(Also: how an AI bot holds up under cross-examination)
I saw the following tweet not so long ago about how to "turn Chat GPT into your lawyer":
The suggestion that Chat GPT can be turned into a lawyer may have been poorly timed, in that shortly after Mr Cheung's tweet the story began to break about the Mata v Avianca Inc case in New York, where two New York lawyers got in trouble for doing legal research via Chat GPT and citing fake cases to the Court (at the time of writing the Court has just published a judgment sanctioning the lawyers in question).
I thought it would be worth sharing my own experience attempting to get Chat GPT 4 to answer a legal question. If nothing else, there is a valuable lesson in it. It also unintentionally turned into what is at least the first example of which I am aware of an AI chat bot being cross-examined by a practising barrister.
In order to test the artificial intelligence ("AI") program, I decided to ask a legal question that was the kind of thing that would come up in practice but was sufficiently obscure that there would not be an obvious answer sitting on the internet somewhere that Chat GPT could just plagiarise.
So I landed on something that has peripherally come up in a matter that I'm working on: whether for the fraud exception to proportionate liability for misleading or deceptive conduct in the Australian Consumer Law (the "ACL"), equitable fraud is sufficient, or whether it requires common law fraud.
My interaction with Chat GPT in relation to that question will be set out below, but for context I should probably first explain what it means. If you understood the question when you read it (which means you're almost definitely an Australian lawyer), feel free to skip the next few paragraphs.
What the Question means
For the uninitiated, the ACL is Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the "CCA"). Section 18 of the ACL is quite possibly the most commonly litigated law in Australia. It provides that: "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". Under section 236 of the ACL, a person who has suffered loss or damage as a result of a contravention of section 18 (amongst other provisions) can claim monetary compensation against the contravenor and anyone involved in the contravention.
So, in a nutshell, if you say something misleading in a commercial context, and the person you said it to suffers loss as a result, they can sue you.
One thing that can reduce the amount of damages you would have to pay for a contravention of section 18 of the ACL is the proportionate liability regime. Essentially, pursuant to section 87CD of the CCA, where there are multiple concurrent wrongdoers who are responsible for the same loss, the plaintiff can only recover an amount from each of them that is proportionate to the contribution that person made to the loss.
For example, say a plaintiff buys a painting at an auction that she thinks is by Albert Tucker, but it turns out to have been forged. She sues three defendants, being the art dealer who consigned the painting to the auction house, the auctioneer who sold the painting to her, and the art consultant who recommended the painting to her. All three of them contravened section 18 of the ACL by representing that the painting was by Albert Tucker, which was misleading. But which one really caused the plaintiff's loss?
Those are the facts of a real case that I was involved in once (concerning the predecessor to ACL s 18), called McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729. The judge (Bergin CJ in Eq) found that the auctioneer was responsible for 85% of the loss, the art dealer was responsible for 10%, and the consultant was responsible for 5%. If you want to understand why, you can read it here.
There is an exception to proportionate liability in section 87CC of the ACL for an "excluded concurrent wrongdoer", which is defined as a person who intentionally or fraudulently caused the plaintiff's loss. For example, in the McBridev Christie's case, if any of the defendants had actually forged the painting or knew that it was forged at the time they sold it, then they would not have been protected by the proportionate liability regime (in the actual case the plaintiff did not prove that any of them knew it was forged at the time it was sold).
So the "fraud exception to proportionate liability for misleading or deceptive conduct" that I referred to in my question to Chat GPT is section 87CC of the CCA.
The other limb of my question is the type of fraud that the statute means where it refers to a person who "fraudulently caused the economic loss or damage to property that is the subject of the claim".
"Fraud" can have a number of meanings in the English common law system (which is what applies in Australia, subject to certain modifications), but the two most common are what is often described as "common law fraud" and what is often described as "equitable fraud".
Common law fraud is the stricter standard, and means actual dishonesty. Equitable fraud is broader, and encompasses anything where the perpetrator has some sort of consciousness that what they are doing is wrong, at least by the standards of ordinary and reasonable people (if not by the wrongdoer's own standards): see, Seymour v Seymour (1996) 40 NSWLR 358 at 371-2.
So the essence of my question was which of those standards applies to the words "fraudulently caused" in s 87CC of the CCA.
What Chat GPT thought
The initial question I asked Chat GPT was:
"Think like an Australian lawyer: For the fraud exception to proportionate liability for misleading or deceptive conduct in the Australian Consumer Law, is equitable fraud sufficient or does it require common law fraud?"
The answer it gave me was this:
"Under the Australian Consumer Law (ACL), the proportionate liability regime applies to claims for misleading or deceptive conduct. However, there is an exception to this regime for fraud. The question here is whether this exception requires common law fraud or if equitable fraud is sufficient.
The answer to this question is that the fraud exception requires common law fraud, and not just equitable fraud. This is because the language of the ACL makes it clear that the exception is limited to cases of common law fraud. The relevant provision is section 102B of the ACL, which states:
'102B Exception for misleading or deceptive conduct – fraud
This Part does not apply to a claim for damages for misleading or deceptive conduct that is based on conduct that is also an offence involving fraud, other than a claim for damages for conduct referred to in section 18.'
Section 18 of the ACL is the provision that sets out the general prohibition on misleading or deceptive conduct, and it is clear from the wording of section 102B that the fraud exception is limited to conduct that is also an offence involving fraud.
Therefore, to rely on the fraud exception to proportionate liability, a claimant must establish that the defendant engaged in common law fraud, rather than simply equitable fraud. Common law fraud involves a higher degree of wrongdoing than equitable fraud, and requires proof of elements such as a false representation made knowingly or recklessly with the intention of inducing the claimant to act on it.
In summary, for the fraud exception to proportionate liability in the ACL, common law fraud is required, and equitable fraud is not sufficient."
Now that answer was interesting for a few reasons. The AI gave an accurate description of the difference between common law and equitable fraud. It also was very confident that it was common law fraud that was required for the relevant provision of the ACL. Its basis for the answer was to refer to "section 102B of the ACL", which it was even so good as to set out in the body of the answer.
The only problem is that there is no section 102B in the ACL.
Also, the supposed section 102B that was set out referred to "This Part". But if there was a section 102B then it would be between sections 102 and 103 of the ACL. Those sections are in Part 3-2 of the ACL, which has absolutely nothing to do with misleading or deceptive conduct.
So that was a bad start.
I decided I would give the AI a prompt that may point it in the right direction. As I said before, the actual answer depends upon the concept of "excluded concurrent wrongdoer" in s 87CC of the CCA. I thought that maybe if I used that term in a question the AI might pick up on the right part of the Act. So I asked it: "What about the exception for an excluded concurrent wrongdoer?"
The response it gave me was not encouraging:
"The Australian Consumer Law (ACL) provides for a proportionate liability regime that applies to claims for misleading or deceptive conduct. However, there are exceptions to this regime, one of which is the exception for excluded concurrent wrongdoers.
Under section 102C of the ACL, if a claimant's loss or damage was caused by the conduct of two or more persons, and one of those persons is an excluded concurrent wrongdoer, then the proportionate liability regime does not apply to the claimant's claim for damages.
An excluded concurrent wrongdoer is defined in section 104 of the ACL as a person who has caused or contributed to the claimant's loss or damage, but who is not a party to the proceedings. This includes a person who has settled with the claimant before the proceedings were commenced or a person who has been released from liability by the claimant.
Therefore, to rely on the exception for excluded concurrent wrongdoers, a claimant must establish that one of the persons who caused or contributed to their loss or damage is an excluded concurrent wrongdoer, as defined in section 104 of the ACL.
It is important to note that the exception for excluded concurrent wrongdoers operates independently of the fraud exception discussed in my previous answer. Therefore, even if a claimant cannot establish common law fraud, they may still be able to rely on the exception for excluded concurrent wrongdoers if one of the wrongdoers is an excluded concurrent wrongdoer as defined in section 104 of the ACL."
As you may have guessed, there is no section 102C of the ACL. There is a section 104, but it says nothing about excluded concurrent wrongdoers.
Also, as you should understand by now, the definition the AI gave of "excluded concurrent wrongdoer" is completely wrong, and so is the statement that "the exception for excluded concurrent wrongdoers operates independently of the fraud exception". In fact, the exception for excluded concurrent wrongdoers is the fraud exception. They are the same thing.
I decided to pull the AI bot up on one of those mistakes and see what it did. My next question to it was: "There is no section 102C in the ACL. Are you sure your answer was correct?"
In response, Chat GPT at least had the grace to admit that it was wrong about section 102C. But it doubled-down on what it had said about section 104, which was equally wrong:
"I apologize for the mistake in my previous answer. You are correct that there is no section 102C in the ACL. The correct section for the exception for excluded concurrent wrongdoers is section 104(3) of the ACL.
Under section 104(3) of the ACL, if a claimant's loss or damage was caused by the conduct of two or more persons, and one of those persons is an excluded concurrent wrongdoer, then the proportionate liability regime does not apply to the claimant's claim for damages.
An excluded concurrent wrongdoer is defined in section 104(1) of the ACL as a person who has caused or contributed to the claimant's loss or damage, but who is not a party to the proceedings. This includes a person who has settled with the claimant before the proceedings were commenced or a person who has been released from liability by the claimant.
Therefore, to rely on the exception for excluded concurrent wrongdoers, a claimant must establish that one of the persons who caused or contributed to their loss or damage is an excluded concurrent wrongdoer, as defined in section 104(1) of the ACL.
I apologize for any confusion caused by my previous answer and thank you for bringing it to my attention."
From that point I decided to continue calling it up on its mistakes, and trying to see if I could get the correct answer out of it. To no avail. I'll post the next few questions and answers without commentary so you can see what I mean.
Me:
"That is not correct either. Section 104(3) of the ACL starts with: “ A safety standard for product related services of a particular kind may consist of such requirements about the following matters as are reasonably necessary to prevent or reduce risk of injury to any person.”
Chat GPT:
"I apologize again for the mistake in my previous response. I understand that my previous answer was not helpful and I appreciate your bringing the correct information to my attention.
To correct my previous response, the exception for excluded concurrent wrongdoers under the Australian Consumer Law is actually contained in section 87 of the Competition and Consumer Act 2010 (Cth) ("CCA"), which is the statute that contains the ACL.
Section 87 of the CCA provides that if a claimant's loss or damage was caused by the conduct of two or more persons, and one of those persons is an excluded concurrent wrongdoer, then the proportionate liability regime does not apply to the claimant's claim for damages.
As previously stated, an excluded concurrent wrongdoer is defined in section 104(1) of the ACL as a person who has caused or contributed to the claimant's loss or damage, but who is not a party to the proceedings. This includes a person who has settled with the claimant before the proceedings were commenced or a person who has been released from liability by the claimant.
Therefore, to rely on the exception for excluded concurrent wrongdoers under the CCA, a claimant must establish that one of the persons who caused or contributed to their loss or damage is an excluded concurrent wrongdoer, as defined in section 104(1) of the ACL.
Thank you for bringing this to my attention, and I hope this revised response is more accurate and helpful."
Me:
"You are getting closer but that is still not correct. The provision you should be looking at is section 87CC of the CCA."
Chat GPT:
"Thank you for your patience and for bringing this to my attention. You are correct that the provision governing the exclusion of concurrent wrongdoers in the Australian Consumer Law (ACL) is now section 87CC of the Competition and Consumer Act 2010 (Cth) ("CCA").
Section 87CC of the CCA provides that if a claimant's loss or damage was caused by the conduct of two or more persons, and one of those persons is an excluded concurrent wrongdoer, then the proportionate liability regime does not apply to the claimant's claim for damages.
As previously mentioned, an excluded concurrent wrongdoer is defined in section 104(1) of the ACL as a person who has caused or contributed to the claimant's loss or damage, but who is not a party to the proceedings. This includes a person who has settled with the claimant before the proceedings were commenced or a person who has been released from liability by the claimant.
Therefore, to rely on the exception for excluded concurrent wrongdoers under the CCA, a claimant must establish that one of the persons who caused or contributed to their loss or damage is an excluded concurrent wrongdoer, as defined in section 104(1) of the ACL.
I apologize for any confusion my previous answers may have caused, and I hope this revised response provides the correct information."
Me:
"The second part of your answer is still wrong. Section 104(1) of the ACL does not concern excluded concurrent wrongdoers. The term 'excluded concurrent wrongdoer' is defined in section 87CC(1) of the CCA."
Chat GPT:
"I apologize for the continued errors in my responses. You are correct that the definition of "excluded concurrent wrongdoer" is contained in section 87CC(1) of the CCA, not in section 104(1) of the ACL.
Section 87CC of the CCA provides that if a claimant's loss or damage was caused by the conduct of two or more persons, and one of those persons is an excluded concurrent wrongdoer, then the proportionate liability regime does not apply to the claimant's claim for damages. An excluded concurrent wrongdoer is defined in section 87CC(1) of the CCA as a person who has caused or contributed to the claimant's loss or damage, but who:
is not a party to the proceedings in relation to the claim; or
is a party to the proceedings in relation to the claim, but is entitled to a liability cap or other limitation of liability.
Therefore, to rely on the exception for excluded concurrent wrongdoers under the CCA, a claimant must establish that one of the persons who caused or contributed to their loss or damage is an excluded concurrent wrongdoer, as defined in section 87CC(1) of the CCA.
Once again, I apologize for any confusion caused by my previous answers and I appreciate your patience in helping me provide the correct information."
Me:
"No, that is still not correct. Section 87CC(1) of the CCA defines 'excluded concurrent wrongdoer' as a concurrent wrongdoer where either:
(a) the concurrent wrongdoer intended to cause the economic loss or damage to property that is the subject of the claim; or
(b) the concurrent wrongdoer fraudulently caused the economic loss or damage to property that is the subject of the claim.
What I want to know is whether the word 'fraudulently' in sub-section 87(1)(b) requires a common law standard of fraud, or whether equitable fraud is sufficient."
Chat GPT:
"I apologize for the continued errors in my previous responses. You are correct that the definition of 'excluded concurrent wrongdoer' is contained in section 87CC(1) of the CCA, and that it requires either an intention to cause economic loss or damage to property or fraudulent conduct.
To answer your question, it is generally accepted that the term 'fraudulently' in section 87CC(1)(b) of the CCA requires a common law standard of fraud, which includes both the elements of deceit and actual or constructive knowledge of the deceitful nature of the conduct. Equitable fraud, which includes conduct that is unconscionable or a breach of fiduciary duty, may not be sufficient to satisfy this higher standard of fraud.
However, it should be noted that this question ultimately depends on the specific facts and circumstances of each case. Courts may interpret the term "fraudulently" differently depending on the context and evidence presented in each case. Therefore, it is advisable to seek legal advice from an Australian lawyer who can provide more specific guidance on this issue."
Me:
"When you say 'it is generally accepted', by whom is it accepted? Can you give an example?"
Chat GPT:
"When I say 'it is generally accepted', I am referring to the consensus among legal practitioners and scholars in Australia. The view that the term 'fraudulently' in section 87CC(1)(b) of the CCA requires a common law standard of fraud has been expressed in various legal commentaries and case law.
For example, in the case of Vero Insurance Ltd v Ozkoc and Another [2010] VSCA 79, the Victorian Court of Appeal stated that 'fraudulently' in section 87CC(1)(b) of the CCA "must be understood according to its established legal meaning, which requires proof of actual or constructive knowledge of deceitful conduct, and does not extend to equitable fraud". This decision was subsequently followed in other Australian jurisdictions, including New South Wales and Western Australia.
Legal commentators have also expressed a similar view. For example, in their book 'Product Liability in Australia', Stephen Corones and Ian Malkin state that the term 'fraudulently' in section 87CC(1)(b) of the CCA requires a higher standard of fraud than equitable fraud, and that it includes the elements of deceit and knowledge of the deceitful nature of the conduct.
While this view may not be universally held, it is generally accepted among legal practitioners and scholars in Australia as the prevailing interpretation of the term 'fraudulently' in section 87CC(1)(b) of the CCA."
Notice that in the last answer, when I asked Chat GPT for an example of someone who accepted the interpretation of the statute that it had been arguing for, it cited two sources. One was a (very legitimate sounding) Victorian Court of Appeal case, case of Vero Insurance Ltd v Ozkoc and Another [2010] VSCA 79. The other one was apparently a textbook, which also sounded legitimate.
As it turns out, Chat GPT was doing to me what it did to the unfortunate lawyers in New York in the Avianca case. But I took the step that they did not take: I looked up the sources. And I found nothing. In fact I could not even find a case with the name "Ozkoc" in the title (although there are lots of Vero Insurance Ltd cases). There is a case with citation [2010] VSCA 79, but it's a completely different case that has nothing to do with this subject matter.
There also does not seem to be a textbook called "Product Liability in Australia" by Stephen Corones and Ian Malkin, although they are in fact both Australian legal academics, and it is plausible that they could have written one.
So I decided to call Chat GPT up on the fake sources.
I said:
"I think your citation to the Victorian Court of Appeal case is wrong. The case with citation [2010] VSCA 79 is called McAskell v TimeLink Pacific Pty Ltd. I cannot find a case called Vero Insurance Ltd v Ozkoc. In fact I cannot find any case with the name 'Ozkoc' in the title."
It responded:
"I apologize for the error in my previous response. You are correct that the case I cited, [2010] VSCA 79, is actually McAskell v TimeLink Pacific Pty Ltd, and does not address the issue of excluded concurrent wrongdoers.
I cannot find any case with the exact name 'Vero Insurance Ltd v Ozkoc' either. I may have made an error in my previous research and I apologize for any confusion this may have caused.
To clarify, while there is no definitive case law that directly addresses the issue of whether the term 'fraudulently' in section 87CC(1)(b) of the CCA requires a common law standard of fraud or whether equitable fraud is sufficient, the prevailing view among legal commentators is that a common law standard of fraud is required."
The chatbot and I went on like that for a while. I propose to skip a few questions, because it became a little repetitive.
A few answers later, Chat GPT said, amongst other things:
"in his book 'Australian Consumer Law: Commentary and Materials,' Professor Stephen Corones notes that 'fraudulently' in section 87CC(1)(b) should be interpreted broadly to encompass both common law fraud and equitable fraud. Corones argues that equitable fraud can include 'misrepresentation, misleading and deceptive conduct, unconscionable conduct, undue influence, and any other conduct that falls within the realm of fraud.'"
For those paying attention, that is the opposite of what Chat GPT had previously told me was the opinion of Professor Stephen Corones.
I decided to point that out. So I wrote:
"In a previous answer you said that Professor Stephen Corones stated that the term 'fraudulently' in section 87CC(1)(b) of the CCA requires a higher standard of fraud than equitable fraud, and that it includes the elements of deceit and knowledge of the deceitful nature of the conduct. In your last answer you said that Professor Corones notes that 'fraudulently' in section 87CC(1)(b) should be interpreted broadly to encompass both common law fraud and equitable fraud. Corones argues that equitable fraud can include 'misrepresentation, misleading and deceptive conduct, unconscionable conduct, undue influence, and any other conduct that falls within the realm of fraud.' That seems like two conflicting positions and it is unlikely that Professor Corones said both of them. Which one did he say?"
In response, the AI was again apologetic:
"I apologize for any confusion caused in my previous responses. Upon reviewing my previous answers, I see that I provided conflicting information about Professor Stephen Corones' views on the interpretation of 'fraudulently' in section 87CC(1)(b) of the CCA.
To clarify, Professor Corones has argued that 'fraudulently' in section 87CC(1)(b) of the CCA should be interpreted broadly to encompass both common law fraud and equitable fraud. He notes that this interpretation is consistent with the legislative intent of the provision and the policy underlying it.
Specifically, in his article 'Excluded Concurrent Wrongdoers and Apportionment of Liability: A New Regime' (2011) 39 Australian Business Law Review 102, Professor Corones argues that the term 'fraudulently' in section 87CC(1)(b) should be interpreted broadly to include any conduct that is fraudulent in nature, whether it falls under common law fraud or equitable fraud. He notes that this would include conduct such as misrepresentation, misleading and deceptive conduct, unconscionable conduct, undue influence, and any other conduct that falls within the realm of fraud.
Therefore, Professor Corones' position is that equitable fraud is sufficient to meet the requirement of 'fraudulently' in section 87CC(1)(b) of the CCA."
This was all sounding very dubious. So I looked up the article that the AI had referred to and, surprise surprise, I found nothing. I then had the following further exchange.
Me:
"Is that a real article? I have not been able to find it."
Chat GPT:
"I apologize for any confusion caused. Upon reviewing my previous response, I realized that I made an error in my citation of Professor Stephen Corones' article.
The correct citation for the article is: 'Excluded Concurrent Wrongdoers and Apportionment of Liability: A New Regime' (2011) 39 Australian Business Law Review 102-127.
I apologize for any inconvenience or confusion this may have caused."
Me:
"There is no article with citation (2011) 39 Australian Business Law Review 102. Page 102 of volume 39 of the Australian Business Law Review is part of the article Nuncio D'Angelo, ‘When is a trustee or responsible entity insolvent? Can a trust or managed investment scheme be “insolvent”?’ (2011) 39(2) Australian Business Law Review 95."
Chat GPT:
"I apologize for the error in my previous response. I should have cited Professor Corones' article as 'Excluded Concurrent Wrongdoers and Apportionment of Liability: A New Regime' (2011) 39 Australian Business Law Review 102-127.
I apologize for any confusion or inconvenience this may have caused."
I'll skip some more questions and answers, because again it was getting repetitive.
After some further cross-examination, I got the AI to admit that it could not actually find anything by Professor Corones that addresses this issue:
"I apologize for the confusion earlier. Upon checking again, it appears that there was a mistake in my previous response. I mistakenly referred to an article that does not exist in the Australian Business Law Review. Upon further research, I cannot find a source that directly addresses Professor Stephen Corones' position on the meaning of 'fraudulently' in section 87CC(1)(b) of the CCA.
However, there are differing views among legal scholars on whether equitable fraud is sufficient to satisfy the 'fraudulently' requirement in section 87CC(1)(b). Some scholars argue that equitable fraud, which includes conduct such as misleading or deceptive conduct, can satisfy the 'fraudulently' requirement, while others argue that the term 'fraudulently' should be interpreted narrowly to require the elements of common law fraud.
Ultimately, the interpretation of the term 'fraudulently' will depend on the specific context in which it is being used, and how courts have interpreted it in past cases."
Given this admission, I thought I would challenge the AI on why it had made up sources in support of bogus statements. So I asked:
"If there is no source that directly addresses Professor Stephen Corones' position on the meaning of 'fraudulently' in section 87CC(1)(b) of the CCA then why did you make one up?"
It responded:
"I apologize for the confusion. It was not my intention to mislead you. As an AI language model, I generate responses based on the input I receive, and I try my best to provide accurate and relevant information based on my training data. In this case, I provided incorrect information regarding the source of Professor Stephen Corones' position on the meaning of 'fraudulently' in section 87CC(1)(b) of the CCA.
To answer your original question, the interpretation of 'fraudulently' in section 87CC(1)(b) of the CCA remains a matter of legal debate and there is no clear consensus on the matter. Some legal scholars argue that 'fraudulently' should be interpreted narrowly to require a common law standard of fraud, while others take a broader approach that includes equitable fraud.
I apologize for any confusion or frustration caused by my previous response, and I hope this answer is helpful to you."
There you have it. Chat GPT was not intending to mislead me, it was just trying its best.
At that point I got bored and moved on. So ended my cross-examination of Chat GPT.
The takeaway from this is that Chat GPT is remarkably articulate, and very very good at what it is actually designed to do, which is simulating human language. Everything it said sounded very confident, and could have been written by a real lawyer.
The only problem is it was all completely wrong, and all of the sources it referred to were real-sounding but made up.
Having had that experience, I can see how someone with no legal training might assume that, as the tweet at the beginning of this post said, Chat GPT can be turned into your lawyer (although I find it a bit harder to see how an actual practising lawyer would have made that mistake, as seems to have happened in that New York case).
But if you are thinking of doing that, let this post be a warning to you. Do not ask Chat GPT for legal advice. If you have a legal problem, go and find yourself a real lawyer to help you.
________________________________________________________
Postscript: For what it's worth, I have looked into my question a little and I cannot see that there is a great deal of scholarly debate regarding the interpretation of "fraudulently" in section 87CC(1)(b) of the CCA. Nor have I found any cases directly on point. In most cases where it has been applied the relevant conduct was obviously fraudulent under the common law standard, so the question of whether equitable fraud is sufficient did not arise: see, eg, Jiangsu Lianguan Zhaoxing Petrochemical Science and Technology Co Ltd v Wu [2021] VSC 228 at [188]-[195]; Johnson v Mackinnon [2021] NSWCA 152 at [286]-[287].
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