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Lowenstein Sandler LLP

Jamie Gottlieb Furia

Jamie Gottlieb Furia



  • Appellate
  • Class Action & Derivative Litigation
  • Business Litigation
  • Antitrust & Trade Regulation

WSG Practice Industries


Lowenstein Sandler LLP
New York, U.S.A.


Jamie counsels individuals and companies in criminal and other enforcement investigations. Her white collar practice includes representing clients in government investigations involving allegations of criminal antitrust, accounting fraud, securities fraud, health care fraud, and violations of federal environmental laws. Jamie’s clients operate in a range of industries, including the pharmaceutical, technology, and financial services sectors. 

Jamie also has extensive experience conducting complex, highly sensitive internal investigations on behalf of public and private companies, corporate boards, and special committees. She is adept at handling internal investigations involving regulatory compliance, employee misconduct, accounting and company expenditures, and criminal misconduct. When conducting investigations, Jamie often advises companies on corporate governance issues, compliance programs, and data security.

In addition to her white collar and investigations practice, Jamie has substantial experience litigating sophisticated civil matters, including securities fraud class actions and corporate litigation, in both state and federal courts. 

Jamie is committed to representing individuals in need on a pro bono basis. She recently worked with a legal team that secured asylum for refugee children from Central America. As a member of the Advisory Board of the New Jersey Law & Education Empowerment Project (NJ LEEP), a community-based organization committed to creating a college-bound path for urban youth, she is dedicated to the public interest and to urban education reform. 

Prior to joining Lowenstein Sandler, Jamie served as a judicial law clerk for the Honorable Katharine S. Hayden of the U.S. District Court for the District of New Jersey.

Bar Admissions

    New York
    New Jersey


Seton Hall University School of Law (J.D. 2009), magna cum laude, Order of the Coif; Distinguished Public Interest Scholar; Comments Editor, Seton Hall Law Review
New York University (B.A. 2006), Psychology, magna cum laude, Phi Beta Kappa
Areas of Practice

Antitrust & Trade Regulation | Appellate | Business Litigation | Class Action & Derivative Litigation | Class Action Litigation | Corporate Investigations & Integrity | Litigation | White Collar Criminal Defense

Professional Career

Significant Accomplishments

Senior member of team that conducted an independent investigation into allegations of workplace misconduct including sexual harassment, domestic violence, and inappropriate behavior within the Dallas Mavericks’ business operations. The seven-month investigation culminated in the release of The Report of the Independent Investigation of Dallas Basketball Limited, detailing harassment and workplace misconduct over 20 years, lack of compliance and internal controls within the organization, errors in judgment among Mavericks’ leadership, and recommendations for changes to the Mavericks’ organization.

Representing a public company in connection with the U.S. Department of Justice, Antitrust Division’s investigation into allegations of price fixing.

Represented a public company in connection with an internal investigation pursuant to section 10A of the Securities and Exchange Act of 1934 into accounting concerns raised by the company’s independent auditors.

Successfully represented a partner in business dispute concerning a large apartment complex; obtained judgment in excess of $50 million against defendant managing partner for civil racketeering offenses, fraud, breach of fiduciary duty, and breaches of the partnership agreement and partnership law.

Successfully represented an international company in an antitrust investigation by the DOJ.

Successfully represented an entity under investigation by the New Jersey Bureau of Securities for alleged violations of the New Jersey Uniform Securities Act.

Represents individuals under investigation for alleged tax-fraud violations by the U.S. Attorney's Offices in the Southern District of New York and the District of New Jersey.

Represents an agency of an international state in defending against a bankruptcy adversary proceeding arising from the Bernard L. Madoff Investment Securities LLC Ponzi scheme recovery.

Represents an international corporation in a high-stakes federal litigation relating to copyright infringement and unfair competition allegations.

Successfully represented a pharmaceutical corporation defending against RICO and Consumer Fraud Act claims in a class action lawsuit.

Speaking Engagements

Rob Kipnees and Jamie Gottlieb Furia will present "NJ Criminal Trial Practice" as part of the New York City Bar's "New Jersey Bridge-The-Gap: Satisfy the Mandatory 15 Credits and More" CLE program.

Professional Associations

New Jersey Law and Education Empowerment Project (NJ LEEP, Inc.), Advisory BoardWomen's White Collar Defense AssociationNew York City Bar

Professional Activities and Experience

  • New Jersey Rising Stars (2013-2018) - Furia


How Will Courts Interpret Force Majeure Clauses in the COVID-19 Crisis Response? Look to 2008 Recession Fallout for Clues
Lowenstein Sandler LLP, April 2020

As the COVID-19 crisis continues to unfold, businesses nationwide are struggling to meet their existing contractual obligations. While companies may attempt to rely on force majeure clauses to exempt performance, they are well advised to look to how courts interpreted these clauses following the 2008 financial recession...

Two Weeks Into a Pandemic: A Fresh Look at Force Majeure
Lowenstein Sandler LLP, March 2020

While the new coronavirus disease (COVID-19) outbreak has already caused unprecedented and far-reaching negative consequences, foremost for many businesses is the difficulty or impossibility of carrying out contractual obligations. During a global crisis such as the COVID-19 pandemic,1 is a party excused from performance under a contract? The short answer: It depends...

Additional Articles

Making sense of U.S. antitrust law is a nearly impossible feat. If you have ever attempted it, you likely found yourself entangled in a labyrinth of intricate rules, followed by an even larger web of obscure exceptions to those rules. The murky nature of antitrust law is further exacerbated when foreign corporations, or foreign affiliates of U.S. corporations, find themselves in a U.S. court defending against allegations of anticompetitive conduct.

While this may be of little consolation to foreign entities, the reality is that the existing case law is inconsistent. Nonetheless, the livelihood of a foreign entity may hinge on knowing how to defend against an antitrust lawsuit. To make matters worse, in the most recent antitrust case involving foreign companies, Animal Science Products, Inc. v. China Minmetals Corporation,1 the Third Circuit made it more complicated for foreign defendants to get out from under complex and expensive litigation. In that case, the court significantly tipped the scales against foreign entities defending against violations of antitrust law, particularly with respect to litigation exposure and costs. If this decision is any indication of the future for antitrust litigation, foreign defendants undoubtedly will face an increasingly uphill battle. Ironically, as the litigation stakes become higher, the law seems to become muddier.

The No Child Left Behind Act of 2001 (NCLB) instilled new urgency in the quest to improve America’s public schools.1 NCLB requires schools to meet state-defined performance benchmarks, and schools that fail to do so are deemed as in need of “school improvement,” “corrective action,” or “restructuring” and are subject to escalating penalties.2 The most severe sanction occurs after a school fails to meet a state’s benchmarks for six consecutive years and, therefore, must fundamentally reform its governance operations through the process of restructuring.3 NCLB delineates five ways in which a school may restructure, one of which is the charter conversion option, whereby a school reopens as an independent entity but still operates within the public school system.4 Charter schools provide autonomous and alternative education models. Since these schools are governed according to state law, however, many states micromanage charter schools to the point that they are virtually indistinguishable from traditional public schools.5 A tension arises between NCLB’s focus on fundamental restructuring and charter school statutes that do not allow for a complete overhaul of a school’s governance structure.

The Small Business Administration’s (SBA) Paycheck Protection Program (PPP) is a forgivable loan program created by the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The purpose of the PPP, which has a $349 billion limit, is to help eligible borrowers affected by the coronavirus pandemic keep their employees on the payroll. Under the PPP, small businesses and self-employed taxpayers may fill out an application to obtain forgivable loans to cover payroll and other eligible expenses such as rent and utilities. Applicants must provide information such as all owners of 20% or more of the equity of their company, payroll costs, and number of employees to obtain a loan. Notwithstanding the benefits of the PPP, small businesses and self-employed taxpayers should be aware that applying for a PPP loan may involve federal criminal and civil risk. Federal prosecutors are getting primed for these cases: On March 19, 2020, the Department of Justice ordered every U.S. Attorney’s Office to appoint a Coronavirus Fraud Coordinator.

False statements or other fraudulent conduct in connection with a PPP loan may subject a violator to significant federal criminal liability in a number of ways. The PPP itself specifies that applicants must certify the application and indicates applicants may be penalized for “knowingly making a false statement to obtain a guaranteed loan from SBA,” and knowingly using the funds for unauthorized purposes. PPP, Borrower Application Form at 2. The application states that knowingly making a false statement is punishable by a maximum of (1) five years’ imprisonment and/or a $250,000 fine under 18 U.S.C. §1001 (making false statements) and 18 U.S.C. §3571 (sentence of fine); (2) two years’ imprisonment and/or a $5,000 fine under 15 U.S.C. §645 (false statements to SBA); and (3) 30 years’ imprisonment and/or a $1,000,000 fine, if submitted to a federally insured institution, i.e., virtually any bank, under 18 U.S.C. §1014 (false statements to banks with respect to loans). False statements in a PPP application may also subject violators to up to 20 years’ imprisonment and a $250,000 fine for wire fraud (18 U.S.C. §1343) and mail fraud (18 U.S.C. §1341), and up to 30 years’ imprisonment and a $250,000 fine for bank fraud (18 U.S.C. §1344), among other things. It is thus crucial for small businesses and self-employed taxpayers alike to be aware of and understand the numerous potential legal pitfalls during the application process.

One such pitfall relates to representations concerning company ownership; applicants should be particularly cautious when making these representations. For example, the PPP loan application requires that the applicant disclose the identity of each 20% or more equity owner of the company. And, the SBA maintains an enumerated list of entities that are presumptively excluded from applying for a loan under 13 C.F.R. §120.110, including if the business is located in a foreign country. In addition to properly identifying the company owners, applicants must answer questions regarding the owners’ past and current involvement with the criminal justice system. If certain criminal history is present, the applicant is not eligible for a PPP loan.

Applicants must therefore conduct relatively deep due diligence on their owners to avoid running afoul of the eligibility criteria—and to be able, at the very least, to fall back on a defense of good faith if the application nevertheless contains errors.

Another pitfall relates to the size qualifications for applicants. The SBA has clarified as recently as its April 15, 2020 FAQ that a “small business concern” is not solely restricted to those enterprises with 500 or fewer employees but that PPP applicants must qualify as eligible under section 3 of the Small Business Act, 15 U.S.C. §632. See PPP Loans, Frequently Asked Questions (FAQs) (last visited April 21, 2020). Specifically, applicants should be cautious when calculating their number of employees and certifying that they are (1) an independent contractor, eligible self-employed individual, or sole proprietor, or (2) employ no more than the greater of 500 or more employees or, if applicable, the size standard in number of employees established by the SBA for the applicant’s industry. Applicants should pay careful attention to this requirement to avoid fraud liability. For example, employees of all affiliates must be included when determining the size of a business. (The affiliation rules are waived for: (1) businesses within North American Industry Classification System (NAICS) Code 72 (e.g., hotels and restaurants with 500 or fewer employees); (2) franchises with codes assigned by the SBA; and (3) businesses that receive financial assistance from small business investment companies (SBICs).) Also, the total employee calculation is the average number of people employed for each pay period over the last year; an employee must be included regardless of the number of hours worked or temporary status.

To be sure, the riskiest section of the PPP application is that applicants must certify that the “current economic uncertainty makes this loan request necessary to support the ongoing operations.” Borrower Application Form at 2. However, the SBA does not define the nature or extent of the required impact to operations that would make the loan request “necessary to support the ongoing operations.” Id. (emphasis added). And, while the SBA’s most-recent FAQ, mentioned earlier, provides some guidance, applicants should conduct a thorough analysis of their present financial condition before submitting an application. Because of the significant responsibility undertaken in certifying a company’s financial need, it is a best practice for businesses to submit the financials and application to the board of directors for review and approval. Doing so ensures that the signatory has the full support of the company and helps to substantiate the appropriate good-faith request.

In addition to ensuring that their applications do not expose them to federal criminal and civil penalties, public companies should disclose to shareholders whether the companies applied for a PPP loan and/or received a PPP loan. The Chairman of the Securities and Exchange Commission, Jay Clayton, recently stated that he encourages companies to “disclose where they stand” in order to limit speculation about companies’ need for capital and their earnings power. Dave Michaels, SEC’s Clayton Says Companies Should Disclose Need for Bailout Funds, The Wall Street Journal (April 7, 2020). In line with that recommendation, companies have been filing Form 8-Ks disclosing that they have entered into PPP loan agreements. Relatedly, investment advisers to private equity funds should consider disclosing to their fund investors if portfolio companies have received PPP loans.

Reprinted with permission from the April 27, 2020, edition of the New York Law Journal. © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - [email protected].

To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.

Just one day after lending under the Paycheck Protection Program reopened, Treasury Secretary Steve Mnuchin warned that the Small Business Administration would audit all loans over $2 million. The announcement follows high-profile refunds of PPP loans by large businesses that regulators, commentators and the public would not have expected to qualify for — never mind apply for — relief under this program intended to expeditiously assist small businesses impacted by COVID-19. 

The ever-evolving guidance is reacting in real-time to the realities of the program's implementation. However, that leaves borrowers with more uncertainty in already uncertain times and only increases the potential for future liability — beyond the repayment of loans later determined not to qualify for forgiveness under the program.

Mnuchin's comments came days after the SBA posted a new frequently asked question on its website addressing whether "businesses owned by large companies with adequate sources of liquidity to support the business's ongoing operations qualify for a PPP loan."

In its answer, the SBA advised that "[i]n addition to reviewing applicable affiliation rules to determine eligibility, all borrowers must assess their economic need for a PPP loan under the standard established by the CARES Act and the PPP regulations at the time of the loan application."

The SBA reiterated that a potential borrower "must certify in good faith that their PPP loan request is necessary." Thus, before submitting a PPP application, the SBA counseled borrowers to "review carefully the required certification that '[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.'" 

The bombshell came in the SBA's guidance on how, specifically, to assess "need," with the SBA introducing an entirely new standard for applicants, both retroactively and moving forward. According to the SBA, a borrower's assessment should include consideration of "their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business."

The U.S. Department of the Treasury further made clear that this new requirement that applicants establish significant detriment to their current business operations and that they consider other sources of funding prior to certifying their PPP application has created a dilemma for applicants, and particularly applicants whose loans were already approved and / or disbursed. The retroactive nature of the new qualification metrics means all applicants, regardless of phase of application, must consider their application under the new standards.

Importantly, the SBA has promulgated a limited safe harbor for any borrower that applied for a PPP loan prior to April 23 and repays the loan in full by May 14: they "will be deemed by SBA to have made the required certification in good faith."[1] Notably, this limited safe harbor provision only applies to that one certification issue; it does not extend to any other representations on the PPP application.

Because of this limited safe harbor, any borrowers that have received PPP funds, have pending applications, or are considering applying should carefully reassess whether any potential long-term risks outweigh the near-term benefits of receiving such funds. Any such analysis should not occur in a vacuum, but rather should be read in conjunction with the PPP's other rules, including those concerning a business's affiliates and its impact on eligibility.

Even if a business's relationship with, for example, a private equity firm, does not per se disqualify it for relief under the affiliation rules, a business should consider whether such actual or perceived access to liquidity would call into question its good faith certification of need.

For those borrowers who do not refund or repay the loans in full, the SBA in its audit may not just look to whether a loan should be forgiven (i.e., whether the funds were spent appropriately under the act),[2] but also to whether the borrower was an appropriate candidate in the first instance. Whether that borrower's liability will be limited to not having the loan forgiven, or extend to civil or criminal liability, will remain to be seen. 

As disclosed on the forms, applicants may be penalized for "knowingly making a false statement to obtain a guaranteed loan from SBA," and knowingly using the funds for unauthorized purposes.[3] The statutes of limitations for the federal crimes under which charges may be brought range from five to ten years.[4]

In addition to criminal liability, however, businesses should keep in mind the potential civil liability and reputational harm of applying for, retaining, or returning, these funds. Businesses should act now — in the brief respite provided by the limited safe harbor — to protect against any future claims against directors for breach of fiduciary duty based on alleged (1) affirmative wrongdoing, i.e., by applying for PPP loans in bad faith; or (2) failure to appropriately oversee and be informed of the company's COVID-19 response.

Affected businesses should consider holding board meetings to reassess their eligibility and debate the relative risks and benefits of receiving such funds. If companies ultimately decide to apply for or retain PPP funds, they should appropriately record the bases for their opinions. Businesses should also be forthcoming with disclosures to shareholders about their financial health and response action plans, ensuring that they are consistent with any representations or certifications made to the government.

The SBA's recent guidance should also cause lenders to reconsider their approach to processing these loans. While making clear that the onus is on the borrower to make truthful certifications, Mnuchin has questioned whether lenders should have considered whether to provide PPP loans to large businesses and run that reputational risk. Moreover, lawsuits are already mounting against lenders who are alleged to have prioritized PPP applications from big businesses over the small businesses that the loans were intended to assist.

While there is undoubtedly a need to make decisions swiftly — particularly with respect to quickly dissipating PPP funds — the limited safe harbor and SBA guidance require applicants to pause and contemplate further action prior to the looming May 14 deadline.

Reprinted with permission from the May 6, 2020, issue of Law360. © 2020 Portfolio Media, Inc. All Rights Reserved. Further duplication without permission is prohibited. 

To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.

[1] Paycheck Protection Program Loans Frequently Asked Questions (FAQs), U.S. Small Bus. Admin. (Apr. 28, 2020), https://www.sba.gov/sites/default/files/2020-04/Paycheck-Protection-Program-Frequently-Asked-Questions_04%2028%2020.pdf.

[2] In an interview with the Wall Street Journal, Mnuchin stated that one of the audit's focuses will be substantiating that the loan was spent on payroll and other items that qualify for forgiveness. See Bob Davis & Kate Davidson, U.S. Audits of Small-Business Loans Face Daunting Challenges, Wall St. J. (Apr. 28, 2020 9:07 PM), https://www.wsj.com/articles/sba-to-face-big-challenges-ensuring-coronavirus-loans-arent-misspent-11588094140?mod=hp_lead_pos7.

[3] Paycheck Protection Program Borrower Application Form, https://www.sba.gov/sites/default/files/2020-04/PPP-Borrower-Application-Form-Fillable.pdf.

[4] See 18 U.S.C. § 3282 (five-year statute of limitations generally applies); 18 U.S.C. § 3293 (10-year statute of limitations for financial institution offenses, including mail fraud affecting a financial institution (18 U.S.C. § 1341), wire fraud affecting a financial institution (18 U.S.C. § 1343), false statements to banks with respect to loans (18 U.S.C. § 1014), and bank fraud (18 U.S.C. § 1344)).

In the wake of Covid-19, litigants have increasingly sought to excuse contractual performance by invoking force majeure clauses or the doctrine of impossibility. Yet despite the numerous (and creative) Covid-19-related arguments propounded by litigants in recent months, this emerging body of law remains largely undeveloped.

There are only a handful of reported decisions on these matters, and the substance of these rulings echoes the principles that were applied in the pre-Covid era: Force majeure clauses are strictly and narrowly construed, and the evidentiary showing necessary for a successful impossibility argument remains a high bar.

This article analyzes two recent federal district court holdings from May and June 2020 and offers practical tips for contract drafting to avoid (or succeed in) litigation in a post-pandemic world.

Restaurant Owner Sued Over Delinquent Rent

The first case—In re Hitz Rest. Grp. (Bankr. N.D. Ill. June 2, 2020)—involved a restaurant owner who was sued for delinquent rent payments. The owner mounted a partially successful force majeure argument based on:

  1. Illinois’ stay-at-home order, and
  2. language in the lease’s force majeure clause that explicitly mentioned laws and other government action that could frustrate performance.

But the bankruptcy court was careful to focus on both the precise language and scope of the stay-at-home order and the force majeure clause in determining the extent of performance excused. The Illinois stay-at-home order provided:

All businesses in the State of Illinois that offer food or beverages … must suspend service for and may not permit on-premises consumption. Such businesses are permitted to serve food and beverages so that they may be consumed off-premises, … through means such as in-house delivery, third-party delivery, drive-through, and curbside pickup.”

And the lease’s force majeure clause provided that “Landlord and Tenant shall each be excused from performing [if] laws, governmental action or inaction, orders of government [preclude performance].”

Taken together, the court determined that the stay-at-home order qualified as an “order of government” or “law” that precluded performance, albeit only in part: It still allowed restaurants to offer curbside pickup and takeout (which this restaurant did not offer), and so the court held that the owner was partially responsible for rent payments in proportion to the business he could have generated through takeout.

Gym Owners Seek to Excuse Rent Payments

The second case—Lantino v. Clay LLC (S.D.N.Y. May 8, 2020)—involved gym owners who sought to excuse rent payments under the impossibility doctrine and by virtue of economic hardship caused by Covid-19.

The court flatly rejected this argument because:

  1. impossibility in New York requires a showing that performance is “objectively impossible,” and
  2. while the gym owners provided affidavit testimony that their business (and personal finances) were hit hard by Covid-19, they were not destitute or otherwise completely unable to pay.

The court was particularly critical of the fact that the defendants’ affidavits did not discuss or include documents regarding their personal finances, the assets of the business, or other trusts/funds to which they might have access.

Key Takeaways

There are several takeaways from these cases. Principally, drafters of force majeure clauses should understand that stay-at-home orders may be the new normal and can serve as a basis for excusing performance where a force majeure clause mentions laws or government action. Further, for those representing clients who seek to excuse performance on this basis, it is important to recognize that these orders are not broad, catchall excuses.

Thus, careful attention should be paid to the language and scope of the government order, the types of industries affected, and any subsequent modifications to the order.

Careful attention should also be paid to the viability of an “economic hardship” argument. The Lantino court did not reject the argument in theory, but it required a strong evidentiary showing of impossibility (i.e., an objective inability to pay the amounts due under the contract). Affidavits that businesses have suffered substantial losses are likely insufficient; instead, a complete picture of the party’s personal and business records is needed to substantiate an impossibility claim based on economic hardship. And lawyers should manage clients’ expectations accordingly.

Apart from these cases, a key contractual insight to adopt in post-pandemic drafting is thinking beyond “the boilerplate.” Considerations include:

  • Choice of law. The doctrine of impossibility and judicial treatment of force majeure clauses vary from state to state. New York, for example, sets a high bar (i.e., objective impossibility) and requires not only that the force majeure clause includes a specific trigger event but also that the event is unforeseeable. California, on the other hand, excuses performance that is impracticable because it will require unreasonable expense to perform. While these courts may look at the same set of facts in rendering a decision, the jurisdiction-specific analysis will likely lead to different outcomes.
  • Qualifying events. It is unclear whether adding a generalized “pandemic” provision for a force majeure clause will suffice. Much as courts have construed “acts of god” narrowly, it is likely that courts will follow suit in construing the term “pandemic.” Thus, explicit qualifiers should be used that detail the circumstances under which performance may be excused (e.g., “a pandemic or widespread disease that constitutes a national or state emergency”).
  • Force majeure remedies. Contracting parties should consider what remedies a force majeure clause would provide (e.g., does the clause allow for complete termination of the contract? Does the clause delay performance for a certain duration?). To that end, does the force majeure event need to affect performance absolutely? Does a party need to make reasonable efforts to mitigate nonperformance or delayed performance? These are questions that were frequently overlooked or glossed over in a pre-Covid-19 world, but now should be on the table and duly considered in negotiations. In a post-Covid-19 world, courts will assume litigants had their eyes open and were alert to these issues at the time of drafting.
  • Exit rights. Given the difficulties in mounting successful force majeure and impossibility arguments, parties may consider adding more flexible exit rights to contracts that would permit termination or delay in the event of severe economic downturns; supply chain, labor, or transportation disruptions; quarantines; and the like.

Reprinted with permission from the July 2, 2020, issue of Bloomberg Law. © 2020 The Bureau of National Affairs, Inc. All Rights Reserved. 800.372.1033. For further use, please visit: http://bna.com/copyright-permission-request/.

To see our other material related to the pandemic, please visit the Coronavirus/COVID-19: Facts, Insights & Resources page of our website by clicking here.

WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

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