In the American legal system, having a valid legal claim doesn't always guarantee victory in court. Sometimes, a defendant's strongest weapon isn't proving the plaintiff is wrong about the law—it's proving the plaintiff waited too long, acted inconsistently, or misled the defendant through their conduct. These powerful tools, known as equitable defenses, can stop even the most legally sound claims dead in their tracks.
Imagine this scenario: You discover that your neighbor has been using a portion of your property as their garden for the past fifteen years. Legally, you own that land and have every right to reclaim it. But what if you knew about this use all along, never complained, even complimented their beautiful flowers, and your neighbor spent thousands of dollars improving the property in reliance on your apparent acceptance? A court might tell you that despite your legal ownership, equity and fairness demand that you've lost the right to complain.
This article explores four closely related but distinct equitable defenses that attorneys and judges encounter regularly: laches, acquiescence, waiver, and equitable estoppel. While these concepts might seem academic, they affect real people in real situations every day—from property disputes and contract disagreements to trademark conflicts and employment matters.
Before diving into each defense, it's crucial to understand their common foundation in equity—a legal principle that seeks fairness and justice even when strict application of the law might produce unfair results. These defenses emerged from English common law and the old Court of Chancery, which was specifically designed to provide remedies when strict legal rules produced unjust outcomes.
The Supreme Court captured this principle eloquently in Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933), explaining that equitable defenses exist to prevent "the enforcement of rights which would work fraud or injustice." In modern American jurisprudence, these defenses serve as crucial safety valves that prevent the legal system from producing results that offend basic notions of fairness.
Laches (pronounced "LATCH-es") comes from the Old French word meaning "negligence" or "slackness." In simple terms, laches is the legal equivalent of telling someone, "You snooze, you lose." It prevents a plaintiff from sitting on their rights for an unreasonably long time and then suddenly deciding to sue when their delay has harmed the defendant.
Think of it this way: if your upstairs neighbor's stereo has been too loud every night for three years, and you've never complained, you can't suddenly demand they pay you damages for three years of lost sleep. Your long silence, combined with the difficulty your neighbor would now face in defending against such an old claim, might invoke the laches defense.
Courts generally require three elements for a successful laches defense:
1. Unreasonable Delay by the Plaintiff The delay must be unreasonable under the circumstances. This isn't measured by any specific time period—a few months might be unreasonable in a rapidly changing business context, while several years might be reasonable for a complex property dispute.
2. Knowledge of the Claim The plaintiff must have known, or reasonably should have known, about the facts giving rise to their claim during the delay period. You can't invoke laches against someone who was genuinely unaware of their rights.
3. Prejudice to the Defendant The defendant must show they were harmed by the delay. This prejudice can take two forms: - Evidentiary prejudice: witnesses have died, memories have faded, documents have been lost - Expectation-based prejudice: the defendant changed their position in reliance on the plaintiff's inaction
The Federal Circuit's decision in A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020 (Fed. Cir. 1992), provides the most comprehensive analysis of laches in modern federal practice. The court emphasized that laches is an "equitable time limitation" that operates independently of any statutory limitations period.
In patent law, the Supreme Court's recent decision in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954 (2017), significantly limited the application of laches when Congress has provided a specific statutory limitations period, holding that laches cannot bar claims brought within the statutory period.
For trademark cases, the Second Circuit's opinion in Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037 (2d Cir. 1980), established important precedent by finding laches where the plaintiff waited sixteen years to challenge a trademark registration despite having actual knowledge of the conflicting use.
Example 1: The Software Patent Case TechCorp discovers that StartupInc has been using technology that allegedly infringes TechCorp's patent. TechCorp's executives discuss the potential infringement in emails and meeting minutes but decide not to act because StartupInc is too small to matter. Five years later, after StartupInc has grown into a major competitor and invested millions in the technology, TechCorp suddenly files suit.
Here, laches would likely succeed. TechCorp had clear knowledge of the infringement, delayed unreasonably without justification, and StartupInc suffered expectation-based prejudice by continuing to invest in and build their business around the technology during TechCorp's silence.
Example 2: The Property Line Dispute In 1995, when the Johnsons bought their house, they noticed their neighbor's fence encroached two feet onto their property. They meant to address it but got busy with life. In 2020, when they decided to sell, they suddenly demanded the neighbor move the fence and pay 25 years of "rent" for using their land.
A court would likely find laches here. The 25-year delay was unreasonable, the Johnsons clearly knew about the encroachment, and the neighbor suffered both evidentiary prejudice (original contractors and surveyors might be unavailable) and expectation-based prejudice (treating the land as their own for decades).
When raising laches as a defense, attorneys should focus on building a compelling narrative about the plaintiff's unreasonable delay and its impact on the defendant. Discovery should target: - When the plaintiff first knew or should have known about their claim - Why the plaintiff chose not to act earlier - What the defendant did during the delay period in reliance on the plaintiff's inaction - What evidence has been lost or what witnesses are no longer available
Conversely, plaintiffs facing a laches defense should emphasize any justifiable reasons for delay, minimize the defendant's claimed prejudice, and argue that the delay was reasonable given the circumstances.
Acquiescence differs from laches in focusing not just on delay, but on the plaintiff's conduct that suggested approval or acceptance of the defendant's actions. While laches asks "why did you wait so long?", acquiescence asks "why did you act like you were okay with this?"
The word comes from the Latin acquiescere, meaning "to rest satisfied" or "to remain quiet." In legal terms, acquiescence occurs when a party's behavior reasonably leads others to believe they have consented to or approved of certain conduct, even if they never expressly said so.
Courts typically require several elements for acquiescence:
1. Knowledge of the Defendant's Conduct The plaintiff must have known about the actions they now seek to challenge. Unlike some laches scenarios, acquiescence requires actual knowledge, not just constructive knowledge.
2. Failure to Object or Take Action The plaintiff must have remained silent or inactive in the face of conduct they had the right to challenge. This silence must occur over a meaningful period, though the required duration varies by context.
3. Circumstances Indicating Acceptance The plaintiff's conduct, viewed objectively, must reasonably suggest they consented to or approved of the defendant's actions. This goes beyond mere silence—it requires some affirmative indication of acceptance.
4. Reasonable Reliance by the Defendant The defendant must have reasonably interpreted the plaintiff's conduct as indicating consent or approval, and this interpretation must have influenced the defendant's actions.
The Ninth Circuit's decision in International Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 329 F.3d 359 (4th Cir. 2003), illustrates acquiescence in the trademark context. The court found that a casino's failure to object to another party's use of a similar mark for over a decade, combined with active cooperation in certain ventures, constituted acquiescence that barred later enforcement efforts.
In property law, the Massachusetts Supreme Judicial Court's decision in Labounty v. Vickers, 352 Mass. 337 (1967), demonstrates acquiescence where property owners not only failed to object to their neighbor's use of disputed land but actively participated in maintaining improvements on that land.
The trademark case of Grupo Gigante SA De CV v. Dallo & Co., 391 F.3d 1088 (9th Cir. 2004), shows acquiescence in international contexts, where a Mexican company's awareness of U.S. trademark use without objection for many years barred later opposition proceedings.
Example 1: The Trademark Coexistence MegaBank has used the "QuickCash" trademark for ATM services since 1990. In 1995, StartupFinance begins using "QuickCash" for online money transfers. MegaBank's legal department identifies this use in 1996 but decides the services don't compete directly. Over the next ten years, the companies' representatives meet at industry conferences, and MegaBank never objects to StartupFinance's use of the mark. MegaBank executives even compliment StartupFinance on their "QuickCash" service in emails. In 2006, when StartupFinance expands into ATM services, MegaBank suddenly claims trademark infringement.
A court would likely find acquiescence. MegaBank had clear knowledge of the trademark use, failed to object despite numerous opportunities, and their conduct (including complimentary comments) reasonably suggested they accepted the coexistence. StartupFinance relied on this apparent acceptance by continuing to invest in and expand their QuickCash brand.
Example 2: The Corporate Governance Dispute ABC Corporation's bylaws require shareholder approval for any acquisition over $10 million. In 2018, 2019, and 2020, the board approved acquisitions of $15 million, $20 million, and $25 million respectively without shareholder votes. Minority shareholder Smith knew about each acquisition (they were announced publicly) but never objected, attended board meetings where the acquisitions were discussed, and even praised management's "aggressive growth strategy" in shareholder communications. In 2021, Smith suddenly sues, claiming all three acquisitions violated the bylaws.
Here, Smith's conduct likely constitutes acquiescence. Despite clear knowledge of the bylaw violations, Smith not only failed to object but actively participated in discussions and praised the very conduct he now challenges. The corporation reasonably relied on Smith's apparent acceptance in continuing their acquisition strategy.
While these defenses often overlap, key differences exist:
Waiver represents the most straightforward of these equitable defenses: the intentional relinquishment of a known right. Unlike laches (which focuses on delay) or acquiescence (which infers consent from conduct), waiver requires proof that the plaintiff deliberately chose to give up a legal right they knew they possessed.
The concept derives from the Latin waivare, meaning "to abandon." In legal practice, waiver can occur expressly (through clear statements or written agreements) or impliedly (through conduct that is inconsistent with the continued existence of the right).
Courts examine several key elements for waiver:
1. Knowledge of the Existing Right The party claiming waiver occurred must prove the plaintiff knew about the specific right they allegedly waived. You cannot waive a right you don't know you have.
2. Intent to Relinquish the Right This is waiver's distinguishing feature. Unlike other equitable defenses that can arise from inadvertent conduct, waiver requires proof of actual intent to give up the right, though this intent can be inferred from conduct.
3. Clear and Unequivocal Conduct The conduct demonstrating waiver must be clear enough that a reasonable person would conclude the right was being abandoned. Ambiguous conduct typically won't support a waiver defense.
4. Voluntary Action The waiver must be voluntary—not the result of fraud, duress, or mistake about material facts.
The Federal Rules of Civil Procedure specifically address waiver in various contexts. Rule 12(h) provides that certain defenses are waived if not properly raised, demonstrating how waiver operates as a fundamental procedural concept.
The Supreme Court's analysis in Johnson v. Zerbst, 304 U.S. 458 (1938), while primarily addressing constitutional rights, established the principle that waiver must be "an intentional relinquishment or abandonment of a known right or privilege." This standard influences waiver analysis across all areas of law.
In contract law, the Second Circuit's decision in SSL Services, LLC v. Citrix Systems, Inc., 769 F.3d 378 (6th Cir. 2014), illustrates how courts analyze implied waiver through course of conduct. The court found that a party waived its right to claim breach of contract by continuing to perform under the agreement for an extended period after learning of the alleged breach.
The trademark case of Emergency One, Inc. v. American Fire Eagle Engine Co., 332 F.3d 264 (4th Cir. 2003), demonstrates waiver in intellectual property contexts, where a trademark owner's express agreement to coexistence constituted waiver of later enforcement rights.
Example 1: The Employment Contract Sarah's employment contract includes a non-compete clause preventing her from working for competitors for two years after leaving. When Sarah quits and immediately takes a job with a competitor, her former employer's CEO sends an email stating, "We wish Sarah well in her new position and won't enforce the non-compete given her excellent service." Two years later, when Sarah becomes highly successful at the competitor, the former employer sues for breach of the non-compete.
This scenario presents a clear express waiver. The CEO's email demonstrates knowledge of the non-compete right, clear intent to relinquish it, and unambiguous conduct. Sarah reasonably relied on this waiver in taking and keeping the competitive position.
Example 2: The Insurance Coverage Dispute PolicyCorp's insurance policy requires notice of potential claims within 30 days. When a lawsuit is filed against PolicyCorp, they notify their insurer 90 days later—clearly beyond the policy deadline. The insurer's claims adjuster responds, "Thanks for the notice. We're assigning attorney Jones to handle your defense." The insurer provides a defense for six months, then suddenly disclaims coverage based on the late notice.
Here, the insurer likely waived the notice requirement through implied waiver. By accepting the late notice and providing a defense without reservation, the insurer's conduct was inconsistent with continued reliance on the notice provision. PolicyCorp reasonably relied on this apparent waiver.
Example 3: The Loan Default BankCorp's loan agreement with ABC Company requires monthly payments by the 15th of each month, with default occurring after any payment more than 10 days late. For two years, ABC consistently pays between the 20th and 25th of each month, and BankCorp accepts these payments without objection or late fees. When ABC's business struggles and they pay on the 22nd one month, BankCorp declares default and demands immediate full payment.
This presents a complex waiver analysis. BankCorp's consistent acceptance of late payments without objection suggests waiver of the strict timing requirement, at least absent proper notice of intent to enforce the original terms going forward.
Express Waiver occurs through clear, unambiguous statements or written agreements. These cases are typically straightforward—if a party clearly states they're giving up a right, courts will generally enforce that waiver absent fraud or duress.
Implied Waiver is more complex, arising from conduct that is clearly inconsistent with the continued existence of a right. Courts examine: - The specific conduct and its clarity - Whether the conduct is truly inconsistent with the right's continued existence - The reasonableness of the other party's reliance on the apparent waiver - The overall context and relationship between the parties
For defendants raising waiver, focus on documenting clear conduct by the plaintiff that demonstrates intent to give up the right in question. Look for: - Express statements about not enforcing rights - Conduct clearly inconsistent with the right's continued existence - Course of dealing that establishes a pattern of non-enforcement - Written agreements or modifications that address the relevant rights
Plaintiffs facing waiver defenses should emphasize: - Any ambiguity in their conduct or statements - Lack of intent to permanently relinquish rights - Distinction between temporary forbearance and permanent waiver - Any conditions or limitations on their apparent waiver
Equitable estoppel represents perhaps the most complex and powerful of these defenses. Unlike the others, which primarily focus on the plaintiff's inaction or inconsistent conduct, equitable estoppel centers on preventing injustice when one party has misled another into reasonably relying on that misleading conduct to their detriment.
The doctrine's name combines "equity" (fairness) with "estoppel" (from the Old French estouper, meaning "to stop up" or "plug"). Essentially, equitable estoppel "stops" a party from asserting rights or positions that would be inconsistent with their prior conduct and unfair to someone who relied on that conduct.
Courts typically require four elements for equitable estoppel:
1. Misrepresentation or Concealment of Material Facts The party to be estopped must have made representations or concealed facts that were material to the other party's decision-making. These can be express statements, implied communications, or even pure silence when there's a duty to speak.
2. Knowledge of the True Facts The party making the misrepresentation must have known, or reasonably should have known, the true facts at the time of the representation. You generally can't be estopped based on innocent mistakes about material facts.
3. Reasonable Reliance The other party must have reasonably relied on the misrepresentation. This reliance must be objectively reasonable under the circumstances—unreasonable reliance won't support estoppel.
4. Detrimental Change of Position The relying party must have changed their position to their detriment based on the misrepresentation. This detriment can be financial, legal, or involve lost opportunities.
5. Injustice Without Estoppel Courts must find that allowing the party to deny or assert rights inconsistent with their prior conduct would work an injustice.
The Supreme Court's decision in Heckler v. Community Health Services, 467 U.S. 51 (1984), established important limitations on equitable estoppel against the government, holding that estoppel cannot overcome clear statutory requirements. However, the case also recognized that estoppel can apply against the government in appropriate circumstances involving affirmative misconduct.
In Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977), the Ninth Circuit provided a comprehensive analysis of equitable estoppel elements in the securities context, emphasizing that the defendant's misrepresentation must be the proximate cause of the plaintiff's injury.
The Federal Circuit's approach in Heckler v. Community Health Services demonstrates how equitable estoppel operates in intellectual property contexts, particularly regarding USPTO proceedings and patent prosecution.
Example 1: The Real Estate Development CityCouncil repeatedly assures Developer that proposed zoning changes will be approved, encouraging Developer to purchase expensive land and begin preliminary work. Council members make these assurances at public meetings and in private conversations over six months. Developer spends $2 million on land acquisition, architectural plans, and environmental studies. Just before final zoning approval, CityCouncil suddenly reverses course and denies the zoning change, claiming they "never guaranteed anything."
This scenario presents strong equitable estoppel elements. CityCouncil made clear representations about likely approval, knew (or should have known) the uncertainty of the process, Developer reasonably relied on these assurances by making substantial investments, and injustice would result from allowing CityCouncil to deny their prior representations.
Example 2: The Insurance Bad Faith When PolicyHolder reports a potential claim, InsuranceCorp's adjuster states, "Don't worry about hiring your own attorney—we'll handle everything and protect your interests completely." Relying on this assurance, PolicyHolder doesn't retain counsel. Six months later, InsuranceCorp settles the claim in a way that benefits the insurer but leaves PolicyHolder exposed to additional liability. InsuranceCorp then claims they never agreed to protect PolicyHolder's separate interests.
Here, equitable estoppel would likely prevent InsuranceCorp from denying their representations. The adjuster's statements created reasonable expectations, PolicyHolder detrimentally relied by not obtaining independent counsel, and allowing the insurer to benefit from their own misleading conduct would be unjust.
Example 3: The Employment Representation TechCorp recruits Dr. Johnson from a prestigious university position, with executives repeatedly stating that Dr. Johnson will have "complete job security" and that TechCorp "has never laid off a PhD-level researcher." Dr. Johnson leaves her tenured position, sells her house, and moves across the country. Six months later, TechCorp eliminates Dr. Johnson's entire division due to budget cuts, claiming the earlier statements were just "recruiting talk."
This presents a complex estoppel scenario. While employers generally can't be estopped from legitimate business decisions like layoffs, the specific representations about job security and historical practices, combined with Dr. Johnson's detrimental reliance in leaving a tenured position, might support an estoppel claim for damages if not reinstatement.
Estoppel vs. Laches: Laches focuses on delay and prejudice from inaction; estoppel centers on misleading conduct and detrimental reliance.
Estoppel vs. Waiver: Waiver involves intentionally giving up known rights; estoppel prevents assertion of rights based on misleading conduct, regardless of intent to waive.
Estoppel vs. Acquiescence: Acquiescence infers consent from conduct and silence; estoppel focuses on affirmative misrepresentations and reasonable reliance.
Promissory Estoppel: This related doctrine applies when promises induce reasonable reliance, even without traditional contract consideration. Equitable estoppel is broader, covering any misleading conduct, not just promises.
For defendants raising estoppel: - Document all representations made by the plaintiff, including context and circumstances - Establish the reasonableness of defendant's reliance through expert testimony or industry standards - Quantify the detrimental change of position with specific financial or opportunity costs - Demonstrate the injustice that would result from allowing plaintiff to take inconsistent positions
For plaintiffs facing estoppel defenses: - Challenge the reasonableness of defendant's alleged reliance - Distinguish between opinions/predictions and material fact representations - Argue that any representations were conditional or subject to changed circumstances - Minimize the claimed detrimental reliance or argue it was independently motivated
In practice, these defenses often arise from similar factual patterns, creating strategic choices for defendants and analytical challenges for courts. Consider this scenario:
For five years, Plaintiff Corp knew that Defendant Inc. was using similar packaging for competing products. Plaintiff's executives discussed the similarity in emails but decided not to act because "the market is big enough for both of us." Defendant relied on this apparent acceptance by increasing production capacity and entering new markets. When Defendant became a serious competitive threat, Plaintiff suddenly sued for trademark infringement and unfair competition.
This scenario potentially supports all four defenses: - Laches: Five-year delay with knowledge and resulting prejudice - Acquiescence: Failure to object despite knowledge, suggesting acceptance - Waiver: Executive statements might indicate intent to relinquish enforcement rights - Estoppel: Defendant reasonably relied on Plaintiff's conduct to its detriment
Courts typically address these defenses in logical order, often starting with the most straightforward:
Express Waiver: If there's clear evidence of intentional relinquishment, courts may resolve the case without analyzing other defenses
Implied Waiver: Courts examine whether conduct clearly demonstrates intent to give up rights
Estoppel: Analysis focuses on specific misrepresentations and reasonable reliance
Acquiescence: Courts consider whether conduct reasonably suggested acceptance
Laches: Often analyzed last, focusing on delay and prejudice
For Defendants: Pleading multiple defenses provides strategic advantages: - Different defenses may appeal to different judges or juries - Discovery may reveal facts supporting one defense more than others - Settlement negotiations benefit from multiple theoretical bases for dismissal
For Plaintiffs: Anticipating these defenses allows proactive case management: - Early action prevents laches arguments - Clear communications avoid estoppel claims - Consistent positions prevent waiver and acquiescence defenses
Modern technology creates new applications for these ancient equitable principles:
Email and Digital Communications: Courts increasingly examine email trails, text messages, and digital communications for evidence of waiver, acquiescence, or misleading conduct. The informal nature of digital communication can create unexpected estoppel scenarios.
Social Media Evidence: Public social media posts can constitute representations supporting estoppel defenses or evidence of acquiescence in trademark and other disputes.
Automated Systems: When companies use automated systems for communications, courts must determine whether these create the same reliance interests as human representations.
Intellectual Property: These defenses are particularly important in patent, trademark, and copyright disputes where rights holders must balance enforcement with business relationships.
Employment Law: Changing workplace dynamics create new scenarios for estoppel and waiver, particularly around remote work policies and benefit modifications.
Commercial Transactions: Modern supply chain complexity creates more opportunities for these defenses in breach of contract and commercial dispute scenarios.
Early Case Assessment: Attorneys should evaluate potential equitable defenses during initial case assessment, as they can significantly impact case value and strategy.
Discovery Planning: These defenses require specific discovery targeting: - Timeline of plaintiff's knowledge and actions - All communications between parties - Evidence of defendant's reliance and changed position - Documentation of any representations or conduct
Motion Practice: These defenses often succeed on summary judgment when facts are undisputed, making them powerful tools for early case resolution.
For Potential Plaintiffs: - Act promptly when rights are threatened - Communicate clearly about enforcement intentions - Avoid conduct that could be interpreted as acceptance or waiver - Document reasons for any delays in enforcement
For Potential Defendants: - Don't assume silence means acceptance - Seek clear confirmation before making significant investments based on another party's conduct - Document all representations received from other parties
Attorneys must navigate these defenses carefully to avoid ethical issues:
Candor to the Tribunal: Lawyers cannot misrepresent the strength of equitable defenses or ignore contrary evidence
Client Communication: Clients must understand that these defenses, while powerful, depend on specific factual circumstances that may be difficult to prove
Settlement Considerations: These defenses often create significant settlement leverage but also uncertainty about outcomes
The four equitable defenses examined in this article—laches, acquiescence, waiver, and equitable estoppel—represent more than mere legal technicalities. They embody fundamental principles about fairness, reasonable expectations, and the consequences of our actions (or inactions) in relationships with others.
In our increasingly complex commercial and personal relationships, these defenses serve crucial functions. They prevent parties from manipulating legal technicalities to achieve unfair advantages. They protect reasonable reliance on others' conduct. They ensure that rights come with responsibilities and that those who "sleep on their rights" cannot always awaken to demand full compensation for their losses.
For legal practitioners, mastering these defenses requires understanding both their technical elements and their equitable foundations. Success depends not just on meeting formal legal requirements but on crafting compelling narratives about fairness, reasonable expectations, and the consequences of allowing parties to take inconsistent positions.
For non-lawyers, these concepts matter because they reflect basic principles of fair dealing that govern many aspects of life. Whether in business relationships, property disputes, employment situations, or contractual arrangements, understanding these principles helps individuals and organizations make better decisions about their conduct and the risks associated with their actions or inaction.
As our legal system continues to evolve, these equitable defenses will undoubtedly adapt to new circumstances and technologies. However, their core purpose—preventing the enforcement of legal rights when doing so would work fundamental unfairness—remains as relevant today as it was when English chancellors first developed these doctrines centuries ago.
The key insight is that having legal rights is never the end of the analysis. How those rights are exercised, when they are exercised, and what representations are made along the way all matter immensely. In a system that values both legal certainty and equitable fairness, these defenses ensure that justice means more than simply following technical rules—it means holding parties accountable for their conduct and protecting those who reasonably rely on that conduct.
Understanding these defenses makes us all better citizens of a legal system that aspires not just to enforce contracts and protect rights, but to do so in a way that preserves trust, encourages reasonable behavior, and prevents the manipulation of legal processes to achieve unfair results. In that sense, these ancient equitable principles remain thoroughly modern tools for achieving justice in an complex world.
Ironically, as discussed in our 2021 alert, market studies have found that 1
2025-07-23 19:20:49.735679
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2025-03-01 21:57:39.148367
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