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Posts under ‘Channa Samkalden’

Kiobel’s fight for Shell discovery: Lawyer skirmishes on eve of U.S. Court of Appeals hearing

Esther Kiobel has been fighting for more than a decade to obtain justice for the murder of her husband Dr. Barinem Kiobel and crimes committed against her, for which she holds Shell responsible. Shell supported and financed the corrupt Abacha regime in Nigeria.

By John Donovan

Shell’s U.S. lawyers Cravath, Swaine & Moore, appealed against a decision by a U.S. federal judge that Cravath should hand over for use in Dutch litigation against Shell, more than 100,000 items of Shell internal discovery documents stored by Cravath in a secure warehouse located in the USA.

I have routinely published available appeal court documents that would otherwise be hidden behind a pay wall. The documents below were filed with the court in the days just before the appeal court hearing by various parties involved, including Washington DC lawyers Hogan Lovells representing Cravath, and EarthRights International acting for Esther Kiobel. read more

In memory of Dr. Barinem Nubari Kiobel

By John Donovan

It will shortly be five years since Esther Kiobel first sought my help in her fight to hold Shell accountable for complicity in the murder of her husband Dr. Barinem Nubari Kiobel – a member of the “Ogoni 9” executed in Nigeria by the dreaded Abacha regime. Esther correctly anticipated that Shell would succeed in blocking her attempt to use the US courts to seek justice. Shell recruited the UK and Dutch governments to help thwart the US litigation on judicial territoriality grounds. The merits of her claim were never considered.  read more

SHELL STILL TRYING TO GET AWAY WITH MURDER – LITERALLY

Thurgood Marshall U.S. Courthouse, New York, New York

An important decision day for Esther Kiobel in the above U.S. Courthouse tomorrow, Tuesday 12 Sept 2017 in her epic attempt to bring Shell to Justice for complicity in the murder of her husband Dr. Barinem Kiobel, one of the  Ogoni Nine. She is seeking more than 100,000 Shell discovery documents stored in a secure US warehouse. 

“Who doesn’t love a good discovery fight? And this one involving Cravath, Swaine & Moore is a doozy, with ramifications that extend literally across the planet.”

By John Donovan

The text shown in red is an extract from an article by Jenna Greene from The Litigation Daily published in the US yesterday under the headline “Cravath in the Crosshairs”.

Cravath, Swaine & Moore are Shell’s lawyers. In 2013 they managed to torpedo on jurisdiction grounds a 2002 US lawsuit against Shell led by Esther Kiobel. After over a decade of litigation to stop the case from being heard, Cravath won a US Supreme Court decision in 2013 on that important point of law, without her charges against Shell  ever being considered. read more

Will Oprah Winfrey portray Esther Kiobel in a movie about her epic battle with Shell? 

If Esther does eventually win her case, it will make the Erin Brockovich story look a tea party by comparison.

By John Donovan

The above headline may be premature but it really could be just a matter of time.

Last Thursday, 31 August, an application was filed with the United States Court of Appeals for the Second Circuit to film an appeal hearing made by Shell’s US lawyers Cravath, Swaine & Moore opposing an order made by a federal judge in favour of Esther Kiobel.

The application was made by Freke Vuijst a US correspondent of Dutch media and also covers her cameraman Martijn Hart. The applicant reveals that she is currently involved in the making of a film documentary about the case. The application says: “The above mentioned case is of direct interest to the Dutch public, since Esther Kiobel filed a case in the Netherlands.” read more

$2.47bn at stake in US case: Shell/Exxon v Nigerian National Petroleum Corp

By John Donovan

Provided below are links to a selection of US court documents I have published online about a dispute being litigated in the US courts involving Shell, Exxon and the state-owned Nigerian National Petroleum Corp (NNPC). A gigantic sum (including interest) of $2.47bn USD is at stake.

In an echo of the Esther Kiobel v Shell case, also currently being heard in the US courts, the current arguments are about the discovery process. (Esther is actually suing Shell’s US lawyers, Cravath Swaine & Moore.) read more

FINAL EXTRACT ESTHER KIOBEL WRIT SERVED ON SHELL 28 JUNE 2017

By John Donovan

Published below are the final pages – 113 to 138 – inclusive, from the Writ served on multiple companies within the Royal Dutch Shell Group on 28 June 2017 on behalf of Esther Kiobel. These pages provide supporting information about the claim, including a List of Exhibits. The formatting is not 100% accurate, but the content is correct.

Extract begins

CLAIM

The claimants request the court to enter judgement, provisionally enforceable as far as possible:

  1. to rule that the defendants acted unlawfully towards the claimants and are jointly and severally liable to them for the damage that they have suffered and will suffer in the future as a result of the defendants’ unlawful actions, which damage is to be assessed during separate follow-up proceedings and settled according to the law, all this plus the statutory interest up to the date of settlement in full;
  2. to order the defendants within 21 days of the judgment to compel the CEO of Royal Dutch Shell, in any case the CEO of SPDC, to make a public apology for the role that Shell played in the events leading to the death of the claimants’ spouses and to publish the text of this statement clearly visible on its website, subject to a penalty of €20,000 per day (or a sum to be determined by the court in accordance with the proper administration of justice) that they fail to comply with this order;
  3. to order the defendants jointly and severally to pay the extrajudicial costs;
  4. to order the defendants, jointly and severally, to pay the costs of these proceedings, including the subsequent costs.

The cost of this: €80.42 read more

Kiobel Writ: The Dutch battlefront against Shell

For years, Shell encouraged the Nigerian regime to take (more) effective measures designed to ensure Shell’s return to Ogoniland. Shell did this despite the fact that it had meanwhile learned from experience that in its actions, the regime frequently violated human rights and many people were killed.

By John Donovan

Earlier today we published an article about the latest legal moves on behalf on Esther Kiobel in the US courts against a Shell law firm. We now return to the publication of information about her legal action against Shell in the Netherlands. The numbered paragraphs below are extracted from the 138 page Writ served on multiple Royal Dutch Shell companies on 28 June 2017. As can be seen in the footnotes, the allegations are supported by voluminous evidence.

Extracts begin

8.8 Shell Nigeria Shell operated as a single entity

8.8.1 Introduction read more

Esther Kiobel US Court battle for 100,000 Shell docs continues

Esther Kiobel with legal team and supporters in front of the US Supreme Court in Washington DC, 2012 © Private

Extracts: Cravath put the mountain of Shell discovery items into secure US storage. My guess is that Shell would have preferred an accidental fire. 

Petitioner has already waited over twenty years for a forum that will hear her claims for her husband’s execution. At this point, Petitioner’s co-plaintiffs in the Dutch litigation face increasingly fragile health, and now fear that “further delaying litigation in the Netherlands might impede their ability to bring their claim in the future.”

By John Donovan

Several months ago, a US Federal Judge Alvin K. Hellerstein after carefully considering arguments made by the involved parties ordered Shell’s US lawyers Cravath, Swaine & Moore to give Esther Kiobel access to more than 100,000 Shell discovery documents for use in the Dutch courts. Dutch proceedings against Shell commenced on 28 June 2017.

The Shell internal documents were assembled for Esther Kiobel’s thwarted US action against the oil giant which commenced over a decade ago. That litigation ended with a US Supreme Court decision that she could not bring a human rights claim against Shell in the US for alleged misdeeds committed in Nigeria, including involvement in the judicial murder of the ‘Ogoni 9′. Cravath put the mountain of Shell discovery items into secure US storage. My guess is that Shell would have preferred an accidental fire. read more

Kiobel Writ: Ogoni 9 trial – Shell deception and machination

While Shell publicly stated that it was trying to persuade the regime to abandon the trial using quiet diplomacy, in reality it continued supporting the regime, while negotiating new projects. It also continued actively involving itself in the course of events during the trial.

By John Donovan

The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the litigation, this time in the Dutch Courts, is provided after the extracts. As can be seen in the footnotes, the allegations are supported by voluminous evidence.

OGONI 9 TRIAL

Extracts begin

8.7 Shell, knowing how the trial would end, allowed its commercial interests to prevail over the fate of the Ogoni 9

315. Through its close involvement with the case and with the regime Shell knew at an early stage that the suspects would not have a fair trial. In July 1995, more than three months before the tribunal was to pass judgment, Anderson reported on a conversation he had had with President Abacha: read more

Kiobel Writ: Shell bribed witnesses in Ogoni 9 trial

Already during the trial in 1995 two witnesses testified that they had been bribed to make incriminating statements in exchange for money and a job at Shell. In their statements Nkpah and Danwi named a number of other witnesses who were bribed by Shell and the regime…: Separate extract: “We knew that Shell, the prosecutor and the members of the tribunal were working hand in glove with each other. 

By John Donovan

The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts. As can be seen in the footnotes, the allegations are supported by voluminous evidence.  

Shell and the Abacha regime operated in tandem

Extracts begin

8.6 Shell contributed to the outcome of the Ogoni 9 trial

8.6.1 Shell was involved in the bribery of witnesses

Already during the trial in 1995 two witnesses testified that they had been bribed to make incriminating statements in exchange for money and a job at Shell. Charles Danwi and Naayone Nkpah made a statement under oath on video on 16 and 27 February 1995 respectively, which was submitted as an affidavit to the Civil Disturbances Tribunal.409 The Tribunal however disregarded the evidence. In their statements Nkpah and Danwi named a number of other witnesses who were bribed by Shell and the regime, that is Celestine Meabe, Kevin Badara,410 Limpa Bah, Peter Fii, Saturday Iye and David Keenom (exhibit 45: Public Deposition Naayone Nkpah, 19 March 2004, pp. 19-22; exhibit 21: Affidavit Charles Danwi, 16 February 1995).411 The false statements of these bribed witnesses were decisive in the conviction of the Ogoni 9.412 The statements of Danwi and Nkpah show that shortly after the murders of the traditional Ogoni leaders they were pressured by the main prosecution witnesses Alhaji Kobani (the brother of the murdered Edward Kobani) and Priscilla Vikue413 to sign a false statement in which they accused the since apprehended MOSOP and NYCOP leaders of the murders.414 Initially they refused to do this, whereupon they were placed under house arrest for some time. Danwi testified that he was then promised the following:

“I was promise[d] that after the case in Court I will be given a house any place in the country, a Contract from Shell and OMPADEC and some amount of money to buy my musical instrument. […] On another date of meeting in Kobani’s House, representative from Shell, OMPADEC, security agents, Govt officials and the Kobani, Orage and Badey’s family were present and they all agreed. The family gave some money say that the money come from Govt. and Shell. In my case I was given N 30,000,- from Shell and Govt.”415

  • Nkpah testified to the same effect and in his fuller statement in the American Kiobel case also said who was involved in the bribery. Apart from Alhaji Kobani and some other family members of the murdered Ogoni chiefs, they were also various representatives of the regime and the oil industry, among them Shell’s lawyer O.C.J. Okocha.416 Nkpah was also promised a house, 30,000 naira and a contract at Shell, OMPADEC or the government.417 In his deposition he said that Celestine Meabe had asked Alhaji Kobani where the 30,000 naira came from, to which Kobani replied:

    “This money come from Shell, government of Nigeria. This is why the chairman, the lawyer representative is here.”.418

  • Kobani introduced this Shell lawyer to Nkpah as O.C.J. Okocha.419 Nkpah also said that Kobani had told him that “anything that is being given to us […] basically is from the government and the Shell and Ubadek [OMPADEC]”.420
  •  Just like Danwi, in exchange for signing the false testimony Nkpah was given a job in the transport section of the municipality of Gokana where, in addition to the 30,000 naira, he received a monthly salary without actually being employed.421
  • Gani Fawehinmi, the suspects’ lawyer, introduced Danwi’s statement on the second day of the Ogoni 9 trial (on 21 February 1995):

    “My Lord, he [Charles Danwi] is number 22 on the list of witnesses. He has sworn to an Affidavit and he has exhibited what is called a principal statement. He accused the Government [and] Shell Development Company for bribing him with thirty thousand naira (N30.000) and a house. He has made a full disclosure that what they have was not his statement […].”422

  •  Although Kiobel’s lawyer Alhaji Oso again tried to stress the importance of the bribery on the third day423 and explained that the reliability of the witnesses was the basis of the case,424 Nkpah and Danwi’s affidavits were not admitted as exculpatory evidence.425 At that point, Danwi and Nkpah had already gone into hiding out of fear for repercussions by the regime and could not therefore give evidence to the hearing. Their fear proved to be well-founded: both men were put on the regime’s blacklist.426 Ultimately they were forced to flee Nigeria and they were accepted as refugees in Benin.427
  • Nkpah is currently living in the United States and is prepared to substantiate his statements in detail as a witness if necessary. Danwi’s current whereabouts are unknown.
  • 8.6.2 Shell maintained direct contact with the judges of the Special Tribunal during the trial read more

    The Ogoni 9 trial served to safeguard the common interests of Shell and the Abacha regime

    Shell falsely claimed to be following an apolitical course whilst exerting its influence through quiet diplomacy. In reality, it was very much involved with the course of the events during the trial… Shell’s lawyer was present at the bribing of witnesses who had to give incriminating statements against the “Ogoni 9”; they were offered compensation and a position at Shell;

    By John Donovan

    The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts. As can be seen in the footnotes, the allegations are supported by voluminous evidence.

    Shell and the Abacha regime operated in tandem

    Extracts begin

    8.5 The Ogoni 9 trial served to safeguard the common interests of Shell and the regime

    8.5.1 Introduction

    1. The Ogoni 9 trial was the culmination of Operation Restore Order in Ogoniland. With the Ogoni 9 trial Abacha disposed of the Ogoni’s main political representatives in an extreme attempt to finally break the resistance. The trial served a common goal, the resumption of oil extraction in Ogoniland, and followed the ceaseless urging of Shell to bring order to matters. Professor Olubayo Oluduro said about this:“Although Ken Saro-Wiwa and the other eight Ogonis were ostensibly charged and tried for murder, it is obvious to the world that they were actually arrested and executed for expressing their discontent with the environmental harm caused by Shell and the Government in their native Ogoniland.”383
    2. As was explained in chapter 4, the Ogoni 9 trial, which commenced 6 February 1995, was a carefully prepared show trial. The 15 suspects had, when the trial started, already been held in custody for more than eight months without official charge, although it was clear that they had been apprehended on suspicion of involvement in the murder of the four traditional Ogoni leaders on 21 May 1994. Ken Saro-Wiwa, Barinem Kiobel and Baribor Bera did not hear the official charge until 28 January 1995, while Nordu Eawo and Paul Levula received the indictment on 28 February 1995. In this period the hearings of the specially set up Ogoni Civil Disturbances Special Tribunal also started. Footage of these hearings is submitted as exhibit 247. Fragments from them can also be seen in the revealing documentary “In-Remembrance Ken Saro-Wiwa” (exhibit 252).384 The trial would last until 31 October 1995 and end with the death penalty being carried out on nine of the fifteen suspects, who were executed on 10 November 1995. The serious human rights violations to which the suspects were exposed during the trial and that ultimately led to the executions are described in chapter 4.
    1. Because it soon became clear that the suspects would not receive a fair trial and were in fact political prisoners because of their opposition to Shell, all eyes were on the company. Shell falsely claimed to be following an apolitical course whilst exerting its influence through quiet diplomacy. In reality, it was very much involved with the course of the events during the trial, and in the meantime fully dedicating itself to its negotiations with the regime regarding the NLNG project which would be settled at the same time. At no time whatsoever did Shell reveal any dissatisfaction with the course of events, not even when it sent a tepid letter to Abacha just before the execution of the Ogoni 9 with a request for a pardon, for which it had apologised to the regime in advance.385 While Nigeria had by then been internationally degenerated into a pariah state, Shell continued to collaborate with the regime just as intensively.
    2. The fact that Shell’s involvement in the trial went beyond implicit support is evident from the following facts and circumstances, which are explained below:
      •  Shell itself sent a lawyer to the trial, who kept it well informed and supported the position of the prosecutor by means of a so-called watching brief;
      •  Shell lied publicly about the role that its lawyer fulfilled at the trial;
      •  during the trial Shell maintained contacts with the judges who had been appointed to decide on the case;
      •  Shell’s lawyer was present at the bribing of witnesses who had to give incriminating statements against the “Ogoni 9”; they were offered compensation and a position at Shell;
      •  Shell’s protégé Okuntimo played a dominant role during the trial;
      •  at no time did Shell publicly or discretely distance itself from the course of events during the trial;
      • Shell kept emphasising its economic interests to the regime and during the trial negotiated with the regime regarding new projects in Nigeria. One month after the executions the large-scale National Liquid Natural Gas project was announced, by which the collaboration between the regime and Shell was extended for many years.

    8.5.2 Shell sent its lawyer to look after its interests

    281. Shell sent its own lawyer O.C.J. Okocha and his colleagues to the tribunal with a so- called ‘watching brief’. A watching brief in the Nigerian legal system is a way for a third party to keep informed of developments in proceedings in order to safeguard its direct interests in them. To this end the lawyer who has the watching brief usually works closely with the public prosecutor. Nigerian jurisprudence shows that a watching brief may be refused if a party has no interest in the trial: read more

    Kiobel Writ: Shell and the Abacha regime operated a joint intelligence service

    The extent of Shell’s infiltration of Nigerian politics later became clear from the messages from the American embassy in Nigeria published by WikiLeaks. In them Executive Vice President of Shell in Africa at the time, Ann Pickard, boasted to the American ambassador that the Nigerian government had forgotten that Shell had seconded people to every ministry in the Nigerian government and was therefore aware of everything happening there

    By John Donovan

    The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts. As can be seen in the footnotes, the allegations are supported by volumous evidence.

    Shell and the Abacha regime operated in tandem

    Extracts begin:

    8.4.4 Shell and the regime operated a joint intelligence service

    267. Together with the State Security Service (“SSS”, the national intelligence and security service) Shell maintained its own network of informants. According to George Ukpong, Shell had daily contact with the commissioner of police of Rivers State and the director of the SSS in this period.362 The SSS, according to Upkong, “is one of the security agencies rendering valuable assistance in support of SPDC security operations in the state”; the SSS “has provided assistance in meeting some of our staff training needs” and “has been of particular assistance to [Shell] in the area of crime intelligence acquisition”. read more

    Kiobel Writ: SHELL ARMED THE NIGERIAN POLICE FORCE

    Shell itself took action to provide the police force with arms. In the period in which the setting up of OPAPCO and the expansion of Shell’s police force were under discussion SPDC’s security adviser Victor Oteri asked the regime for consent to import more than half a million dollars of arms. The order included: – 130 SMG Beretta 9 mm Calibre; – 200,000 Rounds of 9 mm bullets/ammunitions; – 40 Berretta Pistols (to replace unserviceable ones); – Pump Action Shotgun 12 GA, 6 shots including slings – 50,000 rounds cartridges for Pump Action Shot Guns – 20,000 rounds Shotgun rubber bullets; – 500 Smoke Hand Grenades

    Shell and the Abacha regime operated in tandem

    By John Donovan

    The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts.

    Extracts Begin

    8.4.2 Shell provided vehicles and facilities

    258. It was characteristic of the relationship between Shell and the regime that “for relationship rapport” Shell regularly honoured all kinds of requests from the police and the security service, ranging from the payment of boat repairs to the purchase of air conditioning and office furniture.343 Shell even offered logistical support of its own volition.344 It also regularly paid field allowances for MOPOL345 and – as previously discussed in section 8.2.3 – vehicles and buildings were made available. Shell not only arranged the transport for MOPOL, but it was also common to take care of transport in the situations in which Shell asked the regime for “assistance”, as in the examples referred to sections 8.2.3 and 8.2.4.346 The Nigerian police also remained present in Ogoniland, which by then was already a no-go area for Shell, after 1993, with the aim of protecting Shell property.347 Among other things Shell paid the salaries and the meals of these officers.348 On request Shell provided operational maps to the Nigerian army, displaying all Shell’s activities.349 read more

    Kiobel Writ: Shell and the murderous Abacha regime operated in tandem

    Shell paid and maintained part of the Nigerian police force; Shell was prepared to purchase arms for the regime; Shell had puppets in place up to the highest level of the Nigerian government as a result of its revolving door policy, under which former employees of Shell work for the regime and vice versa; Shell maintained a network of informants in Ogoniland in conjunction with the regime. Shell was itself… a direct and active part of (all ranks of) the government apparatus that had to maintain ‘order’ in Ogoniland and to this end violated human rights on a wide scale. Shell’s police force in 1994 numbered more than 1,200 officers… Shell also had 41 marines and 128 MOPOL members… … in total the Shell-operated joint venture employed around 2,470 security staff…

    By John Donovan

    The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts.

    Extracts Begin

    8.4 Shell and the regime operated in tandem

    246. Not only did Shell stand at the cradle of the aforementioned excesses by requesting the intervention of MOPOL or the RSISTF again and again, it also factually enabled the regime to do this by providing it with arms, personnel and money. As such, Shell facilitated the excessive actions by the regime, but also fulfilled typical government tasks itself.247. The strong entanglement of Shell and the regime is evident inter alia from the following facts and circumstances, some of which have previously been discussed above: read more

    Kiobel Writ: Notorious Lt Col Paul Okuntimo paid by Shell

    Interviewed by The Sunday Times in Nigeria last week, Okuntimo initially admitted being paid by Shell while he was in charge of crushing Ogoni protests against the company. ‘Shell contributed to the logistics through financial support. To do this, we needed resources and Shell provided these,’ he said.

    By John Donovan

    The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts.

    Extracts Begin

    8.3.2 Okuntimo worked partly on behalf of Shell

    236. Okuntimo repeatedly and publicly stated that he conducted the operation in part on behalf of Shell.312 In the American proceedings, Boniface Ejiogu, who at the time of the Ogoni crisis was Okuntimo’s assistant, furthermore stated that he had witnessed the handing over of money by Shell to Okuntimo three times, twice by George Ukpong (exhibits 24 and 25).313 Ejiogu also stated that Ukpong and Okuntimo met each other regularly, usually in Ukpong’s office in the Industrial Area, but also at Ukpong’s home.314 Shell also assisted the RSISTF in the form of rations, ammunition and transport.315 The payments to Okuntimo by Shell were confirmed by another witness, Raphael Kponee, who was a member of Shell’s police unit and who worked at Shell’s Industrial Area (exhibit 39).316 In the American proceedings, Shell employee Osazee Osunde also testified that he had seen Ukpong and Okuntimo together on Shell’s Industrial Area.317 read more

    Kiobel Writ: Shell encouraged military offensive against MOSOP

    Owens Wiwa, brother of Ken Saro Wiwa, outside Shell headquarters in London

    In 1994 the Nigerian regime of Sani Abacha began a large-scale military offensive in Ogoniland to break the population’s resistance to Shell’s activities and to clear the way to a resumption of oil production.

    By John Donovan

    The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts.

    EXTRACTS FROM ESTHER KIOBEL JUNE 2017 WRIT

    8.3 Shell facilitated Operation Restore Order in Ogoniland

    218. In 1994 the Nigerian regime of Sani Abacha began a large-scale military offensive in Ogoniland to break the population’s resistance to Shell’s activities and to clear the way to a resumption of oil production. Not long after the offensive was announced, the leaders of MOSOP and any other prominent Ogoni were arrested, resulting in the death of the Ogoni 9 in 1995. read more

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