintiff argues Defendant –5– 16cv0885 1 falls under the CMIA because it “offered plans which arrange for the provision of 2 health care services . . . . [including] Dental and Vision options, which meet the 3 qualifications for basic health care services.” (Opp’n 5:14–18.) 4 Because the Court must accept all allegations as true at the motion to dismiss 5 phase, the Court finds that Plaintiff has alleged sufficient facts to invoke the CMIA. 6 If Defendant believes it can establish that Plaintiff’s allegations are “fiction,” then 7 Defendant’s solution is to challenge Plaintiff’s allegations with a motion for 8 summary judgment or at trial. Accordingly, the Court denies Defendant’s Motion to 9 Dismiss Plaintiff’s CMIA claim. 10 11 B. Negligence 12 Defendant makes two arguments for dismissal of Plaintiff’s negligence claim. 13 First, Defendant argues it does not owe a duty of care to Plaintiff. Second, in the 14 event that Defendant does owe a duty of care to Plaintiff, Defendant argues 15 Plaintiff’s claim is conflict preempted by ERISA. 16 1. Duty of Reasonable Care 17 Plaintiff alleges Defendant was negligent in safeguarding his private medical 18 information. (FAC ¶¶ 35–42.) Plaintiff accordingly argues Defendant owed him an 19 independent duty to exercise due care. (Opp’n 8:26–27.) Defendant disagrees, 20 arguing that there is no legal duty for Plaintiff to base his claim upon as a matter of 21 law. (Mot. 7:1–28.) 22 In order to state a claim for negligence, the plaintiff must allege that: (1) the 23 defendant owed him a duty to exercise due care; (2) defendant breached that duty; 24 (3) causation; and (4) damages. See Merrill v. Navegar, Inc., 26 Cal. 4th 465, 477 25 (2001). The duty of care “may be imposed by law, be assumed by the defendant, or 26 exist by virtue of a special relationship.” Potter v. Firestone Tire & Rubber Co., 6 27 Cal. 4th 965, 985 (1993) (citation omitted). “All persons are required to use ordinary 28 care to prevent others [from] being injured as the result of their conduct.” Rowland –6– 16cv0885 1 v. Christian, 69 Cal. 2d 108, 112 (1968), superseded by statute on other grounds as 2 stated in Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714, 722 (1998) (citations 3 omitted). Courts rely on the following factors to determine whether a party owes 4 another a duty of reasonable care: 5 6 7 8 9 [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. 10 11 Id. at 113 (citations omitted). These factors may be used to establish a defendant’s 12 duty to protect private information. See Castillo v. Seagate Tech., LLC, No. 16-cv- 13 01958-RS, 2016 WL 9280242, at *2–3 (N.D. Cal. Sept. 14, 2016) (stating “the 14 Rowland factors compel the conclusion [the defendant] was duty-bound to take 15 reasonable steps to protect all personal identifying information it obtained from its 16 employees”). 17 Applying the Rowland factors, the Court finds that Plaintiff has stated 18 sufficient facts to establish a plausible claim that Defendant owed him a duty of 19 reasonable care to safeguard Plaintiff’s private medical information. 2 It is both 20 foreseeable and certain that Plaintiff would suffer harm as a result of Defendant 21 allegedly disseminating his private medical information. Furthermore, Plaintiff 22 alleges Defendant was responsible for the dissemination of his private medical 23 information. Assuming it is true that Defendant released Plaintiff’s medical 24 information without his consent, there is a close enough connection between 25 Defendant’s conduct and Plaintiff’s injury. Thus, at this stage, it is plausible that 26 27 28 2 Because Plaintiff has alleged sufficient facts to establish a duty of care under the Rowland factors, the Court does not address Plaintiff’s competing theory establishing a duty of care through a contractual relationship. The Court also does not address the possibility of negligence per se via a statutory duty found in the CMIA. –7– 16cv0885 1 Plaintiff can prove a duty of care under the Rowland factors, but the Court 2 acknowledges that at a later stage, further facts may reveal the Rowland factors are 3 not satisfied and Defendant owed Plaintiff no duty of care.3 2. Conflict Preemption 4 5 Having found Plaintiff has stated a plausible claim that Defendant owed him 6 a duty to exercise reasonable care in handling Plaintiff’s private medical 7 information, the Court addresses conflict preemption of Plaintiff’s claim. See Retail 8 Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 949 (9th Cir. 9 2014). Conflict preemption under ERISA arises from section 514(a) of the statute. 10 Marin Gen. Hosp. v. Modesto & Empire Traction Co., 581 F.3d 941, 944–45. This 11 provision is “one of the broadest preemption clauses ever enacted by Congress.” 12 Joanou v. Coca-Cola Co., 26 F.3d 96, 99 (9th Cir. 1994). It provides that ERISA 13 “shall supersede any and all State laws insofar as they may now or hereafter relate 14 to any employee benefit plan . . . .” 29 U.S.C. § 1144(a). “The Supreme Court has 15 criticized the ‘unhelpful text’ of this ERISA preemption provision,” Paulsen v. CNF 16 Inc., 559 F.3d 1061, 1081 (9th Cir. 2009) (quoting Cal. Div. of Labor Standards 17 3 18 19 20 21 22 23 24 25 26 27 28 To demonstrate Plaintiff’s negligence claim fails, Defendant requests the Court take judicial notice of authorizations that (i) Plaintiff purportedly signed and (ii) allowed Defendant to release his medical information. (Request for Judicial Notice Ex. C, ECF No. 33-2.) Although these authorizations may be key to disproving Plaintiff’s claim, the Court is unpersuaded by Defendant’s argument that it may consider them on a motion to dismiss. Defendant argues judicial notice of these authorizations is proper because “their validity cannot be disputed.” However, that is not the complete standard. Under Federal Rule of Evidence 201, the Court may take judicial notice of facts not subject to reasonable dispute because they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Defendant does not explain why its records of authorization forms between private parties is a source “whose accuracy cannot reasonably be questioned.” See id. Hence, the Court denies this request. The more appropriate mechanism to apply to Defendant’s request is the doctrine of incorporation by reference, which has been adapted to this context. “Although generally the scope of review on a motion to dismiss for failure to state a claim is limited to the Complaint, a court may consider evidence on which the ‘complaint “necessarily relies” if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.’” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (citation omitted). Plaintiff’s FAC does not mention or refer to the authorizations Defendant seeks to rely upon. Thus, even under this doctrine, the Court concludes considering Plaintiff’s authorizations at the motion to dismiss phase is not warranted. –8– 16cv0885 1 Enf’t v. Dillingham Constr., N.A., 519 U.S. 316, 324 (1997)), and the Ninth Circuit 2 has “similarly remarked that the ‘relate to’ language has been the source of great 3 confusion and multiple and slightly differing analyses,” id. (citing Abraham v. 4 Norcal Waste Sys., Inc., 265 F.3d 811, 819 (9th Cir. 2001), abrogated on other 5 grounds by Fossen v. Blue Cross & Blue Shield of Mont., Inc., 660 F.3d 1102 (9th 6 Cir. 2011)). That said, “the Supreme Court has instructed that a law relates to an 7 employee benefit plan if it has either a ‘connection with’ or ‘reference to’ such a 8 plan. This is a two-part inquiry.” Id. at 1081–82 (citing Ingersoll-Rand Co. v. 9 McClendon, 498 U.S. 133, 139 (1990); Dillingham Constr., 519 U.S. at 324). a. Reference to an ERISA Plan 10 11 The first part of this inquiry is whether the state law has a “reference to” an 12 employee benefit plan. Paulsen, 559 F.3d at 1082. “To determine whether a law has 13 a forbidden ‘reference to’ ERISA plans,” the court considers “whether (1) the law 14 ‘acts immediately and exclusively upon ERISA plans,’ or (2) ‘the existence of 15 ERISA plans is essential to the law’s operation.’” Id. (quoting Golden Gate Rest. 16 Ass’n v. City & Cty. of S.F., 546 F.3d 639, 657 (9th Cir. 2008)). 17 Plaintiff’s claim does not satisfy this first option for conflict preemption 18 because it is not based on a state law that references an ERISA plan. California tort 19 law does not “act[] immediately and exclusively upon ERISA plans.” See 20 Dillingham, 519 U.S. at 325. Furthermore, it is not essential to California tort law 21 that an ERISA plan exist. See, e.g., Abraham, 265 F.3d at 820 (holding the “reference 22 to” prong of the first inquiry does not preempt a state negligence claim because the 23 “state law certainly does not act immediately and exclusively on an ERISA plan, nor 24 is such a plan essential to the operation of the law”). Therefore, Plaintiff’s negligence 25 claim does not have a “reference to” an employee benefit plan. See Paulsen, 559 26 F.3d at 1082. 27 // 28 // –9– 16cv0885 b. Connection with an ERISA Plan 1 2 The second part of this inquiry is whether the state law has a “connection 3 with” an employee benefit plan. Paulsen, 559 F.3d at 1082. “[T]o determine whether 4 a state law has the forbidden connection,” the court examines both “the objectives 5 of the ERISA statute as a guide to the scope of the state law that Congress understood 6 would survive, as well as to the nature of the effect of the state law on ERISA plans.” 7 Id. (quoting Dillingham, 519 U.S. at 325). The Ninth Circuit has “employed a 8 ‘relationship test’ in analyzing ‘connection with’ preemption, under which a state 9 law claim is preempted when the claim bears on an ERISA-regulated relationship, 10 e.g., the relationship between plan and plan member, between plan and employer, 11 [or] between employer and employee.” Id. (quoting Providence Health Plan v. 12 McDowell, 385 F.3d 1168, 1172 (9th Cir. 2004)). In Paulsen, the Ninth Circuit held 13 employees’ state law claims are not preempted by ERISA when “the duty giving rise 14 to the negligence claim runs from . . . a non-fiduciary service provider.” 559 F.3d at 15 1083. In comparison, in General American Life Insurance Co. v. Castonguay, the 16 Ninth Circuit held a state law claim was preempted by ERISA because it arose out 17 of a relationship ERISA regulates. 984 F.2d 1518, 1522 (9th Cir. 1993). 18 Here, Plaintiff’s claim touches upon the relationship that arises between a plan 19 administrator and a plan member, which is no doubt based on an employee benefit 20 plan. Paulsen, 559 F.3d at 1082. Additionally, the relationship between the fiduciary 21 of the plan and the plan member is regulated by ERISA. ERISA gives plan 22 fiduciaries: 23 24 25 26 27 authority to control and manage the plan, 29 U.S.C. § 1102, imposes on them a fiduciary duty to the plan’s beneficiaries, 29 U.S.C. § 1104, demands that they avoid certain conflicts of interest, 29 U.S.C. §§ 1106–1107, and makes them personally liable to the plan for breach of fiduciary duty, 29 U.S.C. § 1109. Gen. Am., 984 F.2d at 1522. 28 – 10 – 16cv0885 1 However, “[t]he fact that the conduct at issue allegedly occurred ‘in the course 2 of [] administration of the plan’ does not create a relationship sufficient to warrant 3 preemption.” Dishman v. UNUM Life Ins. Co. of Am., 269 F.3d 974, 984 (9th Cir. 4 2001). “[P]re-emption does not occur . . . if the state law has only a tenuous, remote, 5 or peripheral connection with covered plans, as is the case with many laws of general 6 applicability.” Id. (citing N.Y. State Conference of Blue Cross & Blue Shield Plans 7 v. Travelers Ins. Co., 514 U.S. 645, 661 (1995)). This is because “the objective of 8 Congress in crafting Section 1144(a) was not to provide ERISA administrators with 9 blanket immunity from garden variety torts which only peripherally impact daily 10 plan administration.” Id. 11 Constrained to the factual allegations contained in Plaintiff’s FAC, the Court 12 cannot conclude that Defendant’s conflict preemption defense applies as a matter of 13 law based on a “connection with” an ERISA plan. As in Dishman, preempting 14 Plaintiff’s negligence claim based on only the allegations in the FAC would grant 15 Defendant “immunity from garden variety torts which only peripherally impact daily 16 plan administration.” See 269 F.3d at 984. Plaintiff is not seeking plan benefits or 17 damages resulting from Defendant’s denial of benefits through the negligence claim. 18 Rather, Plaintiff is seeking damages related to the alleged release of his private 19 medical information, independent of the ERISA plan that Defendant issued to 20 Plaintiff. See id. at 983 (explaining ERISA preemption is less likely when a “tort 21 claim does not depend on or derive from [a] claim for benefits in any meaningful 22 way” and a Plaintiff is “not seeking to obtain through a tort remedy that which he 23 could not obtain through ERISA”). At a later stage, Defendant may establish its 24 conflict preemption defense by introducing facts that demonstrate an impermissible 25 “connection with” an ERISA plan. But any such facts are not before the Court on 26 this Motion, and the Court therefore concludes Plaintiff’s allegations do not show 27 his claim is conflict preempted as a matter of law. 28 – 11 – 16cv0885 1 In sum, the Court is unconvinced by Defendant’s two grounds for seeking 2 dismissal of Plaintiff’s negligence claim. Plaintiff states sufficient facts to allege 3 Defendant owed him a duty of care. Further, Plaintiff’s allegations do not establish 4 Defendant’s conflict preemption defense applies. Thus, the Court denies 5 Defendant’s request to dismiss Plaintiff’s negligence claim. 6 7 IV. CONCLUSION 8 For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss 9 (ECF No. 33) Plaintiff’s claims for (i) violation of California’s Confidentiality of 10 11 Medical Information Act and (ii) negligence. IT IS SO ORDERED. 12 13 DATED: November 8, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 12 – 16cv0885

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