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Emily D. Swoboda

Kentucky Judge to Issue Decision Next Week (Update 1)

9 October 2008

Adds comment from GoDaddy Group general counsel

Lawyers and associations representing the online gambling industry gathered in a Kentucky Circuit courtroom today to fight a high-profile case, brought by the Commonwealth in mid September, in which Judge Thomas D. Wingate of the Franklin County Circuit Court ordered the seizure and forfeiture of 141 domain names belonging to online gambling sites.

On Sept. 26, Judge Wingate granted a continuance in the matter and put a hold on the forfeiture order, but today's hearing was set to determine whether the seizure order would be upheld.

So far, only two domain names, registered by eNom, a Seattle-based registrar, have been fully seized by the Commonwealth -- meaning the Commonwealth now controls the Web sites. But lawyers learned on Monday evening that more than a week ago,, a domain-name registrar based in Scottsdale, Ariz., and its subsidiary, WildWest, turned over certificates of registration for nine online gambling domain names to the court.

Christine Jones, general counsel and corporate secretary for the GoDaddy Group, explained to IGamingNews via email on Thursday that a registrar certificate gives jurisdiction to the court.

"Whatever the end result of this litigation, we will implement the court's order," Ms. Jones said. "We did not give the names to the Commonwealth of Kentucky, as stated in the order, as the registrant had not had a proper chance to be heard on these issues."

In other words, GoDaddy and WildWest still essentially have control of the domain names --,,,,,,, and -- but the two registrars will abide by the final outcome of the case.

"I'm not sure if they think that is some kind of compliance with the order or a middle ground," Lawrence G. Walters, an Internet gambling attorney and partner at Weston, Garrou, Walters & Mooney, told IGamingNews on Tuesday via telephone. "But they are trying to show the Commonwealth that they're willing to honor the court's order -- but they don't want to turn over the domain name yet until a final order of forfeiture has been issued."

Attorneys representing the domain-name defendants, including Mr. Walters, today asked for a dismissal of the case on various grounds: domain names cannot be deemed as property; the Commonwealth has violated due-process law and international and interstate commerce clauses; and the Commonwealth simply does not have the jurisdiction to bring such a lawsuit.

Mr. Walters, who was in court to argue the First Amendment issues, said all representatives present today tried to address separate issues, but ultimately everyone spoke to why the case should not proceed.

For instance, Mr. Walters said the lawsuit's initiator -- J. Michael Brown, the secretary of the Justice and Public Safety Cabinet -- does not have standing to bring such a suit.

"Our position is that the attorney general is the only one that could have something to do with it," he said. "I don't know if they (the office of the attorney general) were consulted or if they were simply not interested. But the bottom line is that Kentucky statute states that the attorney general is the law enforcement who represents the Commonwealth in all state and federal actions."

However, Shelley Catharine Johnson, deputy communications director for Jack Conway, the attorney general of Kentucky, told IGN on Sept. 30 that Mr. Conway's office was not consulted on the matter.

Mr. Walters also said that to proceed in a case like this -- one involving seizure or forfeiture, or both -- the property must be in possession of the court.

"That's why the Commonwealth is trying to get those certificates because it then could argue that the property is there," he said. "But the vast majority of the domain names exist in the control of registrars who are outside Kentucky."

And in arguing on behalf of First Amendment rights, Mr. Walters pointed to sites that do not offer play-for-money services to United States residents, but act as little more than advertising portals for the real-play online gambling sites.

"We were trying to show that this court has no jurisdiction to proceed in shutting down the promotion Web sites that just merely advertise online gambling because it is a violation of the First Amendment." He said. "Advertising is a form of protected speech and you're basically shutting down communication by shutting down domain names."

Judge Wingate ended the hearing today at approximately 1:30 p.m., Eastern Standard Time, declaring he needed seven days to render his decision on the seizure order.

Weighing in, Mr. Walters said it is clear this case is unprecedented.

"There has never been a case that we've been able to find where a court has attempted to seize a domain name for some alleged violation of a criminal law, particularly where there's been no crime established," he said. "There's been no conviction of any crime in this matter."

Kentucky Judge to Issue Decision Next Week (Update 1) is republished from
Emily D. Swoboda
Emily D. Swoboda