UO Foundation claims defamation and demands retraction from UO Matters

11/12/13: I recently received the “demand for retraction” below, from Thomas Herrmann, legal counsel to the UO Foundation, presumably writing on instruction from the Foundation’s Chairman Jon Anderson, a former marathon runner with longtime Nike connections, and the Foundation’s 2013 Chair-elect and committed athletics booster Stephen Holwerda. A bio-piece on Mr Holwerda in the Portland Business Tribune notes:

Greatest passions: Oregon pinot noir, sports, antique mechanical banks.
First choice for a new career: I started out in athletic administration, and if I had to pick a second career it would be to go back to working for the University of Oregon’s athletic department. Go Ducks.

[Above updated to note that Anderson is Chair, Holwerda is Chair Elect. Thanks, commenter.]

https://dl.dropboxusercontent.com/u/971644/uomatters/UO_Foundation/UO%20Foundation%20takedown%20201311.pdf

The post he objects to is here: http://uomatters.com/2013/10/uo-foundation-still-laundering-athletic.html

The ORS 31.200-31.225 statute that Mr. Herrmann cites in his take-down demand is titled “Liability of radio or television station personnel for defamation”. 31.205 discusses “Damages recoverable for defamation by radio, television, motion pictures, newspaper or printed periodical”. So I guess I am a professional news organization, at least in the eyes of the UO Foundation. Section 31.215 lays out the following procedure for retraction demands:

(1) The demand for correction or retraction shall be in writing, signed by the defamed person or the attorney of the person and be delivered to the publisher of the defamatory statement, either personally, by registered mail or by certified mail with return receipt at the publishers place of business or residence within 20 days after the defamed person receives actual knowledge of the defamatory statement. The demand shall specify which statements are false and defamatory and request that they be corrected or retracted. The demand may also refer to the sources from which the true facts may be ascertained with accuracy.

(2)The publisher of the defamatory statement shall have not more than two weeks after receipt of the demand for correction or retraction in which to investigate the demand; and, after making such investigation, the publisher shall publish the correction or retraction in:

(a)The first issue thereafter published, in the case of newspapers, magazines or other printed periodicals.

(b)The first broadcast or telecast thereafter made, in the case of radio or television stations.

(c)The first public exhibition thereafter made, in the case of motion picture theaters.

(3)The correction or retraction shall consist of a statement by the publisher substantially to the effect that the defamatory statements previously made are not factually supported and that the publisher regrets the original publication thereof.

(4)The correction or retraction shall be published in substantially as conspicuous a manner as the defamatory statement. [Formerly30.165]

I have received a plethora of advice on how to respond to this threat. Several attorneys have looked at it, and my post, and said that they do not think that my language is an accusation of criminal activity, particularly given the full context of the post. They have suggested I call the Foundation’s bluff and then file an anti-SLAPP countersuit against them, if they proceed with a lawsuit against me.

I was also told that that the language in Mr. Herrmann’s blustery last paragraph would be quite helpful in a counter-suit, given that anti-SLAPP laws such as Oregon’s are specifically designed to make it difficult to use defamation lawsuits to limit public discussion, as his threat seemingly proposes to do.

One reader suggested that I offer to replace the phrase that the Foundation claims to interpret as an accusation of criminal activity, i.e. “money laundering cash for the Duck Athletic Fund”, with something like “lovingly laundering sweaty jockstraps for the Duck athletic department”. Thanks for this proposal, really.

In the end, I decided to follow the precedent established by noted barrister John Cleese. Mr. Herrmann, you may take this video as my response, in full, to your threatening letter:

The DVD  is available from Amazon for $14.98, here.

Meanwhile, back in Chicago:

Chicago State University seems to have some of the same insider dealing issues that have troubled UO. Check out their “Crony State University” blog, written by 8 faculty. Impressive.

They’ve also been served with a takedown notice. News stories in the Chicago TribuneInsideHigherEd and Chronicle. (Thanks to Margaret Soltan’s ever interesting blog for the link).

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62 Responses to UO Foundation claims defamation and demands retraction from UO Matters

  1. Anonymous says:

    Ahhh, the threat paragraph … “inappropriate”, “offensive”, “govern yourself accordingly”. They sure know how to go about positive PR.

    Maybe the Foundation should get some advice from Richie Incognito?

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  2. You can always try to fall back on the argument that you were using the “colloquial definition” of words, rather than their actual legal definition. Actually, that’s also the defense that the Daily Emerald used after they produced a defamatory and largely untruthful “hit piece” on me. So, It’s worth a try….

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  3. Not licensed in Oregon says:

    Do a global search and replace of “money laundering cash for the DAF” with “worshipfully hand laundering sweaty jockstraps for the DAF”

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    • UO Matters says:

      Hmm.

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    • Anonymous says:

      Well, let’s not be sexist in your reappraisal. How about “worshipfully hand laundering sweaty uniforms for the DAF” ?

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    • licensed to smoke says:

      “jockstraps and panties”? You might want to run the exact wording by (Mr?) Herrmann first.

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    • Walter says:

      I believe the preferred nomenclature is “athletic supporter”, Dude.

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  4. Anonymous says:

    Did anyone who read the post really think there was an accusation of an actual crime?

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    • Anonymous says:

      No, not at all. Nor did I think the Foundation performs money laundering.

      However, the Foundation apparatus, with it’s non-transparency issues, shuns questions, and their belligerence could be an issue. They don’t want questions? Then don’t shield donor information. Why wouldn’t every last donor WANT to have their donation trumpeted publicly?

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    • Anonymous says:

      Well, one lawyer apparently thought so. Of course that lawyer is paid by donated dollars to think so. So maybe he doesn’t actually think so — he just wrote a letter to impress his client, the Foundation staff.

      And maybe to convince other faculty members not to criticize the all-powerful Foundation? (Are you scared yet?)

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    • Anonymous says:

      Scared? You mean by this: ” … blog post discussed above is not the first of your posts which has crossed the line into inappropriateness, but it better be the last.” ?

      Memories of childhood. Sigh.

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  5. Anonymous says:

    If the UOF isn’t laundering money for Athletics (etc) then they shouldn’t allow anonymous donations. I.e., all
    donations and donors should be made public, including any restrictions on where the $$$ goes. .

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  6. Anonymous says:

    You could just promise to issue a retraction in your first radio broadcast thereafter made.

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    • UO Matters says:

      You assume I have a FCC Radio Telephone Operators License. I do, but it expired in 1982.

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    • Anonymous says:

      Where are you on your blog photo insert skills certification? Could you possibly get Holwerda’s jpg a little bigger? ha!

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    • UO Matters says:

      Your criticism is defamation per se. My cropping has accurately captured Mr. Howlerda’s sweaty-toothed yawlp.

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    • Anonymous says:

      lol … pardon me!

      BTW .. word is that going forward: it’s an exciting time at the U.

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  7. Anonymous says:

    Fishwrapper asks: Why is this takedown letter being sent to a UO employee at their place of employment for a non-UO action? It should be clear to most rational folks that your opinions and blogging thereof are your own actions; the site is clearly registered with the State of Oregon as an institutionalized news organization, and said registration clearly indicates where items relating to UOMatters should be sent – the address of record for the blog is clearly not at the U of O.

    It appears to me that the UO Foundation (through its hired gun(s)) are trying to intimidate a blogger based upon a separate employment relationship. Caddish behavior in my book.

    At the very least, it also suggests to me that the UOF might wish to hire attorneys with better research skills.

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  8. Anonymous says:

    Mayo Clinic on bullying: “Bullying is a form of aggression, in which one or more children repeatedly and intentionally intimidate, harass or harm a victim who is perceived as unable to defend him- or herself.”

    OSU prohibits bullying: http://oregonstate.edu/oei/bullying-policy

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  9. Anonymous says:

    What a great person to lead a foundation that depends upon charitable giving (from the website link in the story above, about the UO Foundation’s new chair):

    “Person most interested in meeting: I wish that I could have met Ayn Rand.” He said.

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    • Alan Greenspan says:

      Ayn Rand was a passionate believer in federal tax subsidies for big-time college sports. There are pages and pages on this, in all her books.

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  10. Frank Bonema says:

    God wouldn’t it be great to go to trial and be able to demand UO Foundation documents in discovery phase?

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  11. Frank Bonema says:

    Doesn’t an aggrieved party have to show/prove harm of some sort to successfully sue for libel or slander?

    I would really like to see how your blog post tangibly harmed the UO foundation.

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  12. Anonymous says:

    Wow, Frank Bonema? Does THAT bring back memories. Go Frank!

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  13. Anonymous says:

    Bullies only succeed when their victims are intimidated from calling them out. How about a Steve Duin column in the Oregonian: “UO Foundation Threatens UO Professor” ?

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    • Anonymous says:

      How about ANY Steve Duin column on this episode?

      But really, you are so correct: bullies only succeed when the victims are intimidated.

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    • Anonymous says:

      Yes, but bullying, not defamation, is the problem with this blog. I don’t think the Foundation could realistically show much harm from the story they are complaining about. The real harm that comes from this blog is the extraordinary negativity it generates about the university and everyone in its senior administration. Yes, there have been problems–lack of real consultation with the faculty, overemphasis on athletics, lack of strategic thinking/action at times, and we shouldn’t ignore these things. But when there’s no effort at balance (many universities are confronting these problems and more), when data is consistently cherry picked to make us look as bad as possible, and when all senior administrators are vilified, the blog is engaged in a form of bullying that is directed at some well meaning (though not uniformly effective) people, and that produces a culture of negativity that makes it harder to attract and retain good people here. That’s the real issue — not defamation.

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    • Anonymous says:

      So what you’re saying is with all the serious problems you’ve listed, none of those are contributing to an ill-defined, supposed “culture of negativity”, and that in your negative perception, this one blog is bringing the whole university down.

      Didn’t you hear Gottfredson’s glowing and positive assessment of UO yesterday? Don’t you see that the university is on the cusp of something truly historic, and that many in the academic world are watching to see the certain profound effects of “public” private stewardship? Are you saying his view is incorrect? That’s kind of a downer.

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    • Anonymous says:

      I’m guessing the odds are high that the foregoing comment was posted by the author of this blog. In my prior posting (two up), I never said or implied that this blog was the only thing causing problems at the university. I said that the approach taken by the blog helps to foster a culture of negativity and makes it harder to recruit and retain good people. Since I never even hinted that other problems were not serious, I can only assume that the poster of the prior anonymous comment is feeling seriously defensive (hence my guess that the comment was posted by the author of this blog). But even if someone else is responsible for the post, how can we have any meaningful interchange if assumptions are made about comments that are in not way suggested by the comments themselves?

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    • UO Matters says:

      Nope, not me.

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    • Anonymous says:

      Yeah, it wasn’t Harbaugh who posted to you.
      And frankly, your post, Anon, is so convoluted it’s hard to know how to respond except to say your many assumptions in both posts are really the sticking point making conversation difficult. Then you accuse *me* of being defensive and making assumptions! Mind boggling.

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    • Anonymous says:

      While I don’t necessarily disagree with the charge that some of what appears on this blog could be classified as verbal bullying, that’s not my main concern. What’s unfortunate is this blog’s loss of credibility of late. The blog managed to develop a significant following despite the tendency towards vilification and unchecked negativity (or perhaps because of it?). As a result, during the union drive (for example) it provided a useful forum for exchanges over serious issues that was not available elsewhere. But my recent interactions with people on campus suggest that, in the face of the continuing barrage of one-sided information and personal attacks, fewer and fewer people are viewing the blog as anything more than a forum for the gratification of that part of the human condition that takes a perverse delight in watching people and institutions get slammed. As a result, it’s no longer a blog with the credibility to serve as a useful non-official forum. I know, I know — I could start my own blog (I do not have the time, the interest, or the skill), but imagine if we had a blog that was willing to push hard when the pushing made sense, but was also willing to celebrate the good things and avoid personal attacks. The argument against such a blog, I suppose, is that it wouldn’t attract attention because it wouldn’t speak to our prurient interests, but that’s a shame as such a blog really could be a force for good.

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    • Anonymous says:

      Just curious — how did you measure the loss of credibility? How many people on campus did you talk to about it?

      You must have had many exchanges to conclude so dramatically: “As a result, it’s no longer a blog with the credibility to serve as a useful non-official forum.” . Because otherwise, iit would be so negative to impugn this blog and commenters based on a handful of gripes between co-workers. Right?

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    • UO Matters says:

      To “While I don’t …”

      Can you list some recent posts where you think I have crossed the line and perhaps explain how? This is an honest question – I want the blog to be taken seriously, and I will seriously consider your opinions.

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    • Anonymous says:

      Ah the name-calling gambit (four posts up); call a post convoluted and you don’t have to address the arguments being made. I’ll leave it to the discerning readers of this blog to decide whether there is anything convoluted about either of my posts (the second and fourth posts under the main post in this string; other than the typographical error in the last sentence of the second of these posts, for which I apologize — ‘not’ should have been ‘no’).

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    • UO Matters says:

      For god’s sake people, please use screen names, it’s still anonymous, you can change them from post to post, just use the drop down menu and type something in, or put it at the top of your post.

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    • imelda marcos says:

      Okay. Will do.

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    • Anonymous says:

      In response to UOMatters question four posts above, let me cite just a couple of examples. A few weeks ago there was a post about MG describing him as over his head, unwilling to fund start-ups, against merit raises, and anti-academic freedom. Now in my view the jury is still out on MG’s presidency, but these are charges that are in not commensurate with his record building Irvine into a major AAU research university or with the priorities he’s set coming here. I could see a post saying that he’s setting the right tone on this and that, but that his stance on a certain policy issue might suggest that he’s not as supportive of academic freedom as he might be; that kind of post could lead to a serious discussion. But broadside charges are unlikely to achieve that end.

      Then let’s take the case of administrative salaries at UO. Like you, I’m concerned about the greater escalation in these relative to faculty salaries, but why pick an example that makes the case look even worse than it is? Wouldn’t it promote a more reasoned discussion — and perhaps make faculty feel a little less dismissive of certain administrators (oh horrors) — if you also reported average salaries for certain positions in the Pac-12, or the AAU. If you did, my guess is that we’d look pretty average in the Pac-12, and below average in the AAU. That doesn’t justify the greater movement in administrative salaries over faculty salaries, but it does provide some useful context. The same could be said about the weekly comparisons with the schools we are playing in football. What if instead of always picking the variable that makes us look the worst, you looked at several variables, some of which would make us look bad and others not so bad?

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    • Severinus de Monzambano says:

      The anonymi are obdurate.

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    • imelda marcos says:

      I don’t get why it’s important to, for example, make sure several variables are posted–some good and some bad instead of *just* posting bad. Or whatever. Not everyone is going to agree on what is good, bad and so forth or what really matters in the whole scheme of things. Anon makes it sound like UO is a neurotic parent who wants everyone to know that their kid is just as bad as everyone else’s and so it’s okay to be bad because they also have some good qualities which are obvious. So what? Sounds insecure.

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    • Anonymous says:

      Dog says

      There are some fair points listed above with respect to the decreasing usefulness of this blog, but I believe its up to the readers and the critics and the admin to motivate a more balanced discussion.

      Recently the Provost’s office released a report on UO benchmarks so there is now data available.

      Some posts above claim that UOM purposefully slants all the data to make the UO appear maximally bad. I personally don;t believe this is the case, but those that do, should take it upon themselves to post here,
      backed up by data, what profile of the UO in fact, looks good. Then we can have a more balanced
      discussion of what is good and what is not good at the UO and what steps can be taken to correct the not good given that the good exists.

      To beat my own quite dead horse – I believe our low graduate student participation as a research University is the fundamental, now 15 years old, structural problem at the UO. We are uniquely at the bottom of the research Universities in this regard and its very hard to see how much good would actually flow from that.

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  14. Frank Bonema says:

    So someone thinks this blog makes it difficult for the university to hire and retain good people.

    That statement is pretty amazing in and of itself.

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    • Anonymous says:

      Is it your assertion that this blog makes us look less like a bunch of angry tinhats? I think this forum of discourse would make me consider other offers if I had them.

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    • Anonymous says:

      Yes, and those “someones” might be good administrators considering the UO.

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  15. Frank Bonema says:

    Does the university really want people who fear diverse opinions and controversy? Isn’t the university the place for spirited discourse? People who expect conformity and unanimity of opinion really don’t belong in an academic environment. Probably better off without that type of mindset.

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  16. Anonymous says:

    “list some recent posts…where I have crossed the line”. People are threatening to sue you, dude.

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    • Anonymous says:

      a threat to sue is a common tactic of well-lawyered entities. It means nothing about the validity of their claims, “dude”. but I suspect you might have already known that. Go back to your big leather chair.

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    • Anonymous says:

      Harbaugh is coasting towards retirement with tenure which is why gets away with the blog. If he was a new professor or didn’t have tenure this would never exist. Lets be clear, this blog is radioactive. No school in their right mind would touch anyone with something similar. No school will touch Harbuagh with this blog. His career will end at UO. Lets not pretend the blog hasn’t crossed lines. It has. The blog should have a lawsuit and retraction counter. Lets call a spade a spade. Everyone enjoys the anonymous poking the administration. When UOM tried to require registration the blog tanked. UOM loves the accolades and all of the sensationalism of the blog. There’s nothing wrong with that and he has played his hand well. Just don’t try and play the little orphan Annie card, it doesn’t persona trying to be projected.

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    • Anonymous says:

      Could you elaborate on “the little orphan Annie card”?

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    • Anonymous says:

      I’m not a lawyer and I don’t have a big leather chair. I was merely pointing out that he is being disingenuous when he says “Point out what I wrote that is over the line”. Clearly many folks think he is over the line, because a few of those folks have threatened to sue him. As for threatening to sue being a “common tactic”, maybe in your world. I assume you are a lawyer with a big leather chair?

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    • UO Matters says:

      Threatening to sue people to shut down public discussion is so common that it has an acronym, SLAPP, for Strategic Lawsuit Against Public Participation. And so common that many states, including Oregon, have adopted anti-SLAPP laws to make it difficult. See, for example, this: http://lindawilliams.net/node/23. These laws derive from the ancient right to petition the government for redress of grievances – a right that doesn’t mean much without the right to speak and write about matters of public importance.

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    • Anonymous says:

      O.MY.GOD. I just realized that you are the victim here.

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    • UO Matters says:

      Not yet

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    • Anonymous says:

      Nor will you it’s all a game of brinkmanship and yours rivals North Korea. The telling part is the comments always seem to be retracted which says a lot legally. My money is on another retraction. Can you start posting under Kim-II-Bill?

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  17. Get Smart says:

    Beginning to think this troll is a plant. Or a very obsessive, bitter ex-girlfriend.

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  18. Anonymous says:

    Could UO Matters get a pro-bono lawyer and file a SLAPP-back lawsuit for legal fees and harrasment?
    http://www.thefirstamendment.org/antislappresourcecenter.html#SLAPPing

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    • UO Matters says:

      Lawsuits and counter-lawsuits don’t sound like a lot of fun, or very helpful to UO. So I’m working on Plan B. Stay tuned.

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  19. Anonymous says:

    Your arrogance is stunning.

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    • spout says:

      The bitter tones of the losing side will ring out while we watch…and laugh.

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  20. UO Matters says:

    Please post any additional comments at
    http://uomatters.com/2014/05/uo-foundation-still-laundering-athletic.html

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