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IN THE FOURTH JUDICIAL CIRCUIT IN AND FOR GOTHAM COUNTY, STATE OF EMPIRE

FRANK CASTLE, a.k.a. THE PUNISHER, Plaintiff, v. INDEPENDENT ASSOCIATION OF SUPERHEROES, Defendant. / PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT The Plaintiff, Frank Castle (The Punisher), pursuant to Emp. R. Civ. P. 56(c), files this Motion for Summary Judgment against Defendant, Independent Association of Superheroes (IAS) and requests this Court grant summary judgment because there are no genuine issues of material fact and Castle is entitled to judgment as a matter of law. Summary judgment in Castles favor is appropriate because Castle, as the Punisher, is a superhero and a member of the super community. Because Castle is a superhero, the statements made by the IAS President, Clint Barton, that Castle is a Supervillain or vigilante are defamatory as a matter of law. The Punisher is a Superhero. First, The Punisher has a pro-social mission fighting evil. Second, The Punisher has superpowers that are in the form of highly developed skills. Finally, The Punisher has an identity in the form of a codename and an iconic costume. CASE NO.: 2010-CV-999 DIVISION: CV-G

STATEMENT OF THE CASE AND FACTS The Punisher, formally known as Frank Castle, acts as a one-man army on crime. Fighting evil and injustice. The Punisher The Punisher could have become a Catholic Priest but instead

decided to serve his Country. He is an ex marine who served in Vietnam, where he earned a Purple Heart. He is a combat veteran who has training as a sniper, U.S. Navy SEAL, UDT (Underwater Demolition Team), LRRP (Long Range Recon Patrol) and airborne training with the U.S. Army and U.S. Navy Special Forces. He is an Olympic level athlete and martial arts master who also has an exceptionally high I.Q. Frank Castle and his family, a wife and two children, witnessed a Mafia gangland execution. Because they were witnesses, members of the Costa crime family murdered Castles wife and his only two children. Although also shot, Castle survived. He was able to identify all of the people involved in the murder of his wife and his two children. However, the police were corrupt and did not arrest the mafia gang members, because of their connections with the crime family. Shortly after, Frank Castle abandoned his name and took on a new identity, The Punisher. Now The Punisher, does the job that the corrupted police officers could not do, provide justice against evil. His desire is to not see average people become victims of crime and endure the same kind of loss he had to experience. The Punisher wears a Kevlar full armor bodysuit with a big white skull painted on his chest. The bodysuit provides protection and, is black to allow him to use stealth to carry out justice. The Punisher has access to military grade weapons and espionage grade surveillance equipment. He customizes his weapons for greater effectiveness making them unique. He has also occasionally used high tech transportation. The Punisher, uses his iconic costume, excessive strength and mental ability, and unique and sophisticated technology to take down organized crime like the Italian and Russian Mafia, the Japanese Yakuza, Columbian and Mexican drug cartels, and corrupted cops. The Punisher is a defense for society because he also takes down Supervillains. He has successfully taken down
Comment [WU1]: making them unique

the Kingpin. He also protects society from Supervillains like Bushwacker, The Reavers and Bullseye. Despite fighting for justice alone, he teams up with Superheroes as part of a Superhero collaboration to protect society from Supervillains. He has fought alongside and worked as a team with Spiderman, Daredevil, including minor run-ins with them as well. The Punisher never kills innocent people, and the only personal benefit he receives from his heroic actions is justice. The Punisher while protecting society from evil and injustice accidently kills criminals, who put themselves in dangerous situations because of their evil wrongdoings. On December 16,2011, The Punisher attended the annual black tie gala hosted by the Independent Association of Superheroes (IAS), because the event was open to all Superheroes. During dinner, it is traditional for the President of IAS to give a speech summarizing the major heroic events of the past year and present awards in a variety of different categories. As a result, there is a table reserved for reporters from the various newspapers in the city. The Punisher was sitting at a table ear the front of the room, right in the line of sight of the current President of IAS, Clint Barton (a.k.a Hawkeye). Barton, who used to be a Supervillain, has had conflicts with The Punisher. In mid-speech Barton broke off and suddenly started addressing The Punisher. Barton made the following accusation: Im sorry, but I just cant go on. Im up here talking about all of the heroic deeds that we have done over the past year. The innumerable times that we have saved this city, this country, humanity, from evil. And all the time, sitting right in front of me is an example of the type of evil that were trying to fight. I know The Punisher thinks of himself as a Superhero, but hes really nothing better than a vigilante . . . a Supervillain, not a Superhero. He has no right to be here. The room became silent after the accusation made by Barton. The only exits were located all the way at the back of the room, requiring The Punisher to walk, with

embarrassment, past all of his colleges and reporters, who were taking photos during the whole ordeal. The next day, the front-page article in all of the local newspapers, as well as national and international papers, included the statements by Barton, Hawkeye and a photograph of The Punisher. After this embarrassing scene, The Punisher has sued the IAS for defamation, because the accusation that Barton made was completely false, and thus defamatory. Both parties have filed Motions for Summary Judgment and this Memorandum addresses the issues raised by the competing motions.

SUMMARY JUDGMENT STANDARD Summary judgment, under Emp. R. Civ. P. 56(c), is proper only if pleadings, depositions, answers to interrogatories, and admissions show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Poplin v. Bestway Express, 286 F. Supp. 2d 1316, 1317 (M.D. Emp. 2003)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party establishes a prima facie case showing summary judgment is proper, the nonmovant, to avoid summary judgment, must present substantial evidence supporting the existence of a genuine issue of material fact. Id. (citing Celotex, 477 U.S. at 323). Substantial evidence is of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved. Hundley v. J.F. Spann Timber, Inc., No. 1051421, 2007 Emp. LEXIS 10, at *7 (Emp. January 12, 2007).

ARGUMENT SUMMARY JUDGMENT IS PROPER BECAUSE THE UNDISPUTED EVIDENCE AND APPLICABLE LAW DEMONSTRATE THE PUNISHER IS A

SUPERHERO AND ANY STATEMENTS THAT HE IS A VIGILANTE OR SUPERVILLIAN ARE DEFAMATORY AS A MATTER OF LAW.

Summary Judgment in The Punishers favor is proper because there are no genuine issues of material fact and The Punisher is entitled to judgment as a matter of law. The statement made by IAS President Clint Barton that The Punisher was a vigilante or Supervillain is not true and thus is defamatory. The Punisher is a Superhero because he meets the statutory elements required to be a Superhero. First, The Punisher has a mission in protecting humankind. This mission is pro-social, because his activities are in the interest of society, not motivated by wealth or power, and does not work cross-purpose to society. Second, The Punisher has superpowers in the form of highly developed skills. He has extensive strength and mental ability, and he has access to sophisticated technology that is beyond those available to the police and military. Finally, The Punisher has an identity in the form of a codename and an iconic costume. His codename, The Punisher, and his costume reflect his inner characteristics, and his Kevlar full bodysuit and painted white skull on his costume is unique from what ordinary humans similarly situated would wear.

POINT I THERE ARE NO GENUINE ISSUES OF MATERAL FACT PRECLUDING ENTRY OF SUMMARY JUDGMENT IN THE PUNISHERS FAVOR. In order for a court to grant summary judgment, it must first find that there is no genuine issue of material facts relating to the issue of law before the court. In the instant case, there are no genuine issues of material facts. Neither party disputes the accusations spoken by Clint Barton at the Black Tie Gala Event. Neither party disputes that The Punisher no longer goes by Frank Castle. Neither party disputes that The Punisher has

ample amount of training in the military and martial arts, as well as an exceptionally high I.Q. of 180, and was an Olympic level athlete. It is agreed that The Punisher has access to sophisticated military weapons and surveillance equipment and he customizes the equipment for greater effectiveness beyond available to the military and police. In addition, The Punisher wears a black Kevlar full body armor suit with a white skull painted on his chest. No party disputes that he fights Supervillains, criminals, and corrupted cops by himself, as well as teaming up with Superheroes to fight Supervillains. No party disputes that he has never killed an innocent person however, The Punisher concedes that criminals have been killed, while The Punisher was protecting society. We concedes that he has had run-ins with a few Superheroes. The Punisher does not receive any financial benefit while fighting evil and injustice. There are no genuine issues of material fact precluding entry of summary judgment in The Punishers favor.

POINT II THE PUNISHER IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON THE DEFAMATION CLAIM BECAUSE HE IS A SUPERHERO HAVING A PRO SOCIAL MISSION, SUPERPOWERS, AND AN IDENTITY. Because the Punisher is a superhero having a pro social mission, superpowers and an identity, statements made to third parties that he is not a superhero, but a vigilante or Supervillain, are defamatory as a matter of law. A person is defamed if there are statements or communications made about that person to third parties that are offensive and untrue. Emp. Stat. 497.331 (2006). Under a defamation claim, the falsity of the defamatory words is presumed. Id. The burden is on the defendant to prove the truth of the statement. Id. In order to be a member of the Super Community a person or entity must encompass three characteristics. First, the person or entity must have a mission that is pro-social or antisocial. Second, the person or entity must have superpowers, which can include extraordinary
Comment [NT3]: Ditto with NT1 Comment [NT2]: Feel free to modify or change any parts that I have filled in so that it works best for your presentation.

abilities or highly developed skills. Finally, a person or entity must have an identity embodied in either a codename or iconic costume. Emp. Stat. 123.45 (2006). A Superhero is a member of the Super Community who has a pro-social mission and is necessary to society because he or she is the only defense against Supervillains. Id. A Supervillain is a member of the Super Community who has an anti-social mission and can only be stopped by Superheroes. Id. The undisputed facts show The Punisher does meet all three elements to be a member of the Super Community and thus is a Superhero. First, The Punisher has superpowers because he has highly developed skills. Second, The Punishers mission to protect humankind is pro-social. In addition, he is a defense for society against Supervillains. Finally, The Punisher has an identity because his codename and his costume reflect his inner character. In addition, The Punishers full Kevlar armor bodysuit is a costume that is different from the police and the white skull allows society to easily recognize him. 1. The Punisher is a Superhero because he has superpowers in the way of highly developed skills, which consist of extensive physical strength, mental ability, and sophisticated technology.

In order to have superpowers a person must have highly developed skills. 123.45(b)(ii). A person has highly developed skills, and thus superpowers when he has extensive physical strength, extensive mental ability, or access to unusually sophisticated technology that is unique and performs functions beyond those available to the police and military. Joker v. Batman, 234 N. 2d 672, 672 (Emp. 2004). A Superhero that has extensive strength and mental ability has highly developed skills and thus superpowers. Id. In Joker, [t]he court found that Batman had superpowers in the form of highly developed skills, because he had extensive physical strength [and] mental ability. Id.

[H]is physical strength and mental abilities allow him to fight crime . . . . Peter Coogan, Superhero The Secret Origin of a Genre 1, 8 (Monkey Brain Books, 2006). Similarly in the Interest of Eve, the court noted, Xena, although not a Superhero because of her lack of identity, had superpowers due to her ability to perform many feats that are outside of the normal range of human abilities including the abilities to arm-wrestle warlords, punch through solid ice, kick down doors, and knock out opponents with a single punch. In the Interest of Eve, 602 N. 2d 521, 521. The court also noted her extensive fighting experience and the capacity to ignore significant physical pain. Id. Based on these skills the court acknowledged Xenas superpowers. Id. Xena had superpowers solely based on her physical and mental acuity, like Batman. Id. A person can also have superpowers in the form of highly developed skills when he or she has access to unusually sophisticated technology that is unique and performs functions beyond those available to the police and military. Joker, 234 N. 2d at 672. In Joker, the court held that Batmans Batplane, Batmobile, Bat Utility Belt, and Bat Shark Repellant were sophisticated technology giving Batman superpowers in the form of highly developed skills. Id. The court noted that Bat technology was unique and performed functions beyond those available to the police and military. Id. In the instant case, The Punisher has superpowers in the form of extensive physical strength and mental ability. Like Batman and Xena, The Punishers physical strength and mental abilities allow him to fight crime. He not only fights criminals by himself, but he fights Supervillains by himself as well. Other Superheroes continue to ask The Punisher to team up with them to fight Supervillains that they themselves cannot take down with out his extensive strength and mental ability. The Punisher is an ex-marine who served in Vietnam, where he was

awarded the Purple Heart. He was also shot when he witnessed his family being murdered, however he was able to survive. He is a combat veteran who has training as a sniper, U.S. Navy SEAL, UDT (Underwater Demolition Team), LRRP (Long Range Recon Patrol) and airborne training with the U.S. Army and U.S. Navy Special Forces. Similar to Xena, who has extensive fighting experience, The Punisher is a martial arts master, an Olympic level athlete and has an exceptionally high I.Q. Eve, 602 N. 2d at 551. The Punisher must have extensive strength in order to possess these abilities. Based on the foregoing, The Punisher has superpowers in the form of highly developed skills, and thus has possesses superpowers. In addition, The Punisher has highly developed skills by using a unique and sophisticated technology beyond that available to police and military. The Punisher has access to the best military grade weaponry and espionage surveillance equipment. He then, like Batman, customizes this sophisticated technology for even greater effectiveness making it unique to him. The Punisher takes the best and most sophisticated technology that is known to the police and military and he makes it better, he makes it unique. With his customization, his technology becomes beyond that available to police and military. The Punisher also has high tech transportation. The Punisher, therefore, has superpowers, because the access to this technology is considered highly developed skill. The Punisher has not only extensive strength, and mental ability but also sophisticated technology that is unique from the military and police and thus has superpowers.

2. The Punisher is a Superhero because he has a pro-social mission to protect humankind that is necessary to society and in the interest of society and is not motivated by power or wealth, and does not work at a cross-purpose to society.

In order to be a Superhero, a person must have a pro social mission 123.45(a). A Superhero has a pro-social mission if his actions seek to protect humankind. Superman v. Greatman, 987 N. 2d 789, 789 (Emp. 2007). In order to maintain a pro-social mission while protecting mankind, the person cannot be motivated by wealth or power, his mission is in the interest of society and necessary to society, and he is not working at a cross-purposes to society. State v. Jones, 654 N. 2d 267, 267 (Emp. 2006); Average v. Batman, 204 N. 2d 789, 789 (Emp. 2006); State v. Catwoman, 102 N. 2d 801, 801 (Emp.Dist. Ct. App. 2006). a) To have a pro-social mission a person cannot be motivated to protect humankind for wealth or power.

In order to have a pro-social mission a person cannot be motivated by wealth or power. Jones, 654 N. 2d at 267. A mission must be different from that of ordinary human beings. Id. In Jones, Jones was found guilty of Burglary of first degree. Id. The charges resulted from Jones entering the offices of a local law firm in the middle of the night in order to obtain records to prove that the law firm was attempting to kill her client. Id. As a defense to the charges, Jones raised the Superhero Exception statute. Id. Despite the fact that Jones had superpowers, the court found Jones was not a Superhero, because she did not have the requisite pro-social mission. Id. The court reasoned her use of her superpowers for the sole purpose of doing a job and earning money did not create a mission sufficiently different from that of ordinary human beings doing the same job. Id. Similarly in Catwoman, Catwoman stole a priceless piece of artwork out of the boardroom to support her lavish lifestyle. Catwoman, 102 N. 2d at 801. The court found Catwoman was not a Superhero because her actions were motivated by wealth. Id. On the other hand, In Joker, the court held that Batman had a pro-social mission of fighting crime that

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was motivated by the fact that his parents were murdered by criminals. Average, 204 N. 2d at 789. In the instant case, in protecting humankind The Punisher is not motivated by receiving wealth or power. The Punisher does not receive any financial benefits. The only benefit he receives is the satisfaction of providing justice for society. In contrast, a police officer and Jones mission was motivated by wealth because they are paid to do their job. Jones, 654 N. 2d at 267. Specifically in Jones, the court reasoned that even though she had superpowers her mission was not sufficiently different from ordinary humans because she was at the time performing a job of a private detective for pay. Id. Thus, the court held her mission was not sufficiently different from those of an ordinary human being. Id. The Punishers mission in protecting humankind, like Batman, is motivated by the fact that his entire family was murdered. After serving in Vietnam, The Punisher witnessed the Costa crime family murder his wife and two children, in cold blood. His familys murder motivated him to protect the average person and not see anyone become a victim of crime and endure the same kind of pain and loss he experienced. Thus, The Punishers crime fighting is beyond that undertaken by an ordinary human. He uses his powers to fight criminals and Supervillains solely to provide justice. b) The Punishers mission is necessary because he is used as a defense against Supervillains and his mission is in the interest of society .

A Superhero must protect humankind in the best interest of society at that time, in order to have a pro-social mission. Average, 204 N. 2d at 789. In addition, a Superhero must be used as a defense against Supervillains. 123. 456(2). In Average, Joker sprayed Mr. Average in the face with a chemical, which left him with permanent facial paralysis that was identical to The Jokers trademark grin. Average, 204 N. 2d at 789. Further, this incident happened immediately

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after a confrontation between Batman and The Joker. Id. In that confrontation, Batman had captured The Joker but let him go in order to save a group of innocent bystanders, from Jokers henchmen who were about to open fire on them. Id. The court held that Batman was not negligent in the performance of his Superhero duties. Id. His actions were in the best interest of society at that time. Id. A person claiming a traumatic life experience as a motivation for his mission has a prosocial mission if his actions benefit society. It is a Superheroes duty to protect humankind and do what is in the best interest for society. In the instant case, The Punisher observed an evil, corrupted henchmen die while successfully taking down The Kingpin. Like Batman, The Punisher did what was in the best interest of society at that time, even though a death occurred. The Kingpin was more corruptive and caused a far greater risk to society than the single evil henchman. The Punisher protects innocent people; he does not protect evil. When other Superheroes cannot take down Supervillains alone, they request colleges including The Punisher. These Superheroes work together for the greater good of society. Other Superheroes needing The Punisher to help fight Supervillains shows he is necessary to society because he is the only defense against Supervillains. c) The Punisher s actions do not work at cross-purposes to society.

A pro-social mission cannot be accomplished by working at cross-purposes to society. Catwoman, 102 N. 2d at 801. In Catwoman, Catwoman stole documents from an oil company, which proved that the company had knowingly tolerated shoddy maintenance on their oil pipelines. Id. However, during the break-in she also stole a priceless piece of artwork in the building, which she sold for a large sum of money. Id. Catwoman used the money to support her lavish lifestyle. Id. The court held that Catwomans mission was anti-social and her actions

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did not fall within the Superhero Exception rule. Id. The court ruled while Catwoman did protect society by exposing the documents, her actions, stealing the painting, were cross-purpose to society. Id. In the instant case, by providing justice in the interest of society, The Punisher does not work at a cross-purpose to society. Unlike Catwoman, The Punishers actions (punishing evil) is in the interest of society and thus not cross-purpose. After his familys horrific murder, The Punisher was able to identify to the police all of the people involved. However, the police did not arrest the perpetrators because of their connections to the crime family. This corruption in the police system turned The Punisher into a one-man army seeking justice and to end corruption. The Punisher acts as an aid to the judicial system. The Punisher has helped bring about justice taking down the Italian and Russian Mafia, and other gangs. He not only protects humankind from Supervillains and criminals, but also from the corrupted police officers. While bringing justice to society, The Punisher never intends to kill a criminal however, some criminals die as a consequence of their evil activities. The Punisher is bringing justice to society even though a criminal is killed occasionally, because he is punishing injustice. The Punisher never kills innocent people. The Punishers mission is to protect humankind. He is necessary to society, his actions are in the best interest of society, his actions are not motivated by wealth and power, and he does not work cross-purpose to society, thus his mission is pro social. 3. The Punisher has a codename and an iconic costume because they both describes his underlying character, and his costume is unique from what ordinary humans similarly situated would wear. To be a member of the super community a person must have a codename or iconic costume. 123.45(c). A person has a codename when it is a reflection of the persons

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underlying character, biography, power, or origins, and not just a title. Eve, 602 N. 2d at 551; Superman, 987 N. 2d at 789; see also Coogan, supra at 4 (Stating that there is a connection of name to inner character for the identity in Superheroes). An iconic costume is one which is different from that which ordinary humans similarly situated would wear. Eve, 602 N. 2d at 551. A person will have a codename when that name is a reflection of their underlying character. Id. In Eve, the court found that Xena the Warrior Princess was not a codename. Id. Warrior Princess was merely a title that describes who Xena was, instead of an expression of her inner character, biography, origins, or power. Id. On the other hand, the court found in Superman, Superman did have a codename. Superman, 987 N, 2d at 789. The court held that [t]he codename Superman literally means the best that humankind can expect and is an externalization his inner character. Id. A person will have a super identity if he or she has an iconic costume which is different from what an ordinary human similarly situated would wear. Id. [T]he court held that Supermans blue skintight acrobatic costume and S chevron constituted a costume. Supermans costume that he wore was different from ordinary humans who do activities as him, because Superman is one of a kind, there are no ordinary humans who do similar activities as him. Id. However, in Eve, Xena did not have an iconic costume because she dressed in traditional warrior clothes, similar to other soldiers of her time. Eve, 602 N. 2d at 551. Her outfit did not set her apart from other warriors. Id. In the instant case, The Punisher has a codename. After he witnessed his familys horrifying murder and watched the police not help bring justice, The Punisher abandoned his former name, Frank Castle, and The Punisher rose from the ashes to protect society from the criminals and the corrupted police that are a danger to society. His codename is a reflection of

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his inner character. The Punisher does not want the average person to suffer and experience the same kind of loss that he had to experience. Thus, he punishes those who harm society. With Superman, society expects him to be super. With The Punisher, society expects a person who will punish Supervillains, criminals, and corrupted cops. Society expects a person who punishes evil in order to protect society. This is The Punishers sole purposes and mission, and thus his character. His codename is acceptable because it carries a sense of security and protection for society. Society is protected from evil when The Punisher is around. Even though The Punishers codename is sufficient for him to have an identity, The Punisher also has an iconic costume. He wears a black form fitting Kevlar bodysuit and a white skull painted on it. The Punisher not only fights criminals but also fights Supervillains. When fighting criminals on the street, The Punisher, performs activities that similar to a police officer. However, The Punisher has a full body Kevlar suit, unlike a police officer who merely wears a bulletproof vest. He needs a full body Kevlar because he fights crime on his own; he is a one man-army. The Punisher wears a more protective armor because he also fights Supervillains, who are more powerful than normal criminals. The Punishers costume is black, which allows him to use stealth, like Batman. Bullets do not affect Superman, but they do affect Batman and The Punisher. In addition, The Punisher has a symbol on his costume, similar to Batman and Superman. The white skull painted on his suit, symbolizes that he is going to bring justice against evil. White stands for justice and purity and the skull represents evil. This symbol is readily recognizable to society, distinguishing him from the corrupted cops but instead revealing a Superhero who uses his powers to punish evil and protect society. Thus, The Punishers costume is different from what ordinary humans wear that perform similar activities.

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For these reasons, The Punisher has a codename and an iconic costume, thus he has an identity. CONCLUSION Based on the foregoing, The Punisher respectfully requests this Court to grant its Motion for Summary Judgment finding that the statements of the IAS President that The Punisher is a vigilante or Supervillain were false and was thus defamatory as a matter of law.

Murdoch & Nelson Law Firm

Erik Woody
Erik Woody, Esquire Empire Bar No.: 123456 200 Financial Street, Suite C Gotham City, Empire 77665 (333) 456-0987 Telephone Attorneys for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Memorandum of Law in Support of its Cross Motion for Summary Judgment was served by U.S. Mail upon Erik Woody, Esquire at 678 Wall Street, Suite A, Gotham City, Empire 77665 on this 24th day of February, 2012.

Erik Woody
Attorney

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