The Kentucky Supreme Court today reversed the Kentucky Appeals court’s decision that tossed out the seizure order issued on 141 gambling domain names.
The 17 page ruling by the Supreme Court today (pdf) was really on a technical issue, that none of the parties that brought the suit against the Commonwealth had “standing”.
Standing is a legal term that means in very simple terms the only one that can object to a law or join a suit are the parties effected by the law or suit.
While non-parties are sometime invited to file “friends of the court briefs” with appellate courts they cannot appear before the court as they are not a party to the suit.
In this situation, none of the domain owners of the 141 seized domains appeared in person or were represented by counsel.
Instead this action was brought by Interactive Media Entertainment & Gaming Association (iMEGA) and the Interactive Gaming Council (IGC) trade Associations on behalf its membership.
The associations tried to represent the domain names themselves, without identifying who owned the domain names. The Supreme Court found that Domain Names like real estate cannot be represented, only the owners can be represented and they were not named by the trade groups.
The Supreme Court said:
“”Instead of owners, operators, or registrants of the website domain names, the lawyers opposing the Commonwealth claimed to represent two types of entities : (1) the domain names themselves and (2) gaming trade associations who profess to include as members registrants of the seized domains, though they have yet to reveal any of their identities.”
“The various groups of domain names and gaming associations sought to intervene in the case and dismiss the seizure.”
“The court specifically noted in its order that only the domain name owners, operators, and registrants had a legal interest in the domain names and only they or their representatives could defend against forfeiture.”
“Upon the denial of their motions, the groups and associations sought a writ of prohibition from the Court of Appeals to enjoin the impending forfeiture.”
“The Court of Appeals issued the writ, reasoning that the trial court acted beyond the jurisdiction”
“Although all such arguments may have merit, none can even be considered unless presented by a party with standing. No such party has appeared at the original proceedings in Franklin Circuit Court, the writ petition at the Court of Appeals, or on the appeal here to this Court.”
“iMEGA refuses to reveal which registrants it represents, or even how many. It simply claims to have members who registered some, but not all, of the seized domains. ”
“”Thus, the associations must specifically identify some of the affected registrants they represent. ”
“Through their unwillingness to identify any of their members, Interactive Media Entertainment & Gaming Association (iMEGA) and the Interactive Gaming Council (IGC) failed to meet this burden.
“As such, iMEGA and IGC lack standing and, therefore, their writ petition should have been denied. ”
So the case now goes back to the court of Appeals.
At this point one or more of the actual domain owners, subject to the seizure order, are going to have to come forward, hire counsel and then make the same attack on the original order which was successful in the Appeals court, that domain names are not gambling devices within the meaning of the Kentucky statute.
The requirement of standing may also be meet if either iMEGA or IGC produces the name of the owner of one or more of the seized domain names and have that owner agree that one of those organizations represent the owner.
Maybe one of our attorney readers can contribute their thoughts.