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EXHIBIT F

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IN THE CHANCERY COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI

MISSISSIPPI TRUE

v.

DAVID J. DZIELAK, Ph.D., et al.

PLAINTIFF

CIVIL ACTION NO. G-2017-966 S/2

DEFENDANTS

RESPONSE TO MISSISSIPPI TRUE’S AND AMERIGROUP MISSISSIPPI, INC.’S MOTIONS FOR PRELIMINARY INJUNCTION AND EXPEDITED HEARING

INTRODUCTION

Amerigroup and Mississippi True seek to unwind the MississippiCAN

procurement process before it is complete. This argument is premature, unsupported,

and not made in good faith. They have not exhausted their administrative remedies and

they know it. The Division has not issued a final decision on their protests. In fact,

Amerigroup and Mississippi True have not yet submitted their amended protests. This

Court, consequently, does not have jurisdiction to grant the relief on the merits that

they request.

Their alternative argument is that, if the Court does not unwind the process, it

should at least provide them with certain procedural protections during their protests.

The Court does not have jurisdiction to grant this relief either. There is no actual

dispute. In every respect, the relief sought is either already required by statute or has

been resolved by the Division agreeing not to submit the contracts to CMS for approval

until after the Personal Service Contract Review Board (PSCRB) considers the contracts.

In short, the claims regarding the merits are not ripe and the claims regarding the

protest process are moot.

Finally, even if the Court had jurisdiction, it should still deny the Motions. In the

first place, undoing the procurement process is part of the ultimate relief sought in the

Complaints and should not be granted as part of a preliminary injunction. Second, there

is no threat whatsoever of irreparable injury right now to either movant.

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The Court should deny the Motions and let the Division complete the

administrative process.

FACTS AND PROCEDURAL HISTORY

The Division released Request for Proposal 20170203 (“RFP”) for

MississippiCAN on February 3, 2017. Seven vendors submitted proposals. The Division

evaluated the proposals based on the stated evaluation factors and information

presented during oral presentations. On June 15, 2017, the Division announced its intent

to award the contracts to United, Magnolia, and Molina.

Amerigroup and Mississippi True filed their protests on June 29, 2017.

Mississippi True filed a Complaint seeking injunctive relief on July 12, and a separate

Motion for Temporary Restraining Order and/or Preliminary Injunction (“Mississippi

True Motion”) on July 13. 1 The Motion sought an injunction allowing Mississippi True

the statutorily-required seven (7) days to submit an amended protest; requiring the

Division to obtain approval of the contracts from the PSCRB; and not allowing

execution or implementation of the contracts until Mississippi True could pursue its

judicial appeal rights. 2

The Court conducted a hearing on Mississippi True’s Motion on July 20. Because

at least one indispensable party had not been joined or notified of the hearing, the Court

did not grant any relief. No irreparable harm has occurred.

On August 2, after being allowed to intervene, Amerigroup filed its own

Complaint 3 and Motion for Preliminary Injunction and Expedited Hearing

(“Amerigroup Motion”) 4 , mirroring Mississippi True’s. 5 Amerigroup’s Motion also

added a request that the Court rescind the intended award and issue a new

procurement with new representatives to determine the award and protests. 6

1 Doc. 5.

2 Id. at p. 1.

3 Doc. 19.

4 Doc. 20.

5 Magnolia, United, and Molina intervened as well.

6 Amerigroup Motion at p. 11.

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Amerigroup set its Motion to be heard on August 14. Mississippi True joined

Amerigroup’s Motion on August 9. 7 On August 10, Mississippi True noticed its own

Motion for hearing and then issued a subpoena for Dr. David Dzielak, the Division’s

Executive Director. 8 On its own initiative, the Court quashed the subpoena the same

day. 9

The Division has not yet issued a final agency decision on Amerigroup’s or

Mississippi True’s award protests. The Division will not issue its decision until after

Amerigroup and Mississippi True submit their amended bid protests, which are due by

the close of business on August 18, 2017. If it denies the protests, the Division intends to

submit the contracts and its decision to the PSCRB for consideration at the PSCRB’s

September 19, 2017 meeting.

If the PSCRB approves the contracts, or declines to consider the contracts, the

Division will then submit them to CMS for review and approval. The contracts have

been signed by the parties—because CMS requires the parties’ signatures prior to its

review—but the contracts are not valid and enforceable until the Division issues its final

agency decision and the contracts have been approved by CMS. 10

ARGUMENT

The Court should deny the Motions because it lacks jurisdiction to grant the

requested relief. Even if it had jurisdiction, it should summarily deny the Motions

anyway because Amerigroup’s Motion effectively seeks a permanent injunction without

discovery or a trial and there is no threat of irreparable harm.

7 Doc. 27.

8 Doc. 28 and Doc. 30. The Division expects that Mississippi True will attempt to use some of the public records that the Division produced on August 9. The Division objects to Mississippi True using these documents without first supplementing its Motion to make any new arguments and allowing the Division an opportunity to respond.

9 Doc. 34. In its order, the Court also instructed the parties not to file anything else without permission. The Division therefore intends to request permission to file this Response, and will request permission and an extension of time to respond to the Complaints filed by Amerigroup and Mississippi True if necessary. 10 RFP at §§ 3.5, 3.6.

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I. The Court does not have jurisdiction over either Protester’s claims.

The threshold issue here is whether the Court has jurisdiction. 11 It does not. The

Motions are, paradoxically, both moot and not yet ripe. Plaintiffs have not exhausted

their administrative remedies, so their claims on the merits are premature, and their

claims about the protest process are moot.

A. Amerigroup and Mississippi True have not exhausted their administrative remedies.

It is well-settled that a party must exhaust available administrative remedies

before resorting to the courts. 12 Plaintiffs here claim that the procurement process has

not been fair. They seek to rescind the intended award and restart the procurement

process with new representatives to decide the awards and the protests. 13 There is

unquestionably an available administrative remedy for these claims. It is the award

protest process explained in the RFP 14 , and the parties are in the middle of it.

Amerigroup and Mississippi True filed their protests on June 29. They then

requested a number of public records in order to supplement their protests. The

Division produced those records on August 9, pursuant to the Court’s orders, and the

amended protests are due on August 18. The Division will carefully consider the

arguments made in any amended protest and decide the protest accordingly.

If the Division believes that the arguments have merit, it could award contracts

to Amerigroup and Mississippi True; or award a contract to just one of them; or re-start

the procurement process altogether; or fashion some other appropriate relief. In other

words, Amerigroup and Mississippi True could still win. Consequently, they have not

exhausted their administrative remedies, and their challenge in court is premature. The

Court must deny their Motion for lack of jurisdiction.

11 In re Wilborn, 590 So. 2d 1381, 1386 (Miss. 1991).

12 CLC of Biloxi, LLC v. Mississippi Div. of Medicaid, 189 So. 3d 726, 730 (Miss. 2016); see also Everitt v. Lovitt, 192 So. 2d 422, 427-428 (Miss. 1966).

13 Amerigroup Motion at p. 11.

14 RFP at § 3.8.

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The Mississippi Supreme Court’s decision in Tupelo Industries 15 is controlling.

One of the issues there was whether the Chancery Court had jurisdiction to enjoin the

Mississippi Gaming Commission before the Commission had issued a final decision on

Tupelo Industries’ application to operate a bingo hall. 16 The Commission had rejected

the appraisals in the application as insufficient, but had not issued a final decision

denying the application. 17 The administrative process there, like here, was not complete.

The Chancery Court, nevertheless, issued a permanent injunction ordering the

Commission to issue the license. 18

The Supreme Court reversed, holding that the Chancery Court did not have

jurisdiction to issue an injunction because Tupelo Industries had not exhausted its

administrative remedies. 19 Tupelo Industries had improperly resorted to the courts

before there had been a final decision from the Commission. The Court reasoned that

“[b]ecause the Gaming Commission is responsible for licensing…Tupelo Industries was

required to exhaust the administrative remedies available to it before resorting to the

courts for resolution of its dispute.” 20

As in Tupelo Industries, Plaintiffs here have resorted to the court before a final

agency decision. Specifically, Plaintiffs are asking this Court to require the Division to

rescind the award and appoint new representatives before the Division has even issued

a final decision on the contracts. The Court should follow Tupelo Industries and an

avalanche of other Mississippi cases requiring exhaustion of administrative remedies

15 Mississippi Gaming Com’n v. Tupelo Industries, Inc., 747 So. 2d 287 (Miss. 1999).

16 Id. at 289.

17 Id.

18 Id.

19 Id. at 289-290 (“We conclude the chancery court of Hinds County erred in granting equitable relief to Tupelo Industries when an adequate statutory remedy was available.”).

20 Id. at 291.

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before filing suit. 21 The Court should find that it does not have jurisdiction to grant this

relief on the merits and should deny the Motion to the extent it seeks such relief.

B. Plaintiffs’ claims regarding the protest process are moot.

Claims are moot if a judgment “would be of no practical benefit to the plaintiff or

detriment to the defendant.” 22 Courts do not have jurisdiction unless there is an actual

controversy at the time claims are raised. 23 As an alternative to their request for a re-

start of the entire process, Amerigroup and Mississippi True request that the Court

provide certain procedural protections during the bid protest process. First, that the

Court ensure that they have no less than seven (7) working days from receiving the

unsealed proposals to supplement their protest. 24 Second, that the Court enjoin the

Division from implementing the contracts or submitting them to CMS for approval

until the PSCRB approves unexecuted copies of the contracts. 25

These procedural claims are moot. There is no actual controversy. The requested

relief is either required by statute or has been resolved by the Division’s agreement not

to submit the contracts to CMS for approval until after the PSCRB considers the

contracts. Any fear that the Division is going to jettison the protest process and try to

implement the contracts immediately is “too speculative to avoid mooting the case.” 26

As for time to prepare an amended protest, there is no dispute that Plaintiffs will

receive their statutorily-required seven (7) working days. The Division has agreed that

their amended protests are due on August 18. It is even in the scheduling order entered

by the Court. 27 That has never been an issue.

21 E.g., CLC of Biloxi, LLC v. Mississippi Div. of Medicaid, 189 So. 3d 726, 730 (Miss. 2016); Urban Developers, LLC v. City of Jackson, 468 F. 3d 281, 294 (5th Cir. 2006); In re Wilborn, 590 So. 2d 1381, 1386 (Miss. 1991); Everitt v. Lovitt, 192 So. 2d 422, 427-428 (Miss. 1966).

22 Falls v. Jefferson Davis Co. Public School Bd., 95 So. 3d 1223, 1225 (Miss. 2012) (quoting Gartrell v. Gartrell, 936 So. 2d 915, 916 (Miss. 2006)).

23 Id.

24 Amerigroup Motion at p.11, ¶ b.

25 Id. at ¶ c.

26 Thompson v. Anderson, 2017 WL 1148903 at *3, No. 3:16-cv-726 (S.D. Miss. March 27, 2017) (internal citations omitted).

27 Doc. 22.

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Neither is there any real dispute about implementing the contracts and

submitting them to CMS. Even though the contracts are signed, they are not valid and

enforceable until approved by CMS. 28 And the Division will not submit the contracts to

CMS for review and approval until after the Division issues a final decision on the

protests and after the PSCRB considers the contracts.

If Amerigroup and Mississippi True lose their protests and the PSCRB approves

the contracts, then they may appeal the final agency decision to this Court. In the

interim, there is no real dispute about how the process will work. The Court should

deny the Motions for lack of jurisdiction over the procedural claims as well.

II. Even if the Court had jurisdiction, it should still deny the Motions.

The Court should deny the Motion even if it had jurisdiction because (a)

Plaintiffs are improperly trying to obtain ultimate relief sought in the Complaints

through a preliminary injunction; and (b) there is no evidence whatsoever of threatened

irreparable harm.

A. Plaintiffs are not entitled to rescind the award and obtain a new procurement with new representatives as a “preliminary injunction.”

Plaintiffs seek to require the Division to rescind the award and issue and new

procurement with new representatives. This is the ultimate relief that they seek in the

Complaints. That is, it is the relief they seek to obtain after a trial on the merits.

The law does not permit them to seek this ultimate relief in the form of a

preliminary injunction, particularly when there has been no discovery and less than two

weeks’ notice of the hearing. Mississippi law is clear that, if the injunction “will have

the effect of granting to the complainant all the relief that the complainant could obtain

on a final hearing,” then it should be denied except in the rarest of cases. 29 If the Court

determines it has jurisdiction, it should summarily deny the Motion as seeking ultimate

relief only obtainable after a trial on the merits.

28 RFP at §§ 3.5, 3.6. 29 5 MS Prac. Encyclopedia of MS Law § 38.5, citing Pearman v. Wiggins, 60 So. 1, 2 (Miss.

1912).

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B. Plaintiffs have no evidence of imminent irreparable injury.

The purpose of a preliminary injunction is “to protect the plaintiff from irreparable injury and to preserve the court’s power to render a meaningful decision after a trial on the merits.” 30 Plaintiffs here have not articulated any potentially irreparable harm. They cannot. How can allowing the protest process to continue cause irreparable harm when the Plaintiffs could still be awarded the contracts? How can there be a real threat of irreparable harm during the process when the Division has agreed to give Plaintiffs the time they are entitled to and to hold the contracts from submission to CMS for approval until after the PSCRB rules? If the Court determines that it has jurisdiction, it should still deny the Motion for lack of any threatened injury that is imminent and irreparable.

CONCLUSION

The Court should deny the Motions for lack of jurisdiction. Amerigroup and Mississippi True have not exhausted their administrative remedies because the Division has not issued a final decision on their protests. They could still be awarded the contracts. Moreover, their claims related to the protest process are moot. There is no actual dispute as to the time they will have to submit a revised appeal or whether the contracts are currently valid and enforceable. Finally, even if the Court had jurisdiction, it should still deny the Motions. Plaintiffs are trying to obtain their ultimate relief without any discovery or a trial on the merits and without any evidence of irreparable harm. The Court should deny the Motions and award any other relief it deems appropriate.

30 Id.

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Respectfully submitted this the 14th day of August, 2017.

/s/Kathryn R. Gilchrist

Kathryn R. Gilchrist (MSB #8946) Everett White (MSB #101875) GILCHRIST DONNELL PLLC 599B Steed Road Ridgeland, MS 39157 (601) 790-2880 - Telephone (601) 790-2900 - Fax kgilchrist@gilchristdonnell.com ewhite@gilchristdonnell.com

Attorneys for David J. Dzielak, Ph.D in his Official Capacity as Executive Director of the Division of Medicaid, Office of the Governor, and the Division of Medicaid, Office of the Governor, State of Mississippi.

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CERTIFICATE OF SERVICE

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I hereby certify that on August 14, 2017 I electronically filed the foregoing with the Clerk of the Court using the MEC system, which sent the notification to all counsel of record.

/s/Kathryn R. Gilchrist

Kathryn R. Gilchrist

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IN THE CHANCERY COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI

MISSISSIPPI TRUE et al.

V.

DAVID J. DZIELAK et al.

PLAINTIFFS

CASE NO. G -2017-966 S/2

DEFENDANTS

RESPONSE TO (A) MISSISSIPPI TRUE’S MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION (DKT. # 5), AND (B) AMERIGROUP MISSISSIPPI, INC.’S MOTION FOR PRELIMINARY INJUNCTION AND EXPEDITED HEARING (DKT. # 20)

Molina Healthcare, Inc. and Molina Healthcare of Mississippi, Inc. (together, “Molina”)

file this response to (a) Mississippi True’s Motion for Temporary Restraining Order and/or

Preliminary Injunction (Dkt. # 5), and (b) Amerigroup Mississippi, Inc.’s Motion for Preliminary

Injunction and Expedited Hearing (Dkt. # 20) (together, the “Motions”).

1. Mississippi True and Amerigroup’s Motions are improper and untimely, as both

parties have failed to exhaust their administrative remedies.

2. It is hornbook law that “a party exhaust [its] available administrative remedies

before seeking corrective action from a court.” Je rey J. Jackson et al., Encyclopedia of

Mississippi Law, Vol. 1 § 2:84 (2d ed. 2015). See also Davis v. Barr, 157 So. 2d 505, 508 (Miss.

1963) (noting that the principal is “textbook”). No party to an administrative proceeding is

“entitled to judicial relief until the agency itself has been given its statutory and rules-based

opportunity to complete its review of the matter.” Jackson, supra at § 2:84. This “principal is

stated in quite absolute terms: a ‘complainant must exhaust the administrative remedies available

to him before resorting to the courts for resolution of his dispute.’” Id. (citing State v. Beebe, 687

So. 2d 702, 704 (Miss. 1996)).

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3. In disregard of that principal, Mississippi True and Amerigroup are litigating this

dispute on two simultaneous fronts—both administratively before the Division and the

Mississippi Personal Services Contract Review Board and judicially before this Court. And in

each venue, Mississippi True and Amerigroup are asserting the same claims and seeking the same

relief: Both parties are asking this Court, the Division, and the PSCRB to, among other things,

rescind the award of the MississippiCAN contract to the successful o erors and issue a new

request for proposals. (E.g. Amerigroup Mot., Dkt. 20 at 11.)

4. But as Mississippi True and Amerigroup are well aware, their protests are still

pending before the Division, and their protests and the award of the MississippiCAN contract

will thereafter be presented to the PSCRB for consideration. (E.g. Scheduling Order, Dkt. # 22 in

17-cv-000916 (setting for schedule for review by Division and PSCRB).) And until the Division

and the PSCRB have issued a final decision, any request for judicial relief by a court of law is

prohibited.

5. Mississippi True and Amerigroup’s litigation strategy also violates the principal of

primary jurisdiction, which provides that, once a party has invoked administrative remedies, that

party is prohibited from simultaneously seeking judicial intervention:

[T]he courts cannot or will not determine a controversy involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of that question by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience, and services of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered.

Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1221 (Miss. 2010) (citing Ill. Cent. R. Co. v.

M.T. Reed Const. Co., 51 So. 2d 573, 575 (Miss. 1951)).

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6. Simply enough, Mississippi True and Amerigroup are playing by their own set of

procedural rules, which rules violate clearly established law. In doing so, Mississippi True and

Amerigroup are wasting this Court’s time and resources by asking this Court for relief that this

Court cannot grant. Worse, these litigation tactics are delaying the continued implementation of

the Mississippi Coordinated Access Network, which delay will harm millions of Mississippi

citizens already enrolled, or seeking to enroll, in Medicaid.

7. Accordingly, this Court should deny the Motions.

For these reasons, Molina requests that this Court deny the Motions. Molina hereby

reserves the right to more fully answer and respond to the Complaints (Dkt. #s 2 and 19) filed by

Mississippi True and Amerigroup, as well as the Motions, until after the Court first determines

its jurisdiction in this matter under the doctrines of exhaustion of administrative remedies and

primary jurisdiction.

Dated: August 14, 2017.

Molina Healthcare, Inc., and Molina Healthcare of Mississippi, Inc.

By:

/s/ Timothy J. Anzenberger

C. Phillip Bu ngton, Jr. (MSB No. 7035) Gordon U. Sanford, III (MSB No. 99233) Timothy J. Anzenberger (MSB No. 103854) Adams and Reese LLP 1018 Highland Colony Parkway, Suite 800 Ridgeland, MS 39157 Telephone: 601.353.3234 Facsimile: 601.355.9708 phil.bu ngton@arlaw.com sandy.sanford@arlaw.com tim.anzenberger@arlaw.com

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CERTIFICATE OF SERVICE

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I hereby certify that on this day I electronically filed the foregoing with the Clerk of the

Court using the MEC system, which sent notification of such filing to all counsel of record,

including the following:

George H. Ritter John P. Sneed J. Lott Warren

WISE CARTER CHILD & CARAWAY, P.A.

401 East Capitol Street, Suite 600

Jackson, Mississippi 39201

ghr@wisecarter.com

jps@wisecarter.com

jlw@wisecarter.com

Lynn Patton Thompson

BIGGS, INGRAM & SOLOP, PLLC

P.O. Box 14028 Jackson, MS 39236 lynn.thompson@bislawyers.com

Paige Henderson Biglane

O ce of the Attorney General

550 High Street, Suite 1000

Jackson, MS 39201 paige.biglane@medicaid.ms.gov

Charles G. Copeland Timothy J. Sterling

COPELAND, COOK, TAYLOR & BUSH, P.A.

P.O. Box 6020 Ridgeland, MS 39158 gcopeland@cctb.com tsterling@cctb.com

Dated: August 14, 2017.

Mark N. Halbert

PHELPS DUNBAR LLP

One Mississippi Plaza

201 South Spring Street, 7th Floor

Tupelo, MS 38804 mark.halbert@phelps.com

C. Lee Lott

PHELPS DUNBAR LLP

P.O. Box 16114 Jackson, Mississippi 39236 lee.lott@phelps.com

John B. Howell, III Timothy L. Sensing

WATKINS & EAGER PLLC

400 E. Capitol Street, Suite 300

Jackson, MS 39201 jhowell@watkinseager.com tsensing@watkinseager.com

Kathryn R. Gilchrist Everett E. White

GILCHRIST DONNELL PLLC

599B Steed Road Ridgeland, MS 39157 kgilchrist@gilchristdonnell.com ewhite@gilchristdonnell.com

/s/ Timothy J. Anzenberger Of Counsel

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IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT

MISSISSIPPI TRUE

vs

DAVID J. DZIELAK ET AL.

MOTION TO INTERVENE

PLAINTIFF

CASE NO.: G 2017-966 S2

DEFENDANTS

UNITEDHEALTHCARE OF MISSISSIPPI, INC. D/B/A UNITEDHEALTHCARE

COMMUNITY PLAN OF MISSISSIPPI (“UHC”) files this Motion to Intervene (“Motion”)

under M.R.C.P. 24, requesting that this Court allow UHC to intervene as a party to oppose the relief

requested in Mississippi True’s (“MT”) Complaint for Temporary Restraining Order, Preliminary

and Permanent Injunction, Declaratory Judgement and other Relief (the “Complaint”, Dkt #2) and

Motion for Temporary Restraining Order and/or Preliminary Injunction (the “Motion for Injunctive

Relief”, Dkt. #5). In support, UHC shows the following:

1. After the Mississippi Division of Medicaid awarded its Mississippi CAN contract to

other vendors, MT and Amerigroup Mississippi, Inc. (“Amerigroup”) both filed protests accusing

the Division of bias and discrimination.

2. Those protests - which are entirely meritless - are still pending before the Division

and UHC has filed responses to each protest with the Division.

3. Prior to exhausting its administrative remedies, MT filed in this action a Complaint

and Motion for Injunctive Relief in this Court, prematurely asking the Court to, among other things,

enjoin the Division from performing under the contract and declaring the award of the contract void.

AmeriGroup, like MT has filed a protest, and has moved to intervene in this action to seek the same

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relief requested by MT. Neither MT nor AmeriGroup can show that required irreparable harm could

occur without the intervention of this Court in this cause.

4. Like the protests themselves, MT’s Complaint and Motion for Injunctive Relief - as

well as the allegations in Amerigroup’s motion to Intervene - are without basis.

5. To protect its rights and interests in the contract award to it, UHC requests that this

Court allow UHC to intervene in this proceeding to oppose the relief sought by UHC and

Amerigroup.

6. M.R.C.P. 24(a) provides for intervention as of right. Under that Rule, “anyone shall

be permitted to intervene” where that person “claims an interest relating to the property or

transaction which is the subject of the action and he is so situated that the disposition of the action

may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s

interest is adequately represented by existing parties”.

7. UHC’s rights and interests in the performance of the MississippiCAN contract are

the very subject of this action. And MT - as well as Amerigroup - are asking the Court to enjoin

performance of that contract and, ultimately to declare the award of that contract void.

The

disposition of the MT Complaint and Motion for Injunctive Relief will impair and impede UHC’s

ability to protect its rights and interests in the contract. Indeed, disposition of this action in favor of

MT and Amerigroup will eviscerate UHC’s rights and interests in the contract.

8. UHC’s interests are not adequately protected by any other party to this proceeding.

In their protests, both MT and AmeriGroup have asserted that UHC made inaccurate representations

and that UHC was given more points than appropriate in the evaluation of the proposals. UHC is

in the best position to rebut these allegations on UHC’s behalf. MT and AmeriGroup are challenging

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the awarding of a contract to UHC, and UHC should be allowed to respond by intervention.

9. If UHC is not allowed to intervene as of right, this Court should - alternatively - allow

UHC to intervene under M.R.C.P. 24(b), which provides for permissive intervention. Under that

Rule, “anyone may be permitted to intervene” where the person’s “claim or defense and the main

action have a question of law or fact in common”.

10. Both this action, and the administrative proceeding for the protests of MT and

Amerigroup, share the same questions of law and fact (i.e. whether the Division properly award the

contract). In addition, UHC’s claims and defenses in the administrative proceeding involve the same

questions of law and fact as this action. Accordingly, UHC is - at the very least - entitled to

permissive intervention under M.R.C.P. 24(b).

11. UHC’s proposed response to Motion for Injunctive Relief is attached hereto as

Exhibit “A” in accordance with M.R.C.P. 24(c). UHC’s answer to the Complaint will be filed in a

timely manner if UHC is allowed to intervene in this matter.

FOR THESE REASONS, UHC requests that this Court grant this Motion and allow UHC

to intervene in this case and oppose the relief sought in the Complaint and Motion for Injunctive

Relief.

This the 21

st

day of July, 2017.

Respectfully submitted

UNITEDHEALTHCARE OF MISSISSIPPI, INC., D/B/A UNITEDHEALTHCARE COMMUNITY PLAN OF MISSISSIPPI

By:

/s/

Timothy J. Sterling

Charles G. Copeland, Esq. (MSB #6516) Timothy J. Sterling, Esq. (MSB #103063)

- 3 -

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OF COUNSEL:

Document #: 11

Filed: 07/21/2017

Page 4 of 4

Charles G. Copeland, Esq. (MSB #6516) gcopeland@cctb.com Timothy J. Sterling, Esq. (MSB #103063) tsterling@cctb.con COPELAND COOK TAYLOR & BUSH, P.A. 1076 Highland Colony Parkway, Suite 100 (39157) Post Office Box 6020 Ridgeland, Mississippi 39158 Telephone: 601-856-7200 Facsimile: 6011-856-7626

CERTIFICATE OF SERVICE

I, Timothy J. Sterling, do hereby certify that I have this day filed the above and foregoing

Motion through the Court’s ECF Filing System thereby serving a copy of said Motion upon all

parties of record.

This the 21

st

day of July, 2017.

/s/

Timothy

J.

Sterling

Timothy J. Sterling

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IN THE CHANCERY COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI

MISSISSIPPI TRUE

VS.

DAVID J. DZIELAK, PH.D., IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE DIVISION OF MEDICAID, OFFICE OF THE GOVERNOR; AND THE DIVISION OF MEDICAID, OFFICE OF THE GOVERNOR, STATE OF MISSISSIPPI

PLAINTIFFS

CIVIL ACTION NO. G17-966 S/2

DEFENDANTS

MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Plaintiff Mississippi True, pursuant to Miss. R. Civ. P. 65(b), moves this Court for a

temporary restraining order and/or preliminary injunction against Defendants David J. Dzielak,

Ph.D., in his official capacity as Executive Director of the Division of Medicaid, Office of the

Governor (“Dzielak”), and the Division of Medicaid, Office of the Governor, State of

Mississippi (“DOM”), collectively “Defendants,” ordering that Defendants—

(a)

provide Mississippi True a reasonable amount of time as determined by the Court, but in no event less than seven (7) working days after the production of the competitive sealed proposals that have been requested by Mississippi True, in which to supplement and complete its Protest of the intended award of contracts pursuant to RFP #20170203 (“the MississippiCAN contracts”), as required by Miss. Code Ann. §25-61-5;

(b)

submit the MississippiCAN contracts to and obtain approval from the Mississippi Personal Service Contract Review Board (PSCRB), as required by Miss. Code Ann. §25-9-120, the PSCRB regulations, and the terms of RFP #20170203; and

(c)

not execute or implement the MississippiCAN contracts until Defendants have fully complied with (a) and (b) above and Mississippi True has been allowed to pursue all necessary judicial appeal rights as provided in MS ADC §27-1:5-

201(a).

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In support of this motion, Mississippi True shows to the Court the following:

SUMMARY OF THE FACTS

On February 3, 2017, DOM issued “RFP #20170203” seeking proposals from managed

care or coordinated care companies to serve as contractors for the MississippiCAN program.

Compl., Ex. A. 1 The MississippiCAN program is DOM’s managed care program for Medicaid

beneficiaries and expends over $3 billion annually in state and federal funds. This money is paid

to the MississippiCAN contractors as a premium calculated on a per member per month basis.

On information and belief, RFP#20170203 represents the largest service contract procurement by

any Mississippi governmental agency. On or about April 7, 2017, Mississippi True timely

submitted a proposal in response to RFP #20170203 that complied in all particulars with the RFP

including the required $500,000.00 bond.

By letter from Defendant Dzielak, dated June 15,

2017, Mississippi True was advised that its Proposal had been rejected and that a contract would

be awarded to three offerors other than Mississippi True, namely United, Magnolia Health, and

Molina Healthcare of Mississippi, Inc. Compl., Ex. B.

RFP #20170203 gives unsuccessful offerors the express right to protest a notice of non-

award within ten days of receipt of the notice. A protest must be accompanied by a $500,000

protest bond and state the specific grounds for the protest. Compl., Ex., A, at 34. Acceptable

grounds for a protest include:

Failure to follow any of the following: 1) the Division procedures established in the RFP or 2) the Division rules of procurement;

Errors in computing scores which contributed to the selection of an Offeror other than the best proposal; or,

Bias, discrimination, or conflict of interest on the part of an evaluator.

Id., at 36.

Section 25-61-5 of the Mississippi Public Records Act gives unsuccessful offerors

1 All except those referenced as “Motion

” are attached to the Complaint.

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who submit a public records request for the competitive sealed proposals “a reasonable amount

of time, but in no event less than seven (7) working days after the production of the competitive

sealed proposals, to protest the procurement or intended award prior to contract execution.”

Miss. Code Ann. §25-61-5(b). Mississippi True submitted a public records request to DOM for

the competitive sealed bids on June 26, 2017, and has not received the requested proposals from

Defendants.

Nevertheless, in an abundance of caution, on June 29, 2017, Mississippi True

timely filed its Protest of RFP #20170203.

Compl., Ex. C.

Mississippi True simultaneously

delivered to Defendants the required $500,000 bond. Motion Ex. A.

In its Protest, Mississippi True presented evidence that Mississippi True’s scores were the

product of bias and discrimination against Mississippi True because of its status as a PSHP,

coupled with errors in computing its score, both of which contributed to selection of contractors

that did not submit the best proposals.

Mississippi True’s Protest includes evidence of specific

scores that were reduced based solely on its status as a PSHP.

The difference in Mississippi

True’s score and the score of the lowest successful offeror was only 4.55 points.

Mississippi

True established that had its score been free from scoring bias and discrimination, its score

would have increased by greater than 4.55 points and it would have been awarded one of the

contracts.

The evidence presented in the Protest shows that the contract award decisions were

arbitrary, capricious, not supported by substantial evidence, and contrary to the clear letter and

intent of the Mississippi Legislature expressed in the PSHP statute. Mississippi True, therefore,

asserted that its score should be increased and it should be awarded one of the MississippiCAN

contracts.

Alternatively, it requested that none of the contracts be awarded and that the contracts

be re-procured. The Protest expressly advised DOM that Mississippi True intends to supplement

its Protest after DOM produces the documents responsive to Mississippi True’s public records

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requests. Mississippi True has received no decision on its Protest.

On July 7, 2017, without making any determination on Mississippi True’s Protest and

prior to producing the sealed competitive bids or any other requested public records, DOM

through its staff attorney, Paige Biglane, Esq., emailed Mississippi True’s attorney informing

Mississippi True that DOM (a) will not submit the contracts to the PSCRB for approval, (b) will

not afford Mississippi True any appeal rights, and (c) “will move forward with contract

execution unless ordered to do otherwise by a court.” Compl., Ex. D. This email clearly shows

that DOM has no intent to comply with state law or its own procedures and deprives Mississippi

True of any opportunity to challenge the contract award.

If the MississippiCAN contracts are executed as stated by DOM in Biglane’s email,

Mississippi True will be deprived of its statutory and regulatory right to pursue its protest

through the PSCRB and appeal to this Court, if necessary. Defendants’ actions thus threaten to

severely and irreparably harm Mississippi True.

In further support of this Motion, Mississippi

True submits the affidavit of Mark Rishell. Motion Ex. B.

LEGAL ARGUMENT

Under Mississippi law, a party may obtain a temporary restraining order or preliminary

injunction by showing the following:

(1) [whether] there exists a substantial likelihood that [the] plaintiff will prevail on the merits; (2) [whether] the injunction is necessary to prevent irreparable harm; (3) [whether] the threatened harm to the applicant outweighs the harm the injunction might do to the respondents; and (4) [whether] entry of the injunction is consistent with the public interest.

marks omitted); Lauderdale v. DeSoto Co. ex rel. Bd. Of Supervisors, 196 So. 3d 1091, 1099

(Miss. 2016). The movant has the burden of establish these factors by a preponderance of the

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evidence. Lauderdale, at 1099. However, “[a] court may issue a TRO or

preliminary injunction even though a plaintiff's right to relief on the merits remains uncertain.”

Id., citing, Gunn, 75 So.3d at 1021 (¶ 17). Mississippi True has more than adequately met this

standard.

1.

Substantial Likelihood of Success on the Merits

Mississippi True is substantially likely to succeed on the merits of its claims. First, the

law is crystal clear that an unsuccessful offeror that requests the competitive sealed bids is

entitled to at least seven days after receipt thereof in which to file its protest. Section 25-61-5 of

the Mississippi Public Records Act provides in pertinent part:

Persons making a request for production of competitive sealed proposals after the notice of intent to award is issued by the public body shall have a reasonable amount of time, but in no event less than seven (7) working days after the production of the competitive sealed proposals, to protest the procurement or intended award prior to contract execution.

Miss. Code Ann. §25-61-5(1)(b). Mississippi True has requested but not yet received the

competitive sealed proposals. This request is the subject of a separate action filed by one of the

successful bidders seeking to protect the contents of its proposal.

See In Re: UnitedHealthcare

of Mississippi, Inc., d/b/a UnitedHealthcare Community Plan of Mississippi Protective Order,

cause no. G-2017-916 S/2, in the Chancery Court of Hinds County, Mississippi, First Judicial

District. Until that matter is resolved and Mississippi True is afforded a reasonable time not less

than seven days after receipt of the competitive sealed proposals, Mississippi True’s time for

protesting the award has not expired.

DOM thus cannot lawfully decide Mississippi True’s protest until Mississippi True is

afforded a reasonable opportunity to receive and review the competitive sealed proposals and to

supplement its protest. The sealed competitive proposals and other public records requested by

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Mississippi True are absolutely necessary to perfect its protest. Paige Biglane’s July 7 email

shows that Defendants intend to violate (or have already violated) their obligations under §25-

61-5(1)(b) and the terms of the RFP.

Second, pursuant to Miss. Code Ann. §25-9-120, subject to certain limited and

inapplicable exceptions, the PSCRB has the authority and responsibility to “[a]pprove all

personal and professional services contracts involving the expenditures of funds in excess of

Seventy-five Thousand Dollars ($75,000.00).” The MississippiCAN contracts involve

professional services expenditures of funds in excess of $3 billion. Thus, DOM is clearly

required to submit the proposed contracts to the PSCRB for its approval.

clear violation of Section 25-9-120.

Its refusal to do so is a

RFP #20170203 expressly provides that “the procurement process is guided by

appropriate provisions of the Personal Service Contract Review Board Rules and Regulations

which are available for inspection at 210 East Capitol Street, Suite 800, Jackson, Mississippi or

downloadable at www.mspb.ms.gov.” These PSCRB regulations also provide that the PSCRB

has the power and responsibility to “[a]pprove all personal and professional services contracts

involving the expenditures of funds in excess of Seventy-five Thousand Dollars ($75,000.00).”

PSCRB Rules & Regs, Rule 2-103, at p. 11. DOM is specifically listed as a state agency under

the purview of the PSCRB. PSCRB Rules & Regs., App. A, at p. 131. Thus, DOM is required

by its own RFP and the PSCRB regulations incorporated by the RFP to submit the proposed

contracts to the PSCRB for its approval prior to execution of those contracts. Failure to do so is

a clear violation of the terms and provisions of the RFP as well as PSCRB regulations

incorporated by the RFP.

DOM’s position (stated in Ms. Biglane’s email) that PSCRB approval is not required

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because the MississippiCAN contracts are “insurance contracts” is also contrary to Mississippi

law. Miss. Code Ann. §43-13-123 provides as follows:

The determination of the method of providing payment of claims under this article shall be made by the division, with approval of the Governor, which methods may be:

(a) By contract with insurance companies licensed to do business in the State of

Mississippi or with nonprofit hospital service corporations, medical or dental service corporations, authorized to do business in Mississippi to underwrite on an insured premium approach, such medical assistance benefits as may be available, and any carrier selected under the provisions of this article is expressly authorized and empowered to undertake the performance of the requirements of that contract.

(b) By contract with an insurance company licensed to do business in the State of

Mississippi or with nonprofit hospital service, medical or dental service organizations, or other organizations including data processing companies, authorized to do business in Mississippi to act as fiscal agent.

The division shall obtain services to be provided under either of the above- described provisions in accordance with the Personal Service Contract Review Board Procurement Regulations.

The authorization of the foregoing methods shall not preclude other methods of providing payment of claims through direct operation of the program by the state or its agencies.

(Emphasis added). Without conceding that this statute applies to the MississippiCAN contracts

at all, it unambiguously requires both approval by the Governor and compliance with PSCRB

regulations. The Governor has not approved the contract awards, and the PSCRB regulations as

explained above require approval by the PSCRB. Thus, Defendants have failed to satisfy the

conditions of section 43-13-123. Defendants’ argument is unavailing.

Third, PSCRB regulations give an unsuccessful bidder the right to appeal an adverse

decision by the PSCRB to an appropriate court. Miss. Admin. Code §27-1:5-201(a). Thus, if the

Mississippi True receives an adverse decision from the PSCRB, it is entitled to appeal that

decision to court. Defendants’ decision to disregard the required protest and PSCRB approval

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and move straight to contract execution deprives Mississippi True of this right. This is a clear

violation of the law established in Miss. Admin. Code §27-1:5-201(a).

2. Irreparable Harm

Mississippi True is prepared to prove that it was denied one of the Mississippi True

contract based solely on objectively erroneous scoring coupled with Defendants’ bias and

discrimination against Mississippi True as a PSHP. Defendants have shown overt bias against

Medicaid providers and favoritism toward out of state for-profit companies in disregard of the

Legislature’s intent that a PSHP serve as one of the MississippiCAN contracts. This intent was

expressed clearly by the Legislature when it declared that “the authorization and development of

provider-sponsored health plans as defined in Section 83-5-603 are vital to the continued

delivery and improvement of health care in this state and otherwise in the best interests of the

state and its citizens,” Miss. Code Ann. §83-5-601 (emphasis added), and that “[a]t least one (1)

purpose of the provider-sponsored health plan shall be to contract with the Division of Medicaid

to provide managed care services on a capitated basis pursuant to Section 43-13-117(H).” Id.,

§83-5-603 (emphasis added).

However, because Defendants have ignored the required protest and appeal procedure,

Mississippi True has been deprived of any opportunity to prove its case. 2 Thus, Defendant’s

actions irreparably deprive Mississippi True of its right to protest after receipt of the requested

competitive sealed bids, the right to challenge the non-award before the PSCRB, and the right to

judicially appeal the PSCRB decision if it remains adverse to Mississippi True. This Court must

enter the requested TRO and preliminary injunction in order to prevent this unlawful conduct and

2 Mississippi True is not asking the Court at this time to determine the ultimate issue of whether Mississippi True should be granted one of the MississippiCAN contracts. That issue should be decided later after the proper procedures are followed. At this time, Mississippi True asks only that the Court enjoin Defendants to follow the established statutory and regulatory procedures for resolving a protest of a state agency contract award.

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avoid immediate and irreparable harm to Mississippi True.

3. The Potential Injury to Plaintiff Outweighs the Potential Injury to Defendants

The threatened injury to Plaintiff far outweighs any potential injury to the Defendants.

Mississippi True will be clearly and severely injured because it will be denied a MississippiCAN

contract without any right to protest and otherwise challenge the contract awards, contrary to the

clear intent of the Mississippi Legislature expressed in Sections 83-5-601, et seq. The rights

provided to Mississippi True to protest the award and to appeal any adverse decision by the

PSCRB are meaningless once the contracts are executed.

Conversely, granting the requested injunctive relief will cause no injury to Defendants as

they will merely have to follow the proper procedures and applicable law for processing

Mississippi True’s Protest and approving the contract. 3 (Indeed, one wonders why the

Defendants are so anxious to avoid having their decision reviewed by another agency or a court.)

Even if this results in a minor delay in implementation of the contracts, any such delay will cause

Defendants no harm because Medicaid services will continue to be provided under the current

MississippiCAN contracts.

4. No Adequate Remedy at Law

Mississippi True does not have an adequate remedy at law. If the preliminary injunction

is not granted, the MississippiCAN contracts will be executed before MississippiCAN is

afforded and exercises its administrative and judicial appeal rights. The bell cannot be un-rung.

Mississippi True will have no breach of contract claim because it has not been awarded one of

the contracts. Also, as recognized by the Mississippi Supreme Court, under normal

3 Granting this motion will actually protect Defendants from potential harm because they may be held personally liable under Miss. Code Ann. §31-7-57 if they authorize an award of a contract in violation of law. See 27 Miss. Admin. Code 1:3-101.03.

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circumstances, an unsuccessful bidder should seek a court order requiring a public agency to

follow the established RFP procedures before seeking compensatory damages. See, e.g., City of

Durant v. Laws Constr. Co., Inc., 721 So. 2d 598, at ¶28 (Miss. 1998).

5. Serving the Public Interest

Granting the requested injunctive relief serves the public interest by, among other things,

enforcing the policies stated in Mississippi Code Section 25-9-120, Section 25-61-5(1)(b), as

well as Sections 83-5-603, -605, -607, Section 25-9-120, Section 25-61-5(1)(b), and other

applicable statutes and regulations discussed herein. Further, granting the requested injunction

ensures that Defendants fulfill their obligations to administer the Mississippi Medicaid program

as required by state law.

The public interest is never served by condoning the violation of valid

statutes and regulations by state agencies and the officials appointed to run them.

6. Bond Posted

Mississippi True has already posted a $500,000 bond with DOM as a condition to filing

its Protest. Motion Ex. A. This bond more than adequately satisfies the requirement of security

under Miss. R. Civ. P. 65(c). Mississippi True requests the Court to relieve Mississippi True of

any obligation to post additional security.

7. Notice to Defendants

Mississippi True hereby gives notice by service upon the Honorable Jim Hood, Attorney

General, and Paige Biglane, Esq., Special Assistant Attorney General assigned to DOM, that it

will bring this motion for hearing as soon as counsel may be hear.

CONCLUSION

For the reasons state above and in the complaint, Mississippi True respectfully requests

that this Court enter a temporary restraining order and preliminary injunction ordering and

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directing that Defendants to:

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(a)

provide Mississippi True a reasonable amount of time as determined by the Court, but in no event less than seven (7) working days after the production of the competitive sealed proposals that have been requested by Mississippi True, in which to supplement and complete its Protest of the intended award of contracts pursuant to RFP #20170203 (“the MississippiCAN contracts”), as required by Miss. Code Ann. §25-61-5;

(b)

submit the MississippiCAN contracts to and obtain approval from the Mississippi Personal Service Contract Review Board (PSCRB), as required by Miss. Code Ann. §25-9-120, the PSCRB regulations, and the terms of RFP #20170203; and

(c)

not execute or implement the MississippiCAN contracts until Defendants have fully complied with (a) and (b) above and Mississippi True has been allowed to pursue all necessary judicial appeal rights as provided in MS ADC §27-1:5-

201(a).

This the 13 th day of July, 2017.

Respectfully submitted,

MISSISSIPPI TRUE, PLAINTIFF

BY: /s/ George H. Ritter GEORGE H. RITTER (MSB #5372) JOHN P. SNEED (MSB# 7652) J. LOTT WARREN (MSB #104796)

OF COUNSEL:

WISE CARTER CHILD & CARAWAY, P.A. 401 East Capitol Street, Suite 600 Jackson, Mississippi 39201 Post Office Box 651 Jackson, Mississippi 39205 (P): 601-968-5500 (F): 601-944-7738

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CERTIFICATE OF SERVICE

Page 12 of 12

I, GEORGE H. RITTER, do hereby certify that I have this day caused to be served via hand-delivery and the MEC a true and correct copy of the above and foregoing document to:

Hon. Jim Hood Attorney General, State of Mississippi Walter Sillers Building 550 High Street, Twelfth Floor Jackson, Mississippi 39201 Post Office Box 220 Jackson, Mississippi 39205-0220

THIS the 13 th day of July, 2017.

/s/ George H. Ritter GEORGE H. RITTER

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