Unites States v. Pokerstars, et al

Filing 221

MEMORANDUM OF LAW in Support re: 220 MOTION to Stay In Rem Claims As To Domain Defendants.. Document filed by Commonwealth of Kentucky, ex. rel. J. Michael Brown, Secretary, Justice and Public Safety Cabinet. (Attachments: # 1 Exhibit Second Amended Complaint, # 2 Exhibit Order Of Seizure Of Domain Names, # 3 Exhibit Findings Of Fact & Conclusions Of Law, # 4 Exhibit Service Letter to GoDaddy, # 5 Exhibit Service Letter to Network Solutions, # 6 Exhibit Service Letter to Nom-IQ, # 7 Exhibit Service Letter to Register.com, # 8 Exhibit Notice of Filing Registrar Certificate, # 9 Exhibit Opinion & Order, # 10 Exhibit iMEGA I Opinion, # 11 Exhibit iMEGA II Opinion, # 12 Exhibit Order Of Forfeiture Of Domain Defendants)(Lycan, David)

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Supreme Court of Kentucky.
COMMONWEALTH of Kentucky, ex rel. J. Michael
BROWN, Secretary, Justice and Public Safety Cabinet, Appellant,
v.
INTERACTIVE MEDIA ENTERTAINMENT
AND GAMING ASSOCIATION, INC.; Interactive
Gaming Council; vicsbingo.com; playersonly.com;
sportsbook.com; sportsinteraction.com; mysportsbook.com; linesmaker.com; and Hon. Thomas D.
Wingate, Judge, Franklin Circuit Court, Appellees.
No. 2009-SC-000043-MR.
March 18, 2010.

Domain names that were subject of Commonwealth's forfeiture action under statute authorizing
Commonwealth to seize illegal gambling devices or
records did not have standing to contest their own
forfeiture; only domain names' owners and registrants
had interest in domain names, such that domain names
lacked interest in litigation or right to defend themselves in litigation. KRS 528.100.
[2] Forfeitures 180

180 Forfeitures
180k5 k. Proceedings for enforcement. Most Cited
Cases
Gaming 188

Background: Commonwealth filed in rem action
seeking transfer of 141 domain names that allegedly
hosted illegal gambling activities. The Circuit Court,
Franklin County, entered order for seizure of domain
names, and denied motions of domain name owners
and gaming trade associations to intervene and dismiss order. Owners and associations filed for writ of
prohibition to enjoin forfeiture. The Court of Appeals,
2009 WL 142995, issued writ. Commonwealth appealed.
Holdings: The Supreme Court, Noble, J. held that:
(1) domain names did not have standing to contest
their own forfeiture, and
(2) associations did not have standing to contest forfeiture.
Reversed and remanded with instructions.
Scott, J., concurred in result.
West Headnotes
[1] Gaming 188

5

61

188 Gaming
188II Penalties and Forfeitures
188k61 k. Enforcement and effect of forfeitures. Most Cited Cases
Appeal of decision that domain names had no
standing to contest their forfeiture under statute authorizing Commonwealth to seize illegal gambling
devices or records was frivolous, in light of prior case
law stating that owners of property alone had standing
to contest forfeiture actions. KRS 528.100.
[3] Prohibition 314

15

314 Prohibition
314I Nature and Grounds
314k15 k. Persons entitled to relief. Most Cited
Cases
A writ of prohibition, just like any other judicial
remedy, may only be sought by a party with a judicially recognizable interest.

61
[4] Associations 41

188 Gaming
188II Penalties and Forfeitures
188k61 k. Enforcement and effect of forfeitures. Most Cited Cases

20(1)

41 Associations
41k20 Actions by or Against Associations
41k20(1) k. In general. Most Cited Cases

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An association has standing to bring suit on behalf of its members when: (1) its members would
otherwise have standing to sue in their own right; (2)
the interests it seeks to protect are germane to the
organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit.
[5] Associations 41

20(1)

41 Associations
41k20 Actions by or Against Associations
41k20(1) k. In general. Most Cited Cases
Gaming trade associations lacked standing to
challenge Commonwealth's forfeiture of domain
names, which allegedly hosted illegal gambling activities, under statute authorizing Commonwealth to
seize illegal gambling devices or records, notwithstanding that associations claimed to have members
who registered some, but not all, of seized domain
names, where associations were unwilling to reveal
any of their members or disclose which registrants
they purported to represent, in order to make requisite
showing that their members would have standing
themselves.
[6] Associations 41

20(1)

41 Associations
41k20 Actions by or Against Associations
41k20(1) k. In general. Most Cited Cases
An association bringing a claim based on associational standing must firmly establish the identity of
the party suffering an injury-in-fact.
[7] Associations 41

20(1)

41 Associations
41k20 Actions by or Against Associations
41k20(1) k. In general. Most Cited Cases
Elements of associational standing are an indispensable part of the plaintiff's case, and each element
must be supported in the same way as any other matter
on which the plaintiff bears the burden of proof, with
the manner and degree of evidence required at successive stages of litigation.

[8] Associations 41

20(5)

41 Associations
41k20 Actions by or Against Associations
41k20(5) k. Pleading and proof. Most Cited
Cases
At the pleading stage, an association may speak
generally of the injuries to some of its members, for
purposes of establishing associational standing, for the
presumption is that general allegations embrace those
specific facts that are necessary to support the claim;
however, at the summary judgment stage, more particulars regarding the association's membership must
be introduced or referenced.
[9] Associations 41

20(5)

41 Associations
41k20 Actions by or Against Associations
41k20(5) k. Pleading and proof. Most Cited
Cases
Before a favorable judgment can be attained, the
association's general allegations of injury must clarify
into concrete proof that one or more of its members
has been injured; by refusing to come forward with
any such showing, any claim to associational standing,
and the potential for success on the merits, is forfeited.
*34 David Eric Lycan, William Harvey May, Aaron
Davis Reedy, Hurt, Crosbie & May PLLC, William
Cecil Hurt, Jr., Wethington, Hurt & Crosbie, PLLC,
Lexington, KY, Counsel for Appellant.
Jon L. Fleischaker, Robert Kenyon Meyer, James Lee
Adams, Dinsmore & Shohl, LLP, Louisville, KY,
Counsel for Appellee, Interactive Media Entertainment & Gaming Association, Inc.
Margaret Eileen Mary Keane, Greenebaum, Doll &
McDonald, PLLC, Louisville, KY, Phillip D. Scott,
Greenebaum, Doll & McDonald, PLLC, Lexington,
KY, Counsel for Appellee, Interactive Gaming
Council.
Bruce F. Clark, Stites & Harbison, PLLC, Frankfort,
KY, Ian Thomas Ramsey, John Lewis Tate, Joel
Beres, Stites & Harbison, PLLC, Louisville, KY,
Counsel for Appellees, Interactive Gaming Council

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and vicsbingo.com.
William E. Johnson, Johnson, True & Guarnieri, LLP,
Frankfort, KY, Counsel for Appellees, playersonly.com,
sportsbook.com,
sportsinteraction.com,
mysportsbook.com and linesmaker.com.

search the internet for gambling domains. The 141
domains discovered in the search were, in the Commonwealth's view, hosting illegal gambling activities.
Armed with KRS 528.010 and acting through the
Secretary of the Justice and Public Safety Cabinet, J.
Michael Brown, the Commonwealth sued in Franklin
Circuit Court to have those domain names seized.

Thomas D. Wingate, Frankfort, KY, Appellee.
Laura Anne D'Angelo Wyatt, Tarrant & Combs, LLP
Lexington, KY, Daniel G. Dougherty, Ebay, Inc., San
Jose, CA, Counsel for Amicus Curiae, ebay, Inc.
Michael Romano Mazzoli, Cox & Mazzoli, PLLC,
Louisville, KY, Timothy B. Hyland, Rockville, MD,
Counsel for Amicus Curiae, Network Solutions, LLC.
David Alan Friedman, Louisville, KY, Counsel for
Amicus Curiae, The Electronic Frontier Foundation,
The Center for Democracy and Technology, The
American Civil Liberties Union of Kentucky, The
Media Access Project, The United States Internet
Industry Association, The Internet Commerce Coalition, The Internet Commerce Association.
Joshua Taylor Rose, Charles M. Pritchett, Jr., Bart
Loveman Greenwald, Frost, Brown, Todd, LLC,
Louisville, KY, Counsel for Amicus Curiae, Poker
Players Alliances.
Opinion of the Court by Justice NOBLE.
This case arises from an order by the Franklin
Circuit Court that 141 internet domain names be
seized from their owners and operators and transferred
to the dominion and control of the Commonwealth.
Attorneys acting on behalf of the domain names
sought a writ of prohibition against the seizure, which
the Kentucky Court of Appeals granted. Because the
parties seeking the writ have failed to demonstrate that
they have standing to do so, this Court reverses,
though this does not foreclose the possibility of future
relief.
I. Background
Initiating a fight against internet gambling in
Kentucky, the Commonwealth filed an in rem action
in Franklin Circuit *35 Court over multiple pieces of
intangible property-141 internet domain names. The
Commonwealth had funded an extensive research
project, whereby several civilians were employed to

In a hearing where only the Commonwealth participated, the trial court heard testimony regarding the
discovery and nature of the domain names. Using a
probable-cause standard, the court concluded that the
websites were indeed violating Kentucky's gambling
laws. Pursuant to what it found to be a civil forfeiture
remedy in KRS 528.010, the court ordered seizure of
the domain names and instructed their registrars to
transfer them to the Commonwealth of Kentucky.
When those supposedly affected learned of the
order, counsel appeared in Franklin Circuit Court on
their behalf to challenge the seizure. The parties purporting to be affected by the seizure were atypical in
rem claimants, however. 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 circuit court ultimately
denied all motions to intervene or dismiss and scheduled a forfeiture hearing where the actual registrants
and owners of the seized domains could prove their
innocence.FN1 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.
FN1. The court did, however, permit the
gaming associations to participate in the litigation as amici curiae.
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 of KRS
528.100. The Commonwealth, appealing as a matter

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of right, asks this Court to vacate the writ of prohibition.
II. Analysis
Numerous, compelling arguments endorsing the
grant of the writ of prohibition have been presented
throughout the Court of Appeals' opinion, Judge
Taylor's separate concurrence, the Appellees' briefs,
the amici briefs, and oral argument before this Court.
This plethora of arguments includes, among others,
that (1) Kentucky law only mandates the seizure of
tangible gambling devices, and not intangible things
such as domain names; (2) the court's civil forfeiture
was unauthorized because KRS 528.100 only contemplates criminal sanctions; and (3) Kentucky lacks
in rem jurisdiction over the domain names because
they are not located in Kentucky.
Although all such arguments may have merit,
none can even be considered unless presented by a
party with standing. No *36 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. As mentioned above, two types of
Appellees sought the writ, claiming an interest in the
domain names: (1) the purported domain names
themselves and (2) associations of anonymous domain
registrants. Neither group meets the basic requirements of standing.
A. Six Domain Names
[1] Counsel purportedly appeared directly on
behalf of six domain names and participated in the
writ action at the Court of Appeals. The advocacy on
behalf of five of these domain names was consolidated
into one representation. These five domain
names-playersonly.com, sportsbook.com, sportsinteraction.com, mysportsbook.com, and linesmaker.com-have been referred to as the “group of five.”
The sixth, vicsbingo.com, joined in the appeal through
separate counsel, together with the Interactive Gaming
Council, one of the gaming associations. Counsel for
these six domain names have consistently claimed the
names are some of the intangible property seized by
the trial court and that the names are appearing to
protect their own interests in themselves. Put simply,
counsel purports to represent property that is protecting itself.
Although unaddressed in the Court of Appeals
opinion below, the Commonwealth has apparently

challenged the standing of these individual domain
names at every stage of the proceedings. It has insisted
that the property seized cannot defend itself, but can
only be defended by those having an interest in the
property-namely owners and registrants of domain
names. Since no owners or registrants have ever
claimed to be participating in this case at any level, the
Commonwealth requests that this Court vacate the
writ and restore the seizure of the domain names.
The domain names' assertion of standing hinges
on the origination of this controversy as an in rem
proceeding. They claim that since the Commonwealth
named the domain names as the in rem defendants, the
names must have an opportunity to represent themselves.
The domain names' argument confuses the nature
of in rem litigation. It has long been recognized in
Kentucky, as well as elsewhere, that in in rem litigation, only those with an interest in the property, such
as current owners, have an interest in the litigation.
See Taylor v. City of La Grange, 262 Ky. 383, 90
S.W.2d 357 (1936); City of Middlesborough v. Coal &
Iron Bank, 33 Ky. L. Rptr. 469, 110 S.W. 355, 356
(1908); United States v. One 1965 Cessna 320C Twin
Engine Airplane, 715 F.Supp. 808, 810
(E.D.Ky.1989). The property does not have an interest
in itself and, therefore, does not have any interest in
the litigation. See United States v. One Parcel of Real
Property, 831 F.2d 566, 568 (5th Cir.1987)
(“[O]wners are persons, not pieces of real property; [a]
piece of real property has no standing to contest its
forfeiture.”). An internet domain name does not have
an interest in itself any more than a piece of land is
interested in its own use. Just as with real property, a
domain name cannot own itself; it must be owned by a
person or legally recognized entity. Nor does the
property itself care whether it is owned and operated
by private business or seized by state government.
[2] When faced with a similar claim, the Fifth
Circuit found the concept of property having in rem
standing to be so far-fetched as to be “not arguable on
its merit s” and “frivolous,” id., that it issued sanctions
against the attorneys purporting *37 to represent such
property. See id. at 568-69. This Court agrees that the
contention that mere property can represent itself is
frivolous.
[3] The fundamental standing requirement of an

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interest in the property does not dissipate in a writ
case. A writ of prohibition, just like any other judicial
remedy, may only be sought by a party with a “judicially recognizable interest.” Schroering v. McKinney,
906 S.W.2d 349, 350 (Ky.1995). The writ granted
below serves only the interests of the owners and
registrants of the domain names. It does not benefit the
domains themselves; they are the interest at question
in this case and belong to still unnamed owners and
registrants.
The group of five mistakenly suggests unfairness
in the Commonwealth proceeding in rem against
property without giving the property a “right to defend.” Property possesses no such right. Kentucky's
judicial system exists to protect the interests of persons-both individuals and groups-not property. Property does not have constitutional or statutory rights.
Nor does it have a right of access to the judicial system. Nor does it have a judicially recognizable interest
in this writ.
Counsel for vicsbingo.com, meanwhile, misinterprets the unorthodox styling of in rem case names to
mean that the usual standing requirements do not
apply. It cites Three One-Ball Pinball Machines v.
Commonwealth, 249 S.W.2d 144 (Ky.1952), as an
example of property contesting its own seizure under
Kentucky's old gambling laws. To be sure, that case
name is styled so that the pinball machines themselves
are listed as a party (in that case, the appellant), as is
routine for civil forfeiture proceedings. This is because in rem “case captions have historically referenced the property subject to forfeiture and not the
interested parties.” Commonwealth v. Maynard, 294
S.W.3d 43, 49 (Ky.App.2009). But as Justice Combs
pointed out in the second sentence of Three One-Ball
Pinball Machines, “[t]he style of the case is a misnomer. Although the machines are designated as the
appellants in the case, it is their owners who argue”
against the seizure. 249 S.W.2d. at 145 (emphasis
added); see also 14 Console Type Slot Machines v.
Commonwealth, 273 S.W.2d 582, 582 (Ky.1954)
(“On this appeal by the slot machines (through their
owner ), the main contention is that ....”) (emphasis
added). Likewise, in the situation at hand, the style of
the case title does not change the fact that only those
with an interest in the property have standing. The writ
may be styled as being sought in the name of the domains, but the parties arguing on their behalf must be
ones with standing, such as owners.

The domain names are not their own owners or
registrants, nor do they claim to be. Thus, they lacked
standing to pursue the writ.
B. Gaming Associations
Two gaming associations have attempted to
enroll in this litigation: the Interactive Media Entertainment & Gaming Association (iMEGA) and the
Interactive Gaming Council (IGC). iMEGA and IGC
both claim to represent registrants of some of the
seized domains. They claim to have standing on behalf
of their members under the doctrine of associational
standing.
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.
IGC, on behalf of its members, stakes *38 claim
to 61 seized domain names. FN2 IGC is not all that
clear, perhaps intentionally, about whether it
represents registrants or the actual domain names. For
example, on page 13 of its brief, it claims to be
“[r]epresenting the registrants for 61 of the 141 Domain Names.” (Emphasis added.) Yet the following
sentence of the brief reads, “IGC identified all 61
domain names it represents....” (Emphasis added.) For
purposes of this appeal, we will interpret IGC as
purporting to represent registrants. The problem,
however, is that IGC fails to disclose who these registrants are.
FN2. Which 61 of the 141 is not apparent
from our record.
[4] Associational standing inherently depends on
the membership of the association. The U.S. Supreme
Court has set out three requirements for an association
to have standing in federal court:
(a) its members would otherwise have standing to
sue in their own right; (b) the interests it seeks to
protect are germane to the organization's purpose;
and (c) neither the claim asserted nor the relief requested requires the participation of the individual
members in the lawsuit.
Hunt v. Washington State Apple Adver. Comm'n,

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432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383
(1977). In Hunt, the Court found that the Washington
State Apple Advertising Commission had standing to
challenge a North Carolina statute which prevented its
members, Washington apple dealers, from displaying
Washington apple grades. See id. at 337-45.
While this Court has not held that the precise
requirements of federal associational standing apply in
Kentucky courts, at least the first requirement must
apply. An association can have standing only if its
members could have sued in their own right. Otherwise the primary requirement for standing, that the
party has a real interest in the litigation, would be
thwarted.
In City of Ashland v. Ashland F.O.P. No. 3, 888
S.W.2d 667 (Ky.1994), this Court granted the Fraternal Order of Police standing to challenge a city
ordinance that limited public employment to people
living within city limits. The F.O.P. had standing
because its members-the police-had a “real and substantial interest” in striking the ordinance. Id. at 668.
Although the ordinance only applied to new employees, other police officers depended on the quality
of the new police for their own safety. Id. “Such an
interest conferred standing on the police association
because, according to stipulation, it represented the
majority of city police.” Id.
[5][6] Unlike the F.O.P., the gaming associations
in this case have failed to disclose whom they
represent. While IGC claims to represent 61 of the
seized domains and iMEGA purports to represent
“some” more, this Court cannot simply take their
words for it. The associations bear the burden to
demonstrate that they satisfy the requirements of
standing, and to do so requires proving that their
members would have standing themselves. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992) (party invoking jurisdiction bears burden of proving standing); Am. Chemistry Council v. DOT, 468 F.3d 810, 820
(D.C.Cir.2006) (association bears burden to prove
members have standing). Without even revealing any
of the registrants they purport to represent, the associations cannot hope to achieve associational standing.
“At the very least, the identity of the party suffering an
injury in fact must be firmly established.” Am. Chemistry Council, 468 F.3d at 820; see also *39United
States v. AVX Corp., 962 F.2d 108, 117 (1st Cir.1992)

(no associational standing where injured members
were unidentified); Sierra Club v. SCM Corp., 747
F.2d 99, 103, 107-08 (2nd Cir.1984) (same); Revell v.
Port Authority of N.Y. and N.J., 321 Fed.Appx. 113,
117 n. 2 (3rd Cir.2009) (failure to identify affected
members causes standing to “evaporate quickly”). But
see Doe v. Stincer, 175 F.3d 879, 882 (11th Cir.1999)
(taking contrary position).
The cyber-age status of their members does not
let iMEGA and IGC escape traditional standing requirements. In another suit brought on by an association of internet domain registrants, the Coalition for
ICANN Transparency (CFIT) initially merely “alleged vague categories of members that might suffer
harm.” Coalition for ICANN Transparency Inc. v.
VeriSign, Inc., 464 F.Supp.2d 948, 956
(N.D.Cal.2006), rev'd on other grounds, 567 F.3d
1084 (9th Cir.2009). Thus, “associational standing
had not been alleged because CFIT failed to name
even one member.” Id. CFIT was able to solve this
problem, however, by identifying one of its members,
Pool.com, Inc., which allegedly suffered injury-in-fact. Id. Here as well, the associations had
every opportunity to cure their standing defects by
identifying their seized members; in fact, they were
ordered to do so by the Franklin Circuit Court. Refusing to follow this straightforward requirement,
iMEGA and IGC do not have standing.
Admittedly, in some cases the surrounding particulars may not demand that an association identify
specific members. For example, in Ashland F.O.P.,
this Court did not discuss whether the fraternal order
had identified affected members. Indeed, the Ashland
F.O.P. may not have provided a membership list. But
in that case it was stipulated that the F.O.P.
represented the majority of the police force. 888
S.W.2d at 668. Since all members of the police could
claim injury from the ordinance (albeit indirectly), it
necessarily followed that the F.O.P.'s members would
have had standing in their own right. Unlike in Ashland F.O.P., there is no stipulation as to iMEGA or
IGC's memberships. In fact, nothing is known about
their members, other than their attorneys' vague assertions they represented “some” of the registrants.
Moreover, notably distinct from Ashland F.O.P.,
not all internet gaming registrants are affected by the
seizure; only the registrants of the 141 seized domains.
In cases where the harm is specific, the proof of

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standing must be equally specific. See Forum for
Academic & Inst. Rights, Inc. v. Rumsfeld, 291
F.Supp.2d 269, 288 (D.N.J.2003). For example, in
cases where only people in a certain geographical area
may be harmed, a showing that members are located
in that area is “critical” to associational standing. See
id. (distinguishing AVX Corp., 962 F.2d at 117, stating, “Geographic location was critical to establishing
members' injury-in-fact in the environmental context....”). Similarly, where, as here, the injury is limited to those whose property was actually seized,
associational standing requires some assurance that
members actually have an interest in the property.
Thus, the associations must specifically identify some
of the affected registrants they represent.
[7][8][9] This is not to say that showing associational standing requires heavy proof. On the contrary,
it must simply be proven to the same extent as any
other “indispensable part of the plaintiffs case.” Lujan,
504 U.S. at 561, 112 S.Ct. 2130. “[E]ach element must
be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the
successive stages of the litigation.” Id. At the pleading
stage, less *40 specificity is required. At that point, an
association may speak generally of the injuries to
“some” of its members, for the “presum[ption] [is]
that general allegations embrace those specific facts
that are necessary to support the claim.” Id.; accord
Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138, 145 (2nd Cir.2006). By
the summary judgment stage, however, more particulars regarding the association's membership must be
introduced or referenced. See Bldg. & Constr. Trades
Council of Buffalo, 448 F.3d at 144-45; Sierra Club v.
SCM Corp., 747 F.2d 99, 102 (2nd Cir.1984) (affirming dismissal where association “indicated that it
did not intend to identify any of its members who
might have been harmed”). Finally, before a favorable
judgment can be attained, the association's general
allegations of injury must clarify into “concrete” proof
that “one or more of its members” has been injured.
See Sierra Club, 747 F.2d at 107. “By refus[ing] to
come forward with any such showing,” any claim to
associational standing, and the potential for success on
the merits is forfeited. See id.
While the normal sequence of litigation is muddled in a writ petition, since only pleadings are filed
and no discovery is allowed, the basic requisites for a

judgment remain. This includes proof of standing.
When associational standing is the chosen route, the
writ petitioner must prove it represents at least one
member with an injury in order to obtain relief. This
may be done by reference to the facts in the underlying
litigation or a verified assertion, such as in an affidavit, attached to the petition. Through their unwillingness to identify any of their members, iMEGA and
IGC failed to meet this burden. As such, iMEGA and
IGC lack standing and, therefore, their writ petition
should have been denied.
Writs are to be granted only as an extraordinary
remedy, and certainly only when parties who have
demonstrated a concrete interest are before the court.
This is not to say, however, that the failure to establish
standing in this writ action completely forecloses
relief by way of a writ in the future. If a party that can
properly establish standing comes forward, the writ
petition giving rise to these proceedings could be
re-filed with the Court of Appeals. The Court of Appeals could then properly proceed to the merits of the
issues raised, or upon a proper motion, this Court
could accept transfer of the case, as the merits of the
argument have already been briefed and argued before
this Court. Until then, however, consideration of the
merits of this matter is improper for lack of standing.
III. Conclusion
Due to the incapacity of domain names to contest
their own seizure and the inability of iMEGA and IGC
to litigate on behalf of anonymous registrants, the
Court of Appeals is reversed and its writ is vacated.
This case is hereby remanded to the Court of Appeals
with instructions to dismiss the Appellee's writ petition.
MINTON, C.J.; ABRAMSON, SCHRODER and
VENTERS, JJ., concur.
SCOTT, J., concurs in result only.
CUNNINGHAM, J., not sitting.
Ky.,2010.
Com. ex rel. Brown v. Interactive Media Entertainment and Gaming Ass'n, Inc.
306 S.W.3d 32
END OF DOCUMENT

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