Esparza v. Kostmayer Construction, LLC et al, No. 2:2015cv04644 - Document 42 (E.D. La. 2016)

Court Description: ORDER AND REASONS granting 7 Motion to Certify Class. IT IS ORDERED that Esparzas motion to conditionally certify this matter as a collective action under the FLSA is GRANTED. The Court conditionally certifies this matter as a collective action wi th respect to all individuals who worked or are working performing manual labor for Kostmayer Construction LLC during the previous three years and who are eligible for overtime pay pursuant to the FLSA, 29 U.S.C. § 207, and who did not receive f ull overtime compensation.IT IS FURTHER ORDERED that Esparza file a revised notice form and a revised opt-in consent form in accordance with this order by July 8, 2016.IT IS FURTHER ORDERED that Defendants produce to Esparza a list of the names, last -known mailing addresses, email addresses, and dates of employment of all potential class members by July 15, 2016.IT IS FURTHER ORDERED that class members seeking to opt in to this case will have 90 days from the date on which the notice and consent forms are mailed to opt in to the lawsuit. Signed by Judge Susie Morgan on 7/1/16. (cg)

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Esparza v. Kostmayer Construction, LLC et al Doc. 42 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A FABIAN ESPARZA, Plain tiff CIVIL ACTION VERSU S N O. 15 -4 6 4 4 KOSTMAYER CON STRU CTION , LLC, ET AL., D e fe n d an ts SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is Plaintiff’s m otion to conditionally certify a collective action under the Fair Labor Standards Act an d to facilitate notice under 29 U.S.C. § 216(b). 1 BACKGROU N D This is a collective action filed by Plaintiff Fabian Esparza (“Esparza”) under the Fair Labor Standards Act of 1938 (“FLSA”). 2 Esparza filed this suit on Septem ber 22, 20 15, on behalf of him self and all other sim ilarly situated individuals who are or were em ployed to perform m anual labor by Defendants Kostm ayer Construction, LLC (“Kostm ayer Construction”). 3 Kostm ayer Construction is an industrial m arine contractor that provides “full-service m arine fabrication facilities” and perform s exten sive piping work in petrochem ical and industrial plants, builds m aterial-han dling system s, and perform s heavy civil construction work throughout the Gulf Coast states. 4 Defendant Hiram Investm ents, LLC (“Hiram ”) is a real-estate m anagem ent com pany. Defen dant J am es Kostm ayer is owner, president, m anager, and director of Kostm ayer Construction 1 R. Doc. 7. 29 U.S.C. § 20 1 et seq. 3 R. Doc. 1; R. Doc. 25. 4 R. Doc. 1 at ¶ 13; R. Doc. 5 at ¶ 13. 2 1 Dockets.Justia.com and Hiram . 5 Esparza alleges Defen dants failed to pay overtim e wages for tim e he and other m anual laborers worked in excess of 40 hours per week in violation of the FLSA. 6 Esparza alleges Defendants circum vented FLSA requirem ents by im plem enting a policy whereby a check for wages for the first 40 hours per week would be issued by Kostm ayer Construction but a check for wages for hours worked in excess of 40 hours per week would be issued by Hiram or another third-party entity. 7 Esparza seeks unpaid wages, pre- and post-judgm ent interest, liquidated dam ages, and attorney’s fees and costs on behalf of him self and other sim ilarly situated em ployees who worked for Defendants during the past three years. 8 Plaintiff also seeks declaratory and injunctive relief. 9 On J anuary 21, 20 16, Esparza filed a m otion to conditionally certify and to facilitate notice under the FLSA. 10 Defendants filed a response in opposition on February 25, 20 16. 11 Esparza filed a reply in support of his m otion to certify on March 2, 20 16. 12 The Court held oral argum ent on March 23, 20 16. 13 Following oral argum ent, Esparza filed a supplem ental m em orandum on March 30 , 20 16. 14 Esparza seeks to certify the following collective class: All individuals who worked or are working perform ing m anual labor for Kostm ayer Construction LLC during the previous three years and who are eligible for overtim e pay pursuant to the FLSA, 29 U.S.C. § 20 7 and who did not receive full overtim e com pensation. 15 5 R. Doc. 1 at ¶ 24; R. Doc. 5 at ¶ 24. R. Doc. 1. 7 See id. at ¶ 10 . 8 R. Doc. 1 at 6– 7. 9 Id. 10 R. Doc. 7. 11 R. Doc. 13. 12 R. Doc. 16. 13 See R. Doc. 21. 14 R. Doc. 25. Esparza filed a supplem ental m em orandum in which he acknowledged his initial proposed class definition was “inadequate.” 15 R. Doc. 25 at 1. 6 2 Defendants filed a response on April 4, 20 16. 16 STAN D ARD OF LAW Section 20 7(a) of the FLSA requires covered em ployers to com pensate non-exem pt em ployees at overtim e rates for tim e worked in excess of statutorily-defin ed m axim um hours. 17 Courts construe the FLSA “liberally in favor of em ployees, and exem ptions are to be narrowly construed against the em ployers seeking to assert them .”18 Under the FLSA, an em ployee m ay brin g an action on “behalf of him self . . . and other em ployees sim ilarly situated” to recover unpaid wages, liquidated dam ages, and attorney’s fees from an em ployer in violation of the Act. 19 While the FLSA applies to em ployees, it does not apply to indepen dent contractors. 20 Unlike Rule 23 class actions, in which potential class m em bers m ay choose to opt out of the action, FLSA collective actions require potential class m em bers to affirm atively opt in to the action. 21 “District courts are provided with discretionary power to im plem ent the collective action procedure through the sending of notice to potential plaintiffs.”22 Notice m ust be “tim ely, accurate and inform ative.”23 When deciding whether to certify a collective action, the Court m ust determ ine whether the m em bers of the putative collective class are sufficiently “sim ilarly situated” 16 R. Doc. 33. 29 U.S.C. § 20 7(a). See also McGavock v. City of W ater Valley , Miss., 452 F.3d 423, 424– 25 (5th Cir. 20 0 6) (“The Fair Labor Standards Act of 1983 establishes the gen eral rule that em ployees m ust receive overtim e com pensation at one and one-half tim es the regular rate for hours worked in excess of 40 hours during a seven -day workweek.”). 18 McGavock, 452 F.3d at 424. 19 29 U.S.C. § 216(b). 20 Hopkins v. Corn erstone Am ., 545 F.3d 338, 342 (5th Cir. 20 0 8). 21 See Sandoz v. Cingular W ireless LLC, 553 F.3d 913, 916 (5th Cir. 20 0 8); Baricuatro v. Indus. Pers. & Mgm t. Servs., Inc., No. 11-2777, 20 12 WL 547230 2, at *1 (E.D. La. Nov. 9, 20 12); Lim a v. Int’l Catastrophe Sols., Inc., 493 F. Supp. 2d 793, 797 (E.D. La. 20 0 7). 22 Lopez v. Hal Collum s Constr., LLC, No. 15-4113, 20 15 WL 730 2243, at *4 (E.D. La. Nov. 18, 20 15) (quotin g Lim a, 493 F. Supp. 2d at 797). 23 Lim a, 493 F. Supp. 2d at 797 (quotin g Hoffm ann-La Roche Inc. v . Sperling, 493 U.S. 165, 172 (1989)). 17 3 such that the Court should circulate notice to potential class m em bers and provide them with an opportunity to opt in to the case. 24 The FLSA does not define “sim ilarly situated.”25 In Mooney v. Aram co Services Co., 26 the Fifth Circuit recognized that courts have followed two approaches—one set forth in Lusardi v. Xerox Corporation 27 and the other in Shushan v. University of Colorado at Boulder 28 —when evaluating whether putative class m em bers are “sim ilarly situated” and whether notice should be given. 29 Although the Fifth Circuit has not endorsed a particular approach, 30 district courts com m only follow the two-stage Lusardi approach, as will this Court. 31 The first Lusardi step is the “notice stage,” in which the Court is charged with deciding whether to grant “conditional certification” and issue notice to potential m em bers of the putative collective class. 32 This determ ination is typically m ade on the basis of only the pleadings and any affidavits. 33 At the notice stage, the burden is on the plaintiff to dem onstrate that “(1) there is a reasonable basis for crediting the assertion that aggrieved individuals exist; (2) those aggrieved individuals are sim ilarly situated to 24 See 29 U.S.C. § 20 7(a). See 29 U.S.C. § 20 7; Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567, 573 (E.D. La. 20 0 8 ). 26 Mooney v. Aram co Servs. Co., 54 F.3d 120 7, 1212 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (20 0 3). 27 Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J . 1987). 28 Shushan v. Univ. of Colorado at Boulder, 132 F.R.D. 263 (D. Colo. 1990 ). 29 Mooney , 54 F.3d at 1213– 14. 30 Acevedo v. Allsup’s Convenience Stores, Inc., 60 0 F.3d 516, 518– 19 (5th Cir. 20 10 ) (“We have not ruled on how district courts should determ in e whether plaintiffs are sufficiently ‘sim ilarly situated’ to advance their claim s together in a single § 216(b) action.”). 31 See, e.g., Lang v. DirecTV, Inc., No. 10 -10 85, 20 11 WL 693460 7, at *7 (E.D. La. Dec. 30 , 20 11) (notin g that the Lusardi approach is “the m ore com m on approach and routinely used by courts in this District”); Lim a, 493 F. Supp. 2d at 797; W illiam s v. Bally ’s Louisiana, Inc., No. 0 5-50 20 , 20 0 6 WL 123590 4, at *2 (E.D. La. May 5, 20 0 6) (“[A] consensus of courts apply a two-step an alysis for conditional certification . . . .”); Badgett v. Texas Taco Cabana, L.P., No. 0 5-3624, 20 0 6 WL 2934265, at *1 (S.D. Tex. Oct. 12, 20 0 6) (“While the Fifth Circuit has not endorsed a particular m ethod for this process, the m ore com m only used m ethod, an d the one utilized by other courts in the Southern District of Texas, is the “twostage” Lusardi m ethod.”); England v. N ew Century Fin. Corp., 370 F. Supp. 2d 50 4, 50 9 (M.D. La. 20 0 5); Basco v. W al-Mart Stores, Inc., No. 0 0 -3184, 20 0 4 WL 149770 9, at *4 (E.D. La. J uly 2, 20 0 4). 32 Chapm an v. LH C Grp., Inc., No. 13-6384, 20 15 WL 50 89531, at *5 (E.D. La. Aug. 27, 20 15). 33 Sandoz v. Cingular W ireless LLC, 553 F.3d 913, 916 n .2 (5th Cir. 20 0 8 ); Chapm an, 20 15 WL 50 8 9531, at *5 (citin g Mooney , 54 F.3d at 1213– 14). 25 4 the plaintiff in relevant respects given the claim s and defenses asserted; and (3) those individuals want to opt in to the lawsuit.”34 “Because the court has m inim al evidence, this determ ination is m ade using a fairly lenient standard, an d typically results in conditional certification of a representative class.”35 Generally, courts “require nothing m ore than substantial allegations that the putative class m em bers were together the victim s of a single decision, policy, or plan . . . .”36 While the burden is len ient, however, certification is not autom atic. 37 “[G]eneral allegations that the em ployer violated the FLSA are insufficient.”38 If the Court grants conditional certification, the case proceeds through discovery as a collective class action to the “m erits stage,” during which the defendant m ay m ove for decertification of the class. 39 At the m erits stage, the court applies a three-factor test, “considering (1) the extent to which em ploym ent settings are sim ilar or disparate; (2) the extent to which any of the em ployer’s defenses are com m on or individuated; and (3) fairness and procedural concerns.”40 The court then “m akes a factual determ ination on the sim ilarly situated question.”41 “If the claim ants are sim ilarly situated, the district court allows the representative action to proceed to trial.”42 If the claim ants are not sim ilarly situated, the court dism isses the claim s of the opt-in plaintiffs without prejudice, and the class representatives proceed to trial on their individual claim s. 43 34 Chapm an, 20 15 WL 50 89531, at *5. See also Morales v. Thang Hung Corp., No. 0 8-2795, 20 0 9 WL 252460 1, at *2 (S.D. Tex. Aug. 14, 20 0 9). 35 Mooney , 54 F.3d at 1214 (internal quotation m arks om itted). 36 Id. at 1214 n.8 (quotin g Sperling v. Hoffm an-La Roche, Inc., 118 F.R.D. 392, 40 7 (D.N.J . 198 8)). See also Skelton v. Sukothai, LLC, 994 F. Supp. 2d 785, 787 (E.D. La. 20 14). 37 W hite v. Integrated Elec. Techs., Inc., No. 12-359, 20 13 WL 290 30 70 , at *3 (E.D. La. J une 13, 20 13). 38 Melson v. Directech Sw ., Inc., No. 0 7-10 87, 20 0 8 sWL 2598988 , at *4 (E.D. La. J une 25, 20 0 8 ). 39 Chapm an, 20 15 WL 50 8 9531, at *6 (citing Mooney , 54 F.3d at 1214). 40 Id. See also Johnson, 561 F. Supp. 2d at 573– 74. 41 Mooney , 54 F.3d at 1214. 42 Id. 43 Id. 5 D ISCU SSION I. Conditional Certification of the FLSA Collective Action Esparza stated in his sworn declaration that he worked as a m anual laborer, doing m etal cutting, carpentry, welding, and painting, for Kostm ayer Construction in 20 12 and from April 20 14 through April 20 15. 44 Esparza further stated he was paid $ 15 per hour and, while he “often” worked m ore than 40 hours per week, he was not paid overtim e wages for hours worked in excess of 40 hours. 45 Esparza declared that his co-workers worked m ore than 40 hours per week but also were not paid overtim e wages for hours worked in excess of 40 hours per week. 46 Specifically, Esparza asserts, “For the first forty hours that I worked in any particular work week I was paid by Kostm ayer Construction with a check that bore the nam e Kostm ayer Construction, Inc. For every hour that I worked in excess of forty in any particular work week I was paid by Kostm ayer Construction with a check that bore the nam e Hiram Investm ents, L.L.C.”47 Esparza further avers that he “personally observed” that other Kostm ayer em ployees were paid in the sam e m anner; “[t]hey were issued two separate checks: one from Kostm ayer Construction, Inc. and one from Hiram Investm ents, L.L.C.”48 Esparza also attached to his m otion paychecks reflecting that on J uly 3, 20 14, he was indeed issued checks by both Kostm ayer Construction and Hiram . 49 Esparza seeks to certify a class of m anual laborers who work or worked for Kostm ayer during the last three years and were not paid overtim e wages. 50 44 R. Doc. 7-2 at ¶¶ 2, 6. Id. at ¶¶ 9, 10 . 46 Id. at ¶¶ 11, 15, 16. 47 Id. at ¶¶ 12– 13. 48 Id. at ¶ 14. 49 R. Doc. 7-3. 50 R. Doc. 25 at 1. 45 6 Defendants argue that the class definition is “overly broad” and should be lim ited only to those individuals who worked for both Kostm ayer Construction and Hiram and received pay at the regular hourly rate from Hiram for hours worked in excess of 40 hours per week. 51 The Court finds the class definition is not overly broad, as Esparza has provided sufficient evidence at this stage to dem onstrate a reasonable basis for finding that there exist aggrieved in dividuals who are sim ilarly situated to Esparza in relevant respects an d that those individuals wish to opt in to the lawsuit. 52 Esparza provided a sworn declaration asserting he perform ed m anual labor while em ployed by Kostm ayer an d “often” worked in excess of 40 hours per week without receiving overtim e com pensation as required under the FLSA. 53 Although he was alleges he was subject to this two-check schem e in Defendants’ alleged attem pt to circum vent the requirem ents of the FLSA, he also declared he “personally observed” other Kostm ayer em ployees who worked m ore than 40 hours per week for Kostm ayer but were not paid overtim e wages for hours worked in excess of 40 hours per week. 54 Esparza specifically identifies two co-workers who had “the sam e basic duties” as Esparza and who “had never received overtim e wages from Kostm ayer.”55 At this stage, courts gen erally consider whether potential plaintiffs were identified, whether affidavits or sworn declarations of potential plaintiffs were subm itted, and whether evidence of a widespread discrim inatory plan was subm itted. 56 Courts “require nothing m ore than substantial allegations that the putative class m em bers were 51 R. Doc. 13 at 3– 5; R. Doc. 33 at 1– 5. See Chapm an , 20 15 WL 50 89531, at *5; Morales, 20 0 9 WL 252460 1, at *2. 53 R. Doc. 7-2 at ¶ 10 . 54 Id. at ¶ 14. 55 Id. at ¶¶ 15– 16. 56 Lim a, 493 F. Supp. 2d at 798. 52 7 together the victim s of a single decision, policy, or plan”57—in this case, that Defendants had a policy of not paying overtim e wages for hours worked in excess of 40 hours per week, in contravention of the FLSA. Esparza’s allegations and evidence of a com pan ywide policy of non-paym ent of overtim e wages “are sufficient to satisfy the lenient standard for conditional certification at the notice stage.”58 Accordingly, conditional certification is appropriate. Defen dants m ay later file a m otion for decertification after a m ore extensive discovery process has been conducted, if it is determ ined at that stage that Esparza has failed to carry his burden of establishing that he and m em bers of the proposed class are sim ilarly situated. 59 Defendants also argue that a class period of three years is arbitrary and that the class period should be lim ited only to the time fram e of Esparza’s em ploym ent. 60 In his supplem ental m em orandum , Esparza cites several cases in this district in which the court conditionally certified classes with periods of three years. 61 “[T]he FLSA is a rem edial statute, and the federal courts should give it a liberal construction.”62 “The purpose of the 57 Mooney , 54 F.3d at 1214 n .8 (quotin g Sperling, 118 F.R.D. at 40 7). See also Skelton, 994 F. Supp. 2d at 787. 58 Prejean, 20 13 WL 5960 674, at *8 . See also Donohue v. Francis Servs., Inc., No. 0 4-170 , 20 0 4 WL 1161366, at *2 (E.D. La. May 24, 20 0 4) (“It seem s appropriate to certify the collective action at this tim e and revisit the question later after som e discovery.”); Ebbs v. Orleans Par. Sch. Bd., No. 0 4-1198 , 20 0 7 WL 2127699, at *1– *2 (E.D. La. J uly 24, 20 0 7). 59 See Prejean, 20 13 WL 5960 674 at *4. 60 R. Doc. 13 at 5; R. Doc. 33 at 5– 6. 61 R. Doc. 25 at 7– 8. See W hite, 20 13 WL 290 30 70 ; Martinez v. Southern Solutions Land Mgm t., No. 142366, R. Doc. 25 (E.D. La. Mar. 19, 20 15); Calix v. Ashton Marine LLC, No. 14-2430 , R. Doc. 28 (E.D. La. Mar. 25, 20 15); Banegas v. Calm ar Corp., No. 15-593, R. Doc. 29 (E.D. La. Aug. 10 , 20 15); Rios v. Classic Southern Hom e Construction, No. 15-410 4, R. Doc. 26 (E.D. La. Dec. 22, 20 15); Lopez v . Hal Collum s Construction, LLC, No. 15-4113, R. Doc. 23 (E.D. La. Nov. 18, 20 15); Palm a v. Torm us Inc., No. 15-30 25, R. Doc. 20 (E.D. La. Feb. 29, 20 16). 62 Songer v. Advanced Bldg. Servs., LLC, No. 14-3154, 20 15 WL 5147579, at *4 (S.D. Tex. Sept. 2, 20 15) (quotin g Aros v. United Rentals, Inc., 269 F.R.D. 176, 182 (D.Conn.20 10 )). See also Cleveland v. City of Elm endorf, Tex., 38 8 F.3d 522, 526 (5th Cir. 20 0 4) (referring to the “broad” reach of the FLSA); Beldin v. Travis Cty ., 85 F. App’x 373 (5th Cir. 20 0 3) (“The FLSA ought to be interpreted broadly . . . .”); Dunlop v. Ashy , 555 F.2d 1228 , 1234 (5th Cir. 1977) (“We are m indful of the liberal construction to be afforded the FLSA, but the Act m ust be applied with reason and in a com m on sen se fashion .” (citations om itted)). 8 FLSA is to elim in ate low wages and long hours and free com m erce from the interferen ces arising from production of goods under conditions that were detrim ental to the health and well-being of workers.”63 As the Suprem e Court instructed, “[t]he broad rem edial goal of the [FLSA] should be enforced to the full extent of its term s.”64 Accordingly, the Court will perm it the collective class to encom pass the three-year period allowed under the FLSA. 65 II. Form , Content, and Tim ing of Notice to be Given The judicial system benefits by efficient resolution in one proceeding of com m on issues of law and fact arising from the sam e alleged activity. 66 “These benefits, however, depen d on em ployees’ receiving accurate and tim ely notice concerning the penden cy of the collective action, so that they can m ake inform ed decisions about whether to participate.”67 The parties have agreed to a 90 -day opt-in period. 68 Esparza has subm itted a proposed notice form setting forth the scope of the litigation and inform ing putative class m em bers of their rights 69 and a proposed opt-in consent form that putative class m em bers m ay sign and return in order to opt in to this case. 70 After Esparza revised the class definition in his supplem ental m em orandum , he did not subm it revised notice and consent form s to reflect the collective class proposed therein. Accordingly, Esparza shall revise the proposed notice and consent form s to reflect the class definition approved by 63 Usery v. Pilgrim Equip. Co., 527 F.2d 130 8 , 1310 (5th Cir. 1976) (internal quotation m arks om itted). Hoffm ann-LaRoche, 493 U.S. at 173. 65 See 29 U.S.C. § 255. 66 See Hoffm ann -LaRoche, 493 U.S. at 170 . 67 Id. 68 See R. Doc. 13 at 6; R. Doc. 16 at 5. 69 R. Doc. 7-6 at 1– 2 (En glish); R. Doc. 7-7 at 1– 2 (Spanish). 70 R. Doc. 7-6 at 3 (En glish); R. Doc. 7-7 at 3 (Spanish). 64 9 this order. In order to facilitate notice, Esparza requests that the Court require Defendants to produce, within 14 days, a list of nam es, last-known m ailing addresses, em ail addresses, and dates of em ploym ent of any potential class m em bers. 71 Defendants do not oppose Esparza’s request or his proposed notice and consent form s, 72 and several courts have approved sim ilar requests. 73 Accordingly, the Court grants Esparza’s request. CON CLU SION Accordingly; IT IS ORD ERED that Esparza’s m otion to conditionally certify this m atter as a collective action under the FLSA is GRAN TED . The Court conditionally certifies this m atter as a collective action with respect to all individuals who worked or are working perform ing m anual labor for Kostm ayer Construction LLC during the previous three years and who are eligible for overtim e pay pursuant to the FLSA, 29 U.S.C. § 20 7, and who did not receive full overtim e com pensation. IT IS FU RTH ER ORD ERED that Esparza file a revised notice form and a revised opt-in consent form in accordance with this order by Ju ly 8 , 2 0 16 . IT IS FU RTH ER ORD ERED that Defendants produce to Esparza a list of the nam es, last-known m ailing addresses, em ail addresses, and dates of em ploym ent of all 71 R. Doc. 7-1 at 20 . See R. Docs. 13, 33. 73 See, e.g., Prejean, 20 13 WL 5960 674, at *1 (requiring the defendants to give the plaintiffs within 30 days “a com puter-readable data file contain ing all potential opt-in plaintiffs’ nam es and last known m ailing and e-m ail addresses” (em phasis in original)); W illiam s, 20 0 6 WL 123590 4, at *3 (requirin g defendant to provide plaintiffs with nam es, last-known addresses, and phone num bers of all potential opt-in plaintiffs within 26 days); Recinos-Recinos v. Express Forestry , Inc., 233 F.R.D. 472, 48 2 (E.D. La. 20 0 6) (requiring defendants to provide plain tiffs with nam es, last-known addresses, and phone num bers of all potential optin plaintiffs within 16 days). 72 10 potential class m em bers by Ju ly 15, 2 0 16 . IT IS FU RTH ER ORD ERED that class m em bers seeking to opt in to this case will have 90 days from the date on which the notice and consent form s are m ailed to opt in to the lawsuit. N e w Orle an s , Lo u is ian a, th is 1s t d ay o f Ju ly, 2 0 16 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 11

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