govinfo:USCOURTS-njd-2_24-cv-10835-0

NOT FOR PUBLICATION 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
JOSHUA BATISTA, 
Plaintiff, 
v. 
PUBLIC SERVICE ELECTRIC & GAS 
COMPANY, 
Defendant. 
No. 24-cv-10835 
 
 
MEMORANDUM ORDER 
CECCHI, District Judge. 
 Before the Court is defendant Public Service Electric & Gas Company’s (“PSEG”) motion 
to dismiss pro se plaintiff Joshua Batista’s (“Plaintiff”) amended complaint pursuant to Federal 
Rule of Civil Procedure 12(b)(6). ECF No. 18 (“Moving Br.”); see ECF No. 16 (“Am. Compl.”). 
Plaintiff opposed the motion, ECF No. 19, and PSEG replied,1 ECF No. 20. The Court decides 
the motion without oral argument. Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). 
WHEREAS this case arises out of harm that Plaintiff allegedly suffered because of his 
commercial relationship with PSEG, a public utility company. Am. Compl. ¶ 5. He alleges that 
PSEG “has weaponized its position of power to engage in deceptive accounting practices, unlawful 
collection tactics, and outright exploitation of its customers.” Id. ¶ 1; and 
WHEREAS according to Plaintiff, he entered into a “tariffs and customer agreement” with 
PSEG, which requires monthly payment for the provision of electricity and natural gas. Id. ¶¶ 8–
10, 23. PSEG allegedly “has shut off Plaintiff’s essential electricity and gas service on false 
pretenses, demanded unlawful forms of payment without proof of claim, misused Plaintiff’s 
 
1 Plaintiff also filed a sur-reply, but did not seek leave from the Court as required by the Local 
Civil Rules. ECF No. 21 at 1; see L. Civ. R. 7.1(d)(6). Nonetheless, the Court has considered his 
submission. See Jarvis v. Gliottone, No. 14-7766, 2018 WL 6603634, at *3 (D.N.J. Dec. 17, 2018) 
(“[C]ourts must treat pro se litigants with latitude.” (citation omitted)). PageID:
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trademarked name in commerce without consent, and concealed the true nature of its receivables 
and double-entry bookkeeping in violation of GAAP.” Id. ¶ 1; see also id. ¶¶ 13–14; and 
WHEREAS Plaintiff filed his original complaint on November 26, 2024. ECF No. 1. On 
a motion from PSEG, the Court dismissed that complaint on September 3, 2025, and provided 
Plaintiff with 30 days to amend. ECF No. 14 at 7. Plaintiff filed his amended complaint on 
September 16, 2025. Am. Compl. In the amended complaint, Plaintiff asserts roughly a dozen 
claims for relief and seeks $5,000,000 in damages. Id. ¶¶ 23–68. PSEG moved to dismiss the 
amended complaint under Rule 12(b)(6) on October 14, 2025. Moving Br.; and 
WHEREAS a motion under Rule 12(b)(6) seeks dismissal for “failure to state a claim upon 
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To state a claim upon which relief can be 
granted, a pleading must generally “contain a ‘short and plain statement of the claim showing that 
the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (quoting Fed. R. 
Civ. P. 8(a)(2)). To do so, the pleading must state a plausible claim, meaning it must contain 
“enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of” the 
misconduct alleged. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). However, when a 
claim sounds in fraud, the pleading “must state with particularity the circumstances constituting 
[the] fraud,’ though ‘intent, knowledge, and other conditions of a person’s mind may be alleged 
generally.’” In re Lipitor Antitrust Litig., 868 F.3d 231, 249 (3d Cir. 2017) (quoting Fed. R. Civ. 
P. 9(b)). In other words, a pleading must support allegations of fraud “with all of the essential 
factual background that would accompany the first paragraph of any newspaper story—that is, the 
who, what, when, where[,] and how of the events at issue.” Id. (citation omitted); and 
WHEREAS the Court conducts a three-step analysis when considering a Rule 12(b)(6) 
motion. First, the Court “must ‘tak[e] note of the elements a plaintiff must plead to state a claim.” PageID:
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Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alteration in original) (quoting Iqbal, 556 
U.S. at 675). Second, the Court disregards formulaic recitations of a claim’s elements; legal 
conclusions; and “allegations that are ‘so threadbare or speculative that they fail to cross the line 
between the conclusory and the factual.’” Lutz v. Portfolio Recovery Assocs., LLC, 49 F.4th 323, 
327–28 (3d Cir. 2022) (citation omitted). Third, the Court assumes the truth of the complaint’s 
“remaining allegations,” construes “them in the light most favorable to the plaintiff,” draws “all 
reasonable inferences in the plaintiff’s favor,” and then determines whether plaintiff has stated a 
viable claim for relief. Id. at 328; see also Higgs v. Att’y Gen. of U.S., 655 F.3d 333, 339 (3d Cir. 
2011) (explaining that courts must construe pro se complaints liberally); and 
WHEREAS the Court will dismiss the amended complaint because Plaintiff has failed to 
state a plausible claim for relief. The Court will address Plaintiff’s claims in turn; and 
WHEREAS Plaintiff has failed to state a claim for breach of contract because he does “not 
point to any specific contractual provision[] that [PSEG] breached.” Lockhart v. U.S. Bank Nat’l 
Ass’n, No. 16-4398, 2017 WL 2709563, at *5 (D.N.J. June 22, 2017). “To state a breach of 
contract claim [under New Jersey law], a plaintiff must allege: (1) the existence of a contract 
between the parties, (2) a breach of that contract, (3) damages flowing from that contract, and (4) 
that the party bringing the breach of contract claim performed its own obligations under the 
contract.” Goydos v. Rutgers, State Univ., No. 19-8966, 2021 WL 5041248, at *15 (D.N.J. Oct. 
29, 2021). Plaintiff alleges that his “service relationship” with PSEG is “governed by” a “tariffs 
and customer agreement.” Am. Compl. ¶ 23. Moreover, he alleges that PSEG breached this 
agreement by failing to (1) “provide clear, GAAP-compliant billing and supporting records 
necessary to confirm the legitimacy of charges”; (2) disclose “complete ledger entries, offsets, and 
reconciliations when directly demanded”; and (3) provide him with an opportunity to “review a PageID:
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verified proof of claim or sworn accounting under oath.” Id. However, Plaintiff has not 
“specifically identif[ied] the portions of the [tariffs and customer agreement] that [PSEG] allegedly 
breached” through these acts and omissions. Accurate Abstracts, LLC v. Havas Edge, LLC, No. 
14-1994, 2015 WL 5996931, at *4 (D.N.J. Oct. 14, 2015) (citation omitted). Therefore, the Court 
will dismiss his breach of contract claim; and 
WHEREAS Plaintiff has failed to state a claim for breach of the implied covenant of good 
faith and fair dealing, because it is duplicative of his breach of contract claim. A “plaintiff may 
not pursue a claim for a breach of the implied covenant of good faith and fair dealing if the claim 
is duplicative of the plaintiff’s breach of contract claim,” and a “claim for breach of the implied 
covenant is duplicative of a breach of contract claim when allegations of bad faith all relate to 
actions that form the basis of the breach of contract claim.” Cedar Holdings, LLC v. Menashe, 
No. 16-7152, 2017 WL 1349321, at *3 (D.N.J. Apr. 7, 2017). Here, Plaintiff’s allegations related 
to PSEG’s breach of the implied covenant substantially overlap with his allegations about PSEG’s 
breach of contract. Compare, e.g., Am. Compl. ¶ 23 (alleging a breach of contract based in part 
on PSEG’s failure to provide “clear, GAAP-compliant billing”), with id. ¶ 24 (alleging a breach 
of the implied covenant based on PSEG’s “withholding a transparent, GAAP-compliant 
accounting”). Therefore, Plaintiff has failed to state a plausible implied covenant claim; and 
WHEREAS Plaintiff has failed to state a claim under the New Jersey Consumer Fraud Act 
(“NJCFA”), because he does not satisfy Rule 9(b)’s heightened pleading standard for fraud claims. 
“To state a claim under the NJCFA, a plaintiff must allege that the defendant engaged in an 
unlawful practice that caused an ascertainable loss to the plaintiff.” Pharm-Rx Chem. Corp. v. 
BMP, No. 15-8276, 2019 WL 1434721, at *9 (D.N.J. Mar. 31, 2019). The NJCFA defines 
“unlawful practice” as (1) the “act, use[,] or employment . . . of any commercial practice that is PageID:
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unconscionable or abusive”; (2) “fraud”; (3) “false pretense”; (4) a “false promise”; (5) a 
“misrepresentation”; or (6) “the knowing, concealment, suppression, or omission of any material 
fact with intent that others rely upon such concealment, suppression[,] or omission.” N.J. Stat. 
Ann. § 56:8-2. Moreover, an NJCFA claim must satisfy the heightened pleading standard for 
claims sounding in fraud. Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007); and 
WHEREAS Plaintiff alleges that PSEG “engaged in affirmative misrepresentations, 
knowing omissions, and unconscionable commercial practices by” (1) “misrepresenting the 
accuracy, validity, and legal basis of alleged arrears”; (2) “concealing material facts by refusing to 
provide a GAAP-compliant accounting and full ledger reconciliation”; (3) “issuing deceptive 
billing statements, collection letter, and termination threats calculated to mislead and coerce 
payment”; and (4) “exploiting its monopoly power over essential services to pressure Plaintiff into 
compliance without transparency or lawful proof of claim.” Am. Compl. ¶ 23. But Plaintiff fails 
to allege additional facts to “inject the requisite precision into [his] allegations.” Frederico, 507 
F.3d at 200. For example, concerning PSEG allegedly issuing “deceptive billing 
statements . . . calculated to mislead or coerce payment,” Plaintiff does not provide any additional 
factual background to explain how any billing statement was deceptive. Am. Compl. ¶ 23. 
Similarly, Plaintiff alleges that PSEG concealed material facts “by refusing to provide a GAAP-
compliant accounting and full ledger reconciliation,” but does not explain why it was fraudulent 
or deceptive for PSEG to withhold such materials. Id. As such, the Court will dismiss Plaintiff’s 
NJCFA claim; and 
WHEREAS Plaintiff has failed to state a claim for equitable accounting, because he has 
not alleged that he and PSEG share a fiduciary relationship. To state a claim for an equitable 
accounting under New Jersey law, a plaintiff must allege (1) the absence of a legal remedy and PageID:
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(2)(a) a breach of a fiduciary relationship; (b) the need for discovery; or (c) the existence of a 
complex account. Lifescan, Inc. v. Smith, No. 17-5552, 2025 WL 1627196, at *17 (D.N.J. Mar. 
4, 2025). Plaintiff appears to ground his equitable accounting claim in an alleged fiduciary 
relationship between the Parties because he has an account with PSEG and PSEG provides 
“essential utility services.” See, e.g., Am. Compl. at 1, ¶¶ 1, 27. But “ordinary business 
transactions” do not give rise to fiduciary duties. Read v. Profeta, 397 F. Supp. 3d 597, 633 (D.N.J. 
2019); see Migliore by Migliore v. Vision Solar LLC, 160 F.4th 79, 88 (3d Cir. 2025) (“‘[F]iduciary 
duties are not imposed in ordinary commercial business transactions’ governed by contracts.” 
(citation omitted)). As such, Plaintiff’s equitable accounting claim is not viable; and 
WHEREAS Plaintiff has failed to state a claim for negligence, trespass to chattels, and 
conversion, because these claims run into New Jersey’s economic loss doctrine. New Jersey’s 
“economic loss doctrine bars claims for negligence between parties to a contract.” Beaman v. 
Bank of Am., N.A., No. 21-20561, 2024 WL 3219224, at *17 (D.N.J. June 28, 2024). The doctrine 
prevents a party from “seeking to enhance the benefit of the bargain [he] contracted for with” his 
counterparty. Saltiel v. GSI Consultants, Inc., 788 A.2d 268, 280 (N.J. 2002). However, the 
economic loss doctrine does not bar tort claims—e.g., negligence, trespass, and conversion, Rost 
v. Avelo Mortg., LLC, No. 15-3254, 2015 WL 6737026, at *5 (D.N.J. Nov. 3, 2015); Arcand v. 
Brother Int’l Corp., 673 F. Supp. 2d 282, 311 (D.N.J. 2009)—where the claim at issue arises from 
conduct extraneous to the contract, see Symbiont Sci. Eng’g & Constr., Inc. v. Ground 
Improvement Servs., Inc., 723 F. Supp. 3d 363, 380 (D.N.J. 2024). Plaintiff alleges that his 
commercial relationship with PSEG is governed by “PSEG’s tariffs and customer agreement,” “a 
binding contract.” Am. Compl. ¶ 23. So, to allege a viable negligence claim in light of the PageID:
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economic loss doctrine, his claim must be independent of the Parties’ contract and the commercial 
arrangement it sets; and 
WHEREAS Plaintiff’s negligence claim, however, centers on PSEG’s billing, accounting, 
and payment practices, id. ¶ 30—practices which are governed by the “binding contract” between 
the Parties, id. ¶ 23. Similarly, Plaintiff’s trespass claim centers on PSEG’s “intentional[] 
dispossesse[sion] [of] Plaintiff[’s] . . . use and enjoyment of essential personal property, including 
electricity-dependent appliances,” by “terminating” or “interrupting” Plaintiff’s utility electricity 
services. Id. ¶ 52. However, Plaintiff alleges that this termination or interruption was also a breach 
of the Parties’ contract. See id. ¶ 23. And finally, to support his conversion claim, Plaintiff alleges 
that PSEG “engaged in conversion by misappropriating Plaintiff’s payments, credits, and 
negotiable instruments.” Id. ¶ 53. In other words, “[i]nstead of properly applying payments to 
verified balances[,] [PSEG allegedly] diverted and applied them to inflated or unsubstantiated 
charges, effectively seizing Plaintiff’s property without lawful justification.” Id. Once again, this 
conduct is part of PSEG’s alleged breach of contract. Id. ¶ 23. Therefore, these claims are barred 
by the economic loss doctrine; and 
WHEREAS Plaintiff has failed to state a plausible claim under Article I, Section 10, 
Clause 1 of the U.S. Constitution, because Plaintiff does not remotely explain how PSEG’s conduct 
implicates this constitutional provision. Article I, Section 10, Clause 1 provides that “[n]o State 
shall . . . coin money . . . [or] make any Thing but gold and silver Coin a Tender in Payment of 
Debts.” U.S. Const. art. I, § 10, cl. 1. Plaintiff alleges that PSEG’s “unlawful[] insist[ance] upon 
specific forms of payment,” “while simultaneously refusing to reconcile credits, offsets, and ledger 
entries,” Am. Compl. ¶ 37, somehow offends the Constitution’s limitation on the States’ ability to 
issue their “own currency,” Hernandez v. Kiak, No. 14-2317, 2016 WL 5796895, at *5 (M.D. Pa. PageID:
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Sept. 30, 2016); see Troy Ltd. v. Renna, 727 F.2d 287, 294 (3d Cir. 1984) (explaining that Article 
I, Section 10, Clause 1 was ratified in response to “post-Revolutionary War state legislation 
purporting to repudiate obligations owed by local debtors to British and loyalist creditors,” i.e., 
State “laws staying the time for payment of debts, making paper money legal tender, and 
sequestering debts due British creditors”). Because it is not at all clear how PSEG’s alleged 
conduct runs afoul of this clause, the Court will dismiss this claim; and 
WHEREAS Plaintiff has failed to state a plausible claim for unjust enrichment, because 
Plaintiff alleges that there is a valid contract governing the Parties’ rights. To state a claim for 
unjust enrichment under New Jersey law, a plaintiff must allege that “defendant received a benefit 
and that retention of that benefit without payment would be unjust.” Hale v. Stryker Orthopaedics, 
No. 08-3367, 2009 WL 321579, at *9 (D.N.J. Feb. 9, 2009) (citation omitted). “However, an 
unjust enrichment claim cannot be sustained under New Jersey law if there is a valid and 
unrescinded contract governing the parties’ rights.” Urbino v. Ambit Energy Holdings, LLC, No. 
14-5184, 2015 WL 4510201, at *7 (D.N.J. July 24, 2015). Because Plaintiff alleges that his 
commercial relationship with PSEG is governed by “a binding contract,” Am. Compl. ¶ 23, he 
cannot state a viable unjust enrichment claim; and 
WHEREAS Plaintiff has failed to state a claim for trademark infringement and false 
endorsement under 15 U.S.C. § 1125(a), because he has not alleged that PSEG’s use of his alleged 
mark has caused or is likely to cause any confusion. The elements of a trademark infringement 
claim are identical to the elements of a false endorsement claim. To state any such claim, a plaintiff 
must allege that (1) the marks are valid and legally protectable, (2) the marks are owned by 
plaintiff, and (3) defendant’s use of the marks in providing goods or services is likely to create 
confusion. See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1014 (3d Cir. 2008) (false PageID:
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endorsement); A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 210 (3d Cir. 
2000) (trademark infringement); and 
WHEREAS Plaintiff alleges that he has a valid mark in his name, “Joshua Robert Batista.” 
Am. Compl. ¶ 46 (citing Ex. M). But Plaintiff does not explain how PSEG has used his name in 
a way that is likely to create confusion concerning the origin of any goods or services. See, e.g., 
Dille Fam. Tr. v. Nowlan Fam. Tr., 207 F. Supp. 3d 535, 546 (E.D. Pa. 2016) (“Since the facts 
alleged in the SAC do not plausibly suggest likelihood of confusion regarding Plaintiff’s 
sponsorship or approval of the script and series bible, Plaintiff has failed to plead a false 
endorsement claim.”); Lynch v. Basinger, No. 12-637, 2012 WL 6213781, at *4 (D.N.J. Dec. 12, 
2012) (dismissing trademark infringement claim where complaint included “no allegations 
concerning Defendants’ current use, if any, of the [] mark, nor is there any showing of confusion 
that could result from such use”). Indeed, Plaintiff’s claim appears to center on PSEG’s use of his 
name on billing statements the company issued solely to Plaintiff. See, e.g., Am. Compl. ¶ 46. It 
is therefore not plausible on these allegations that PSEG’s activity caused or will cause any 
confusion. As such, the Court will dismiss Plaintiff’s trademark infringement and false 
endorsement claims;2 and 
 
2 Plaintiff entitles this claim “trademark infringement / false endorsement (15 U.S.C. §§ 1125(a), 
1127) and New Jersey common law.” Am. Compl. ¶¶ 45–50. New Jersey common law provides 
a cause of action for trademark infringement. See Gold Cross Safety Corp. v. PHH Vehicle Mgmt., 
No. 07-2401, 2008 WL 2625357, at *6 (D.N.J. June 27, 2008). However, it appears that N.J. Stat. 
Ann. 56:4-1, et seq. (not New Jersey common law) provides a cause of action for false 
endorsement, though New Jersey common law provides a cause of action for unfair competition, 
which is similar to false endorsement. See Acosta v. Faraones Nightclub, No. 18-17710, 2023 WL 
4946960, at *5 (D.N.J. Aug. 3, 2023). Therefore, the Court construes Plaintiff’s amended 
complaint to bring a common law trademark infringement claim, a common law unfair competition 
claim, and a state statutory false endorsement claim (in addition to federal trademark and false 
endorsement claims). See Higgs, 655 F.3d at 339. However, all three state-law claims similarly 
require a likelihood of confusion. See Acosta, 2023 WL 4946960, at *5 (finding federal and New 
Jersey false endorsement claims to be coextensive); Geiger v. SA & G Corp., No. 22-1797, 2023 PageID:
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WHEREAS Plaintiff has failed to state a claim for per se defamation. To state a claim for 
per se defamation under New Jersey law, a plaintiff must allege “(1) the assertion of a false and 
defamatory statement concerning another; (2) the unprivileged publication of that statement to a 
third party; and (3) fault amounting at least to negligence by the publisher.” NY Mach. Inc. v. 
Korean Cleaners Monthly, No. 17-12269, 2023 WL 3508330, at *5 (D.N.J. May 17, 2023) 
(citation omitted). Plaintiff alleges that PSEG “falsely labeled or implied that Plaintiff advances 
so-called ‘sovereign citizen’ theories, a pejorative slur commonly used to delegitimize litigants 
and poison the perception of their claims.” Am. Compl. ¶ 57. Plaintiff appears to be referencing 
PSEG’s first motion to dismiss, which argued “Plaintiff’s [original] Complaint appears to be 
grounded on sovereign citizen principles.” ECF No. 9-1 at 6; see also id. at 2, 7–8, 14, 16–17; and 
WHEREAS these statements are not actionable for at least two reasons. First, these 
statements are privileged, because PSEG made them “in the course of judicial . . . proceedings.” 
Rohrabacher v. Olivio, No. 07-01496, 2008 WL 1840769, at *5 (D.N.J. Apr. 23, 2008) (citation 
omitted); see Abira Med. Lab’ys, LLC v. Wiesner, No. A-2550-21, 2023 WL 2643528, at *5 (N.J. 
Super. Ct. App. Div. Mar. 27, 2023) (“The litigation privilege applies to ‘any communication (1) 
made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by 
law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical 
relation to the action.’” (citation omitted)). Second, Plaintiff does not plausibly allege that this 
statement was defamatory. See MCO & EA LLC v. Silver Globe Inc., No. 20-17100, 2022 WL 
2161522, at *5 (D.N.J. June 14, 2022) (“A defamatory statement is one that is false and injurious 
 
WL 5515975, at *3 (D.N.J. Aug. 25, 2023) (“[I]t appear[s] that New Jersey statutory and common 
law for unfair competition consists of the same elements as those under the [federal law].”); Gold 
Cross Safety, 2008 WL 2625357, at *6 (“The key element of common law trademark infringement 
or unfair competition based upon trademark infringement is the likelihood of consumer 
confusion.”). As such, the Court will dismiss these three state-law claims as well. PageID:
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to the reputation of another.”). Therefore, the Court will dismiss Plaintiff’s defamation per se 
claim. 
Accordingly, IT IS on this 22nd day of May 2026; 
ORDERED that PSEG’s motion to dismiss Plaintiff’s amended complaint (ECF No. 18) 
is GRANTED; and it is further 
ORDERED that Plaintiff’s amended complaint (ECF No. 16) is DISMISSED 
WITHOUT PREJUDICE; and it is further 
ORDERED that to the extent Plaintiff is able to cure the pleading deficiencies identified 
in this Order, he shall have thirty (30) days from the date of this Order to file a second amended 
complaint. Insofar as Plaintiff submits a second amended complaint, he shall also provide a form 
of the second amended complaint that indicates in what respect it differs from the amended 
complaint, bracketing or striking through materials to be deleted and underlining materials to be 
added. See L. Civ. R. 15.1(b)(2); and it is further 
ORDERED that the Office of the Clerk of Court shall mark this matter closed. 
SO ORDERED. 
 /s/ Claire C. Cecchi 
 CLAIRE C. CECCHI, U.S.D.J. PageID:
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