The Impossible Censorious Buffoonery Of Roca Labs: Am I Being Punked Here?

Online censorship controversies arise organically, or not at all. You can't fake a Rakofsky. You can't astroturf a Funnyjunk v. Oatmeal. You can't wag-the-dog by orchestrating a Prenda.

Or can you?

I have to ask because during the month that I was consumed by trial, a case arose that appears scripted — a case that seems intelligently designed with stock characters, movie-villain behavior, and hilarity.

I speak of Roca Labs vs. anyone who speaks ill of them.

Roca Labs is in the weight-loss business. As near as I can tell from its website — check it out yourself — Roca markets an alternative to various weight-loss surgeries: a substance that you consume to fill your stomach, thus reducing appetite and available pizza space. The graphics of the Roca Labs substance remind me of the psychomagnotheric slime from Ghostbusters II, but I want to emphasize that I know of no evidence that Roca Labs' product has any supernatural properties.

Yet the arcane and unnatural plays a role in Roca Labs' approach to the market — in the form of an unnaturally ridiculous approach to criticism.

Roca Labs apparently has a clause in at least some of its purchase contracts that forbids customers from criticizing it or its products. Here's how they describe it, openly, in one of their filings:

In exchange for a significant discount (discounts average $800) customers contractually agree that, regardless of their outcome, they will not speak, publish, print, blog, or write negatively about Roca or its products in any forum.

Now, I think you'd have to be quite stupid to agree not to criticize the person who is providing you with medicinal substances, but then we are talking about a population that has decided to consume large volumes of pink slime to lose weight.

Those "I won't criticize" clauses rarely end well. But Roca Labs is optimistic, to put it mildly. They've sued Pissedconsumer.com on a theory that I will call "novel" because "batshit crazy" is rude. Roca Labs says that Pissedconsumer.com is interfering with their contractual relations with their clients by allowing the clients to post complaints about Roca Labs. That's their attempt to evade the protections of Section 230 of the Communications Decency Act, which generally immunizes sites from suits over what their visitors post. Roca Labs is even seeking a preliminary injunction to force PissedConsumer.com to take down the critical posts, a classic case of unconstitutional prior restraint.

Marc Randazza is representing Pissedconsumer.com. As you would guess, that is not a happy development for Roca Labs. Randazza kicks the shit out of Roca Labs' ridiculous demand for prior restraint, and in the course of doing so provides a swarm of BBB complaints, declarations from unhappy customers, and a rather unflattering review by a doctor.

That would have been a good time for a sensible litigant to reconsider their stance and strategy. Roca Labs isn't sensible. Roca Labs is not near sensible. The light from sensible will not reach Roca Labs for several generations. Roca Labs is acting in a way that further suggests, if there was any doubt, that it would be foolish to put anything they produce in your mouth.

First, Roca Labs took action through its "Independent General Counsel" Paul Berger, Esq.1 Mr. Berger also appears to be affiliated with something called the Hurricane Law Group, which would be awesome if that conveyed a litigation style, but unfortunately it doesn't.

Anyway, Mr. Berger started sending legal threats directly to the customers who provided Randazza with declarations. Though the court denied Randazza's request for a restraining order to make them quit that, this will likely produce gloomy consequences for Roca in the long run.

Second, Roca Labs demanded that the court allow it to file a sanctions motion against Randazza for complaining about their harassment of witnesses. Good luck with that.

Third, Mr. Berger sent a letter on behalf of Roca Labs threatening TechDirt with a defamation suit for covering the case and quoting court documents. I would characterize the letter as "resembling that of a pro se litigant regarding CIA mind beams." TechDirt responded with an amazingly civil letter from the Electronic Frontier Foundation.

Fourth, Roca Labs tried to improve its publicity by statements that could be read to imply it had celebrity endorsements that it did not have.

Fifth, Roca Labs released a bizarre, angry, and frankly ridiculous press release asserting that Randazza bribed a politician to get Nevada to pass an anti-SLAPP statute.

THE ARISTOCRATS!

The result of this idiocy is predictable: the Streisand Effect has delivered many orders of magnitude more attention to the complaints about Roca Labs, including extensive TechDirt coverage, Ars Technica coverage, and BoingBoing coverage. Roca Labs has effectively tried to deal with a minor fruit-fly infestation by calling in a gang of teenaged boys with flamethrowers. The course of conduct is so bizarrely and recklessly aggressive that I am moved to ask: are we dealing with people who are disturbed? Are we dealing with people who have no grasp whatsoever of the Streisand Effect? Or is this for the lulz?

For the most part I have cured myself of thinking that everything is about me. Skywriting is not specifically directed at me. When people on TV mention food I like they aren't giving me a shoutout. Plot adjustments on Game of Thrones have not been designed specifically to antagonize me.

But here . . . reading this story, I feel like the crook in the Twilight Zone episode, in a Heaven where everything seems too perfect, until he realizes he's in the other place.

Am I being punked here?

Edited to add: I forgot to mention: when Adam Steinbaugh wrote to Roca Labs to ask them about the possibility that their white-coated spox "Dr. Ross" had lost his medical license after a child porn conviction, they reacted pretty much the way you're expecting.

  1. He uses esquire after his name. You can tell a great deal about a lawyer by their use of "Esq." after their name. It's like if you're watching a movie and a pizza delivery guy shows up and porn music starts playing, you can pretty much tell what's going to happen next. It's not going to be Ibsen.  

Last 5 posts by Ken White

Comments

  1. Mu says

    You're so brave. I'd be worried to link to Roca Labs website, they might sue me because people might follow that link and get negative impressions about the product, from Roca Labs own information.

  2. Dave Crisp says

    I thought putting "Esq." after your name was a kind of self-defence mechanism for US lawyers, because it means that "freeman-on-the-land" type loonies who believe it's a "title of foreign nobility" won't want anything to do with you.

  3. sorrykb says

    I too have wondered if this saga (or at least the last few chapters) isn't some very expensive but innovative piece of performance art. Perhaps Roca Labs went out of business, and its identity was immediately assumed by someone who just wants to play an elaborate joke on everyone.

    Because they couldn't possibly think this could work out… right?

    P.S. to Ken: This post brought a smile to my face on an otherwise crappy day in a pretty crappy series of days. So… thank you.

  4. tsrblke says

    Are you accusing Randazza of effectively orchestrating a Scopes Monkey Trial for free speech just to mess with you ;).

  5. KR says

    My wife's undergraduate school, when sending us important correspondence such as "please give us money", always addresses the letters to her with an "Esq.", which is the only time I've ever really seen it. I don't know if this is code for "we know you're a lawyer so you should have lots of money to give us", or what.

  6. sinij says

    I am gravely disappointed that the story ends on a cliffhanger, cutting to commercials over fading porn music just as Roca Labs drove over the judicial cliff. It is truly a low point for Popehat to leave the audience guessing as to what is going to happen next.

  7. JDS says

    I completely lost it at "The Aristocrats!".

    Excellent article, I can't wait to see how this turns out.

  8. says

    given how much mark normally charges per hour on non pro bono cases, my guess is that the answer to your last question is "no."

  9. says

    I will confess to very occasionally putting the Esq. in my typed name below my signature to correspondence, but usually only because some corporation has pissed me off and it seems more elegant than putting "I am an attorney" in the body of an email. I draw the line at putting it on my personal stationary or ever referring to myself that way in my public presence except in-jokingly with law school friends.

  10. Ancel De Lambert says

    "Roca Labs has effectively tried to deal with a minor fruit-fly infestation by calling in a gang of teenaged boys with flamethrowers."
    Woop, woop woop woop woop! Knyuc knyuc.

  11. Mike says

    It makes you wonder if some companies actively court the Streisand Effect under the theory that any publicity is good publicity. For all I know, they may be right. Anyone checked Roca Labs' sale numbers recently?

  12. Paul says

    I took a look at some of their videos and personally know a couple the actors that were hired. If one of the "testimonials" is an out right lie, could they be sued for false representation?

  13. Castaigne says

    They've sued Pissedconsumer.com on a theory that I will call "novel" because "batshit crazy" is rude.

    *reads*
    Yup, batshit crazy. So I wouldn't call that appellation rude. Just accurate.

    Fifth, Roca Labs released a bizarre, angry, and frankly ridiculous press release asserting that Randazza bribed a politician to get Nevada to pass an anti-SLAPP statute.


    Engage LARTs.

  14. Fasolt says

    Roca markets an alternative to various weight-loss surgeries: a substance that you consume to fill your stomach, thus reducing appetite and available pizza space.

    Isn't that Metamucil? Another substance you could consume to fill your stomach is celery. How about that instead of the Roca filler substance? All natural, inexpensive, and good for you. And you don't need a health insurance discount, since $480 dollars would get you something like a metric ton of celery at Costco.

  15. STrRedWolf says

    A Clarke Law corollary said:

    Advanced stupidity is indistinguishable from malice.

    The court gave them a LART but it didn't take. I am now of the opinion that a competent lawyer (aka not what Roca Labs has) could smell a class action lawsuit from across the country against them because they continued.

    I'd invest in popcorn futures myself.

  16. Stephen says

    It's like if you're watching a movie and a pizza delivery guy shows up and porn music starts playing, you can pretty much tell what's going to happen next. It's not going to be Ibsen.

    Well, no. But it might end up being DH Lawrence.

  17. Rudyard Holmbast says

    I thought I should point out that Randazza, a man highly praised by the bloggers on this website, also uses "Esq." after his name.

  18. VPJ says

    That would have been a good time for a sensible litigant to reconsider their stance and strategy. Roca Labs isn't sensible. Roca Labs is not near sensible. The light from sensible will not reach Roca Labs for several generations.

    This is why I keep coming back.

  19. Harrow says

    Marc Randazza is just amazing. He labels his adversary's motion practice as "a prime specimen of the precise genus and species of the most despised of all constitutional vermin", and then backs up this florid characterization with an apposite citation!

  20. C. S. P. Schofield says

    You know, it's just possible that these twits are so on the attack because they seriously believe they have some wonderful breakthrough that The Interests are trying to keep from the Public. The history of Health and Diet books, sanatariums, programs, etc. is full of such people. They are simultaneously so far gone they resemble attempts to parody themselves, AND deeply convinced that they are The Way and The Light. John Harvey Kellogg is a prime example. I'm sure others will occur to students of the weirder aspects of human social history.

    Which doesn't make their slow-motion train-wreck one iota less amusing. Rather the opposite.

  21. Robert says

    The graphics of the Roca Labs substance remind me of the psychomagnotheric slime from Ghostbusters II, but I want to emphasize that I know of no evidence that Roca Labs' product has any supernatural properties.

    I thought you were exaggerating for comical effect, but then I went to the website… It's like they found a vat of leftover ooze from the film and decided that this was a good way to make money off it.

  22. jdgalt says

    With all due respect, I live in a state jam-packed with people so stupid that they can listen to MSNBC and keep their faces straight. No degree of stupidity is unbelievable any longer.

  23. Fasolt says

    I was picking over some details.

    Part I:

    First the name, Roca Labs, Nutraceutical USA.
    Nice marketing. Using a word made up in 1989 to look like a place in the USA. Reminded me of the "Fightertown USA" sign on the hangar at NAS Miramar in the movie "Top Gun".

    Here's the "don't pick on us" clauses in the purchase agreements in its full glory:

    (5) You agree that regardless of your outcome, you will not disparage RLN and/or any of our employees, products or services. This means that you will not speak, publish, cause to be published, print, tweet, review, blog or write negatively about RLN, or our products or employees in any way. You further agree that in an effort to prevent the publishing of libelous or slanderous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts RLN, its reputation, products, services, management or employees.

    The above paragraph does not apply to California residents or transactions that take place in California.
    Should you violate this provision, as determined by RLN in its sole discretion, you will be provided with seventy-two (72) hours to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid. In addition, if requested by RLN, you agree to provide RLN with a notarized affidavit that your disparaging remarks or review contained factually inaccurate material, was incorrect and breached this agreement.

    Any violation of this provision of the Agreement is deemed a material breach and you agree that The Company has no adequate remedy at law. You further consent to and agree to entry of an injunction by a Court of competent jurisdiction in enforcement of your violation of this term and condition.

    (6) If you breach this Agreement, as determined by RLN in its sole discretion, all discounts will be waived and you agree to pay the full price for your product within 3 business days of demand. In addition, we retain all legal rights and remedies against you for breach of contract and any other appropriate causes of action.

    How about the same penalties for people who make exaggerated claims?

  24. Fasolt says

    Part II:

    Those Celebrity, ahem, Endorsements Ken referenced? Here's the lengthy disclaimer from the bottom of the page:

    Roca Labs® is not endorsed by Dancing With The Stars, ABC, BBC, or the Disney Co.or the individuals contestants, judges or performers appearing on Dancing With The Stars. Dancing With The Stars, ABC, BBC, and Disney are all registered trademarks of their respective owners. All trademarks on this web site whether registered or not, are the property of their respective owners. Dancers and celebrities on Dancing with the Stars had a special opportunity to meet with successful users of Roca Labs’ Gastric Bypass NO Surgery® who lost 100 lb on average. The dancers and stars were amazed with the weight loss results, but are not in any way official endorsers of Roca Labs®. Images are courtesy of ABC and the Disney Company. Images should not imply product endorsement or use of Roca Labs products by celebrities pictured in images.

    If that statement I emphasized is true, then why in the hell are those pictures on the website? Did those celebrities get paid for that non-existent endorsement? I certainly wouldn't hold up what might be the chemical equivalent of a Metamucil and Ex-Lax shooter for free.

    From their Terms page:

    (3) You will help promote RLN and our products by sharing your weight loss success with us. You agree to like us on Facebook and follow us on Twitter. You agree that from time to time we may contact you via electronic mail or telephone to learn about your success.

    What if you don't have a Facebook page or are on Twitter? Do you have to sign up?

    (4) You agree that we can use any and all information that you provide about your weight loss success in RLN marketing efforts. This can be done with a screen name of your choice but with real pictures and video. You hereby irrevocably assign and grant RLN the right to use your likeness, weight loss story and any photographs or videos supplied to us in any and all marketing efforts including online marketing, electronic, television, print, radio, billboard, email and other forms of advertising. This endorsement is granted in exchange for the discount provided at time of purchase and no payment from RLN to you for use of your likeness is owed or shall become due and payable. You hereby assign to RLN without compensation or further obligation, all rights now known or hereafter existing to use, allow others to use, or assign the right to use, to your weight loss story and any images and/or videos that you submitted to RLN. You further agree that your weight loss story and all materials provided to RLN may be used without restriction for any purpose whatsoever, commercial or otherwise, without compensation to you, including the right to use, reproduce, modify, adapt, publish, transmit, publicly perform or display, translate, create derivative works from, or otherwise communicate to the public your weight loss story on this website or elsewhere by us, our assigns or others we have allowed to use your story and materials. You will not assert any proprietary right or moral right of any kind with respect to any materials provided to us by you.

    Moral right? How might one assert a moral right to their products? IANAL, so I'm interested in why that has to be mentioned. Is there a legal right that you could assert merely by using a product?

  25. Fasolt says

    Type Roca Labs in your favorite search engine. Barbara Streisand has warmed up and is now onstage.

  26. Fasolt says

    From the Adam Steinbaugh link above:

    Flooded with complaints to the BBB, Roca turned its litigious eyes on the Bureau. In response to the tweet of a Better Business Bureau employee defending the BBB against Roca Labs’ claims that the BBB is a “mafia organization”, Roca demanded the employee’s personal address to effectuate legal process — the beginning of a lawsuit:

    @DaniBBB @mattporter Still waiting for your legal address to serve you. Please send to Legal5@RocaLabs.com

    — Roca Labs (@RocaLabs) September 20, 2014

    I think Roca should double down and sue the BBB under the RICO Act.

  27. says

    theory that I will call "novel" because "batshit crazy" is rude

    hmmm, I always thought it was because "Batshit Crazy" was trademarked exclusively to "Cox Enterprises" makers of all things Crystal – Bwahahahahahaha

    .. I'll go hide now

  28. That Anonymous Coward says

    @Fasolt – One should check the wayback machine to see how recent that long disclaimer about DWTS going up was. I'm guessing that it is fairly recent after the first star "endorsement" was outed as not being such.

    I'm constantly entertained how much of this sort of thing is out there everyday.
    Lawyers selling the idea that people owe you good reviews, and typing up terms that won't stand up in court but until someone challenges them will be used to steamroll people to get their way.
    Imagine if they put that retainer towards training people how to give good customer service, they would never need such insane terms.

  29. Michael Price says

    "TechDirt responded with an amazingly civil letter from the Electronic Frontier Foundation."
    You mean they avoided the term "batshit crazy" too?

  30. Jack B. says

    @C. S. P. Schofield:

    You know, it's just possible that these twits are so on the attack because they seriously believe they have some wonderful breakthrough that The Interests are trying to keep from the Public. The history of Health and Diet books, sanatariums, programs, etc. is full of such people. They are simultaneously so far gone they resemble attempts to parody themselves, AND deeply convinced that they are The Way and The Light. John Harvey Kellogg is a prime example. I'm sure others will occur to students of the weirder aspects of human social history.

    Wilhelm Reich comes immediately to mind, then Emanuel Bronner. Wacky labeling aside, Dr. Bronner's Magic Soap is some quality stuff, though.

  31. JWH says

    In my experience, most lawyers use the "esq." only in their firm's trade name (if they're solos) or in the signature line of court filings. The one's who use esq. a lot tend to be a) former lawyers now doing something else or b) peacocking.

  32. Fasolt says

    @TAC:

    I would imagine the new wording was very recent. The Wayback Machine only has them through June of this year.

  33. Fasolt says

    @Dan.

    I agree that the BBB has demonstrated bad behavior regarding ratings for money. My comment was geared more toward Roca Labs' lunacy.

  34. b says

    @jdgalt

    "With all due respect, I live in a state jam-packed with people so stupid that they can listen to CABLE NEWS and keep their faces straight. No degree of stupidity is unbelievable any longer."

    Fixed that for you.

  35. Doctor Railgun says

    I've asked myself the same question after reading the last few posts by Clark: are we being trolled?
    He says he gets that alot, but no.
    So, it seems unlikely that the Roca jokers are either.

    Scambaiter have kept scammer like Roca on the hook for months and to the tune of thousands of dollars of lost ill-gotten gains (paid in DHL shipping fees, as DHL takes cash only in Nigeria, no credit card numbers). Who knows why people do the things they do?

  36. Jabber says

    I don't think of an esquire as a negative thing. It seems to have worked well for William S. Preston Esq.

  37. Todd Knarr says

    You aren't being punked. The whole Roca fiasco isn't scripted, because any self-respecting two-bit scriptwriter would've discarded the whole scenario as so unbelievable that nobody would ever buy it and gone on to write something you were a bit more likely to accept.

  38. En Passant says

    sinij October 23, 2014 at 12:14 pm:

    It is truly a low point for Popehat to leave the audience guessing as to what is going to happen next.

    That proves that Roca Labs' soopersekrit plan to bring down Popehat is working perfectly! Phase II will involve free accordion lessons and beer.

    Mwhahahahahaha!

  39. Doctor X says

    This article is pure win.

    Needed the laugh.

    To take is seriously, of course, it just shows the ways in which the unethical try to use the law to further their schemes.

    Wait . . . did I just post that! Is that defamation of Roca?! OH NOES!!11!!! DELETE!DELETE!DELETE!

  40. Allen says

    I think the product more closely resembles Sterno. Which, come to think of it, would cause a very substantial weight loss if you swallowed it. What surprises me more than anything is these companies hanging around thinking they can win the fight on a decision. Usually they are off into the night popping up with some new gimmick. I'm curious to know what brings on this brazenness.

  41. Castaigne says

    @Chris Meadows: JAY-Zus! Now, that's some CRAY-CRAY.

    @Ken White: Now this? This is the stuff I really, really enjoy.

  42. Dan says

    The crazy gets even better. Roca filed an ethics complaint against NV Senator Justin Jones, claiming he accepted a bribe from Marc Randazza to support an anti-SLAPP law in NV. Sen. Jones responded by threatening to sue for defamation: Techdirt here

    Fortunately, the Senator (or his attorney) quickly realized what a bad idea that was. And the state AG's office has dismissed the complaint.

  43. Some Random Guy says

    @Fasolt

    Moral right? How might one assert a moral right to their products? IANAL, so I'm interested in why that has to be mentioned. Is there a legal right that you could assert merely by using a product?

    Moral rights are rights related to copyrights (which are "economic" rights), required (to some degree) by the Berne Convention, but not the other major copyright treaties, IIRC. Moral rights tend to vary from place to place but generally include the right to attribution of authorship (including the right to be an anonymous and non-attributed author/creator), and the right to the integrity of the work (non-mutilation/use in a manner detrimental to the author/creator's reputation or honour, etc.).
    .
    I'm not sure exactly how they are embodied and enforced in US law (and not inclined to look it up ATM), but in (some) other places they are included in the written copyright laws or in related provisions.
    .
    In this case the clause states that

    "[Customer] will not assert any proprietary right or moral right of any kind with respect to any materials provided to [Roca] by [Customer].

    The moral rights referred to are held by the customer in the above-mentioned documentation of the customer's anticipated weight loss (likeness, photographs, videos, etc.), not held by Roca in their own products.
    .
    HTH

  44. AlphaCentauri says

    So how do they get away with using the logos of various insurance companies here?
    https://rocalabs.com/gastric-bypass-surgery-cost

    Those insurers don't cover any part of the cost of the product. Roca is just giving you a discount if you say you have insurance. That's like my local supermarket saying they sell a pound of lard for $1,300, but they'll sell it to me for $5 if I happen to be insured by Aetna, and then using Aetna's logo on the lard display.

  45. Fasolt says

    @Some Random Guy:

    Thank you for putting that in context.That didn't click with me for some reason on the first reading. I somehow thought they were referring to their products and not whatever materials the customer provided them.

  46. KeithB says

    Roca Labs has effectively tried to deal with a minor fruit-fly infestation by calling in a gang of teenaged boys with flamethrowers

    Ken, were you watching Lassie this weekend? This was exactly the method they used to combat grasshoppers.

  47. Alexander Ignatiev says

    I put Esq. At the end of my name to prevent people from responding to my correspondence by addressing me as Hon. I'm not a judge or an elected official. I'm a damn lawyer. Until America becomes as minimally civilized as the Philippines and admits Attorney is a title, it's what you're stuck with in Mississippi. I've had grown men call me Hon Ignatiev. It's better to be Alex Esq.

  48. Davey says

    Ken,
    I understand your desire to keep things focused on the present, but… the Streisand Effect on Roca Labs isn't the only one. "Dr. Ross B." is going to wish he never associated with Roca Labs. He thought the publicity in New York and New Jersey was bad – it's now international.

  49. BSD32X says

    I would like to take issue with some of the remarks in regard to Randazza, specifically the hero talk. He did make a pretty bone headed blog post that could be construed as advocating quid pro quo (that was taken down, obviously for a reason). He said " "Two years ago, my partner, Ron Green, introduced me to a guy. That guy’s name was Justin Jones. Justin was running for State Senate in Nevada. … I shook his hand and said “if you will sponsor an Anti-SLAPP bill, I’ll vote for you, and I’ll contribute to your campaign.” He promised me that he would do so. Within days of taking office, he made good on his promise. Today, Nevada has the strongest Anti-SLAPP law in the country" https://www.techdirt.com/articles/20141017/15550528862/roca-labs-exec-claims-marc-randazza-bribed-nevada-politician-to-get-anti-slapp-law-passed.shtml#comments Roca Labs engaging in Prenda level bad behavior does not excuse his statements, even if representing them as "bribery" is ridiculous. Also, don't forget that Randazza represented LIberty Media which led to the negligent router argument Copyright Trolls love using. https://www.techdirt.com/blog/wireless/articles/20110801/04233815344/no-having-open-wifi-does-not-make-you-negligent-liable-10000.shtml

    Now, I am a fan of his work in regard to Righthaven, but making attorneys who admittedly are acting in the best interests of their client into heroes is never a good idea (all due respect and admiration to Ken, this is only my second post here).

  50. nl7 says

    Surprised they didn't include the infeasibility of their product as a Trade Secret in the consumer purchase agreements. After all, what a great strategy to secretly sell useless goop at a jillion percent markup.

    Customers should be ashamed of violating the sacred trust given to them by Amalgamated Tonics & Snake Oil Sales, Inc. How dare they let prospective purchasers know that the product isn't worth purchasing.

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