The Advertising Disputes & Litigation and Consumer Protection Committees RECENT LITIGATION DEVELOPMENTS. [Cases from June 3 to 18, 2015]

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2 The Advertising Disputes & Litigation and Consumer Protection Committees RECENT LITIGATION DEVELOPMENTS [Cases from June 3 to 18, 2015] Prepared for the ADL and CP Committees by Dan Blynn, and Shahin Rothermel of Venable LLP; Dale Giali, and Elizabeth Crepps of Mayer Brown LLP; Devon Winkles of Kelley Drye & Warren LLP; Douglas Brown, Darren McCartney, and Samantha Duke of Rumberger, Kirk & Caldwell, P.A.; Lauren Valkenaar of Norton Rose Fulbright LLP; Peter Farnese of Beshada Farnese, LLP; Camille Calman of Davis Wright Tremaine LLP; Erik King of Lockheed Martin; Eugene Benick of NOVA Business Law Group, LLP; Tiffany Ge of Frost Brown Todd LLC; Hal Hodes and Linda Bean of the National Advertising Division (NAD) of the Council of Better Business Bureaus; Mike Sherling, Judicial Law Clerk, Maryland Court of Special Appeals; and Heather Goldman of Bryan Cave LLP. RECENT DECISIONS Lanham Act and Other Competitor Actions The U.S. Court of Appeals for the Fourth Circuit affirms the district court s award of summary judgment in favor of the defendant on the basis that the plaintiff had not presented sufficient evidence to establish a Lanham Act claim. The case involved allegedly false advertising claims based upon an advertisement placed in a trade magazine by the defendant cautioning purchasers about suppliers misrepresenting products made from leather scraps as leather. The case also involved the defendant statements regarding the term bonded leather. Addressing the plaintiff s argument on literal falsity by implication, the Fourth Circuit rejected the plaintiff s claim premised on the theory that consumers would reach a conclusion based on reading other articles in the trade magazine to determine that the plaintiff was the only one marketing a product like the one described in the advertisement. The court also rejected the plaintiff s argument regarding the defendant s opinion that the term bonded leather was bound to confuse consumers. The Fourth Circuit held that the term bound to confuse was only an opinion, not a representation of fact, and thus not actionable under the Lanham Act. (Design Resources, Inc. v. Leather Indus. of Am., -- F.3d --, No , 2015 WL (4th Cir. June 18, 2015)). The U.S. District Court for the Eastern District of Missouri grants in part and denies in part defendant Nestle Purina Petcare Company s motion to dismiss the plaintiff s lawsuit alleging violations of the Lanham Act, the Connecticut Unfair Trade Practices Act, the Connecticut Unfair Sales Practices Act, and Connecticut common law. Plaintiff claimed that Purina has engaged in false advertising practices for ten of its pet food brands on television, in print, on its website, and on its packaging, by claiming various meats and seafood as main ingredients when, in reality, those ingredients are only a tiny fraction of the product. The court held that the plaintiff sufficiently alleged the falsity or misleading nature of Purina s challenged advertisement for each of the challenged products, but some of the theories under which the plaintiff alleged false advertising violations did not meet federal pleading standards; those portions of the plaintiff s claims were dismissed with leave to amend. In reaching its decision, the court stated that these claims center on a determination of what a reasonable consumer would believe, and the Second Circuit requires courts 1

3 to consider extrinsic evidence of consumer impact when determining whether a reasonable consumer would be misled. As a result, the court explained, whether an advertisement is deceptive is generally a question of fact which requires consideration and weighing of evidence from both sides and therefore usually cannot be resolved through a motion to dismiss. (Blue Buffalo Co. Ltd. v. Nestle Purina Petcare Co., No. 4:15 CV 384, 2015 WL (E.D. Mo. June 10, 2015)). State Consumer Protection Laws The U.S. District Court for the Eastern District of California grants the plaintiff s motion to remand the case to state court for lack of federal diversity jurisdiction. Plaintiff alleged that defendant vehicle dealership Carmax Auto Superstores California, LLC ( Carmax ) violated California s Consumer Legal Remedies Act and Unfair Competition Law by advertising and selling a car as certified and CarMax Quality Certified without providing her with a completed inspection report identifying what CarMax inspected. The amount in controversy was the key issue in determining federal subject matter jurisdiction. Because the plaintiff s complaint was unclear as to the aggregate damages sought, it was the defendant s burden to prove that the amount sought likely exceeded $75,000. The court found that the rescission damages amount was the amount that the plaintiff financed for buying the car, not including interest over time ($17,918.58). As far as punitive damages, the mere possibility of such damages was not enough to push the amount over the $75,000 threshold. The court also found that Carmax overestimated the value of the plaintiff s requested injunctive relief, thus, Carmax failed to meet its burden on that issue. Finally, the court found that Carmax failed to show that the amount of attorneys fees potentially recoverable by plaintiff in this case would push the amount in controversy over the threshold because the value of the car was so much less than the expected fees amount claimed by Carmax. The court, therefore, granted plaintiff s motion to remand the case to state court because the amount in controversy requirement for federal diversity jurisdiction was not satisfied. (Diaz v. Carmax Auto Superstores California, LLC, No. 1:15-CV (E.D. Cal. June 16, 2015)). The U.S. Court of Appeal for the Eleventh Circuit affirms a judgment based on a jury verdict finding the defendants liable for breach of contract, fraud, and violations of the Florida Deceptive and Unfair Trade Practices Act ( FDUTPA ). The plaintiff the Democratic Republic of Congo ( DRC ) contracted with the defendant for service related to the repair and replacement of certain parts on the president s aircraft. The repairs and parts replacement, however, were not performed as contracted and the DRC sued. The case went to trial and the jury returned a verdict finding that the defendant breached the contract, committed fraud, and violated the FDUTPA. The defendant appealed various aspects of the judgment, including jurisdiction and its liability under FDUTPA. Focusing on the FDUTPA, the defendant argued that the DRC lacked standing under the statute because it was not a consumer. However, the court found, based on the 2001 amendments to the statute, that the Florida Legislature intended that the FDUTPA apply to individuals, businesses, or any other group or combination which included sovereign governments. The court also found the DRC was acting as a private airline when it contracted with the defendants. The defendant also argued that the jury erred in finding it liable under the FDUTPA because the DRC were too sophisticated to fall for the alleged deceit. The court disagreed, finding that, unlike in the case of common law fraud, there was no need to prove subjective reliance. The defendant also argued the plaintiff s expert used an improper measure of damages under the FDUTPA, but the court found it accorded with the law. The court held that the plaintiff must prove the difference in value between what was promised and what was delivered, unless the product was truly worthless, in which case the plaintiff could recover 2

4 the full value. Here, the court found the latter applied and the plaintiff was entitled to the full price it paid to the defendant. Finally, the court rejected the defendants argument that the FDUTPA award was an improper double recovery because the same line item damages were awarded under the fraud and breach of contract causes of action. The court found that a plaintiff may recover damages on two claims stemming from the same conduct if the total does not exceed actual damages. Because the fraud and breach of contract awards did not make the plaintiff whole, it was permissible to supplement those recoveries with FDUTPA damages. (Democratic Rep. of the Congo v. Air Capital Group, LLC, No , 2015 WL (11th Cir. June 11, 2015)). Consumer Class Actions The U.S. Court of Appeals for the Eighth Circuit affirms the district court s dismissal of the plaintiff s class action lawsuit for failure to meet the predominance requirement. Plaintiff, a California resident, sued H & R Block, a Missouri-based corporation, on behalf of himself and a putative nationwide class, alleging violations of the Missouri Merchandising Practices Act ( MMPA ). In 2011, H & R Block began passing along to consumers a Tax Preparer Compliance Fee intended to cover the costs of a new IRS regulation requiring tax preparers to pass a certification exam. Plaintiff argued that the fee charged by H&R Block exceeded the cost of complying with the regulation and was actually a deceptive profit-making scheme. The district court analyzed the claims under the U.S. Constitution s Full Faith and Credit and Due Process clauses, and concluded that the proposed class did not meet the predominance requirement of Rule 23 because each individual class member s claim would be governed by the law of that class member s home state i.e., where the fee was paid. Plaintiff appealed, arguing that the district court had abused its discretion. The Eighth Circuit, mindful of the longstanding principle of judicial restraint counseling against unnecessarily deciding constitutional issues, affirmed the district court s decision but on other grounds. Because the plaintiff had brought the claim under the MMPA, the court examined whether the claims of out-of-state potential class members were in trade or commerce... in or from the state of Missouri, as required by the MMPA. The court held that there was no connection between the out-of-state transactions and Missouri. Because each class member would be covered by his or her own state s consumer protection statute, common questions of law would not predominate over individual questions of law and, therefore, the class should not be certified. (Perras v. H & R Block, No , 2015 WL (8th Cir. June 18, 2015)). The U.S. District Court for the Northern District of Illinois grants defendant CVS Pharmacy, Inc. s motion to dismiss in a putative false advertising class action suit. Plaintiff claimed that CVS deceptively labeled its Whey Protein Powder as pure whey protein powder and as containing 26 grams of high-quality protein per serving, when, in fact, the product allegedly was not 100% whey and contained other, inferior proteins. Plaintiff alleged that CVS utilized protein-spiking to increase the protein content of the product as measured by the approved method for determining protein content. The court first found that the plaintiff s primary claims were preempted by the Federal Food, Drug, and Cosmetic Act ( FDCA ), as amended by the National Labeling and Education Act ( NLEA ). The NLEA prohibits states from making product labeling requirements for protein that differ from those prescribed by statute and the FDA. Current federal labeling requirements do not make companies distinguish between sources of protein. The court found significant the fact that the FDA previously had considered and rejected a proposal to restrict quality and source claims on labeling subject to the protein s quality. In attempting to distinguish his claims 3

5 from those made in a similar case, Turek v. Gen. Mills, Inc., 662 F.3d 423 (7th Cir. 2011), the plaintiff alleged deception only with respect to the front label. However, the term labeling includes all printed material accompanying a product, including the front label. Thus, because the plaintiff s claims would require CVS to differentiate whey protein from other sources of protein in its product, those claims were preempted by the FDCA. Plaintiff alleged several non-preempted claims: omission of ingredients from the front label; breach of warranty; and unjust enrichment. The court found that, as a matter of law, the product label was not misleading even though it prominently displayed one ingredient, whey protein, and not other notable ingredients because the label also prominently displayed the words vanilla and Naturally & Artificially Flavored Drink Mix. As such, the content of the label did not have the capacity to deceive such that a person would believe that the product was pure whey protein. The court dismissed the breach of warranty claim because assertions of high quality are viewed as puffing rather than express warranties. Finally, the unjust enrichment claim failed because, under Illinois law, a plaintiff cannot succeed where the facts underlying the claim are the same allegedly deceptive statements and claims that are preempted by federal law. In dismissing the suit without prejudice, the court gave plaintiff one month to file an amended complain that addressed the above concerns or added plaintiffs who could pursue other non-illinois state law claims. (Gubala v. CVS Pharmacy, Inc., No. 14 C 9039, 2015 WL (N.D. Ill. June 16, 2015)). The U.S. District Court for the District of Massachusetts grants in part and denies in part the defendant s motion to dismiss claims that defendant-manufacturers of antidepressants violated the federal Racketeer Influenced and Corrupt Organizations Act ( RICO ), and Massachusetts and Washington s consumer protection acts. The suit involves the efficacy of two antidepressants designed to treat major depressive disorder ( MDD ) in children. Plaintiffs alleged that the defendant withheld information about negative efficacy studies of the drugs. The court granted the defendant s motion to dismiss the RICO claims with regards to one plaintiff for lack of standing, as she failed to allege that the drug was ineffective as to her daughter. The court denied dismissal as to the second plaintiff because she made sufficient allegations that the drug was ineffective for pediatric and adolescent MDD, meaning it was ineffective as to her daughter. The plaintiffs also alleged that the injury was the result of the denial of the opportunity to make a fully informed decision before purchasing the drug and that they would not have bought the drug if they had known about the negative efficacy studies. The Court rejected this argument under the Massachusetts act, finding that the plaintiff failed to plead an economic injury rather than an abstract denial of opportunity to make an informed decision. In addition, the court denied the defendant s motion to dismiss under the Washington Consumer Protection Act because the plaintiff adequately alleged that the defendant s deception directly caused an overvaluation of the drugs resulting in payments for the drugs that would not have occurred otherwise, sufficiently pleading injury under the Washington act. (In re Celexa & Lexapro Mktg. & Sales Practices Litig., No , 2015 WL (D. Mass. June 15, 2015).) The U.S. District Court for the District of New Jersey denies the putative class plaintiffs renewed motion for class certification, because the plaintiffs, again, failed to meet their burden of proving a reasonably objective method of ascertaining class membership that simultaneously would provide the defendants the ability to challenge class membership while also protecting true class members from dilution of their recovery by fraudulent submissions. Plaintiffs alleged that the defendants sale of a margarita mix as all natural violated various consumer protection laws because the mix 4

6 purported to be all natural, while containing sodium benzoate. Plaintiffs argued that submission of sworn affidavits by putative class members put through a screening process by a claims management company would provide the necessary objective standards to ascertain the members of the class. The court rejected this argument for several reasons, including that (1) the affidavit required sworn statements about the details of the purchase, including purchase date, price, location, and other information, which not even the plaintiffs themselves could provide; (2) the second level of review included identification about the product that was easily identifiable through a web search and, therefore, easily fabricated; and (3) the plaintiffs own expert testified in his deposition that if it s someone s intention to beat the system... they probably can do it. The court also rejected the plaintiffs argument that the defendants had no right to challenge the class membership because their liability was based upon the amount of their sales and not the identity of the purchasers; the court reasoned that even assuming this is true, the absent class members have a right to an objectively accurate ascertainment of class membership to prevent dilution of their claims. (Bellow v. Beam Global Spirits & Wine, Inc., No , 2015 WL (D.N.J. June 9, 2015). The California Court of Appeal affirms the trial court s order sustaining Neutrogena s demurrer to the plaintiffs complaint without leave to amend, and granting its motion for judgment on the pleadings. Plaintiffs filed a purported class action lawsuit alleging that Neutrogena s sunscreen products were misleadingly labeled and marketed in violation of California consumer protection statutes. Plaintiffs alleged that Neutrogena misleadingly labeled its products with the descriptions sunblock, waterproof, and sweatproof, terms that the Food and Drug Administration ( FDA ) prohibited in a regulation published on June 17, 2011, with a compliance date of December 17, Plaintiffs contended that Neutrogena was liable for marketing products that bore these terms before the December 17, 2012 compliance date. In addition one of the plaintiffs alleged that sunscreens with a sun protection factor ( SPF ) value greater than 50 ( SPF 50+ ) misled consumers about their benefits, and sought an order that Neutrogena modify its labels and alter its advertising. The appellate court affirmed the trial court s holding that the plaintiffs claims both were expressly and impliedly preempted by the federal Food, Drug, and Cosmetic Act and implementing FDA regulations. (Eckler v. Neutrogena Corp., 2015 WL (Cal. App. June 9, 2015)). The U.S. Court of Appeals for the Eleventh Circuit holds that the district court properly denied class certification in a putative false advertising class action. Specifically, the district court did not abuse its discretion in determining that the proposed class of dietary supplement purchasers failed to satisfy the requirement of Fed. R. Civ. P. 23 that the proposed class be clearly ascertainable. Plaintiff s proposal to use the advertiser s sales data did not explain how the data would aid class-member identification. To satisfy the ascertainability requirement, a plaintiff is required to demonstrate that a defendant s records are, in fact, useful for identification purposes, and that identification will be administratively feasible. Similarly, the district court acted within its discretion by rejecting class member self-identification via affidavit. The court noted that the plaintiff might have satisfied the ascertainability requirement through his proposal of identifying class members by subpoenaing the retailers for their records. However, the appellate court noted that the district court correctly rejected this approach because the plaintiff only raised the theory in his motion to alter or amend and, instead, should have proposed the method in his class certification papers. (Karhu v. Vital Pharms., Inc., -- Fed. Appx. --, 2015 WL (11th Cir. June 9, 2015)). 5

7 The U.S. District Court for the Northern District of California grants defendant Nature s Path Foods motion to dismiss a third amended complaint (with leave to amend) and motion to stay the false advertising consumer class action while appeals in two other food false advertising cases are pending. Plaintiff alleged that the defendant s cereal products are slack-filled, falsely labeled low sodium, contain sugar under the deceptive name evaporated cane juice, and fail to disclose the use of chemical preservatives. (The court previously had stayed the evaporated cane juice claim based on FDA s on-going review of the common or usual name of the ingredient.) As to the low sodium claim, the court granted the motion to dismiss, finding that the complaint does not contain sufficient allegations to determine whether a prima facie violation of the federal low sodium regulations was asserted properly. Defendant separately moved to stay based on two pending Ninth Circuit appeals, one (Jones v. ConAgra) relating to denial of class certification and the other (Brazil v. Dole Packaged Foods) relating to summary judgment in favor of the defendant. The appeals address issues of general applicability to food false advertising consumer class actions, but not the specific issues relating to the particular products or labeling statements at issue in this case. Nevertheless, the court agreed that guidance from the Ninth Circuit with respect to food labeling claims under California s UCL, FAL, and CLRA... would aid in the orderly, just resolution of this case. Proceeding forward without that guidance could prove very inefficient. Plaintiff s concern with the delay is insufficient because she does not... identify any harm... other than frustrating her natural desire to move her case along. Given all of that plus the fact that the evaporated cane juice claim already was stayed the court stayed the case pending the outcome of the appeals. (Leonhart v. Nature s Path Foods, Inc., No. 13cv492, 2015 WL (N.D. Cal. June 5, 2015)). The U.S. District Court for the District of New Jersey denies without prejudice the plaintiffs motion for leave to file a second amended class action complaint. Plaintiffs alleged that defendant LG Electronics U.S.A., Inc. had fraudulently misled consumers regarding the functionality of certain of its cellular telephones, specifically with regard to available internal storage space and the ability to store Apps on removable media. In response to the defendant s motion to dismiss the first amended complaint, the plaintiffs proposed second amended complaint ( PSAC ) sought to swap out the class representatives as well as modify the causes of action. Plaintiffs PSAC alleged: (i) violation of the New Jersey Consumer Fraud Act based on fraud by omission; (ii) common law fraud by omission; and (iii) unjust enrichment. Defendant opposed Plaintiffs motion to amend on the basis that the PSAC would be vulnerable to dismissal and, therefore, would be futile. In denying the plaintiffs motion to amend, the court found that the plaintiffs had not pled facts sufficient to establish how the alleged omissions were material to the class representative s decision to purchase an LG phone. The court also found that New Jersey does not recognize unjust enrichment as an independent tort cause of action. (Liebler v. LG Elecs. U.S.A., Inc., No. 14-cv-03500, 2015 WL (D.N.J. June 4, 2015)). National Advertising Division (NAD) Decisions The NAD has recommended that TyraTech, Inc. discontinue challenged performance and efficacy claims for the company s homeopathic Vamousse Lice Treatment, including the claim that its lice treatment product Kills 100% of lice and eggs in 15 minutes. NAD determined, however, that the advertiser provided a reasonable basis for its pesticide free claims. The claims were challenged by Sanofi Pasteur, Inc., maker of a competing prescription lice treatment product. NAD determined that the advertiser s health-related performance claims should be held to the same substantiation 6

8 standards as other health claims, and should support its claims with human clinical trials that are methodologically sound and statistically significant to the 95% confidence level with results that translate into meaningful benefits for consumers. Applying that standard, NAD determined that the advertiser s in vitro tests were insufficient to support its efficacy claims. However, NAD found that the advertiser provided a reasonable basis for its pesticide free claims. It also determined that the advertiser s use of the term pesticide, in the context in which it appeared in the challenged advertising, did not reasonably convey a comparative safety message. (TyraTech, Inc. (Vamousse Lice Treatment and Vamousse Lice Prevention Products), NAD Report No (June 17, 2015)). The NAD has recommended that Cosmederm Bioscience, Inc. discontinue advertising claims for the company s TriCalm over-the-counter (OTC) anti-itch product, following a challenge by Chattem, Inc., the maker of Cortizone-10, a topical analgesic. Cosmederm has said it will appeal NAD s decision to the National Advertising Review Board (NARB). The challenged claims included Most over the counter topical itch relievers don t give you the relief you need and 5X MORE EFFECTIVE than hydrocortisone 1% at reducing itch.* *Head-to-head comparison of Topical Hydrocortisone 1% and TriCalm in a cowhage-induced itch model. NAD determined that the advertiser s evidence didn t support the challenged claims. It noted that the product was not tested according to consumer-use directions and was tested on itches that were induced, as opposed to naturally occurring. In addition, neither of the key studies offered by the advertiser tested older populations, who were featured in its advertising, or was conducted during the winter. Following its review of the evidence in the record, NAD recommended that the advertiser discontinue the challenged claims. (Cosmerderm Biosciences, Inc. (TriCalm), NAD Report No (June 10, 2015)). The NAD has recommended that the Institute for Vibrant Living discontinue a wide range of express claims and testimonials for the company s Alleviate dietary supplements. The claims at issue were challenged by the Council for Responsible Nutrition (CRN), which files challenges with the NAD regarding advertising of dietary supplements in an effort to encourage manufacturers to provide substantiation for their advertising claims to an objective third party for review and evaluation. Alleviate is formulated with white willow bark extract, Boswellia serrata gum extract, ginger root powder, hyaluronic acid, and Vitamin C, and is promoted by the advertiser as relieving joint pain and improving joint function and cardiovascular health. The advertiser argued that all of its claims were supported by competent and reliable competent evidence in the form of randomized, placebo-controlled human trials, in vitro and animal studies on the ingredients in Alleviate dietary supplements. The challenger maintained that many of the ingredient studies submitted by the advertiser fail to match the dosage, formulation, and administrative route of the ingredients found in Alleviate. Following its review of the evidence in the record, NAD determined that the advertiser had established a reasonable basis for its claim You also get an ancient herbal medicine that s been proven by recent research, if used in the context that the ingredients in Alleviate may relieve pain in the knee and back caused by inflammation. NAD also found that the advertiser could support a claim that the Vitamin C in Alleviate supports antioxidant protection against free radical damage. NAD recommended the advertiser modify or discontinue all other challenged claims. (Institute For Vibrant Living (Alleviate), NAD Report No (June 10, 2015)). 7

9 RECENT FILINGS Lanham Act and Other Competitor Actions Safari Programs, Inc. filed suit in the U.S. District Court for the Southern District of Florida against Quercia, Inc. and Collecta International Limited, sellers of animal figurines. Safari alleged violations of the Lanham Act as well as Florida common law false advertising. In particular, Safari accused the defendants of misappropriating trade secrets, falsely claiming that they are one of the world s largest makers of toy animal figurines catering to the toy specialty marketed for over 30 years, and making misleading claims about the geographic origin of Collecta products, which are made in China or Hong Kong. (Safari Programs, Inc. v. Collecta Int l Ltd., No. 1:15-CV (S.D. Fla. complaint filed June 4, 2015)). Consumer Class Actions Putative class action filed in the U.S. District Court for the Central District of California against Kohl s Department Stores, alleging violations of the California Consumer Legal Remedies Act, Unfair Competition Law, and the False Advertising Law. Plaintiff claims that Kohl s falsely advertised original prices, regular prices, and price discounts for its apparel and other merchandise. Plaintiff alleges that the existence, nature, and amount of price discounts were misrepresented because the referenced former retail prices were fabricated and did not reflect prevailing market prices. (Russell, et al v. Kohl s Dep t Stores, Inc., No. 5:15-CV (C.D. Cal. complaint filed June 11, 2015)). Putative California-only class filed against Monsanto Company and alleging violation of the California False Advertising Law, removed from California Superior Court (Los Angeles County) to the U.S. District for the Central District of California. Plaintiffs allege that defendant s statement on its Roundup products that the product targets an enzyme found in plants but not in people or pets is false and misleading. According to the complaint, the enzymes that are affected by the active ingredient in Roundup are also found in bacteria that live in the stomachs of both people and animals, and harming these bacteria may cause adverse health effects. (Mirzaie, et al. v. Monsanto Company, et al., No. 2:15-cv (C.D. Cal. complaint removed on June )). Putative Florida-only class filed against Tamko Building Products, Inc. in the U.S. District Court for the Middle District of Florida, alleging, among other things, violation of the Florida Deceptive and Unfair Trade Practices Act, fraudulent concealment, and negligent misrepresentation. According to the complaint, the defendant misrepresented that the roof shingles it manufactured had a 30-year useful life and complied with applicable industry standards and building codes. Plaintiff alleges that the shingles do not have a 30-year life, but are defective because they do not contain the required amount of asphalt and, therefore, crack and blister leading to property damage of the structures on which they are installed. (Hummel, et al. v. Tamko Building Products, Inc., No. 6:15- cv (M.D. Fla. complaint filed on June 5, 2015)). 8