Dear Aeroplan: If You Cancel My First Class Swiss Ticket, I Won’t Sue You

Filed Under: Air Canada, Swiss

A couple of days ago I wrote about how Swiss first class award availability was bookable using Star Alliance miles. As a policy, Swiss has restricted first class awards since 2013, as they now typically only let Miles & More elite members redeem miles for the cabin. Unfortunately within a day Swiss started canceling these tickets, without consulting the loyalty programs that issued them. However, the Aeroplan website continues to show itineraries intact, at least for me.

What Aeroplan has to say about this situation

In light of this current situation, Aeroplan has issued the following statement for those who booked one of these tickets through them:

I can assure you that we are not pleased with the situation.

Our members are our priority and Aeroplan will assist affected passengers. We are investigating the situation as to what exactly happened and why these reservations were cancelled. Working with Swiss and Air Canada, we should know more about that early next week.

That’s fair enough, given that there’s nothing here directly within their control, and presumably they’ll have to work this out with Swiss.

This isn’t a mistake fare

I think it’s important to make the point that this wasn’t a mistake fare. The Department of Transportation no longer offers the protection that they used to regarding post purchase price increases, which would cover things like mistake fares.

This is different, as this wasn’t a mistake fare (or to use different terminology, this wasn’t a post purchase price increase). Passengers redeemed the correct number of miles for the correct type of award in inventory that was restricted. Furthermore, precedent suggested that this would be honored, since Swiss similarly released award availability last year, and I managed to book and fly on one of those tickets.

From a practical perspective any complaints with the DOT should be handled the same as a confirmed reservation that’s unilaterally canceled by an airline, not because the price was wrong, but because they decided they didn’t want to sell the seat. That’s an important distinction.

Some are threatening to sue Aeroplan

My friend Matthew from Live and Let’s Fly wrote a post entitled “Dear Aeroplan, If You Cancel My Swiss First Class Tickets, I Will Sue You.”

I commend Matthew for holding airlines accountable for mistake fares in the past. He fights the tough fight that many of us don’t want to fight, and he has had quite a bit of success with this. With the Ethiopian Airlines mistake fare a while back he showed up at the airport in Bangkok to take his flight, even though they had canceled his ticket. While they didn’t allow him to board the flight, they did give him a replacement flight in business class after quite a battle.

Personally I’m probably a little more forgiving of mistake fares. If something is obviously a mistake fare and if an airline contacts people quickly, I think it’s a battle not worth fighting. Meanwhile if it’s not obvious it’s a mistake fare, or if airlines are slow to communicate, I think it’s fair game to go after them.

But I think this is a bit different. While I appreciate (and share) Matthew’s frustration with the situation (I also booked one of these tickets, and got Ford really excited about flying Swiss first class), there’s one area where I disagree with him. Specifically, Matthew says the following:

Note something above. I am not threatening to sue SWISS. At least, not at this point.

My contract was with Aeroplan…the seller of the tickets. And if SWISS does not wish to honor the booking, Aeroplan must find another way to get my family home from Zurich to Los Angeles nonstop in first class…even if that means buying me revenue tickets.

Why I’m not fully holding Aeroplan accountable

There are three parties here:

  • There’s Swiss, the airline that is operating the flight, and the airline that made the award space available
  • There’s Aeroplan, Air Canada’s spun off loyalty program, which is transfer partners with Amex, and which facilitated the transaction in an automated way
  • There’s Air Canada, the airline that technically issued the ticket (or at least the ticket is on their “stock”) and that has the systems that facilitate these awards being booked; so while we didn’t directly do business with Air Canada, that’s the company that the ticket number is from

But here’s my issue with holding Aeroplan accountable — up until now they’ve done absolutely nothing wrong. Let’s keep in mind that it wasn’t just Aeroplan that allowed these bookings. United MileagePlus also did, and even Swiss’ own Miles & More program did. Swiss is canceling all those tickets. It’s not like Aeroplan was being negligent here.

Everything that has happened thus far is entirely Swiss’ fault, and frankly it’s not surprising. They’re one of the most arrogant/stubborn airlines out there. When there were mistake fares out of Myanmar a few years back they refused to honor them, even when authorities told them they had to. So it’s hardly surprising that they’re canceling these tickets, even if it’s completely wrong (and frankly I’m surprised they didn’t the last time around).

I hope Swiss will do the right thing, and I hope Aeroplan will advocate for that

I think it’s one thing to go directly after an airline if they are making the choice not to honor a ticket. But assuming Aeroplan does do everything in their power to advocate for Swiss honoring these tickets, there’s not really more I’d expect of them.

If they do everything they can, I just couldn’t bring myself to hold them fully responsible. It seems they’re doing everything in their power here — they’re trying to communicate with Swiss, they’re offering to reverse Amex points transfers for those who booked, they’re trying to help people find alternative flights, etc.

Matthew suggests that Aeroplan needs to get people nonstop first class on the flights they booked, though I’m not even sure that’s something they’re required to do per the contract of carriage. Unless I’m missing something the contract of carriage makes no promise of a nonstop flight, so if Aeroplan rebooked someone with a connection in first class, they’d still be honoring their side of the contract.

But if Swiss tells Aeroplan to pound sand, what option does Aeroplan have? A one-way first class ticket from Los Angeles to Zurich costs over $10,000. Let’s say that 500 people took advantage of this deal (in reality I suspect it’s higher than that, but let’s be conservative).

Should Aeroplan be out of pocket five million USD for Swiss’ mistake, which they had zero control over? Technically maybe yes, but that just doesn’t seem fair to me either, and when it comes to the game of miles & points, I want to live and let live.

I also get the other side of this — ultimately there was no contract with Swiss, so you can’t as easily hold Swiss responsible (at least based on my understanding of the law). I suppose one could argue that if consumers sue Aeroplan, Aeroplan could try to sue Swiss to recover damages, but that all just seems messy.

I hope Swiss honors these tickets and realizes the fairly limited downside. I hope Aeroplan does everything in their power to advocate for passengers with reservations. If that doesn’t lead to a positive resolution, I certainly think this is a situation that warrants a DOT complaint, as I think the DOT would actually rule in consumers’ favor here, since this wasn’t the case of a mistake fare. However, personally I couldn’t bring myself to sue Aeroplan, or to even hold them responsible that much. It just doesn’t seem fair, when this is entirely Swiss’ doing.

Comments
  1. What a weasely response! If situation were reversed and someone decided they wanted a refund, Swiss would laugh in your face. Or charge an obscene amount. This was a valid non-mistake award and tickets were issued. Thus someone has to make it right. We used Aeroplan and they are responsible. If there’s a fight, it’s between them and Swiss.

  2. @Lucky

    I am in the same situation as you. I still haven’t been contacted by either Aeroplan or Swiss. My GVA->JFK tickets aren’t untill June, but I assume a lot of people booked itinerarys that leave sooner. Wouldn’t you expect an email or call from someone to let you know a TICKETED flight is being cancelled (or at least certain tickets on a flight)?

  3. At what point do the airlines stop here? What if they release awards in the future then realize there was a higher than planned demand and they could sell the seat for big $$$$. Just cancel the awards and say they never meant to issue them, boom. Win/win for them.

  4. I made non-refundable hotel and tour arrangements after booking my confirmed award, which has since been canceled. I am out about $5000. I am not interested in a lawsuit, but do you think you a DOT complaint will force Swiss to refund my losses?

  5. Why do you suppose there is virtually no business class availability on aeroplan from Europe to the US? Does it have anything to do with this whole Swiss debacle?

  6. @ MSer — In fairness, in this case they canceled within 24 hours, and consumers would have had that same opportunity. I don’t think what Swiss is doing is okay and I plan to file a DOT complaint and take whatever action I can against them, but I’m not sure that exact comparison is true here.

  7. @ Evan — Absolutely. I’m disappointed that they haven’t at least reached out to say that there’s problem with the ticket and that they’re working on it and will have an update early in the week. The lack of communication suggests everything is totally fine, which clearly isn’t the case.

  8. @ Mike — Well hopefully they stop before this. What Swiss is doing is awful, and they should be held accountable. I’m not making any excuses here for Swiss.

  9. @ Bill Landry — I think technically we’re all entitled to our tickets as booked. Swiss had no grounds to cancel confirmed reservations that were booked at the right price. So I hope that’s what happens. I think the DOT will side with consumers here, the question is what the timeline for that is, which we don’t yet know.

  10. Lucky, at what point are you going to file a complaint? How do you go about filing a complaint? My travel isn’t until late February, hopefully there is time for resolution before then.

  11. Yes, you hold Aeroplan responsible, even if it costs them $5m. Because you don’t have a contract with Swiss, but Aeroplan does. So Aeroplan owes you a ticket, and then Aeroplan can go after Swiss to make them whole, whether through mediation or through a lawsuit.

  12. Maybe Swiss is treating US-based costumers differently. I was able to snag a flight HAM-HKG in April and used my Lufthansa Miles-and-More miles. Ticket was issued out of LH ticket stock and still shows as confirmed. Which is kind of unfortunate, since my plans have changed and I have no longer a use for that flight.

  13. I think its a case where common sense and moral instincts should prevail over the legal principles. We know that Aeroplan also falls victim to SWISS’s technical error in releasing reward seats, and logically speaking it is not very convincing for me that one should make the other victim pay. It is SWISS’ reluctance to implement the contract, but not Aeroplan. I wouldn’t lose much so to speak if I don’t fly, I can still use the miles on somewhere else; but if I insist on flying, Aeroplan has to pay a disproportionate amount of money to find the third party to perform the contract. I feel bad for Aeroplan on this issue.

  14. This is really a Swiss Miss. If the airline stands to lose money they will fight you tooth and nail. They’re just hoping the vast majority don’t have the patience to pursue the matter and give up.

  15. Its a really dangerous precedent for SWISS to get away with cancelling these. They basically loaded an inventory bucket into a GDS that they didn’t mean to, and then tickets got issued.

    If they can do this, what’s to stop them from unilaterally cancelling paid business tickets booked in low-fare buckets (such as P) if advance bookings on a flight are strong and they think they could see additional tickets for more money later on. Its a bogus business practice, and its wrong.

  16. I’m curious about the logistics of suing a Canadian loyalty program for flights on a European airline. Would a US court or even the DOT have jurisdiction, especially if the route doesn’t touch US soil? I wouldn’t be surprised if Aeroplan or Swiss had a clause buried deep in their T&Cs that says such claims have to be filed in their home territory, where it’s much harder to file frivolous lawsuits than in the US (and where you’re potentially responsible for the other party’s legal costs if you lose).

    The cynic in me says Aeroplan and Swiss will probably just issue paid tickets to Matt, Lucky, and a few other high-profile bloggers if they agree to stop raising a stink, keep quiet, and tell their readers to move on.

  17. The lawsuit should be directed to Swiss, and the best analogy is a paid ticket:

    If you bought YUL-ZRH-YUL in F from your neighbourhood travel agent, and LX cancelled the ticket, who would you sue? Of course it would be Swiss, as the TA clearly didn’t do anything and can’t fix it.

    In this case, AP (and UA, and the rest) is just a TA. Unlike a regular TA they accept miles as payment for the tickets they issue, but it’s the same relationship: they book a ticket on an airline in return for payment. In this case they took the miles, they issued the requested ticket and LX is cancelling it. The lawsuit goes to Swiss.

  18. Lucky I appreciate your level headed approach.

    Having said that Aeroplan is ultimately responsible to make things right for the tickets they issued. They will have to go after SWISS for any damages.

    I have x3 tickets and all are still intact.

    What I’ve noticed is tickets that were cancelled seem to be on the B777 routes at least that’s the common denominator based on the posts I’ve read.

    Thanks for keeping us in the loop.

  19. My professional legal opinion: Liability will depend on the contract(s) between AP and Swiss (and any other parties involved). Any party to the contract might be fully responsible, or AP and Swiss might be jointly liable for what happened; it all depends on their agreemen(s). It could be that AP has been made aware by Swiss, or should reasonably be aware, that Swiss F is not released to award partners. As a result, Swiss could claim a duty of care for AP to check with Swiss before selling F award seats. Legally, airlines tickets don’t need to be honoured as long as the legal remedy (e.g. compensation) is proportionate and complies with all relevant laws and regulations. If all airline tickets had to be honoured, no airline could overbook and no flights could be cancelled.

    And, Lucky’s point about the 24 hour cancellation rule typically only applies to flights arriving in or departing from the United States.

    Good luck Y’all.

  20. “I’m curious about the logistics of suing a Canadian loyalty program for flights on a European airline. Would a US court or even the DOT have jurisdiction, especially if the route doesn’t touch US soil?”

    No, they wouldn’t. But if it makes ppl feel better then good luck suing Aeroplan in Canada — but make sure to first read their T&C’s about binding arbitration as well as any clauses about partner airlines’ award availability.

  21. @Ryan H

    Your example doesn’t sound correct to me. I think Aeroplan has issued an Air Canada ticket, as an agent of Air Canada. It is not a Swiss ticket. Following your logic why wouldn’t you go after Air Canada? John?

  22. @ John

    I get what you’re saying, maybe after the last error Swiss wrote to all the partner airlines to notify them that availability in Swiss F can show up in error, shouldn’t be booked and wouldn’t be honored in future.

  23. Lucky , Contract Law does not work on your wishes to Live and Let Live. In this case the passengers have a contract with Aeroplan and Aeroplan has a contract with Swiss. Aeroplan needs to be sued so in turn they can sue Swiss. Aeroplan should not even fight the suit the passengers file. In order to sue Swiss they need to show they were harmed and the only way they can show they were harmed is if they have to make payouts to passengers. If I was Aeroplan I would make the payout as high and uneconomic as I can so that I can sue Swiss for a higher amount (cost plus ). That would teach Swiss to obey laws.

  24. You got me thinking … the internet could be so much better if everyone who expressed a legal opinion (or for that matter, medical advice) was qualified to do so….

  25. “I suppose one could argue that if consumers sue Aeroplan, Aeroplan could try to sue Swiss to recover damages, but that all just seems messy.”

    If this was a suit in a court in the US, it would be a matter of impleading a new defendant with common law claims for contribution and indemnity. Routine stuff. Odds are good though that the contract between Aeroplan and SWISS provides for forum selection and probably some kind of international arbitration.

  26. The continuing occurrence of these “mistake fares” seems to show that airline revenue management systems are too complex for them to manage. In what other industry does this happen repeatedly? I hope I see “mistake prices” on the BMW and beach house I’ve been eyeing…

  27. There are many legal issues, but the main part is that you most likely have to sue (or take to arbitration depending on t&c’s) Air Canada. Depending on where you file a lawsuit, it is possible that Swiss would be a co-defendant based on the AC-Swiss contract. Why this is crucial? Swiss will most likely not pay $5m without a threat, and the treat of having to pay $5k-$10k per lawsuit just to get lawyers in is a good one (I don’t know what is in the contract, but it is possible that AC might get their lawyers fees back no matter what).

  28. Air France cancelled my DL ticketed lax-cph AF flight last year because DL released erroneous award space and I wasn’t even notified. I discovered by accident 2-3 weeks later when I tried to pull up my reservation on the af app. I was essentially told by af and dl “too bad, we will refund your miles” (miles that were useless to me as skypesos except for this trip I had built around an award ticket with deposits on hotels and hundreds of dollars on connecting flights) but after about a month of daily phone calls I got delta to fix it.

    Oh and speaking of Ethiopian, I booked a cash fare for friends we were meeting in Europe (I booked lax-dub with a separate ticket from dub-cph) and they cancelled those tickets too 4 weeks after everything was booked and paid for (same trip as my af flight) and was told they’d have to leave either a week earlier or later on another Ethiopian flight (hence having to rebook all of our tickets and hotels which were nonrefundable) I actually got nowhere with Ethiopian and had to press United to fix the problem. A very nice United agent rebooked them on Lufthansa after about a month of calling, which was not their problem to solve at all, but it was a Herculean effort to get it resolved.

  29. I’m confused. They don’t honor these tickets? Look at the mess AA is in with a ‘mistake’ vacation for the holidays program. Airlines shouldn’t get to pick and choose when mistakes are honored and then revoked. Kind of like a store calling me up after a mistake purchase and asking me for money back…just because I’m buying service at a later date shouldn’t make it possible for them to come after me. Let’s get the ACLU in on this action!

  30. Here we go Again..stupid bloggers calculating 10k for one-way tickets. If you guys are so super excited about Swiss F, BUY cash tickets. They often have partner sales, where you get longhaul F for 2500Euro/Person ex LHR or CDG.

  31. @Lucky
    If your flight will be canceled, and your flight was interkontinental you become ca.
    200 Euro/USD no matter how low the price is.

  32. I keep reading about people bringing up that this is not a “mistake fare”. Award tickets do not have the same protections that paid fares have, so whether or not it is a mistake fare is irrelevant. Their T&Cs that you agree to state they can pretty much do whatever they want with award travel, so perhaps your point valuations are inflated given this reality. It’s obvious though that this availability WAS a mistake, hence all you bloggers getting your panties in a wad about rushing to grab it, so you knew what you were getting in to. Frankly I have no sympathy for you. You win some, you lose some in this game, but you are not a victim.

  33. I took advantage of this on aeroplan and booked two first class swiss for dec 6 departure from munich. So far, on Swiss website my tickets are still valid. What do you think I should do to be proactive?

  34. Lucky, are u mixing up your pity to Aeroplan, with the issue at hand, and allowing your irrational pity to conclude there is nothing u could do and LX can get away scot free?

    Your contract is with Aeroplan. Some others are with Mileage plus, or even SQ. LX is treating everyone, including star alliance partners as a joke.

    If it takes a passenger to file something, on the issuing *A carriers, who will all in turn file against LX, so be it. Its LX u are after.
    U just want the *A partners who issued the LX tickets, to go after LX.

  35. If it was cancelled by Aeroplan rather than SWISS, why has my mid-december booking disappeared in the swiss app but is still alive on aeroplan? Haven’t gotten any information from aeroplan yet.

    Furthermore, I don’t think it was clear upfront that this is a mistake. It was also available on Miles&More online and how should one know, that this was unintentionally?
    I had a confirmed LH F ticket the next day, which I cancelled after getting LX F ticketed. And now availability is gone.
    I gonna ring up SEN hotline to see, what they will do or offer. Ironically, I had exact the same flight – which has now been cancelled by whoever – booked on LX using M&M miles as SEN.
    I cancelled that one couple of months ago because of travel plan changes and booked myself into said LH F. Bad moves….

  36. @gene I wouldn’t cancel the ticket with AP. Show up at the airport – if SWISS denies you boarding you will be entitled to EU compensation.

    I would then immediately call AP from airport and have them rebook you on another flight including LH F if available.

  37. I for one am glad they’re cancelling tickets. I don’t want another FF program I participate in to be diluted and devalued by strivers who have no business being in first class in the first place. I earned HON circle precisely so I could have the flexibility to book an F seat in Swiss as and when I need it, which has saved me now on more than a few occasions.

    Go back to your United 2-4-2 business class. lol.

  38. In terms of trying to get any LEGAL recompense from airlines in these situations your chances are pretty much jack.

    The fact is, as soon as you tick that little box when purchasing your ticket saying you agree to the T&C’s all the rights pretty much side with the airline. The basic agreement is that they will transport you from A to B, and that’s it.

    Of course airlines generally don’t like bad press so will often go beyond what they have to legally using that term that they love ‘as an act of goodwill’. But do not mistake this as you having a legal entitlement to it.

    Fewer airlines seem to be honouring ‘mistake fares’ or mileages ‘faux pas’ these days as they know the courts side with them.

  39. “I am not a lawyer, but this is my understanding of the law.”

    If only I got a dime every time I hear/read that…

  40. I see it as a mistake fare. The seat is available for a given price with $. The seat was mistakenly offered at a price of X Aeroplan miles (with a perceived lesser $ value). This was a mistake because the award chart states this seat is not supposed to be available for that lower Aeroplan miles price, however the system made it available at that price.

  41. Somewhere in Aeroplan’s member agreement and/or Swiss’ contract of carriage this is almost certainly dealt with. It will play out as they are a) obliged to by those documents and/or b) as they see fit from a PR perspective. Also – Aeroplan is not Air Canada. It’s a brand name for a loyalty program run by a publicly traded company called AIMIA, which is based in Toronto and trades on The Toronto Stock Exchange. The US DOT would have zero jurisdiction in this case. Remember that every time you book any flight, you are defacto agreeing to the carrier’s contract of carriage…and that huge document is certainly not written to protect you, the traveller.

  42. I disagree with WR on the issue of „clearly was a mistake“. My point of view with regards to „mistake fares“, revenue or award, is: If „average Joe“ can clearly see that this must be a mistake, then the „obvious“ argument holds. If the airline then promptly contacts customers, apologises, cancels tickets – fine with me. If they choose not to do that, the customers should try their best to hold them accountable. Airlines usually don’t bend over backwards if I make a mistake (such as booking for the wrong date), so why shouldn’t customers demand that the airlines fulfill their contracts, made under their own rules?
    Customers don’t set prices – airlines do that. I as a customer do not care about profitability aspects or the like – that’s their job.
    So in my view, if Swiss chooses not to honour these bookings, then Aeroplan should offer equivalent flights to affected customers and sue Swiss for damages. Messy, but the only correct way to handle this I guess.

  43. About 4, maybe 6, years ago, I booked a Swiss Mistake Fare in Business Class JFK-GVA-LCY, fully aware that it probably was a mistake and printing every screen as it appeared. After refusing to honor the fare, LX relented immediately when they received my $ 4,500 claim in the NYC Small Claims Court. My file at the airport was obviously flagged as, when the JFK-GVA flight was delayed several hours, I tried to switch to the JFK-ZRH flight departing around the same time and I was denied, although many people were accomodated and my then Status with Miles and More gave me priority over them. The switch would have caused me no delay and no ground to complain about anything

    I was thus delayed over 4 hours, PLUS LX had to put me on a BA flight from GVA to LHR instead of their flight to LCY. I subsequently filed a claim under EC 261/04, which the airline of course denied. I applied to the Swiss Federal Office of Cilvil Aviation (BAZL in German, OFAC in French, a bureaucracy which, like all bureaucracies in Switzerland does things efficiently. They are the airline’s supervisory administration and it does not give a hoot about Swiss’s arrogance. It simply applies regulations. Altogether, it took 3 months but I eventually got my 600 euros after flying JFK – LHR in Business Class for $ 350.

    That Swiss is arrogant is a given. That arrogance is however powerless in the face of regulations and it is up to each of us to have them enforced.

  44. One think I don’t understand about all this cancellation/error fares etc is why airlines are allowed to use contracts of carriage clearly unfair to one side (passengers). If I book a non-refundable ticket and want to cancel (after 24 hours) I don’t get any refund. If I want to change it, I have to pay the change fee + any applicable fare difference. The same should then apply when the other party cancels/changes the ticket, i.e. if the carrier cancels/changes a ticket after 24 hours I should be entitled to the exact same “penalty” as they are.

    So here,

  45. Expecting Aeroplan to advocate for passengers IMHO is a pipe dream. I can’t remember an airline advocating for a group of passengers. I’m happy if they just follow the rules that already exist. Last year I booked two tickets from Cape Town to Miami using UA miles but traveling on SA and LX. We had a connection in NBO originally. LX changed their schedule out of NBO so now their flight would be gone before we got there. Simple thing if the EU rules were followed. But no. LX wouldn’t talk to me as the ticket was issued by UA. UA kept telling me there was no award space available so too bad. I offered each airline to conference call with the other, both declined. No interest in solving the problem they created. No concern for the regulations, at least by my reading. So the only recourse is 1. Give in or 2. Keep fighting for behavior compliant with the regulations. I resorted to marathon HUCA over weeks until I got a flight itinerary which didn’t require time travel.

  46. The same day the First inventory appeared I was able to book three AP award tickets in business ZRH-LAX. Do you suppose those will be honored? No word from Swiss or AP so far.

  47. Probably all those people who shouted “I will never fly LX again.!” after the Rangoon thing, have booked here again…. hahaha

    Non-SEN/HON are not intitled to F awards on LX. So yes LX, please cancel all those tickets!

  48. I’m glad AA didn’t cancel my 2016 business class tickets to Europe just because their system accidentally opened the availability gate for the whole summer. If this precedent holds, maybe next time when we get lucky with AAvailability it will be frustration rather than delight.

  49. @Tom
    beeing SEN I got my ticket cancelled, too!!
    ’cause I booked with AP to get rid of leftover 70k+ miles there. Would have been great but was not supposed to be. It cost US$ 59 for cancelling an existing reservation after getting LX F ticketed plus a few emotional ups & downs.
    Luckily I got my original LH First flight rebooked with M&M, it’s just the tax what makes a huge difference.

  50. You probably won’t prevail, but If you do sue, sue everyone (Air Canada, Swiss and Aeroplan). Shotgun approach.

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