Elward v. Electrolux Home Products, Inc.
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 8/28/17. Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
TERESA ELWARD, DENNIS KEESLER,
BETHANY WILLIAMS, CHERYL
FERGUSON, NATHANIEL BECK, TONY
FITZGERALD, STACY CISCO, JOHN
McLAUGHLIN, LEASA BRITTENHAM,
WILLIAM FERGUSON, KATHY BECK,
and LAUREN FITZGERALD, individually
and on behalf of all others similarly situated,
ELECTROLUX HOME PRODUCTS, INC.,
15 C 9882
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiffs Teresa Elward, Dennis Keesler, Leasa Brittenham, Kathy and Nathaniel Beck,
Tony and Lauren Fitzgerald, Bethany Williams, John McLaughlin, Stacy Cisco, and William and
Cheryl Ferguson (“Plaintiffs”) have sued Defendant Electrolux Home Products, Inc.
(“Electrolux”) on behalf of putative classes in regard to their purchase of dishwashers
manufactured by Electrolux that unexpectedly overheated, causing fires and flooding. Plaintiffs
bring various state law claims on behalf of themselves and others similarly situated in the states
of California, Illinois, Indiana, Ohio, Pennsylvania, Virginia, and Washington seeking a
combination of declaratory, injunctive, and compensatory relief. Electrolux has filed a motion to
dismiss several counts alleged in Plaintiffs’ Consolidated Amended Complaint for failure to state
a claim pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Specifically, Electrolux
moves to dismiss Count I (claim by all Plaintiffs for breach of the implied warranty of
merchantability), Counts X and XI (claims by the Washington Plaintiff under the Washington
Product Liability Act), Counts XII and XIII (claims by the Indiana Plaintiffs under the Indiana
Product Liability Act), Count XIV (claim by the Indiana Plaintiffs under the Indiana Deceptive
Consumer Sales Act), Count XVII (claim by the California Plaintiffs under the Song-Beverly
Consumer Warranty Act), and Count XVIII with respect to the Indiana and Ohio Plaintiffs
(claim for fraudulent concealment). For the reasons set forth below, Electrolux’s motion to
dismiss is denied.
Factual Background 1
Electrolux is the world’s second-largest appliance maker by units sold. Consol. Am.
Compl. ¶ 22, ECF No. 93. Electrolux designs and manufactures residential dishwashers that are
sold under a variety of brand names, including its popular Frigidaire brand.
Id. ¶¶ 2, 22.
Plaintiffs purchased and used Electrolux dishwashers that, they claim, were “dangerously
defective.” Id. ¶ 2.
The defect, Plaintiffs allege, is in the electrical heating system, which heats the wash
solution and dries the dishes. Id. ¶¶ 23, 27. Plaintiffs assert that the electrical system overheats,
which can spark a fire or burn a hole through the bottom of the dishwasher’s tub, causing water
to leak and flood the floor below. Id. ¶ 27. This flooding also increases the risk of fire as water
“comes into contact with exposed electrical components.” Id. Plaintiffs allege that the defective
heating element caused their dishwashers to ignite, causing smoke and fire damage, or to burn a
hole through the bottom of the tub, leading to flooding and mold. See, e.g., id. ¶¶ 44, 49, 53.
These malfunctions occurred before the dishwashers reached their minimum life expectancies of
nine to thirteen years. Id. ¶¶ 26, 43–44, 48–49, 52–53, 58, 63, 69, 73–74, 77–78, 82–83.
The following facts are taken from Plaintiffs’ Consolidated Amended Complaint and are accepted
as true on review of Electrolux’s motion to dismiss. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081
(7th Cir. 2008).
According to Plaintiffs, Electrolux knew of this defect as early as 2007. Id. ¶ 32. By
2007, consumers were complaining of Electrolux dishwashers overheating within one to two
years of purchase, leading to melted dishwashers, smoke, and fire. Id. Plaintiffs point to recalls
issued by Electrolux in Australia in both 2007 and 2013 and in the United Kingdom in 2007 as
additional evidence of Electrolux’s knowledge of the risk of fire.
Id. ¶ 33.
Plaintiffs assert that Electrolux had notice of this defect through recalls issued by domestic
competitors and through earlier subrogation claims filed against it. Id. ¶¶ 34–35.
Plaintiffs contend that, despite possessing this knowledge, Electrolux continued to sell
dishwashers without disclosing the defect.
Id. ¶ 39.
In fact, Electrolux has continued to
represent to consumers, like Plaintiffs, that the dishwashers and their features were safe for use,
including a Delay Start feature that allows the owner to run the dishwasher while sleeping or
away from home. Id. ¶¶ 25, 42. Plaintiffs claim that the defect is not reasonably discoverable,
and consumers continue to purchase these dishwashers without knowledge of the defect. Id.
¶ 42. Making matters worse, some Plaintiffs allege that Electrolux refused to provide any relief
after they informed Electrolux of the damage caused by the defect. Id. ¶¶ 46, 50, 57, 65, 71, 75,
80. In other cases, Electrolux’s proposed solution required the consumer to incur a substantial
cost, such as shipping the entire dishwasher to Electrolux or paying for a technician to visit the
home. Id. ¶¶ 59, 66, 84. Plaintiffs allege that they would not have purchased these dishwashers
or would have insisted on a lower price if they had been apprised of the defect. Id. ¶ 42. They
further allege that, as consumers, they have relatively little bargaining power compared to
Electrolux. Id. ¶ 103.
Based on these facts, Plaintiffs assert the following claims: breach of implied warranty of
merchantability (Count I), strict liability based on design defect (Count II), strict liability based
on failure to warn (Count III), negligence (Count IV), negligent failure to warn (Count V),
violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act (Count VI), violation
of the Illinois Uniform Deceptive Trade Practices Act (Count VII), violation of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law (Count VIII), violation of the Washington
Consumer Protection Act (Count IX), violation of the Washington Product Liability Act
(“WPLA”) (Counts X and XI), violation of the Indiana Product Liability Act (“IPLA”) (Counts
XII and XIII), violation of the Indiana Deceptive Consumer Sales Act (“IDCSA”) (Count XIV),
violation of the California Unfair Competition Law (Count XV), violation of the California
Consumers Legal Remedies Act (Count XVI), breach of implied warranty under the California
Song-Beverly Consumer Warranty Act (“SBA”) (Count XVII), and fraudulent concealment
(Count XVIII). 2
A motion under Rule 12(b)(6) challenges the sufficiency of the plaintiff’s complaint.
Christensen v. Cty. of Boone, 483 F.3d 454, 457 (7th Cir. 2007). Under the federal notice
pleading standards, a complaint “need only provide a short and plain statement of the claim
showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice
of the claim and its basis.” Tamayo, 526 F.3d at 1081 (internal quotation marks omitted); see
also Fed. R. Civ. P. 8(a)(2). In reviewing a motion under Rule 12(b)(6), a court must accept all
well-pleaded allegations in the complaint as true. Christensen, 483 F.3d at 457.
Originally, the Consolidated Amended Complaint also included three claims under Louisiana law
(Counts XIX, XX, and XXI) brought by Plaintiffs Angelia East and Sarah LaVergne. Following the
filing of Electrolux’s motion to dismiss, however, Plaintiffs East and LaVergne voluntarily dismissed the
Louisiana claims pursuant to Rule 41(a)(1)(A). The Court therefore need not address the Louisiana
In order to survive dismissal, a complaint must “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet the standard of facial
plausibility, a plaintiff must plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. At this stage, however, it is improper for a court to “decide whose version to
believe, or which version is more likely than not.” Swanson v. Citibank, N.A., 614 F.3d 400, 404
(7th Cir. 2010).
Count I: Breach of Implied Warranty of Merchantability
Electrolux seeks to dismiss Count I, which encompasses all Plaintiffs’ claims for breach
of implied warranty of merchantability, through two different lines of reasoning.
Electrolux argues that it expressly limited this warranty to one year, which dooms the claims of
the Plaintiffs in California, Illinois, Indiana, Ohio, Pennsylvania, and Virginia because the
alleged breaches occurred after the warranty had expired. 3 Second, Electrolux asserts that the
implied warranty claim of the Washington Plaintiff is barred by the statute of limitations. For
the following reasons, the motion to dismiss Count I is denied.
Electrolux’s One-Year Warranty Limitation
Electrolux first argues that Plaintiffs’ claims for breach of implied warranty of
merchantability in the states of California, Illinois, Indiana, Ohio, Pennsylvania, and Virginia fail
For reasons unclear from the parties’ briefs, Electrolux specifically states that it relies upon this
argument in moving to dismiss Count I with respect to the Washington Plaintiff. Def.’s Br. Supp. Mot.
Dismiss at 4 n.6, ECF No. 95.
because Plaintiffs do not allege a breach within the warranty period as expressly modified by
Electrolux. Def.’s Br. Supp. at 4–7. In support, Electrolux attaches the Use & Care Guides for
the Plaintiffs’ dishwashers to its motion to dismiss, pointing to provisions within the Use & Care
Guides that it claims limited the warranty to one year. Id., Exs. 3–11. Electrolux asks the Court
to consider these attached exhibits on the ground that they are “integral to and referenced in
Plaintiffs’ Complaint,” in light of Plaintiffs’ allegation that “warranty forms” and other
documents gave rise to privity between Plaintiffs and Electrolux. Id. at 6 n.8 (citing Am. Compl.
¶ 104). In response, Plaintiffs argue that these provisions are unconscionable under the relevant
laws of each state and are therefore unenforceable. Pls.’ Br. Opp’n Mot. Dismiss at 4–6, ECF
When reviewing a motion to dismiss, the Court can consider documents attached to the
motion only if they “are referred to in the plaintiff’s complaint and are central to his claim.”
McGready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006) (quoting 188 LLC v. Trinity Indus.,
Inc., 300 F.3d 730, 735 (7th Cir. 2002)). If the documents do not meet these two conditions, the
Court is “limited to the factual allegations contained within the four corners of the complaint,”
along with any exhibits the plaintiff attached thereto. Flentye v. Kathrein, 485 F. Supp. 2d 903,
917 (N.D. Ill. 2007) (quoting Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219, 1236 (N.D.
Ill. 2005)); accord Geinosky v. City of Chi., 675 F.3d 743, 745 n.1 (7th Cir. 2012). In addition, it
is improper for the Court to consider documents submitted by the defendant if discovery is
required to “authenticate or disambiguate” them or show whether they are complete. Tierney v.
Vahle, 304 F.3d 734, 739 (7th Cir. 2002); Flentye, 485 F. Supp. 2d at 917. Furthermore, if the
factual content of the attachments concerns an affirmative defense rather than the elements of
plaintiff’s claims, the documents are likely outside the scope of the Court’s inquiry at the
pleading stage. See, e.g., Seban v. Cargurus, Inc., No. 16 C 2531, 2016 WL 4709077, at *2
(N.D. Ill. Sept. 8, 2016) (citing Geinosky, 675 F.3d at 745 n.1; Levenstein v. Salafsky, 164 F.3d
345, 347 (7th Cir. 1998); Hepp v. Ultra Green Energy Servs. LLC, No. 13 C 4692, 2014 WL
2154097, at *3 n.4 (N.D. Ill. May 22, 2014)).
Despite Electrolux’s insistence, the Use & Care Guides do not satisfy the two
requirements to be considered at this stage. First, the paragraph of the Consolidated Amended
Complaint that supposedly shows that Plaintiffs invoked the Use & Care Guides refers to these
documents only obliquely, if at all. See Am. Compl. ¶ 104. While Plaintiffs acknowledge the
existence of “warranty forms,” they do not indicate what these forms articulated, how many
exist, or whether these “warranty forms” include the Use & Care Guides proffered by Electrolux.
Id. Due to this ambiguity, it is not clear that the exhibits comprise the documents contemplated
by Plaintiffs, making their consideration in ruling on this motion improper. See Flentye, 485 F.
Supp. 2d at 917. In addition, given that the documents were not attached by Plaintiffs to the
complaint, discovery may be necessary to authenticate them. See Tierney, 304 F.3d at 739.
Second, the exhibits are not central to Plaintiffs’ complaint. Rather, the Use & Care
Guides are central to an affirmative defense raised by Electrolux, “which is better left for
resolution at the summary judgment stage.” Seban, 2016 WL 4709077, at *2. The purported
centrality of these documents is belied by the coherence and plausibility of Plaintiffs’ claims in
their absence. Accordingly, the Court’s analysis must be confined to the complaint, which
makes no mention of Electrolux’s modifications to the warranties. McGready, 453 F.3d at 891.
Divorced from the attachments Electrolux included with the motion to dismiss, the argument that
the warranty provisions in the Use & Care Guides render Plaintiffs’ claims untimely fails.
Moreover, even if the attached exhibits were included in the consideration of this motion,
Count I would still survive because the alleged unconscionability of the warranty provisions in
the Use & Care Guides involves a disputed issue of fact that cannot be resolved at this stage. It
is well established that issues of unconscionability typically involve factual inquiries that cannot
be decided on a motion to dismiss. See In re Rust-Oleum Restore Mktg., Sales Practices &
Prods. Liab. Litig., 155 F. Supp. 3d 772, 794–95 (N.D. Ill. 2016) (collecting cases). Here, it is
enough that Plaintiffs raise the issue of unconscionability in the complaint, alleging a disparity in
bargaining power and Electrolux’s knowledge of an undetectable defect. Am. Compl. ¶¶ 32,
103. Factual disputes exist concerning whether this disparity rises to the level of procedural or
substantive unconscionability, making dismissal improper at this stage. See Rust-Oleum, 155 F.
Supp. 3d at 795 (denying motion to dismiss warranty claim where plaintiffs’ complaint alleged
unconscionability of contract provision that purported to limit the claim).
For these reasons, the motion to dismiss Count I with regard to the Plaintiffs from
California, Illinois, Indiana, Ohio, Pennsylvania, and Virginia is denied.
Washington State Law Statute of Limitations
In moving to dismiss Count I with respect to the Washington Plaintiff, Leasa Brittenham
(“Brittenham”), Electrolux argues that Brittenham’s claim is barred by Washington’s four-year
statute of limitations. Def.’s Br. Supp. at 13. Specifically, Electrolux contends that Brittenham
purchased her dishwasher on December 31, 2010, at the latest and filed her suit on June 28,
2016 4—one and a half years after the statute of limitations had expired—and that her claim
Brittenham originally filed her claim in Washington state court on June 28, 2016. Her case was
later removed to the United States District Court for the Western District of Washington. See Brittenham
v. Electrolux Home Prods., Inc., No. 2:16-cv-01182-RSL (W.D. Wash.); see also Def.’s Reply Br. at 14–
15, ECF No. 106. She voluntarily dismissed the case after this Court granted Plaintiffs’ motion to file a
consolidated amended complaint that, among other things, included Brittenham’s claims. Plaintiffs’
Consolidated Amended Complaint was filed before this Court on December 12, 2016.
should accordingly be dismissed. Id. at 14 (citing Am. Compl. ¶ 52). For her part, Brittenham
argues that the claim is tolled by the doctrine of fraudulent concealment. In support, she cites
allegations regarding Electrolux’s concealment of the defect and knowledge of its consumers’
ignorance of the defect. Pls.’ Br. at 12–13 (citing Am. Compl. ¶¶ 39–42, 95–97, 300–09).
Washington law imposes a four-year statute of limitations on any claims for breach of a
sale contract, including claims for breach of an implied warranty of merchantability. Wash. Rev.
Code Ann. § 62A.2-725(1). A cause of action for a claim of breach of implied warranty accrues
when the breach occurs, which is “when tender of delivery is made.” Id. § 62A.2-725(2); see
Kittitas Reclamation Dist. v. Spider Staging Corp., 27 P.3d 645, 647 (Wash. Ct. App. 2001); see
also W. Recreational Vehicles, Inc. v. Swift Adhesives, Inc., 23 F.3d 1547, 1549 (9th Cir. 1994)
(applying Wash. Rev. Code Ann. § 62A.2-725(2)). Washington courts have found that this
statute “imposes no [ ] limitation on the doctrine of fraudulent concealment,” which operates to
toll the statute of limitations. Giraud v. Quincy Farm & Chem., 6 P.3d 104, 111 (Wash. Ct. App.
In general, courts do not dismiss claims under Rule 12(b)(6) for failure to be brought
within the statute of limitations, because the statute of limitations is an affirmative defense. Chi.
Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 613 (7th Cir. 2014) (citing United
States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir. 2004)). Dismissal based upon affirmative
defenses is rare because “these defenses typically turn on facts not before the court at [this]
stage.” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012). For
dismissal to be granted, “the allegations of the complaint itself [must] set forth everything
necessary to satisfy the affirmative defense.” Chi. Bldg. Design, 770 F.3d at 613–14 (quoting
United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). If there is “any set of facts that if
proven would establish a defense to the statute of limitations,” then a motion to dismiss should
be denied. Clark v. City of Braidwood, 318 F.3d 764, 768 (7th Cir. 2003).
Here, Brittenham has pleaded a set of facts that may establish the tolling of the statute of
limitations through the doctrine of fraudulent concealment, allowing the claim to survive even if
it was brought over four years after delivery was made. The complaint alleges that Electrolux
“continuously failed to disclose” a defect that Electrolux knew existed and knew was “not
reasonably discoverable” by a purchaser. Am. Compl. ¶¶ 39–42. These allegations provide
Brittenham a set of facts sufficient to overcome a statute of limitations defense, at least at this
stage. See Clark, 318 F.3d at 768 (reversing dismissal because complaint provided for the
“possibility” that the statute of limitations defense could be defeated); Early v. Bankers Life &
Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992) (reversing dismissal because complaint was
“reasonably clear” in alleging set of facts that would overcome an affirmative defense).
Therefore, Electrolux’s motion to dismiss Brittenham’s claim for breach of the implied warranty
of merchantability is denied.
Counts X and XI: Claims Under the WPLA
Continuing its effort to dismiss claims for untimeliness, Electrolux moves to dismiss
Counts X and XI, the two WPLA causes of action, as barred by the WPLA’s three-year statute of
limitations. Def.’s. Br. Supp. at 13. Electrolux argues that the statute of limitations began to run
when Brittenham’s dishwasher caught fire in April 2013, three years and two months before her
claims were originally filed on June 28, 2016. Id. In response, Brittenham argues that the
WPLA’s discovery rule delayed the start of the statute of limitations until the defect was
discovered, which she claims occurred within the three-year window. Pls.’ Br. at 11–12. 5
Claims brought under the WPLA are governed by a three-year statute of limitations
subject to a discovery rule. Wash. Rev. Code Ann. § 7.72.060(3). This three-year period begins
when the “claimant discovered or in the exercise of due diligence should have discovered the
harm and its cause.” Id. (emphasis added). Washington courts have interpreted this statute to
mean that the limitations period begins when the plaintiff discovers or should have discovered “a
factual causal relationship of the product to the harm.” La.-Pac. Corp. v. ASARCO Inc., 24 F.3d
1656, 1580 (9th Cir. 1994) (quoting N. Coast Air Servs., Ltd. v. Grumman Corp., 759 P.2d 405,
407 (Wash. 1988)). This “causal relationship” is not discovered simply upon the discovery of
damage; rather, “a cause of action does not accrue until [the plaintiff] knew or should have
known the essential elements of the cause of action—duty, breach, causation, and damages.”
Green v. A.P.C. (Am. Pharm. Co.), 960 P.2d 912, 915 (Wash. 1998). The statute of limitations
can nevertheless start before the plaintiff is personally aware of a possible cause of action if the
plaintiff failed to “exercise due diligence in discovering the harm and its cause.” N. Coast, 759
P.2d at 411.
Determining when discovery triggered the running of the statute of limitations is
“ordinarily a question of fact.” Green, 960 P.2d at 918. A disputed discovery time, therefore,
presents a question of fact that federal courts have held is improper for resolution at the pleading
stage. See, e.g., McFarland v. APP Pharm., LLC, 2011 WL 2413797, at *4 (W.D. Wash. June
13, 2011) (declining to find WPLA claims time-barred at motion to dismiss stage because there
Brittenham also argues that her claims relate back to Plaintiffs’ motion to file the first
consolidated complaint in this case, which named Brittenham as a plaintiff and was filed on March 23,
2016. Pls.’ Br. at 10–11. Resolution of this issue, however, is unnecessary at this time.
was no evidence from which the court could determine whether plaintiff’s claims were timebarred); see also Clark, 318 F.3d at 768.
Here, the parties dispute when Brittenham discovered the cause of action, presenting a
disputed issue of fact and precluding dismissal based on a statute of limitations defense at the
pleading stage. Electrolux asserts that Brittenham discovered the cause of action when the fire
occurred in April 2013, Def.’s Br. Supp. at 13, while Brittenham maintains that she did not learn
of the fire’s origins until encountering the fire investigator’s report at an unspecified time after
June 28, 2013, Pls.’ Br. at 12 (citing Am. Compl. ¶ 54). This factual dispute cannot be resolved
based on the pleadings, and the claim therefore must be allowed to proceed to discovery.
Furthermore, the complaint does not specify when the fire inspector gave Brittenham the report,
and discovery may reveal that this occurred after June 28, 2013. See Am. Compl. ¶ 54. There
thus is a “conceivable set of facts” with which Brittenham can overcome the statute of
limitations defense. Clark, 318 F.3d at 768. Electrolux’s motion to dismiss Counts X and XI is
Counts XII and XIII: Claims under the IPLA
Next, Electrolux moves to dismiss the IPLA claims brought by the Indiana Plaintiffs,
Kathy and Nathaniel Beck (“the Becks”), in Counts XII and XIII as time-barred by the IPLA’s
statute of limitations.
Def.’s Br. Supp. at 9.
The Becks provide three counterarguments:
(1) Electrolux misinterprets the statute of limitations under the IPLA; (2) the statute of
limitations is subject to tolling via the discovery rule; (3) the statute of limitations is subject to
tolling or equitable estoppel due to Electrolux’s fraudulent concealment. Pls.’ Br. at 7. Without
addressing the first argument, the Court concludes that the Becks’ claims survive Electrolux’s
motion to dismiss because their second and third arguments present disputed issues that require
factual inquiry to resolve.
Tolling Under the Discovery Rule
The parties dispute when the Becks discovered their cause of action and thus triggered
the start of the two-year statute of limitations. 6 Electrolux claims that the Becks admit to
discovering the cause of action at the time of their injury in August 2012, Def.’s Br. Supp. at 9
(citing Am. Compl. ¶ 58), while the Becks claim that their discovery was delayed because they
did not know and could not have known at that time that their injury was caused by the defect,
Pls.’ Br. at 7 (citing Am. Compl. ¶¶ 29–35, 39–42).
An Indiana tort action does not accrue for statute of limitations purposes until it has been
discovered, which occurs when the plaintiff knew, or should have known through the exercise of
due diligence, that “an injury ha[s] been sustained as a result of the tortious act of another.”
Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 842 (Ind. 1992); see also Horn v. A.O. Smith
Corp., 50 F.3d 1365, 1369 (7th Cir. 1995) (recognizing that Wehling applied the discovery rule
to all Indiana tort claims). Ascertaining when an action accrues is a factual inquiry that is
generally suitable for resolution only at summary judgment or trial. See Horn, 50 F.3d at 1370.
For this reason, as explained above, dismissal of a claim based on a statute of limitations defense
is proper only when “the allegations of the complaint itself set forth everything necessary” to
establish the defense. Lewis, 411 F.3d at 842.
For purposes of addressing the parties’ arguments, the Court assumes without deciding that the
two-year statute of limitations applies. The Court acknowledges the Becks’ argument that the statute of
limitations should be interpreted to set forth a limitations period of ten years. See Ind. Code Ann. § 3420-3-1(b) (providing that the limitations period expires “(1) within two [ ] years after the cause of action
accrues; or (2) within ten [ ] years after the delivery of the product to the initial user or consumer”); see
also Dague v. Piper Aircraft Corp., 418 N.E.2d 207, 210 (Ind. 1981) (interpreting “or” in an earlier
codification of this statute to sometimes mean “and”). Even assuming arguendo that the limitations
period is only two years, however, dismissal of the Becks’ IPLA claims is unwarranted for the reasons
explained below. The Court therefore need not reach this interpretive issue at this stage.
Fortunately for the Becks, they have not pleaded a set of facts that establishes
Electrolux’s statute of limitations defense. While the complaint describes the injury that they
sustained, it does not indicate, as Electrolux claims, that the Becks recognized an actionable tort
at the moment of their injury. Am. Compl. ¶ 58. Electrolux encourages the Court to infer
otherwise, but that is impermissible at the pleading stage. Discovery is needed to develop
evidence that can resolve when the Becks discovered their claims, and the Court accordingly
denies Electrolux’s motion to dismiss the IPLA claims in Counts XII and XIII.
Tolling or Equitable Estoppel Due to Fraudulent Concealment
Even if the discovery rule could not apply, the Court would still deny Electrolux’s motion
to dismiss the IPLA claims, because the limitations period may have been tolled by the doctrine
of fraudulent concealment. In particular, the Becks claim that Electrolux actively concealed their
dishwasher’s defect, entitling the Becks to tolling or estopping of the statute of limitations based
on Electrolux’s fraudulent concealment. Pls.’ Br. at 7 (citing Am. Compl. ¶¶ 95–98). Electrolux
contends that this argument is insufficiently supported because it is based on allegations of mere
passive silence, not active misrepresentation. Def’s. Reply Br. at 6–8.
Under Indiana law, the doctrine of fraudulent concealment can toll a statute of limitations
or delay the start of the limitations period 7 when the defendant has committed “concealment or
fraud of such character as to prevent inquiry, [to] elude investigation, or to mislead the plaintiff.”
Indiana law appears to allow plaintiffs to use the doctrine of fraudulent concealment both to toll a
statute of limitations and to estop a defendant from relying upon the statute of limitations defense, but the
parties’ briefs leave it unclear what doctrinal differences, if any, there are between such tolling and
estoppel. Compare, e.g., Ind. Code Ann. § 34-11-5-1 (“If a person liable to an action conceals the fact
from the knowledge of the person entitled to bring the action, the action may be brought at any time
within the period of limitation after the discovery of the cause of action.”), with City of East Chi. v. East
Chi. Second Century, Inc., 908 N.E.2d 611, 621–22 (Ind. 2009) (treating the doctrine of fraudulent
concealment as an estoppel doctrine rather than a tolling doctrine, and noting that “[t]his doctrine does not
establish a new date for the running of the statute, but rather works an equitable exception”). For
purposes of this motion, however, it is immaterial whether tolling or estoppel is being sought, and any
doctrinal nuances in this area need not be discussed further.
Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011) (citing Doe v. Shults-Lewis Child & Family
Servs., Inc., 718 N.E.2d 738, 748 (Ind. 1999)).
While the defendant’s passive silence is
insufficient to merit applying the doctrine, Forth v. Forth, 409 N.E.2d 641, 644 (Ind. Ct. App.
1980), it is enough for the defendant to actively or intentionally “mislead the party who claims
the cause of action,” Cwiakala v. Economy Autos, Ltd., 587 F. Supp. 1462, 1466 (N.D. Ind.
1984) (emphasis omitted) (quoting Marcum v. Richmond Auto Parts Co., 270 N.E.2d 884, 886
(Ind. Ct. App. 1971)).
By alleging that Electrolux committed affirmative acts to conceal the defect, the Becks
have provided a conceivable set of facts to support the application of the doctrine of fraudulent
concealment and overcome Electrolux’s statute of limitations defense for pleading purposes.
The Becks state that Electrolux had knowledge of the defect as early as 2007, yet continued to
sell dishwashers that it represented to be safe enough to run while the owners were away or
sleeping. Am. Compl. ¶¶ 29–35, 39–42. In sum, the Becks assert that Electrolux did not just fail
to disclose the defect, but actively misled them into believing that the dishwasher would clean
dishes without overheating or catching fire.
Determining whether this assertion has merit
requires additional fact-finding not available at the pleading stage. For this additional reason, the
motion to dismiss Counts XII and XIII is denied.
Count XIV: Claim Under the IDCSA
Electrolux makes three arguments in support of its motion to dismiss Count XIV, the
Becks’ claim under the IDCSA. First, Electrolux asserts that the claim is abrogated by the IPLA.
Def.’s Br. Supp. at 8. Second, Electrolux argues that the claim is barred by the IDCSA’s twoyear statute of limitations. Id. at 9. Third, Electrolux contends that the Becks fail to adequately
allege an act of deception or misrepresentation in connection with the purchase of their
dishwasher. Id. at 10. For the reasons explained below, none of these arguments is availing.
Abrogation by the IPLA
Electrolux argues that the IPLA abrogates the Becks’ IDCSA claim because the
“gravamen” of their claim is that their dishwasher caused physical harm, which is actionable
exclusively under the IPLA. 8 Id. at 8. The IPLA governs all actions brought for “physical harm
caused by a product[,] regardless of the substantive legal theory or theories upon which the
action is brought.” Ind. Code Ann. § 34-20-1-1. By contrast, the IDCSA prohibits suppliers
from “commit[ting] an unfair, abusive, or deceptive act, omission, or practice in connection with
a consumer transaction.” Ind. Code Ann. § 24-5-0.5-3(a). Electrolux characterizes the Becks’
suit as a “paradigmatic product liability case,” which the Supreme Court of Indiana has made
clear is governed by the IPLA. Def’s. Br. Supp. at 8 (citing Stegemoller v. ACandS, Inc., 767
N.E.2d 974, 975 (Ind. 2002)).
In making their IDCSA claim, however, the Becks allege various deceptive sales
practices utilized by Electrolux, including hiding the defect, intentionally concealing the safety
risks of the dishwasher, and intentionally misrepresenting that the dishwashers were safe for use
while consumers were asleep or away from the home. Am. Compl. ¶¶ 261–66. The Becks
further allege that they would not have purchased their dishwasher, or at least not at full price, if
the defect had not been concealed. Id. ¶ 42. Contrary to Electrolux’s assertions, these are
allegations of deceptive trade practices, not merely of physical damage sustained through faulty
products. Indeed, in similar factual circumstances, other district courts have considered IPLA
and IDCSA claims as distinct causes of action at the motion to dismiss stage. See Hoffman v.
Abbott Labs., Inc., No. 01-c-1313, 2001 WL 1558299, at *3–5 (N.D. Ill. Dec. 5, 2001)
Electrolux also argues that the Becks have conceded this argument by failing to address it in their
response brief. The Court disagrees. Although perhaps not a paragon of clarity, Plaintiffs’ brief appears
to argue that the Becks properly pleaded an IDCSA claim so as to avoid the issue of abrogation. See Pls.’
Br. at 6–8.
(considering strict product liability claim under the IPLA as distinct from claims related to
deceptive sales tactics under the IDCSA); see also Thunander v. Uponor, Inc., 887 F. Supp. 2d
850, 869–75 (D. Minn. 2012) (same). 9 While claims based solely on physical harm caused by a
product must be brought under the IPLA, see Stegemoller, 767 N.E.2d at 975, the Becks’ cause
of action is based on deceptive sales practices, which is properly governed by the IDCSA.
Electrolux’s argument would have the IPLA swallow the IDCSA, an incoherence not supported
by the weight of authority.
Statute of Limitations
Electrolux next seeks to dismiss the Becks’ IDCSA claim for being brought after the twoyear statute of limitations had expired. Def.’s Br. Supp. at 9. In response, the Becks contend
that the statute of limitations has been tolled or estopped by Electrolux’s alleged fraudulent
concealment. Pls.’ Br. at 7 (citing Am. Compl. ¶¶ 95–98).
Unlike the IPLA, the IDCSA statute of limitations is governed by an “occurrence” rule.
Ind. Code Ann. § 24-5-0.5-5(b). Under the occurrence rule, the IDCSA’s two-year statute of
limitations is “triggered by the date of each occurrence” of a deceptive act. State v. Classic Pool
& Patio, Inc., 777 N.E.2d 1162, 1166 (Ind. Ct. App. 2002). This occurrence may be at the actual
sale, giving the purchaser two years from the date of the sale, but the occurrence can also
precede the sale, such as when the deception occurs during the solicitation of the sale. See id.
As mentioned above, under Indiana law, the doctrine of fraudulent concealment can toll the
statute of limitations when the defendant has committed concealment or fraud “of such character
In support of its position, Electrolux cites one case where the Indiana Court of Appeals observed
that the trial court “merged” an IPLA claim with an IDCSA claim. McGookin v. Guidant Corp., 942
N.E.2d 831, 834 (Ind. Ct. App. 2011). Electrolux’s reliance on McGookin is unpersuasive, however,
because the case provides no explanation for why these claims were combined, instead merely noting the
fact of their combination in the course of recounting the case’s procedural history. See id.
as to prevent inquiry, [to] elude investigation, or to mislead the plaintiff,” Logan, 644 F.3d at
582, such as by concealing material facts so as to “prevent[ ] the plaintiff from discovering a
potential cause of action,” Shults-Lewis, 718 N.E.2d at 745 (quoting Fager v. Hundt, 610 N.E.2d
246, 251 (Ind. 1993)).
Wielding an affirmative defense, Electrolux is tasked yet again with supporting its
argument entirely with Plaintiffs’ own allegations, Lewis, 411 F.3d at 842, and hoping those
allegations do not leave “any set of facts” that can defeat the defense, Clark, 318 F.3d at 768.
Yet again, the complaint is adequate to survive a motion to dismiss. The Becks state that
Electrolux misled them into purchasing a dishwasher that was purported to be safe to run,
including when owners were sleeping or away from home, despite knowing that the dishwasher
possessed a hidden electrical defect that could cause fire and flooding. Am. Compl. ¶¶ 25, 27–
28, 32, 263–68. Electrolux’s alleged multiyear concealment of the defect could plausibly have
prevented the Becks from discovering their cause of action. Further factual development may
show that tolling is not warranted in this case, but the Court cannot rule definitively on the matter
at this time. See, e.g., Big Moose Holdings, Inc. v. Interstate Motor Carrier, Inc., 2002 WL
485644, at *2 (S.D. Ind. Mar. 29, 2002) (denying dismissal of Indiana tort claims as time-barred
because plaintiff’s complaint had not foreclosed the possibility of tolling the statute of
limitations); cf. Cwiakala, 587 F. Supp. at 1466 (denying summary judgment on IDCSA claim
because of factual disputes regarding whether the alleged fraudulent act did actually “mislead,
hinder, [or] prevent inquiry” so as to toll the statute of limitations).
Failure to Plead an Act of Deception or Misrepresentation
The third argument Electrolux offers to dismiss the Becks’ IDCSA claim is that the
Becks fail to plead “any deceptive act or misrepresentation made to them in connection with the
purchase of their Dishwasher.” Def.’s Br. Supp. at 10. As noted above, the IDCSA prohibits
suppliers from “commit[ting] an unfair, abusive, or deceptive act, omission, or practice in
connection with a consumer transaction.” Ind. Code Ann. § 24-5-0.5-3(a). The acts, omissions,
misrepresentations.” Id. Moreover, the IDCSA is to “be liberally construed and applied to
promote its purposes and policies.” Id. § 24-5-0.5-1. To be actionable under the IDCSA, a
deceptive act must be “uncured” or “incurable.” Castagna v. Newmar Corp., No. 3:15-CV-249TLS, 2016 WL 3413770, at *7 (N.D. Ind. June 22, 2016) (citing Perry v. Gulf Stream Coach,
Inc., 814 N.E.2d 634, 647 (Ind. Ct. App. 2004)). The Becks have alleged an incurable deceptive
act, Am. Compl. ¶ 273, which requires them to show that Electrolux intended to defraud them,
Ind. Code Ann. § 24-5-0.5-2(a)(8); see Castagna, 2016 WL 3413770, at *7 (citing McCormick
Piano & Organ Co. v. Geiger, 412 N.E.2d 842, 849 (Ind. Ct. App. 1980)).
The Becks’ allegations are sufficient to state an IDCSA claim based on an incurable
deceptive act. Specifically, the Becks allege that Electrolux had knowledge of the defect in its
dishwashers by virtue of the recalls it issued abroad, subrogation claims arising from dishwasher
fires, and consumer complaints. Am. Compl. ¶¶ 28, 32–33, 35. Possessing that knowledge,
Electrolux elected not to conduct a recall in the United States, not to disclose the defect to
buyers, and to represent that its dishwashers were safe for use while the owners slept or were
away from home. Id. ¶¶ 260–61, 264, 267. Relying upon Electrolux’s alleged intentional
misrepresentation, the Becks bought a dishwasher they would not otherwise have purchased, at
least not at full price. Id. ¶¶ 60, 263, 271. By pleading facts about Electrolux’s conduct that
could constitute a deceptive, intentional omission, and given the IDCSA’s directive to liberally
construe its terms, the Becks have stated a cognizable claim under the IDCSA. See Castagna,
2016 WL 3413770, at *8 (denying dismissal of an IDCSA claim for failing to allege a deceptive
act because plaintiff’s complaint specifically alleged that the plaintiff relied on representations
that concealed a defect in the purchased RV). For all of these reasons, Electrolux’s motion to
dismiss Count XIV is denied.
Count XVII: SBA Claim
Electrolux seeks to dismiss the California Plaintiffs’ SBA claim for failure to allege a
breach of implied warranty that occurred inside the one-year warranty period. Def.’s Br. Supp.
at 4, 7 & n.9. 10 The SBA provides an implied warranty of merchantability to every sale of
consumer goods at retail in California from the manufacturer and retailer. Cal. Civ. Code
§ 1792. 11 The SBA provides a maximum length of one year for this implied warranty. Id.
Under California law, a latent defect can breach the implied warranty of
merchantability at the time of sale even if the defect is not discovered until after the warranty has
expired. Mexia, 174 Cal. App. 4th at 1304–05. The warranty is breached “by the existence of
the unseen defect, not by its subsequent discovery.” Id. at 1305. The defect must be severe
enough “to cause the product to fall below the ‘minimum level of quality’ guaranteed by the
To the extent Electrolux bases this argument upon the one-year warranty period provided in its
Use & Care Guides, the Court rejects this argument for the same reasons it rejected it supra with respect
to Plaintiffs’ claims for breach of the implied warranty of merchantability in Count I. The SBA, however,
separately provides its own statutory implied warranty period, which can last for up to one year. Cal. Civ.
Code § 1791.1(c); see also Def.’s Br. at 5, 7 (citing authorities taking note of the SBA’s one-year
statutory warranty period). Thus, for the sake of completeness, the Court addresses Electrolux’s
arguments regarding the California Plaintiffs’ SBA claim separately from its arguments regarding
California courts have observed that the SBA provides consumers with additional protections and
remedies beyond those provided by the UCC. See, e.g., Mexia v. Rinker Boat Co., 174 Cal. App. 4th
1297, 1303–04 (Cal. Ct. App. 2009). Accordingly, the California Plaintiffs’ claim for breach of implied
warranty of merchantability under the SBA is separate from their claim for breach of implied warranty of
merchantability in Count I, the latter of which, at least as Electrolux has construed it, see Def.’s Br. Supp.
at 4–5, proceeds under California’s codification of the UCC, see Gonzalez v. Mazda Motor Corp., No. 16cv-02087-MMC, 2017 WL 345878, at *2–3 (N.D. Cal. Jan. 5 2017) (treating implied warranty claim
brought under the SBA separately from claim brought under the UCC); In re Sony Grand Wega KDF-E
A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077, 1097–98, 1100 (S.D. Cal.
warranty.” Parenteau v. Gen. Motors, LLC, No. CV 14-04961-RGK, 2015 WL 1020499, at *1,
10–11 (C.D. Cal. Mar. 5, 2015) (holding that car with an alleged “catastrophic engine failure”
fell below the minimum level of quality and thus survived a motion to dismiss). For a latent
defect claim under the SBA to survive a motion to dismiss, the plaintiff must plausibly allege
that the defect existed at the time of purchase. Id. at *11. The question of whether the defect
actually existed at the time of sale “must be answered at a later stage in the proceedings.” Id.
(citing Mexia, 174 Cal. App. 4th at 1308).
Here, contrary to Electrolux’s assertions, Plaintiffs’ factual allegations pass this bar. The
complaint does not merely state that the dishwashers were sold with a latent defect. Rather, the
complaint specifies that the dishwashers were sold with a latent defect in the electrical system
and explains how this defect can result in injuries like Plaintiffs’. Am. Compl. ¶¶ 27, 36–37.
These allegations are further supported by a collection of consumer complaints documenting the
same types of problems and injuries that Plaintiffs allege. Id. ¶¶ 28, 32. Additionally, Plaintiffs
allege that Electrolux recalled dishwashers abroad because of the fire risk the dishwashers posed,
buttressing their claim that the dishwashers did, in fact, have a latent manufacturing defect. Id.
¶ 33. By couching their allegations in this context, the Plaintiffs have more than sufficiently
supported their assertion that there was a latent defect in the dishwashers at the time of sale. See
Parenteau, 2015 WL 1020499, at *10–12 (denying motion to dismiss claim for breach of
implied warranty under SBA where complaint plausibly alleged that a latent defect existed at the
time of sale). Electrolux’s motion to dismiss Count XVII is denied.
Count XVIII: Fraudulent Concealment Claims Under Indiana and Ohio Law
Finally, Electrolux seeks to dismiss the fraudulent concealment claims raised in Count
XVIII by the Plaintiffs in the states of Indiana and Ohio. The claim in each state, Electrolux
argues, has been preempted by state statute. Def.’s Br. Supp. at 8, 12–13. For the following
reasons, the motion to dismiss the Indiana and Ohio fraudulent concealment claims is denied.
Fraudulent Concealment Claim in Indiana
Electrolux argues that the Indiana fraudulent concealment claim is actually a product
liability claim abrogated by the IPLA because the “gravamen” of the claim is physical harm
caused by a product. Def.’s Br. Supp. at 8. 12 As mentioned above, the IPLA governs “all
actions that are: (1) brought by a user or consumer; (2) against a manufacturer or seller; and
(3) for physical harm caused by a product; regardless of the substantive legal theory upon which
the action is brought.”
Ind. Code Ann. § 34-20-1-1.
The Supreme Court of Indiana has
determined that the IPLA was “intended [to] govern all product liability actions, whether the
theory of liability is negligence or strict liability in tort.” Stegemoller, 767 N.E.2d at 975
(quoting Dague, 418 N.E.2d at 212); see also Butler v. City of Peru, 733 N.E.2d 912, 918 & n.2
Contrary to Electrolux’s assertions, however, the “gravamen” of the Indiana Plaintiffs’
fraudulent concealment claim is not product liability, but fraud. Specifically, as with their
IDCSA claim, discussed supra, the Becks assert that Electrolux’s fraudulent misrepresentations
led them to make a purchase they would not otherwise have made, at least at the price they paid.
Am. Compl. ¶¶ 41–42. Thus, for the same reason that the IPLA does not abrogate the Becks’
Electrolux again argues that Plaintiffs have conceded this argument by failing to address it in
their response brief. Again, however, the Court disagrees, because Plaintiffs’ brief appears to argue that
the Indiana fraudulent concealment claim is properly pleaded so as to avoid abrogation. See Pls.’ Br. at
IDCSA claim, it does not abrogate their fraudulent concealment claim. Electrolux’s motion to
dismiss this claim is accordingly denied. 13
Fraudulent Concealment Claim in Ohio
Electrolux offers a virtually identical argument to dismiss the Ohio Plaintiffs’ fraudulent
concealment claim, contending that it is abrogated by the Ohio Product Liability Act (OPLA). In
support, Electrolux describes Plaintiffs’ claim as “an attempt to restate a failure to warn claim
under the OPLA.” Def.’s Br. Supp. at 13.
The OPLA is “intended to abrogate all common law product liability claims or causes of
action,” Ohio Rev. Code Ann. § 2307.71(B), including causes of action based on a failure to
warn, see id. § 2307.76. In ascertaining whether a claim is abrogated by the OPLA, courts have
differentiated claims based on the defendant’s negligent failure to warn from those based on the
defendant’s general duty not to deceive, holding that only the former are abrogated by the
OPLA. See Hogue v. Pfizer, Inc., 893 F. Supp. 2d 914, 918 (S.D. Ohio 2012) (“[T]he OPLA
does not abrogate fraud claims which are based on a general duty not to actively deceive;
however, the OPLA does abrogate fraud claims arising from a duty to warn.”); see Meta v.
Target Corp., No. 4:14 CV 0832, 2015 WL 10990180, at *1 (N.D. Ohio Mar. 23, 2015)
In support of its argument that the IPLA governs not only product liability actions but also fraud
actions, Electrolux cites Ryan ex rel. Estate of Ryan v. Philip Morris USA, Inc., No. 1:05 CV 162, 2006
WL 449207 (N.D. Ind. Feb. 22, 2006), in which a district court held that the IPLA abrogated a
consumer’s fraud claim. See id. at *3. Electrolux also points to two other district courts that have cited
Ryan for this holding. See In re Elk Cross Timbers Decking Mktg., Sales Practices & Prods. Liab. Litig.,
MDL No. 2577, 2015 WL 6467730, at *21 (D. N.J. Oct. 26, 2015); Gore v. Stryker Corp., No. 3:10-cv00137-RLY-WGH, slip op. at 2 (S.D. Ind. Jan. 20, 2011). In Ryan, however, the plaintiff’s fraud claim
arose from the defendant’s alleged failure to disclose to the plaintiff’s husband the risks of physical harm
associated with cigarette smoking, and she sought damages arising from his death. See Ryan, 2006 WL
449207, at *2. By contrast, in support of their fraudulent concealment claim, the Becks do not merely
allege a failure to warn that caused physical harm; rather, they also assert that they would not have
purchased Electrolux’s dishwasher if not for Electrolux’s intentional concealment of a defect or, if they
had, they would have paid a much lower price. Am. Compl. ¶ 42. As such, Ryan is distinguishable from
the present case.
(determining that more persuasive authorities hold that the OPLA abrogates claims based on
failure to warn, but not claims based on the general duty not to deceive); Stratford v. SmithKline
Beecham Corp., No. 2:07-CV-639, 2008 WL 2491965, at *8 (S.D. Ohio June 17, 2008)
(“[C]laims of active misrepresentation are not necessarily abrogated by the OPLA because they
may implicate the more general duty not to deceive, rather than the duty to warn.” (citing
Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343 (6th Cir. 2000))). In turn, courts have held
that claims involving fraudulent concealment or misrepresentation may be based upon the
general duty not to deceive. See Glassner, 223 F.3d at 349; Stratford, 2008 WL 2491965, at *8.
The Ohio Plaintiffs assert that Electrolux deceived them by concealing a hidden danger in
the dishwashers while representing their safety.
Plaintiffs allege that they “expected the
dishwashers to clean dishes during their effective life use without catching fire.” Am. Compl.
¶ 40. They further state that Electrolux knew a defect existed and knew that Plaintiffs were
ignorant of the defect, but still sold the defective dishwashers while continuing to represent that
the dishwashers were safe for use.
Id. ¶¶ 25, 301–04.
Drawing reasonable inferences in
Plaintiffs’ favor, these allegations accuse Electrolux of engaging in deceptive acts in violation of
Electrolux’s general duty not to deceive. The Ohio Plaintiffs’ fraudulent concealment claim thus
is not abrogated by the OPLA. See, e.g., Hogue, 893 F. Supp. 2d at 918; Meta, 2015 WL
10990180, at *1. Accordingly, the motion to dismiss the Ohio Plaintiffs’ fraudulent concealment
claim is denied.
For the foregoing reasons, the Court denies Electrolux’s motion to partially dismiss the
Consolidated Amended Complaint .
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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