Petroliam Nasional Berhad v., Inc.

Filing 153

DECLARATION of Perry Clark in Opposition to 152 Opposition/Response to Motion, filed byPetroliam Nasional Berhad. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20 (Part 1 of 3), # 22 Exhibit 20 (Part 2 of 3), # 23 Exhibit 20 (Part 3 of 3))(Related document(s) 152 ) (Clark, Perry) (Filed on 12/9/2011)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Ex. 10 19 20 21 22 23 24 25 26 27 28 CLARK DECL. ISO OPP. SUMMARY JUDGMENT Case No: 09-CV-5939 PJH OPPAPP000179 OPPAPP000180 Ex. A OPPAPP000181 1 PERRY R. CLARK, State Bar No. 197101 LAW OFFICES OF PERRY R. CLARK 2 825 San Antonio Road Palo Alto, CA 94303 3 Telephone: (650) 248-5817 Facsimile: (650) 248-5816 4 5 Attorney for Plaintiff PETROLIAM NASIONAL BERHAD (PETRONAS) 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 13 PETROLIAM NASIONAL BERHAD (PETRONAS), 14 Plaintiff, 15 vs. 16 GODADDY.COM, INC., 17 Defendant. 18 19 20 ) ) ) ) ) ) ) ) ) ) CASE NO: 09-CV-5939 PJH DISCLOSURE OF EXPERT WITNESS KEVIN FITZSIMMONS TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to Fed. R. Civ. P. 26(a)(2)(A), Plaintiff Petroliam Nasional Berhad (Petronas) discloses Kevin Fitzsimmons. This disclosure is 21 accompanied by the report attached hereto as Exhibit 1, which contains material designated as 22 “confidential” under the protective order in this case. 23 24 25 26 DISCLOSURE OF EXPERT WITNESS KEVIN FITZSIMMONS Case No: 09-CV-5939 PJH OPPAPP000182 1 Dated: October 3, 2011 LAW OFFICES OF PERRY R. CLARK 2 3 By: /s/ Perry R. Clark Perry R. Clark . 4 Attorney for Plaintiff PETROLIAM NASIONAL BERHAD (PETRONAS) 5 6 CERTIFICATE OF SERVICE 7 8 9 On October 3, 2011, I served this DISCLOSURE OF EXPERT WITNESS KEVIN FITZSIMMONS by First Class Mail and electronic mail on: 10 John L. Slafsky, Esq. 11 David Lansky, Esq. 12 WILSON, SONSINI, GOODRICH & ROSATI, P.C. 13 650 Page Mill Road 14 Palo Alto, CA 94304-1050 15 650 493 9300 16 17 18 19 Dated: October 3, 2011 By: /s/ Perry Clark Perry Clark 20 21 22 23 24 -2DISCLOSURE OF EXPERT WITNESS KEVIN FITZSIMMONS Case No: 09-CV-5939 PJH OPPAPP000183 1 2 3 4 5 6 7 8 9 10 11 12 Ex. 1 13 14 15 16 17 18 19 20 21 22 23 24 -3DISCLOSURE OF EXPERT WITNESS KEVIN FITZSIMMONS Case No: 09-CV-5939 PJH OPPAPP000184 Expert Report of Kevin Fitzsimmons OPPAPP000185 I. ntroduction n In I have been re etained as an expert in th field of th DNS (Dom Name System). I a n he he main am being com mpensated at my normal consulting rate of $200 per hour. A copy of m resume lis a l 0 my sting my educa ation and wo experien is attache as Exhibit A. ork nce ed t Based on my experience, background and educat B d, tion as well as the inform mation I hav ve considere in connec ed ction with my work on th case, I ha formed o y his ave opinions regarding GoDa addy and the d domain name “” a “petrona es and, including with respect to ,” t (1) the re egistration of domain nam (2) the resolving of domain nam to acces websites, and f mes, f mes ss (3) the fo orwarding of domain nam f mes. The ba and reason for my op asis pinions and the material I ls have con nsidered in fo orming them include the documents cited to and attached as exhibits her m e d reto. II. Domain Nam Registrat D me tion A domain nam is a string of letters o numbers s me g or separated by one or more “.” or “dots,” e such as “ “www.cand.u that can b used to ac v,” be ccess compu files stor on a netw uter red work, such as th internet. Commonly, domain nam are used by compute users to lo he , mes d er ocate files th hat display w websites. Wh a compu user typ a domain name into a web brows program hen uter pes n ser (such as I Internet Exp plorer), the w browser uses the dom name t obtain the numerical I web main to e IP (Internet Protocol) ad ddress of a c computer con nnected to th internet th can provi (or serve the he hat ide e) computer files associ r iated with th domain n hat name. One o the most fa of familiar uses of a domain n name is t obtain the IP address o the compu (often c to e of uter called a web server) stori the files ing needed b a web brow to disp a webpa as illustr by wser play age, rated below in Figure 1. Fig gure 1: Using a Doman N g Name to Fin a Web Site nd In the exampl above, the “Domain N n le e Name Server that is resp r” ponsible for the file containin the IP add ng dress (72.28. .101.160 in F Figure 1) wh the files associated with a doma here s ain name can be located is called the Authoritativ Name Server. n e ve 1 OPPAPP000186 By B registering a domain n g name, a pers (called th registrant is able to d son he t) designate the e Authorita ative Domain Name Serv that is as ver ssociated with that doma name. To register a ain domain n name, the po otential registrant submit a request t a domain n ts to name registr such as rar, GoDaddy Generally the registr does so b completin an online form by ide y. y, rant by ng e entifying the e domain n name to be re egistered, th prospectiv registrant’ name and contact info he ve ’s ormation, and d payment information for the fees charged by the registrar n s r. After the regi A istrant makes the request to register t domain n t the name and pr rovides the necessary informatio the registrar checks it database o registered domain nam to determ y on, ts of mes mine if the dom name th registrant wants to re main he t egister is ava ailable. If the requested domain nam me has not a already been registered (a is not pr and rohibited fro registratio for some other reason om on n), the regist then sub trar bmits a recor to the appropriate dom name re rd main egistry. The content of t e this record m vary but it must inclu the regis may ude stered domai name and the identity of two in Authorita ative Domain Name Serv designa for the d vers ated domain name.1 There ar a number of re different domain nam registries for the vario “top-lev domains,” such as “.c me ous vel ” com,” “.net,” etc. ” stry t” ames is Veri isign, Inc.. I addition to submitting the record f In o g for The regis for “.net domain na the reque ested domain name, the d n domain nam registrar c me collects the re egistration f from the fee registrant t. The T registry and registrar maintain a publicly acc a r cessible datab base, called the “whois” ” database, that contain informatio from the domain nam registratio records of all register , ns on me on f red domain n names. The Verisign wh entry for “petronasto hois” is below (Ex. G at GD000674): : 1 Two T Authorita ative Domain N Name Servers a required for among other things, redund are r, r dancy. 2 OPPAPP000187 Often, the Authoritative Domain Name Servers designated for a domain name when it is first registered are owned and operated by the domain name registrar but this is not required. This is the case for “” and, as shown in the above example, the designated Authoritative Domain Name Servers “NS39.DOMAINCONTROL.COM” and “NS40.DOMAINCONTROL.COM” are owned and operated by GoDaddy. The registrant can, however, direct the registrar to designate whatever Authoritative Domain Name Servers the registrant chooses. While many domain name registrars provide Authoritative Domain Name Servers for their registrant customers, registrants can operate their own Authoritative Domain Name Servers or use Authoritative Domain Name Servers operated by other domain name registrars or other web services companies. With respect to the domain names “” and “,” my opinion is that the conduct of the registrar in initially registering that domain name involved only (1) collecting information from the registrant for submission to the registry, (2) determining whether or not those domain names were available for registration, (3) collecting payment from the registrant, and (4) communicating with the registrant regarding the status of the registration process. In addition to the initial registration of domain names, domain name registrars perform functions associated with the maintenance of domain name registrations, such as updating the registrant’s contact information, transferring domain names between registrars and registrants, and collecting renewal fees. I understand that GoDaddy was not the registrar which performed the original registration of the domain names “” and “” (Ex.C (Lewis Decl. at 2:23-24)); (Ex.D, GD-000393). In my opinion, the conduct of GoDaddy 3 OPPAPP000188 that could be characterized as either the registration or maintenance of the domain names “” and “” consists entirely of the following2:              On or before March 30, 2007, GoDaddy received a request from the registrant of the domain names “” and “” for GoDaddy to become the registrar of record for those domain names. (Ex. D at GD-000377). On March 30, 2007, GoDaddy charged the registrant’s credit card for “.NET Bulk Domain Name Transfer (6-20)” for the domain names “” and “” (Ex. D at GD-000475). By April 1, 2007, GoDaddy completed the transfer of the domain names “” and “” from the previous registrar to GoDaddy and on April 1, 2007 GoDaddy sent an email to the registrant notifying it of the completion of the transfer. (Ex. D at GD-000367, 369, 110, 152). On April 26, 2008 and May 3, 2008, GoDaddy set the domain names “” and “” to “auto renew.” (Ex. D at GD000353, 350, 348, 346, 345, 344). On May 3, 2008, GoDaddy charged the registrant’s credit card for “.NET Bulk Domain Name Renewal (6-20)” for the domain names “” and “” (Ex. D at GD-000467). On May 2, 2009, GoDaddy again set the domain names “” and “” to “auto renew.” (Ex. D at GD-000313). On May 2, 2009, GoDaddy charged the registrant’s credit card for “.NET Bulk Domain Name Renewal (6-20)” for the domain names “” and “” (Ex. D at GD-000447). On July 2, 2009, GoDaddy sent a contact information update request to the registrant of GoDaddy set the domain names “” and “” and updated the contact information. (Ex. D at GD-000310, 110, 152). On December 18, 2009, GoDaddy received and logged a complaint regarding the domain name “” (Ex. D at GD-000302). On December 21, 2009, GoDaddy sent a contact information update request to the registrant of GoDaddy set the domain name “” and updated the contact information. (Ex. D at GD-000302). On January 24, 2010, GoDaddy sent a contact information update request to the registrant of GoDaddy set the domain name “” and updated the contact information. (Ex. D at GD-000301, 110). On March 23, 2010, the domain name “” was renewed. (Ex. D at GD-000299). On May 9, 2010, the domain name “” was renewed. (Ex. D at GD-000298). 2 The process and implementation of domain name registration in general and by GoDaddy in particular are described and referenced in agreements and documents overseen by ICANN, including those by and between Godaddy, the registries, and ICANN. (Ex. F). Documents published by the Internet Engineering Task Force also set forth the substantive characteristics of the implementation and function of domain name registration, including RFCs 5730, 3375, 3632, 2832, 1034, 1035, and 2616. (Ex. H). 4 OPPAPP000189    III. On May 18, 2010, GoDaddy t M transferred th domain n he name “petron t” pursua to a cour order from the previou registrant to Petronas. (Ex. D at G ant rt m us GD00029 98). On Ju 14, 2010, GoDaddy r une received and logged a co d omplaint reg garding the domai name “petronastowers in” (Ex. D at GD-00 00296). On Au ugust 30, 20 010, GoDadd transferred the domain name “pet dy n tronastowers” pursua to a cour order from the previou registrant to Petronas. (Ex. D at G ant rt m us GD00029 93). Resolving Do R omain Nam mes The T Authorita ative Domai Name Ser in rver is the cri itical compo onent in the i internet syste em that is res sponsible for routing an internet use to the IP ad er ddress of the computer s e storing the fi iles associate with that domain nam This func ed d me. ction of an A Authoritative Domain Na Server i e ame is illustrated below, wh shows a internet us searching for the web hich an ser g bsite associa with the ated e name “JonsW m.” domain n The T process by which a w browser locates the A b web r Authoritativ Domain N ve Name Server for a r particular domain nam and obta the corre IP addres is called “ r me ains ect ss “domain nam resolution me n.” In the situ uation illustr rated above, the domain name resolu , n ution process occurs “be ehind the sce enes” (and ofte in less tha one second) and begin at the mom the com en an ns ment mputer user t types “JonsWid” into his or her web brow i wser. Initiall the web b ly, browser subm a reques to mits st the Intern Service Provider’s (I net P ISP’s) DNS server (Com mcast in the f figure above). The ISP’s s DNS serv then sear ver rches its files, or “cache,” for the domain name r record for th domain na he ame “JonsWid” If the ISP’s DNS serve has the dom name r s er main record for “JonsWid” in its own fil it will re i les, eturn the app propriate IP a address for t the “JonsWid” domain nam If, as in t example above, the I d me. the ISP’s DNS s server does n not have the record for “JonsWidgets,” it ca pull the do an omain name record with IP address from e h the Autho oritative Dom Name Server. Usi this IP ad main ing ddress the w browser can then sen a web nd request o over the inter to the co rnet omputer at th IP address to route th appropria files back to hat he ate k 5 OPPAPP000190 the web browser for display as a webpage on the internet user’s computer. The computer at the IP address associated with a domain name is sometimes called a web server and the files it stores can be used to display web pages or perform other functions. Domain name records are distributed across the internet through a hierarchal arrangement of special “name servers” (illustrated below). At the top of this hierarchy are thirteen “root servers” which are specially maintained at select locations around the world. These root servers contain records identifying the “top-level” domain name servers, or “TLD name servers,” for each top-level domain, such as “.com” or “.net.” These TLD name servers are maintained by the domain name registry for each top-level domain and contain records pointing to the Authoritative Domain Servers which make up the lowest level of the hierarchy. The Authoritative Domain Name Servers store the domain name records linking domain names to IP addresses. A DNS server that is unable to locate a domain name record—such as for a newly registered domain name—in its own files (or those of nearby servers) will ultimately make its way across the internet to a device that can act as a “recursive name server.” A recursive name server is virtually certain to be able to locate a domain name record by first querying the “root servers,” then the TLD name servers, and ultimately the network of Authoritative Domain Name Servers. It is by virtue of this “hierarchy” and the use of recursive name servers that a domain name registry is able to propagate a new domain name record across the internet. 6 OPPAPP000191 In my opinion the domai name regi n n, in istrars do not play a direc or active r in the t ct role process o domain na resolutio Their on function is to submit requests to the domain of ame on. nly t name reg gistries that specific dom names b linked to s s main be specific Auth horitative Domain Name e Servers. It is the resp ponsibility o the domain name regis to updat the TLD n of n stry te name servers s A e ame which in turn enable the process of n with the identity of Authoritative Domain Na Server w domain n name resolut tion. 3 IV. Domain Nam Forward D me ding Domain name forwarding which is a known a URL redir D e g, also as rection, is a f function that t “forward a request for one dom name to the IP addr associated a second domain nam ds” main o ress me. Returning to the example from Figure 1 (reprodu R t e e uced below), when an int ternet user in nputs the doma name “Jo ain onsWidgets.c com” into a web browse a request for the files associated w er, with “JonsWid” is sent to the IP address listed in the record from the Authoritative Domain i e m Name Se erver for “Jon nsWidgets.c com.” If the server at tha IP address is program at s mmed to respo ond to such re equests with files that ar used to dis h re splay a web page, the internet user’s web browser s will displ a web pa lay age. Commo only, such a server is cal a web se lled erver or appl lication serv ver. A web ho osting provid is a comp der pany that ren space on its servers t its custo nts n that omers can us to se store files, such as fil for displa les aying web pages. Domain name forwarding occurs whe the files s D e g en stored at the server locate at the IP ed address f a particul domain n for lar name direct r requests for t content a the associated w that dom with main name to a another dom name. T main Thus, in the example abo a web b ove, browser searc ching for “JonsWid” would be “fo w orwarded” o “redirected to the IP a or d” address for t domain n the name “OtherJo onsWidgets.c com.” The d domain name resolution process wou then be i e uld implemented for d 3 These aspects of the process and implemen s ntation of domain name resol lution are descr ribed and refer renced ents ments overseen by ICANN (E F) and RFC 5730, 3375, 3632, 2832, 10 Ex. Cs 034, 1035, and 2616 d in agreeme and docum by the IET (Ex. H). TF 7 OPPAPP000192 “” and, using the IP address for “,” a request would be sent for the files associated with “” In response, the files for “” would be returned to the internet user and displayed by his or her web browser. In this way, an internet user searching for “” would be “forwarded” to the webpage for the “” The process for domain name forwarding is completely separate from the process of domain name registration and does not involve any action by a domain name registrar. Instead, the process of domain name registration must be totally complete before the domain name forwarding process can occur. V. Additional Specific Opinions Based on the foregoing and all of the materials I have considered as well as my background, knowledge, and experience, I have formed the following additional opinions. I have reviewed the document entitled “Order Denying Motion to Dismiss” (Doc. No. 87) (Ex. B) which states: Among other things, the court requires a record clarifying the mechanics of what GoDaddy did or does with regard to the disputed domain names, and what “forwarding” and “routing” are and whether either or both can be considered part of domain name registration services generally or the services offered by GoDaddy. In my opinion, domain name forwarding and routing cannot be considered part of domain name registration services generally or the domain name registration services offered by GoDaddy. The process of domain name registration, in all relevant respects, involves nothing more than the creation of a record linking a domain name to an Authoritative Domain Name Server. A domain name registrar can perform all of the functions of domain name registration and maintenance without owning or operating an Authoritative Domain Name Server for the domain name for which it is the registrar. The domain name forwarding service provided by GoDaddy for “” and “” was done using an Authoritative Domain Name Server owned and operated by GoDadddy and that GoDaddy caused to be programmed to link those domain names to the IP address of another server controlled and operated by GoDaddy. The domain name forwarding service further involved programming that other server to respond to requests seeking “” and “” by redirecting those requests to a domain name associated with a pornographic website. 8 OPPAPP000193 OPPAPP000194       Ex. A      OPPAPP000195 Kevin Fitzsimmons 3108 Paseo Robles Pleasanton, CA 94566 Home: 925-523-3198 Summary Senior technology manager with extensive experience in infrastructure architecture and operations management. Knowledgeable of best practices for daily operations, planning and change management associated with complex technology solutions in enterprise environments. Experienced in managing complex projects that fulfill requirements on-time and on-budget. Demonstrated ability to build motivated highly performing teams. Positive team player with extraordinary drive to succeed. Recent Career & Achievements Director, IT Operations. Shoretel, Inc. – Sunnyvale, CA (2007 to present) Shoretel is a leading provider of Pure IP unified communications systems. ShoreTel enables companies of any size to seamlessly integrate all communications-voice, data, messaging-with their business processes. Responsible for managing Shoretel’s IT operations team. This includes IT architecture, implementation and on-going support of: LAN, WAN, SAN, phone system, os, active directory, backup, file shares, printer and vpn’s. Additionally we provide desktop and mobile device support for 675 employees and 75 contractors. Key Contributions       Supported corporate growth building out new office locations in Maidenhead, UK, Austin, TX, Sydney, Australia and Signapore. Company has grown headcount from 300 to 750. Supported growth while maintaining total team headcount of 6. Lead extensive e-discovery projects for multiple lawsuits. Awarded Above and Beyond Award by General Counsel. Improved network and system reliability by implementing system and network redundancy Participated in annual SOX compliance audits Implementation of IT policy and procedures. Documented SLA’s, information security policy, network architecture and standard operating procedures for IT operations. Maintained IT operations budget significantly below industry peers. Senior Director, Infrastructure and Application Support. Agentrics, Llc. (formerly GNX/WWRE.) - Alexandria, Virginia (2000 to 2007) Agentrics is an e-business solution and service provider for the global retail industry. Agentrics solutions help retailers, manufacturers and their trading partners reduce costs and improve efficiency by streamlining and automating sourcing and supply chain processes. Agentrics customers include many of the world's largest retailers and manufacturers. Equity owners of Agentrics include: Ahold, Albertsons, Aeon, Carrefour, CVS, Coles Meyer, Delhaize, El Corte, Karstadt Quelle, King Fisher, Kroger, Lotte, Metro, PPR, Safeway, Sainsbury, SCA, Sears, Tesco, and Walgreens. Comprehensively responsible for Agentrics IT infrastructure, application support and internal IT operations. Including: establishing IT policy, standards compliance, operating procedures, infrastructure architecture, telecommunications, disaster recovery, capacity planning, technical vendor relations, IT purchasing and budget administration and overall responsibility for daily operations. Lead a team of 35, including 5 managers. Key Contributions       Responsible for building and maintaining a highly reliable hosting infrastructure and corporate IT environment Reduced operating costs by more than 20% annually, as site traffic has increased by 100% annually Successfully manage day to day operations for 140+ servers across four co-location facilities and four offices Consistently achieve >99.9% availability for all systems, networks and applications Exceed all internally and externally published performance service level agreements Establish and maintain Agentrics corporate IT policy to comply with ISO17799 OPPAPP000196   Page 2 Agentrics hosting operations successfully attained AICPA Systrust certification in 2003 after successfully passing Ernst and Young audit Successfully managed several co-location moves with no service disruptions Senior Consultant. Oracle Corporation. Advanced Technology Services Group. - Herndon, Virginia (1999 to 2000) Oracle Corporation is an enterprise software company that develops, manufactures, markets, distributes and services database software and infrastructure software, including application server, collaborative software and development tools that help its customers manage and grow their businesses and operations. Provided a broad range of consulting services to large worldwide corporations. Architected and implemented Oracle solutions, while managing customer expectations. Performed in-depth troubleshooting and analysis to resolve complex problems. Key Contributions     Consistently exceeded targets for billable hours Architected solutions to improve performance and leverage existing software licensing. Resolved complex technical issues through extensive troubleshooting Problem resolutions included: core dump analysis, server configuration, performance diagnostics and tuning. Senior Consultant, Booz Allen and Hamilton, Rockville, Maryland (1998 to 1999) Booz Allen and Hamilton is a global strategy and technology consulting firm, providing services to major international corporations and government clients around the world. Worked on site at the US Food and Drug Administration’s Center for Biologics Evaluation and Research (CBER). Installed and configured help desk ticketing system for end user support issues. Installed and used Microsoft SMS to track inventory and automate package deployment to more than 1000 end users. Defined desktop support practices. Responsible for operations and upgrades of existing Exchange Server infrastructure. Key Contributions      Successfully met FDA objectives for their internal IT infrastructure. Deployed and administered Microsoft Systems Management Server for 1,000 + user network. Served as DBA for MS SQL Server database. Installed and supported help desk ticketing system with escalation and alerting capabilities. Developed pilot demonstration of secure messaging for presentation to US Food and Drug Administration Systems Engineer. Stanley Inc. Alexandria, Virginia (1997 to 1998) Stanley, Inc. provides information technology (IT) services and solutions to United States defense and federal civilian government agencies. The Company offers its customers solutions to support their mission-essential needs at any stage of program, product development or business lifecycle through five service areas: systems engineering, enterprise integration, operational logistics, business process outsourcing and advanced engineering and technology. Responsible for onsite implementation, administration, training and documentation of Army War Reserve Deployment System (AWRDS). Key Contributions      Implementing, supporting, training and troubleshooting Army War Reserve Deployment System Responsible for application availability and performance for three sites in Europe (Luxembourg, Belgium and Netherlands) Deployed multiple Windows NT networks in support of database applications Performed Sybase database administration tasks including: installation, multi-tiered replication implementation, troubleshooting, performance tuning and custom report generation Established automated testing program, created more than 100 automated testing scripts OPPAPP000197 Page 3 EDUCATION UNIVERSITY OF VIRGINIA, McIntire School of Commerce Graduate coursework in Management of Information Technology UNIVERSITY OF MARYLAND, Robert H. Smith School of Business Bachelor of Science, Logistics and Transportation Management Charles A. Taff Academic Scholarship Recipient OPPAPP000198       Ex. B      OPPAPP000199 OPPAPP000199 to OPPAPP001588 NOT INCLUDED CLARK DECL. ISO OPP MTN. SUMMARY JUDGMENT Case No: 09-CV-5939 PJH

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