`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE TENTH CIRCUIT
`
`No. 20-1454
`
`JENNIFER ANN SMITH, a citizen and
`taxpayer of the State of Colorado,
`LIGGETT GROUP LLC, VECTOR
`TOBACCO INC., and XCALIBER
`INTERNATIONAL LTD., LLC,
`Plaintiffs-Appellants,
`
` v.
`STATE OF COLORADO, by and through
`JARED S. POLIS, in his official capacity
`as Governor of Colorado, PHILIP J.
`WEISER, in his official capacity as
`Attorney General of Colorado, and HEIDI
`HUMPHREYS, in her official capacity as
`Interim Executive Director of the Colorado
`Department of Revenue,
`Defendants-Appellees.
`
`On Appeal from the United States District Court
`For the District of Colorado
`The Honorable Raymond P. Moore, District Court Judge
`D.C. No. 1:20-cv-03107-RM-KLM
`MOTION TO EXPEDITE APPEAL
`Maria Gorecki
`KASOWITZ BENSON TORRES LLP
`1400 16th Street, Suite 400
`Denver, Colorado 80202
`720.932.8303
`
`Marc E. Kasowitz
`Paul J. Burgo
`KASOWITZ BENSON TORRES LLP
`1633 Broadway
`New York, New York 10019
`212.506.1700
`
`
`
`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 2
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`Jon Anderson
`MAVEN LAW GROUP
`1800 Glenarm Place, Suite 950
`Denver, Colorado 80202
`303.218.7141
`Attorneys for Jennifer Ann Smith,
`Liggett Group LLC, Vector Tobacco,
`Inc., and Xcaliber International Ltd.,
`LLC
`
`E. Job Seese (admission pending)
`Katarzyna A. Parecki (admission
`pending)
`HALL, ESTILL, HARDWICK,
`GABLE, GOLDEN & NELSON, P.C.
`1600 Stout Street, Suite 1100
`Denver, Colorado 80202
`720.512.5820
`
`Attorneys for Xcaliber International
`Ltd., LLC
`
`ii
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 3
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`CORPORATE DISCLOSURE STATEMENT
`Pursuant to Federal Rule of Appellate Procedure 26.1, counsel for
`
`Appellants state the following:
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`Liggett Group LLC and Vector Tobacco Inc. are wholly-owned subsidiaries
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`of VGR Holding LLC, with the ultimate parent of these entities being Vector
`
`Group Ltd, which is a publicly traded company.
`
`Xcaliber International Ltd., LLC has no parent corporations, and no publicly
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`held corporation owns more than 10% of it.
`
`s/ Maria Gorecki
`Maria Gorecki
`
`
`
`Attorney for Plaintiffs-Appellants
`Jennifer Ann Smith, Liggett Group
`LLC, Vector Tobacco, Inc., and
`Xcaliber International Ltd., LLC
`
`iii
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 4
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`Plaintiffs-Appellants Jennifer Ann Smith (“Smith”) and Liggett Group LLC,
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`Vector Tobacco Inc., and Xcaliber International Ltd., LLC (together, the
`
`“Manufacturers”) move pursuant to Federal Rules of Appellate Procedure 2 and 27
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`and 10th Circuit Rule 2.1 for expedited briefing, oral argument, and consideration
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`of the merits of this appeal.
`
`Upon conferral under 10th Circuit Rule 27.1, counsel for Defendants-
`
`Appellees State of Colorado, by and through Jared S. Polis, in his official capacity
`
`as Governor of Colorado, Philip J. Weiser, in his official capacity as Attorney
`
`General of Colorado, and Heidi Humphreys, in her official capacity as Interim
`
`Executive Director of the Colorado Department of Revenue, (collectively, the
`
`“State”) state that they oppose this appeal and any attempt to expedite it.
`
`BACKGROUND
`Smith, a Colorado citizen and voter, and Liggett Group LLC, Vector
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`Tobacco Inc., and Xcaliber International Ltd., LLC, three discount cigarette
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`manufacturers located outside Colorado, have appealed from the December 28,
`
`2020 order of the U.S. District Court for the District of Colorado denying their
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`motion for a preliminary injunction to enjoin the State of Colorado from
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`implementing and enforcing a recently enacted statutory provision.
`
`Colorado House Bill 20-1427 (the “Bill” or “Proposition EE”), a bill
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`increasing taxes on cigarettes sold in Colorado, was put on the November 2020
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 5
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`ballot for Colorado voters as Proposition EE. Pursuant to Section 10 of the Bill, for
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`the first time in Colorado history, Colorado will set a minimum retail price for
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`cigarettes sold in the state.
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`Smith and the Manufacturers brought this action in the U.S. District Court
`
`for the District of Colorado on October 15, 2020, seeking declaratory and
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`injunctive relief on the grounds that enforcement of Section 10 would violate the
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`Commerce Clause of the U.S. Constitution by unduly burdening interstate
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`commerce and favoring Colorado in-state economic interests over out-of-state
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`discount manufacturers. (Compl., Dist. Ct. Dkt. No. 1; Am. Compl., Dist. Ct. Dkt.
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`No. 11.)
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`On November 3, 2020, Colorado voters approved Proposition EE. (See
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`Order, Dist. Ct. Dkt. No. 73, at 1.) On November 18, 2020, Smith and the
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`Manufacturers moved for a preliminary injunction, seeking to enjoin the State from
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`implementing and enforcing Section 10. (Dist. Ct. Dkt. No. 13.)
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`The District Court expedited briefing and, on December 21, 2020, held a
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`preliminary injunction hearing. (Dist. Ct. Dkt. No. 19.)
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`Smith and the Manufacturers offered evidence that unless enforcement of
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`Section 10 were enjoined, the Manufacturers would lose millions of dollars of
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`annual sales and profits of their discount cigarettes in Colorado, as well as
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`customers, market share, and good will it took them years to establish, and Smith
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 6
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`would be forced to pay nearly double for cigarettes she purchases in Colorado, all
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`of which they would be unable to recover even if they ultimately prevail in their
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`lawsuit. (See, e.g., Dist. Ct. Dkt. Nos. 13-1, 13-2, 13-3.) The State did not contest
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`the irreparable harm to Smith and the Manufacturers, for purposes of the
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`preliminary injunction motion. (See Order, Dist. Ct. Dkt. No. 73, at 5.)
`
`On December 28, 2020, the U.S. District Court for the District of Colorado
`
`(Hon. Raymond Moore) denied Smith and the Manufacturers’ motion for a
`
`preliminary injunction. (See Order, Dist. Ct. Dkt. No. 73.) The District Court
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`assumed the irreparable harm requirement had been met because defendants did
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`not challenge that the Manufacturers will suffer irreparable harm should an
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`injunction not enter, but found that the Manufacturers failed to establish likelihood
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`of success on the merits of their claim that Section 10 violates the Commerce
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`Clause. (See id.)
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`On December 31, 2020, Smith and the Manufacturers filed a Notice of
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`Appeal. Their opening brief will show that the District Court made erroneous legal
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`conclusions and otherwise abused its discretion in denying their motion for a
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`preliminary injunction.
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`Smith and the Manufacturers showed in the District Court – and the State
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`did not contest – that the injury to Smith and the Manufacturers will be immediate
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`and irreparable once Section 10 takes effect. Smith and the Manufacturers seek to
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 7
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`expedite their appeal because every day that passes after January 1, 2021, their
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`undisputed irreparable harm will grow.
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`Subject to the Court’s availability to hold oral argument, Smith and the
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`Manufacturers respectfully move the Court to adopt the following expedited
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`schedule in this case:
`
`Appellants’ opening brief:
`Joint appendix:
`
`Appellees’ brief:
`
`Appellants’ reply brief:
`Oral argument:
`
`
`
`
`January 11, 2021
`January 11, 2021
`January 25, 2021
`January 29, 2021
`As soon as Appellants may be heard
`
`ARGUMENT
`Pursuant to Federal Rule of Appellate Procedure 2 and Tenth Circuit Rule
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`2.1, this Court has discretion to expedite an appeal, discretion it has exercised
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`numerous times to expedite appeals that review the grant or denial of a preliminary
`
`injunction. See, e.g., S. Wind Women’s Ctr. LLC v. Stitt, 808 Fed. Appx. 677 (10th
`
`Cir. 2020) (expedited appeal of district court order granting temporary restraining
`
`order); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en
`
`banc) (expedited appeal of denial of preliminary injunction, in light of impending
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`deadline to comply with Affordable Care Act); Salt Lake Tribune Publ’g Co. v.
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`AT&T Corp., 320 F.3d 1081 (10th Cir. 2003) (expedited appeal of denial of
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`preliminary injunction); Utahns for Better Transp. v. U.S. Dep’t of Transp., Nos.
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 8
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`01-4216, 01-4217, 01-4220, 2001 WL 1739458 (10th Cir. Nov. 16, 2001)
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`(expediting appeals to minimize damage caused by an injunction pending appeal).
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`Here, good cause exists to expedite Smith and the Manufacturers’ appeal
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`because it is uncontroverted that they will suffer immediate and irreparable harm
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`once Section 10 takes effect on January 1, 2021. Expediting the appeal on the
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`schedule Smith and the Manufacturers propose would shorten the State’s time to
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`file its brief from 30 days after Appellants’ Brief is filed to 14 days. However, this
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`interlocutory appeal focuses on the narrow issue of whether Smith and the
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`Manufacturers are likely to succeed on the merits of their claim that Section 10
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`violates the dormant Commerce Clause of the U.S. Constitution, which the State
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`already briefed in the District Court below. (Dist. Ct. Dkt. No. 40.)
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`To ensure prompt resolution of this narrow issue and to prevent the
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`accumulation of irreparable harm to them, Smith and the Manufacturers request
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`that the appeal be expedited to ensure prompt resolution.
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`CONCLUSION
`For the foregoing reasons, Smith and the Manufacturers respectfully request
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`that the Court grant their Motion to Expedite Appeal.
`
`Dated: January 1, 2021
`
`
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`5
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 9
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`Respectfully submitted,
`
`By: /s/ Maria Gorecki
`Maria Gorecki
`KASOWITZ BENSON TORRES LLP
`1400 16th Street
`16 Market Square, Suite 400
`Denver, CO 80202
`Tel.: 720.932.8303
`Email: mgorecki@kasowitz.com
`
`Marc E. Kasowitz
`Daniel R. Benson
`Paul J. Burgo
`KASOWITZ BENSON TORRES LLP
`1633 Broadway
`New York, New York 10019
`Tel.: 212.506.1700
`Email: mkasowitz@kasowitz.com
`
`-and-
`
`Jon Anderson
`MAVEN LAW GROUP
`1800 Glenarm Place, Suite 950
`Denver, CO 80202
`Phone: 303-218-7141
`Email: janderson@mavenlawgroup.com
`
`Attorney for Plaintiffs-Appellants Jennifer
`Ann Smith, Liggett Group LLC, Vector
`Tobacco, Inc., and Xcaliber International
`Ltd., LLC
`
`-and-
`
`6
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`
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 10
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`E. Job Seese (admission pending)
`Katarzyna A. Parecki (admission pending)
`HALL, ESTILL, HARDWICK, GABLE,
`GOLDEN & NELSON, P.C.
`1600 Stout Street, Suite 1100
`Denver, Colorado 80202
`720.512.5820
`jseese@hallestill.com
`
`Attorneys for Xcaliber International Ltd.,
`LLC
`
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 11
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`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,
`TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS
`
`1. This document complies with the word limit of Fed. R. App. P. 27(d) because,
`excluding the parts of the document exempted by Fed. R. App. P. 32(f):
`
`this document contains 1,058 words.
`
`2. This document complies with the typeface requirements of Fed. R. App. P.
`32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:
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`this document has been prepared in a proportionally spaced typeface using
`Microsoft Word 2013 in 14-point Times New Roman.
`
`Date: January 1, 2021
`
`
`
`/s/ Maria Gorecki
`Maria Gorecki
`KASOWITZ BENSON TORRES LLP
`1400 16th Street, Suite 400
`Denver, Colorado 80202
`Tel.: 720.932.8303
`Email: mgorecki@kasowitz.com
`Attorneys for Plaintiffs-Appellants
`
`
`
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 12
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`CERTIFICATE OF DIGITAL SUBMISSION
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`I hereby certify that with respect to the foregoing:
`
`(c)
`
`(a) all required privacy redactions have been made per 10th Cir. R. 25.5;
`(b)
`if required to file additional hard copies, that the ECF submission is
`an exact copy of those documents;
`the digital submissions have been scanned for viruses with the most
`recent version of a commercial virus scanning program, Symantec
`Endpoint Protection, version 14 (14.3), updated December 31, 2020,
`and according to the program are free of viruses; and
`this pleading complies with applicable type volume limits, as
`described in the Certificate of Compliance with Type-Volume Limit.
`Date: January 1, 2021
`
`
`(d)
`
`/s/ Maria Gorecki
`Maria Gorecki
`
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`Appellate Case: 20-1454 Document: 010110458839 Date Filed: 01/01/2021 Page: 13
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 1, 2021, with the written consent of the
`
`recipients, I e-mailed the foregoing to the following to:
`
`Terry Gill, Acting Deputy Attorney General, terry.gill@coag.gov
`Russell Johnson, Assistant Solicitor General, russell.johnson@coag.gov
`Ben Kapnik, Assistant Attorney General, ben.kapnik@coag.gov
`Reed Morgan, Assistant Attorney General, reed.morgan@coag.gov
`and I caused to be served by U.S. mail a hard copy addressed to the following:
`Terry Gill, Acting Deputy Attorney General
`Office of the Attorney General, Revenue & Utilities Section
`Ralph L. Carr Colorado Judicial Center
`1300 Broadway, 8th Floor
`Denver, Colorado 80203
`
`Date: January 1, 2021
`
`/s/ Maria Gorecki
`Maria Gorecki
`KASOWITZ BENSON TORRES LLP
`1400 16th Street, Suite 400
`Denver, Colorado 80202
`Tel.: 720.932.8303
`Email: mgorecki@kasowitz.com
`Attorneys for Plaintiffs-Appellants
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`10
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