The so-called Year 2000 problem, or Y2K crisis, may result in significant litigation. The purpose of this paper is to discuss the Year 2000 computer bug and the potential litigation that may arise if this problem is not adequately addressed prior to the millennium.
It is a statement of the obvious that computer technology is ubiquitous in modern society. Very few activities today are not touched in some way by computers. Therefore, it is not surprising that a computer sickness of sorts will have wide-spread effects in our society, many of which will have to be sorted out through our legal system.
The Year 2000 problem arises because of the use of a two digit date field in many computer programs. When the Year 2000 arrives, many computer systems will understand the change from "99" to "00" to mean that we have returned to the year 1900, not advanced to the year 2000. These date fields are used for various purposes. Some are obvious, such as keeping track of important events, like birth dates and expiration dates. Others are not obvious, such as where a change in the date field is used to signify an affirmative or negative condition. Although 2000 is greater than 1999, 1900 is not. Accordingly, some computer systems will reach incorrect results if this misunderstanding by the computer is not fixed. The problem is exacerbated because much of the computer code that is still in use was written more than 20 years ago. At that time, much computer code was written without significant documentation. In other words, the person writing the code may not have provided sufficient instructions for subsequent readers of the code to fully understand its purpose, how it worked, etc. As a result, it is sometimes difficult to find, let alone correct, the date fields which could become problematic at the turn of the century. Because of such problems, the likelihood of finding every instance where the Year 2000 bug exists and fixing it, is not very good.
Estimates regarding the costs involved in auditing and fixing these computer bugs run into the hundreds of billions of dollars. 1 Banks and other financial institutions have already spent hundreds of millions of dollars attempting to address the problem and have budgeted billions more to be expended over the next 18 months. 2 In March of this year, Merrill Lynch & Co. announced that it expected to spend $200 million over the next two years to address Year 2000 software problems. 3 Barron's reported on March 9th that the United States government had budgeted $3.9 billion for Year 2000 fixes, with private analysts suggesting the actual cost may exceed ten times that amount. 4 The sometimes overwhelming costs involved may prevent many companies and computer users from being able to adequately address the Year 2000 problem.
Another problem is the immovable time constraint that is presented by the Y2K crisis. Computer projects historically are late in being delivered and are often buggy in their first iterations. The nature of the computer programming animal is such that a significant on-the-job break-in period is often necessary before a computer program operates properly. Unfortunately, with the Y2K problem, we do not have the luxury of time. Additionally, the first "real world" test of the Y2K fixes that are currently being implemented will not occur until the millennium itself arrives. The Gartner Group estimates that only 50% of business enterprises worldwide will have their technology assets fully remediated, tested and certified Y2K compliant, and 100% of vendor supplied solutions scheduled and committed for compliancy by the end of this year. 5 These circumstances increase the probability that failures will occur.
Finally, there remains a degree of apathy and ignorance concerning the Y2K issue. Many continue to hope for a "silver bullet" solution. Moreover, even for those companies and individuals who act responsibly in seeking a solution to the Y2K problem, the interactions of their computer system with others, including computer systems in other countries, may expose them to Y2K problems even if their own systems are Y2K compliant.
Consequently, some failures are probably inevitable. When these failures occur, it is quite likely that damages will be sustained, both in terms of repair costs as well as direct and indirect damages. Litigation, as a principal cost shifting mechanism used in our society, will most certainly result.
The types of suits that we are likely to see as a result of Y2K failures are broad in scope and diverse in type. This is because the types of problems that are likely to occur as a result of the Year 2000 bug are themselves broad and diverse. In situations where the individual damages are relatively small, such as with failures involving personal computers and shrink-wrapped software, class action suits will probably result. Class action filings in the securities law area have demonstrated that even where the individual claimant's damages are nominal, a viable law suit can be presented within such a framework. Recently, a computer disk drive manufacturer which had offered a rebate to purchasers of its product was sued when it allegedly failed to remit some of the refunds or made them late. Although the amount involved for each individual consumer was nominal, the potential losses to the manufacturer were significant. 6 Obviously, the class action procedure lends itself well to this kind of litigation. Where damages are more significant such as with business interruptions or failures, traditional commercial litigation will likely arise. In fact, both types of cases have already been filed involving Year 2000 issues.
As of the date of this writing, two class actions suits have been filed involving Year 2000 claims. The first, Atlaz International Ltd. v. SBD Accounting Systems (Marin County Superior Court, California) involved accounting software developed and sold by the defendant. The software was allegedly unable to recognize and handle dates starting in the year 2000. 7 It also was alleged in that case that a software fix that the defendant had developed to correct the problem, should have been provided free, rather than as a product upgrade. The causes of action pled in the complaint were breach of warranty, fraud, and fraudulent and unfair business practices. The suit seeks $50 million in damages for members of the class.
In February 1998, the second Year 2000 class action suit was filed against Symantec Corporation, the maker of Norton Anti-Virus computer software. 8 The suit was filed in Superior Court for the County of Santa Clara, California and alleges that the anti-virus software prior to version 4.0 was unable to recognize and process dates starting in the year 2000. The complaint alleges breach of implied warranty and related claims in connection with the allegedly defective computer software.
In Produce Palace v. TEC America Corp., and All American Cash Register, Inc., (Macomb County Circuit Court, Michigan), a computerized point of purchase system was supplied by the defendant that allegedly did not properly process credit cards having expiration dates of the year 2000 or higher. 9 The attorney for the plaintiff filed suit alleging various counts including breach of warranty and violations of the Michigan Consumer Protection Act. In a recent interview with PC Week Magazine, the plaintiff's attorney indicated that he had converted a "lemon law" complaint when preparing the pleadings in the case. 10
These cases suggest that the most vulnerable targets for Year 2000 type litigation are computer hardware/software vendors and service providers whose very business purpose is to provide the information technology products and services most likely to be affected by the Year 2000 bug. This target group is also fairly diverse. It includes hardware manufacturers whose BIOS, the hardwired basic input/output instructions contained within the computer motherboard itself, may be unable to recognize dates after the year 2000. Most probably, thousands of such computers remain in use today. If they are not able to operate after the year 2000, suits are likely to result. Software designers of all types whose applications may not be designed to operate after the year 2000, could be sued. Computer consultants and programmers who may have supplied custom software solutions that are not Y2K compliant, could be targets of Year 2000 litigation. System providers, such as the defendants in the Produce Palace case, who may have provided a turnkey solution for customers may discover that part of the package they delivered, possibly manufactured by others, is not able to handle Year 2000 dates. Finally, if the fixes provided by Y2K solution providers are deemed unsatisfactory by their customers, they too could become targets of litigation.
The foregoing are the obvious targets; however, it would be foolish to assume that Year 2000 litigation will only involve entities directly involved in the information systems industry. In fact, because of the broad scope of potential Year 2000 problems, it is difficult to limit potential targets. The UPS strike during 1997 provides a chilling example of the chain reaction that can occur when an important link in the commercial chain breaks down. Entities affected by the UPS strike were not limited to those businesses which were dependent upon UPS as their primary product delivery mechanism. Instead, there were ripple effects as intended recipients of shipments were unable to fulfill downstream obligations, and others dependant upon those parties were in turn unable to perform. 11 The same scenario, on an even greater scale, could occur in the event that a significant Y2K problem comes to pass. Many companies are undertaking to canvass their business partners and suppliers to ascertain their readiness for the year 2000. Companies who experience problems with Year 2000 computer bugs may be unable to deliver needed materials and resources to their customers who in turn could experience production difficulties. Sophisticated "just in time" inventory practices that have become popular over the past several years have decreased the margin of error available in the event that supply disruptions occur. Such disruptions caused by Y2K computer failures, could result in myriad breach of contract cases. In short, computer failures caused by Y2K bugs should be expected to cause real world problems and result in lawsuits filed as a means to shift costs and recoup losses when they occur.
Breach of Contract
Generally, responsibility for a Year 2000 problem will be determined based upon the contractual relationship that is in place between the affected parties. In a commercial context, Article 2 of the UCC will often be found to control the relationship. If a contract involves the sale of goods, UCC Article 2 will apply. 12 UCC Article 2-105 defines "goods" as things that are moveable at the time of identification to the contract. 13 Courts usually have treated computer software sales as transactions in goods. This is especially true in the case of shrink wrapped software. 14 Accordingly, contracts concerning computer hardware would be controlled by Article 2, or in the event of a lease, Article 2A. However, with custom designed software or where a program is modified to suit a particular customer's needs, the issue is not as clear. Courts have found that if the subject matter of the contract is the providing of services, rather than goods, the UCC will not control the contract. 15
Two dominant approaches have arisen to distinguish between services and goods contracts. The first concerns the "predominant purpose of the contract." The second looks to the "gravamen of the action." The predominant purpose standard represents the majority view and has been adopted in Michigan. 16 It attempts to classify the contract as consisting of either a transaction in goods or a transaction in services. The "gravamen of the action" standard breaks the contract up into parts, applying the applicable law to the specific portion of the transaction being examined. 17
Courts have shown a willingness to apply the UCC in cases where the contract concerns both goods and services. Here, the courts recognize that the UCC provides a well-grounded and established set of guidelines, and therefore, more predictability for contracting parties. 18 On the other hand, finding that a contract is predominantly one for services provides less structure and a greater likelihood of inconsistent results. 19
Applicability of the Uniform Commercial Code is important because of the wide latitude it gives to parties in negotiating the terms of their relationship and the significant effect it can have on the legal rights and defenses of contracting parties if they do not. The UCC seeks to make a contract, when possible, and to "fill in the gaps" if the contracting parties neglect to provide the details of the relationship. The UCC also will imply warranties of fitness unless the parties agree to exclude such warranties in their agreement.
In the event that the seller of goods is deemed to have the requisite expertise and the purchaser the requisite reliance, a warranty for a particular purpose may also be found in the context of a computer systems contract. 20
Although an implied warranty of fitness may be found to exist in a contract for the sale of computer goods, including software, courts have ruled that implied warranties of fitness are not part of professional service contracts. 21 In addition, a service contract is not governed by a uniform national law to provide absent contractual terms. Accordingly, in the case of service agreements, an accurate expression of the parties' intent in the written contract will be of paramount importance in understanding the scope of the contract as well as in determining whether there has been a breach. For example, it will need to be ascertained whether the service provider is contracting to deliver a particular result or merely to perform a set of tasks in a workmanlike fashion. 22 It has been held that a service contract entails a common law duty to perform the contract for services in a reasonable and workmanlike manner. 23 Such claims can begin to look a lot like negligence actions. It may prove more difficult to predict the outcome of such claims than those arising under the UCC.
Consumer Actions
The Magnuson-Moss Act establishes a cause of action for breach of implied warranty in consumer transactions which allows for the recovery of attorney's fees. 24 Similarly, the Michigan Consumer Protection Act provides a basis for recovery by a consumer under a variety of circumstances where the goods in question fail to perform as reasonably expected. 25 Attorney's fees are available under the Michigan Consumer Protection Act as well. In the Produce Palace case violations of both Magnuson-Moss and the Michigan Consumer Protection Act were alleged. It is likely that similar suits will be filed on behalf of others who are disappointed by the alleged inability of consumer products to address millennium dates. As will be demonstrated below, such suits may well entail products other than personal computers and personal computer software.
Tort Based Causes of Action
Non-contractual based claims, such as negligence and product liability, are not available in Michigan unless the damages sustained include personal injury or property damage. The economic loss rule, as recognized in Michigan, limits a party who suffers purely "economic loss" to contractual remedies. 26 This rule prevents a contracting party from avoiding disclaimers and remedy limitations simply by pleading an alternative tort based remedy. However, the economic loss rule, in and of itself, will by no means preclude wide-spread tort based litigation involving Y2K related failures.
Michigan has not recognized a cause of action for malpractice involving the providing of computer services. A malpractice cause of action generally requires the establishment of a "standard of care" among members of the affected profession. It may be difficult to establish a standard of care for computer consultants or service providers given that such disciplines are not controlled or licensed as are professionals, such as lawyers or doctors. However, we may see development in this area in the future as these occupations mature.
Nonetheless, personal injuries or property damage could arise as a result of Year 2000 problems. Therefore, tort based remedies may come into play. Recently, there has been media attention given to potential problems with the air traffic control infrastructure and questions raised regarding whether it will be equipped to deal with the date change at the millennium. 27 Although falling aircraft would most certainly result in substantial tort based litigation, other less catastrophic failures could also result in personal injury and property damage claims. Embedded chips, which are tiny computers with their programs "hardwired" into them, are presently used in automobiles, medical devices, appliances, security and fire protection systems, sprinkler and irrigation systems, office equipment, heating and cooling systems and all types of timers. 28 Failures in any of these products, as a result of the embedded chip's inability to recognize the year 2000, could result in personal injury or property damage claims. It is conceivable, for example, that an office building's HVAC system or elevators may fail as a result of Year 2000 problems. If this were to occur, suits could result of a personal injury, property damage, or contractual nature. Apparently in recognition of these types of risks, the Federal Drug Administration has taken steps to assure the safety of medical devices from a Year 2000 standpoint. 29
Product Liability Issues
If personal injury or property damage occurs because of Y2K problems, it is likely that product liability type claims will be filed against the makers of computer hardware and software. Several interesting questions will be posed by such suits, including how to gauge design decisions made 20 or 30 years ago when the two digit date code was the norm. Although computer memory real estate is freely available and very inexpensive today, such was not the case 30, 20, or even 10 years ago when every byte was precious. Therefore, questions facing juries deciding Y2K product liability cases will include whether software with a two digit date field created in 1967 or 1977, to run on a computer with a very small amount of memory, was "defective," given the state-of-the-art at the time that the product entered into the stream of commerce. Arguments are certain to be made that the decision to use the two digit date field at that time was a perfectly reasonable one. It is also sure to be argued that it was not reasonably foreseeable that software code written 20 or 30 years before the millennium would continue to be in use today. If product liability based claims are filed, such issues will be hotly contested.
Corporate Issues
It should be noted that companies that experience Y2K problems may face litigation, not only from outsiders claiming breaches of contract or personal or property damage, but also from disgruntled shareholders and others who may assert that the corporation and its fiduciaries failed to either disclose Y2K risks or to properly put into place solutions. In addition, in the event of Y2K problems, boards of directors most certainly will be called upon to explain what plans were put into place to address Y2K problems and why these plans were unsuccessful in protecting the company from the damages caused by the Y2K failure.
Law firms that have historically handled securities law class action cases on the plaintiffs' side, have expressed an interest in Y2K litigation. The law firm of Millburg, Weiss, Bershad, Hynes & Lerach LLP, represents the plaintiff classes in the Atlaz, International Ltd. and Symantec cases. This same law firm filed a class action lawsuit against Symantec in 1995 alleging violations of the Securities Exchange Act of 1934. 30
Given this environment, it would not be surprising for officers and directors charged with certain fiduciary duties, including the duty of care and the duty of loyalty, to be faced with litigation in the event that Y2K problems arise within a company. Michigan law and the corporate law of every other state requires that directors discharge their duty of care by acting in good faith and being fully informed about the actions that they are taking. Accordingly, in a Y2K context, it is important that the directors discharge their duty of care in a Y2K context. If reviewed, a board would want to have fully explored and assessed Y2K issues facing the company. If a board were to ignore the Y2K issues, subsequent problems in that area would present a significant risk of personal liability to the directors.
Although it is beyond the scope of this paper to discuss what prophylactic measures a board may take in order to protect against Y2K liability, it is clear that the risk of litigation in this area is real. Accordingly, to avoid suits by shareholders, outside investors and venture capital funds, it would be appropriate for careful examination to take place regarding Y2K issues. That investigation should include a technical audit of the company's computer system to identify Y2K related issues as well as a contract review to determine how Y2K related issues could affect the company's ability to fulfill its obligations. Furthermore, the company should be aware of how Y2K related problems with third parties, including critical suppliers, service providers, etc., could affect the company's business operations. The board should also consider insurance coverage issues.
Recently, Senator Bennett, Republican from Utah, submitted to Congress the Year 2000 Computer Remediation and Shareholder Protection Act of 1997. This "CRASH" legislation would require publicly traded corporations to make specific disclosures in their initial offering statements and quarterly reports regarding the ability of their computer systems to operate after January 1, 2000. 31 The bill has been criticized as being over-broad in terms of its disclosure requirements and as being extremely difficult to satisfy. 32 It is unclear what additional disclosure requirements may be placed on public companies in the context of Y2K.
Insurance Issues
In the event that Y2K problems arise causing damages to businesses, it is inevitable that insurance coverage disputes will arise. Under the duty to defend rule, an insurer may have an obligation to provide a defense in a Y2K context, even where ultimate liability for Y2K related damages may be less clear. Insurance policies that were written before Year 2000 issues were recognized, may be broad enough in scope to arguably include coverage for Y2K related damages. One need only recall the insurance coverage disputes that have occurred in the environmental and asbestos fields in order to recognize that substantial Y2K insurance coverage litigation may occur. More recently, policies are being written recognizing, and usually excluding, Y2K related risks. However, it is by no means clear to what extent insurers will be called upon to defend and ultimately to cover losses sustained as a result of Y2K related computer system failures.
Miscellaneous
In addition to the foregoing, there will likely arise Year 2000 related litigation in other areas. For example, with the expected shortage of programmers, it is not unlikely that desperate companies will seek to "hire away" qualified programming talent to address Year 2000 related issues. Such practices could result in litigation involving interference with contract claims and alleged violations of covenants not to compete. To the extent that companies lose the ability to accurately report to their employees on retirement benefits and related matters, ERISA litigation could also result. With a little imagination, one can anticipate litigation arising in several other areas.
Statute of Limitations
For UCC related claims, the statute of limitations is four years after the cause of action accrues. 33 Accrual is defined as when the breach occurs, regardless of knowledge of the breach. However, if a warranty extends to future performance, and discovery of the breach must await such future performance, the cause of action is said to accrue when the breach should have been discovered. Some courts have found that this shift of limitation rule should only be applied if there is an express extended warranty. 34
In the context of Year 2000 litigation, we are certain to see arguments as to when the four year period should begin to run. Defendants will most certainly argue that the four year period should run from the date of the consummation of the sale. They will assert that the inherent characteristics of the software or computer system which allegedly gave rise to the failure, i.e., the two digit date code, were part of the goods at the time that they were delivered. On the other hand, plaintiffs will argue that the breach did not occur until the defective condition manifested itself, which could not occur until the year 2000. The issue will be further debated to the extent that the purchaser can assert that any warranty given extended to "future performance." 35
The cause of action for tort based claims is three years from the date the damages are sustained. 36 We are certain to see creative arguments on both sides regarding when the accrual period should be deemed to have begun to run.
If a case survives the statute of limitations defense, the full battery of defenses available in contractual and tort based claims will most certainly be raised in the context of these cases. In contractual suits, defendants will rely upon disclaimers, limitations of remedy, provisions excluding consequential damages, etc. Plaintiffs seeking to overcome the disclaimers will argue their alleged non-conspicuous nature. They will assert that limitations of remedy fail of their essential purpose or are unconscionable. In the context of tort litigation, the parties will examine the applicability of the economic loss rule, the traditional reasonableness standard, including state of the art and standard of care, foreseeability, comparative negligence and the failure of a party to mitigate damages. In shareholder suits, much attention will be given by defendants to the business judgment rule and the reliance upon outside experts to guide their decisions.
To a great extent, whether or not significant Y2K litigation is to be seen will depend upon the actions of the federal and state legislatures. A bill has been introduced in California seeking to limit the damages available in a Y2K related case to the cost of repair and replacement. 37 Senator Moynahan from New York and others have been asked to consider possible federal legislation to address Y2K litigation as well. 38 Only time will tell as to whether any such legislative initiatives become law.
The Y2K problem has technical, social, and legal ramifications. The potential for Y2K bugs to cause computer failures and resulting damages provides a breeding ground for significant and diverse litigation. Only time will tell as to whether the technical challenges can be adequately met in advance of the actual year 2000. However, the existence of Y2K related litigation today, coupled with the probability of further Y2K related failures in the future, suggests that significant and substantial Y2K litigation may very well be in our future.
1. Zetlin, Minda. The Computer Time Bomb: How to Keep the Century Date Change From Killing Your Computer. New York: AMA Membership Publications Division, 1998. pp. 26-
2. Murray, Matt. "U.S. Banks Pay Billions to Fix Computers' Year 2000 Problem." The Wall Street Journal: Interactive Edition, 11 March 1998.
3. "Merrill Lynch Expects to Spend $200 Million on 'Year 2000' Fix." The Wall Street Journal: Interactive Edition, 5 March 1998.
4. McTague, Jim. "Industry Bigwigs Ask Lawmakers for a Year 2000 Lability Cap, but They Get a Chilly Reception -- for Now." Barron's, 9 March 1998, 52.
5. "New Gartner Group Study Links Year 2000 Compliance Success to 'Rethinking' Year 2000 Crisis." Info-Sec, 4 March 1998.
6. Foster, Ed. "Customers Whose Rebate Checks Aren't in the Mail Are Beginning to Fight Back." InfoWorld, 9 February 1998.
7. Atlaz International, Ltd. v. Software Business Technologies, Inc., et al., Case No. 172539. (Marin County, California, Superior Court) 2 December 1997.
8. "Symantec Is Sued Over Software." Infoseek News Channel, 20 February 1998.
9. Produce Palace International v. Tec-America Corporation, et al., Case No. 97-3330-CK (Maccomb County, Michigan, Circuit Court) 11 July 1997.
10. Neil, Stephanie. "2000 Reasons To Sue." PC Week, 9 March 1998, 83-86.
11. Deogun, Nikhil and Anna Wilde Matthews. "Stung by the UPS Strike, Firms Seek Alternatives." The Wall Street Journal: Interactive Edition, 20 August 1997.
12. MCLA 440.2102 (1970).
13. MCLA 440.2105 (1970).
14. Advent Systems, Ltd. v. Unisys Corporation, 925 F. 2d 670 (3rd Cir. 1991).
15. Conopco, Inc. v. McCreadie, 826 F. Supp. 855 (D.N.J. 1993).
16. McFadden v. Imus, 192 Mich. App. 629 (1992); Neibarger v. Universal Cooperatives, Inc., 181 Mich. App. 794 (1989).
17. In re Trailer and Plumbing Supplies, 578 A 2d 343 (NH 1990).
18. Rockport Pharmacy, Inc. v. Digital Simplistic, Inc., 53 F. 3d 198 (8th Cir. 1998); Colonial Life Insurance Company of America v. Electronic Data Systems Corporation., 817 F. Supp. 235 (D.N.H. 1993).
19. Owen, David A. The Application of Article 2 of the Uniform Commercial Code to Computer Contracts. 14 N. Ky. L. Rev 277 (1987).
20. Delonise Brown, M.D., Inc. v. Allio, 86 Ohio App.3rd 359; 620 NE2d 1020 (1993).
21. Wells v. 10-X Manufacturing Company. 609 F. 2d 248 (1979); R.J. Long Construction Co., Inc., d/b/a EPIC, v. Transit America, Inc., et al., 921 F. Supp.1295 (D.N.J. 1996).
22. For an excellent discussion of Service Contracts in the Computer Services Area, See: Nimmer, R. T., The Law of Computer Technology, chapter 9 (3rd Edition, 1997).
23. Marcus v. Lee S. Wilbur & Company., 588 A 2d 757 (Me.1991).
24. Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (Lemon Law), Pub. L. No. 93-637, 88 Stat. 2183 (codified as amended in scattered sections of 15 U.S.C.).
25. MCLA 445.901 et seq. (1977).
26. See Neibarger, supra at fn 16.
27. Ingersoll, Bruce. "FAA Faces Year-2000 Problem With Air-Control Computers." The Wall Street Journal: Interactive Edition, 14 January 1998.
28. Dow Jones Newswires. "Congressmen Issue Warning About Year 2000 Problem." The Wall Street Journal: Interactive Edition, 25 March 1997.
29. Center for Devices and Radiological Health. "Information Paper on FDA Activities Related to the Year 2000 Date Problem and Medical Devices." 5 January 1998.
30. Molinari and Freed v. Symantec Corporation, et al., Case No. CV-97-20021. (Northern District of California, District Court).
31. S. 1518, 10th Cong., 1st Sess. § (10 November 1997).
32. Dinstein, Orrie. "The Year 2000 Public Disclosure Bill -- Will it Work?" Westergaard Year 2000 Litigation, 30 November 1997.
33. MCLA 440.2725 (1970).
34. Liecor Liquors, Ltd. v. CRS Business Computer, Inc., 613 NYS 2d 298 (App. Div. 1994).
35. Executone Business Systems Corporation v. IPC Communications, 177 Mich App. 660 (1989).
36. MCLA 600.5805
37. "Legislation Introduced in California To Limit Liability for Computer Data Errors." Daily Report for Executives, (No. 21): A-15.
38. See fn. 4.