discuss Defend HeidiPowell.com against a Bullying Celebrity Thief!

[Slanted]

Hi domainers,

Please take a moment to help defend domain owner rights. The grandmother who owns HeidiPowell.com needs our help. You don't need to spend a penny. Just stand up and say, "This is unacceptable." It will take public pressure outside NamePros. But there are a lot of us; so hopefully we can join forces and spread the word.

Scroll down. There are a few specific things we can do to help. It's urgent.

Some of you know the story already. A grandmother has owned HeidiPowell.com for many years, but a minor TV celebrity has decided that she is the only Heidi Powell in the world who matters. And this arrogant celeb has dragged the original Mrs. Powell through a UDRP and even into bankruptcy court, attempting to take not just her domain but her own NAME from her by force. Truly, it's one of the most reprehensible cases I've ever come across. If we don't defend her, nobody will defend us when we ourselves are targeted.

Background:

Mrs. Powell has been Heidi Powell since her marriage in 1979. Back in 2005, 12 years ago, her husband presented her with the domain HeidiPowell.com as an anniversary gift. It's a developed website where she offers web design services. But it's more than just a site whose name can be changed. To this day, Heidi uses HeidiPowell.com for her email address, which is tied to all her online accounts. So if she loses this domain, it's akin to identity theft.

Then along comes another Heidi Powell – a celebrity fitness trainer who had a short-lived TV show on ABC. ("Celebrity", so they say. I'd never heard of her.) She became Heidi Powell after a 2010 marriage – long after HeidiPowell.com was registered by the rightful owners, Mr. and Mrs. Powell.

Greed and megalomania – it's the usual tale of a spoiled narcissistic brat who feels entitled to confiscate whatever she wants, no matter the damage to us "little people". First came the UDRP. Fortunately, David Weslow – a well respected attorney – stepped forward to defend Heidi pro bono (i.e. free of charge). I think there's a very good chance justice will prevail in the UDRP case, thanks to his efforts.

But Mrs. Powell and her husband are still suffering, and her domain remains in jeopardy. You see, this fitness trainer "star", this usurper, this would-be thief and her lawyers have found another way to attack the rightful Heidi Powell – even while the UDRP case is still in progress. Years ago, Mrs. Powell and her husband experienced some misfortunes and had to file for bankruptcy. Life can be like that. Now, this covetous celeb is arguing that the domain HeidiPowell.com ought to have been declared as a valuable asset during their bankruptcy case years ago. It's absurd, of course. The market value of HeidiPowell.com is negligible except for 1 greedy celebrity who came along later on. I personally prepared a 5-10 page document for David Weslow, citing verifiable data that proves this.

However, the celeb and her lawyers are bribing the trustee with a 5-figure sum to drag Mr. and Mrs. Powell back into bankruptcy court! And legal representation in this bankruptcy case is not provided by David Weslow; he's only handling the UDRP. Far from being free, this additional legal burden will cost Mr. and Mrs. Powell thousands – not to mention stress, time, and damage to their credit and reputation. Obviously, the celeb's strategy is to bleed this humble couple until they give up from exhaustion.

Press Coverage:

From time to time, we hear about domainers requesting financial help. Personally, I'm always very skeptical about those claims because it's easy to exploit people's sympathies. Heidi Powell is not a domainer. What she primarily needs our help with is public pressure. Giving that kind of help is 100% free.

Heidi's case has been written about extensively:

(1) USA Today

http://www.usatoday.com/story/life/...andmother-heidi-powell-over-website/90916602/

(2) The Register

http://www.theregister.co.uk/2016/09/27/narcissist_heidi_powell_wants_her_dotcom/

(3) DomainNameWire.com

http://domainnamewire.com/2016/09/13/reverse-domain-name-hijacking-alleged-heidipowell-com-lawsuit/

and

http://domainnamewire.com/2016/07/19/heidi-powell-lawsuit/

(4) At NamesCon, David Weslow of Wiley Rein was given the first ever "Lonnie Borck Memorial Award" in recognition of his "exceptional efforts in championing the rights of domain name registrants". Those of us who are members of the ICA – the Internet Commerce Association, which advocates tirelessly for domain owner rights – voted for Mr. Weslow specifically because of this Heidi Powell case.

http://www.dnjournal.com/archive/lowdown/2016/dailyposts/20161219.htm

I was hoping that Heidi's case would get some publicity at NamesCon when David Weslow received the award. However, I understand he wasn't able to attend due to illness.

TAKE ACTION!

Alright, guys. This is where we can make a difference. Get angry! Imagine it's your grandma being dragged into bankruptcy court! Imagine it's your domain being taken away unjustly! Imagine it's costing you thousands and thousands to defend yourself against an arrogant narcissist with deep pockets!

What we can do:

(1) Visit HeidiPowell.com. There's a button on grandma's site, allowing you to tweet directly at this thieving celebrity. Tell her what you think of her. Please no threats. Please no profanity. Remember, we want domain owner rights to be respected and honored. Making threats or using profanity would only give people an excuse to dismiss us. Be professional. But be angry!

(2) Visit the celeb's website:

http://heidipowell.net/contact-me/

Tell her what you think. Again, be polite but firm.

(3) Grandma has a GoFundMe campaign:

https://www.gofundme.com/grandma-bullied-sued-for-her-name

Please leave a comment showing your support. I'm not asking anybody to contribute money. But if you can spare something small – even $1 – it might help show that Mrs. Powell is not alone ... that even total strangers are willing to back an underdog against a bully. If you don't want to donate, that's completely fine. Just leave a comment there. This thieving celeb needs to understand that her reputation is going to suffer if she persists in persecuting Mrs. Powell ... that she will be punching a cactus.

(4) Let's put pressure on ABC, since they created this monster. Maybe if they encounter some bad publicity themselves, they will in turn put pressure on the celebrity usurper to cease and desist:

https://twitter.com/ABCNetwork

Tell ABC what you think. Tell them they ought to be ashamed of themselves for letting Heidi Powell bully a grandmother and steal her property. Be sure to reference Heidi Powell specifically; otherwise ABC won't have a clue what we're talking about.

(5) We all have domainer acquaintances. Please send 3 people a link to this NamePros thread. There's strength in numbers.

(6) Once you've helped out, brag about it! Let other domainers here know that you give a damn. Post a reply in this thread so we can keep it visible. Positive peer pressure, folks! Let's show the world that domainers aren't parasitic cybersquatters. We stand up for property rights.

 

[Silentptnr]

Just looking for what the facts are behind the story without the domainer bias.

I don't believe I rehashed this but as you did.... an asking price is part of the consideration of merit in these cases. Rightly or wrongly.

There is a difference between "no, I'll never sell because it's worth $8 and reminds me of an enduring love" and "yes, I'll sell, if the money's right and I know you got it". I could call asking $50,000 extortion but the word choice would be brought into question wouldn't it
But it's not mine or yours to judge which team is lying to the courts.

I didn't bring it up to add merit or discredit Grandma.. didn't you say the following:



You think your first post was fair and balanced? Perhaps you expected a completely sympathetic forum. I'm pretty sure that EVERY point the plaintiff made was strenuously denied (hence the counterclaim you omitted to mention except thru links) so let's not discuss anything other than the enduring love story.

I'm not scoffing at the "grandmother". Frankly, I'm mocking the delivery method and back-story.


And it could be a pathetic line of saintly bullsh*t to garner sympathy. I'm not a Powell so I don't know.

You want my opinion?

This is a rightful RDNH case and the courts/legal counsel will resolve this without a tweet fest and emails wasting some admins time at ABC. The motives are not cleaning the slate for the original defendant Powell at this point but doing what the American legal system loves to do... deter frivolous claims through penalty. It can't be to encourage Fitness trainer Heidi Powell to drop the lawsuit that she can't drop or drop one that's been closed.

Whether that penalty system works in the long in place is debatable but at the same time this is a great case for the ICA, is it not? A seemingly slam dunk case that involves a celebrity and a grandmother. It's almost perfect.

Could they have dismissed the case with prejudice without adjudication on penalty? I don't know. Could they have asked less severe claim of damages (to cover their expenses incurred on the other suit? I don't know - but that isn't what her legal counsel chose to do they went for the full damages and fees.

Yes, I'm a cynical person.
No, I don't think this is your agenda.
But domainers always feel that they're on the short end of a big stick and they love this RDNH stuff and Rick's Wall of Who GAF.

The funny thing to me is the awkward line between "Hey this name's worthless!" and "Hey this name's priceless!" and "This name may have allegedly been worth $50,000" and at least "a $10,000 bribe". In the end Heidi keeps her name and I hope she lives happily ever after. In the end Heidi uses the .net and it doesn't really matter because she's a media brand anyway and will be #1 in Google/Bing ...


Hot Damn! Let's tell the liberal left to Tweet their anti-Trump tweets to NBC!
Actually, I thought the show was canceled


"It's my understanding the trustee has withdrawn the motion to sell the domain name."

Would it not be better to attack the legal firm? Why not? Would it be tortious interference? You already accused them of bribery... (the safe form)


Yeah, well Granny is a "cybersquatter". Not a real legal one, of course, just one in you know, regular every day parlance. Domainers are so sensitive about words.


It's a bribe in regular usage. A child psychologist or parent might prefer incentive or reward in this case but point taken. Bribe can be a fairly harmless word but still with a very negative connotation.


Totally different as one is in the context of homework and one is in the context of a legal action. I'm sure your friend Wenslow would approve of putting the word "bribe" immediately following their "lawyers".


Is that not the very context in which you are using it?
The police man turned to Chris and said give me your gun.... Bentley said "Chris, Let Him Have it"
You see the use of context there? That sentence resulted in Derick Bentley being hanged. Context matters - even in little online forums.


"Fitness trainer's lawyers requested those involved to reopen the bankruptcy case to establish legal ownership of name."

Even "Hey, I'm an evil beeyotch and I think you missed this asset and it has value. I'd be willing to give you at least $10K for it which is good for your creditors. AmIright, amiright? I'll have my guys call your guys, mmkay"

So I WILL go away at this point because as you can see we're clearly just happy have domainers go tilting at windmills.



I did miss this nugget earlier:



And maybe one driver is that Heidi is totes jelly of her husbands awesome domain.. which is clearly not in use if anyone wants to let another Chris Powell know it's available:
Show attachment 49017

That was some strange writing. This is simple. Fitness Trainer should have known from the beginning that the domain was someone else's property. Instead of walking away, she chose to attack an innocent person.

In the end, I hope that the domain owner is paid for the trouble caused by the Fitness Trainer. Her legal team and her employer may also have liability if they don't handle this correctly.

Not sure what all that other stuff was. I can see that you are not attacking the domain owner. But it was kind of weird to me.

 

[martinrussell]

Are we sure that the fitness instructor isn't watching this thread?

 

[DU]

For you, the TL;DR version:

Grandma (Domainers (by Proxy) ) > Evil Fitness Trainer (Evil Corporations)
Obey.

 

[jberryhill]

She and her husband have gone through bankruptcy. So she has presumably lost a large part of what she owned – lost, perhaps, a large part of the life she and her husband had built or even her identity, her sense of herself.

Well, sure, but I'd guess their creditors have a different view of that matter as well.

Fitness trainer's lawyers bribe those involved to reopen the bankruptcy case. How? By dangling a 5-figure bribe / reward / bounty ... contingent on confiscating the domain HeidiPowell.com. Court changes its behavior and begins investigating whether the domain – which they had previously ignored because it really has no significant market value – should be confiscated. Illegal? No. Bribe? Yes. This example is logically identical to the 1 above.

The duty of a bankruptcy trustee to secure and dispose of assets in bankruptcy on behalf of the creditors is not any of those things.

Not every legal dispute boils down to a moral outrage. The Powells availed themselves of the bankruptcy laws in order to avoid paying their obligations to their creditors. That's a perfectly normal thing for a lot of people and organizations, for a lot of reasons.

Whether an asset has emotional value, market value, or whatever, isn't relevant to the fact that if you are going to take advantage of the bankruptcy laws to stiff your creditors - which is fine - then you are also obligated to inventory your assets.

And here we come to one of my pet peeves - the irrational insistence by some domainers that domain names should be "property" instead of personal service contract rights. Quite a few states, Virginia being a prominent example, do not consider domain names to be attachable property in bankruptcy. I don't know whether that's the case in Washington, and the trustee in his withdrawal motion, noted that the status of a domain name as property is unclear. If one is in the "domain names are property" camp, then one would have to agree they should be inventoried as assets in bankruptcy.

But a difference of legal opinion on whether or not the domain name should have been listed as property in the bankruptcy proceeding, does not reduce to any sort of moral question. It's merely a difference of opinion.

So, let's take a simple example of this in action:

A sweet grandmother has all of her savings invested in Peterson National Bank. My neighbor takes out loans from the Peterson National Bank in the amount of $100,000, defaults, and then goes into bankruptcy. He inventories his assets, excludes his car, and his assets are liquidated to the tune of $50,000.

Who got screwed there? My neighbor? No, he had the benefit of borrowing $100,000, paying back $50,000, and thus shorting the Peterson National Bank, and by extension the sweet granny who had her money there.

But, hey, stuff happens, and that's why bankruptcy laws are there (for those who can afford it, and as long as we are talking about casino owners and not, say, student loans which can't be discharged in bankruptcy).

So a few years goes by and I'd like to buy my neighbors car. We can't reach an agreement, but I find out he excluded it from his bankruptcy inventory. So, I go back to the trustee, say he excluded it, and seek to buy the car from the trustee on behalf of the bankrupt estate.

There is utterly no moral defect in my doing that. None. I can't even see how you can characterize that as some kind of underhanded behavior in the least. It was my neighbor who didn't include it in the inventory when he was screwing the Peterson National Bank and all the grannies who save their money there.

So, who is the "bad guy" in that scenario? Yes, bankruptcy trustees get paid. Of course they do. Ever since the 13th Amendment, that's just a fact of life. Your local McDonald's induces their employees to show up every day by paying them money. You seem to want to define that as "bribery".

Now, sure, one can argue about whether the car was of de minimus value, or whether it was subject to exclusion, there are QUITE A FEW domainers who have sought to buy assets from court-appointed trustees. If you want to start flinging turds about the practice of buying assets from court-appointed trustees, I can assure you that you are including a pretty good chunk of the industry there. In fact, that's pretty much the whole argument going on in the Associated Recovery cases in Texas and Virginia, where the claimed successor to Jeff Baron's assets is accusing everyone who bought domain names from the trustee - including a prominent member of the ICA represented by David Weslow - of conversion for having bought names from a court-appointed trustee.

So is it a "bribe" in this case, but not in the other case where Weslow represents the buyers from the court trustee? Because that's, generally stated, what Associated Recovery is claiming in those suits.

You are casting an awfully wide net. That's all I'm saying. I don't know if you've looked into the Associated Recovery cases, but it's almost a Who's Who of the domain industry.

Now, yes, the 2010 market value of "HeidiPowell.com" was pretty much nil, but if my expert in that proceeding was sounding off elsewhere with loaded language suggesting that the expert opinion was driven by some animus instead of objective professional considerations, I'd be kind of disappointed that my expert was undermining my case.

 

[carob]

Found another free name, kind of sums up this thread's theme of how not to do things:

unfitnessinstructor.com

 

[Keith]

Well, sure, but I'd guess their creditors have a different view of that matter as well.



The duty of a bankruptcy trustee to secure and dispose of assets in bankruptcy on behalf of the creditors is not any of those things.

Not every legal dispute boils down to a moral outrage. The Powells availed themselves of the bankruptcy laws in order to avoid paying their obligations to their creditors. That's a perfectly normal thing for a lot of people and organizations, for a lot of reasons.

Whether an asset has emotional value, market value, or whatever, isn't relevant to the fact that if you are going to take advantage of the bankruptcy laws to stiff your creditors - which is fine - then you are also obligated to inventory your assets.

And here we come to one of my pet peeves - the irrational insistence by some domainers that domain names should be "property" instead of personal service contract rights. Quite a few states, Virginia being a prominent example, do not consider domain names to be attachable property in bankruptcy. I don't know whether that's the case in Washington, and the trustee in his withdrawal motion, noted that the status of a domain name as property is unclear. If one is in the "domain names are property" camp, then one would have to agree they should be inventoried as assets in bankruptcy.

But a difference of legal opinion on whether or not the domain name should have been listed as property in the bankruptcy proceeding, does not reduce to any sort of moral question. It's merely a difference of opinion.

So, let's take a simple example of this in action:

A sweet grandmother has all of her savings invested in Peterson National Bank. My neighbor takes out loans from the Peterson National Bank in the amount of $100,000, defaults, and then goes into bankruptcy. He inventories his assets, excludes his car, and his assets are liquidated to the tune of $50,000.

Who got screwed there? My neighbor? No, he had the benefit of borrowing $100,000, paying back $50,000, and thus shorting the Peterson National Bank, and by extension the sweet granny who had her money there.

But, hey, stuff happens, and that's why bankruptcy laws are there (for those who can afford it, and as long as we are talking about casino owners and not, say, student loans which can't be discharged in bankruptcy).

So a few years goes by and I'd like to buy my neighbors car. We can't reach an agreement, but I find out he excluded it from his bankruptcy inventory. So, I go back to the trustee, say he excluded it, and seek to buy the car from the trustee on behalf of the bankrupt estate.

There is utterly no moral defect in my doing that. None. I can't even see how you can characterize that as some kind of underhanded behavior in the least. It was my neighbor who didn't include it in the inventory when he was screwing the Peterson National Bank and all the grannies who save their money there.

So, who is the "bad guy" in that scenario? Yes, bankruptcy trustees get paid. Of course they do. Ever since the 13th Amendment, that's just a fact of life. Your local McDonald's induces their employees to show up every day by paying them money. You seem to want to define that as "bribery".

Now, sure, one can argue about whether the car was of de minimus value, or whether it was subject to exclusion, there are QUITE A FEW domainers who have sought to buy assets from court-appointed trustees. If you want to start flinging turds about the practice of buying assets from court-appointed trustees, I can assure you that you are including a pretty good chunk of the industry there. In fact, that's pretty much the whole argument going on in the Associated Recovery cases in Texas and Virginia, where the claimed successor to Jeff Baron's assets is accusing everyone who bought domain names from the trustee - including a prominent member of the ICA represented by David Weslow - of conversion for having bought names from a court-appointed trustee.

So is it a "bribe" in this case, but not in the other case where Weslow represents the buyers from the court trustee? Because that's, generally stated, what Associated Recovery is claiming in those suits.

You are casting an awfully wide net. That's all I'm saying. I don't know if you've looked into the Associated Recovery cases, but it's almost a Who's Who of the domain industry.

Now, yes, the 2010 market value of "HeidiPowell.com" was pretty much nil, but if my expert in that proceeding was sounding off elsewhere with loaded language suggesting that the expert opinion was driven by some animus instead of objective professional considerations, I'd be kind of disappointed that my expert was undermining my case.

Deliberately excluding a car as an asset during a bankruptcy proceeding is clearly wrong. But then again, the car has a true market value. Would you include a leased car as an asset?

Domains are really just leased property. They require consistent payment for the privilege to hold. But assume you were to declare a domain in a bankruptcy filing - how do you put a value on it? To my knowledge, there is zero way to put a true value on any one domain.

 

[jberryhill]

Domains are really just leased property. They require consistent payment for the privilege to hold.

Well, you'll get a range of opinions on that from all sorts of folks in all sorts of situations. Many domain registrants consider themselves to be the "owner" of the domain name who can "sell" the domain name, instead of a "lessee" of the domain name who can charge a premium for re-assigning the lease. If you want to characterize it as a lease, then it begs the question of whom you believe the "owner/lessor" to be?

But, Joseph, if these things are going to be decided on maternal expressions of outrage, then have a look at this one, and let me know if you think David Weslow's clients in the Associated Recovery case are thieves because they bought names from a court-appointed trustee, as claimed by the plaintiff in that case

 

[carob]

But assume you were to declare a domain in a bankruptcy filing - how do you put a value on it? To my knowledge, there is zero way to put a true value on any one domain.

I'd also really like to know how you put a value on a domain in that kind of situation.

I guess if there are clear and binding offers to buy that could be used for a value. But what other measures could there be and who could be trusted to set them?

 

[jberryhill]

By the way, I became a grandfather a few months ago, so anyone who disagrees with me is hereby on notice of my automatic credibility pass attaching to everything and anything I say. You shall henceforth refer to me as Grandfather Berryhill.

And, again, I firmly believe that the grandmother has the stronger hand at the table in this dispute, and I refuse to play the game of "you don't agree with every word or characterization made in my argument, so therefore you disagree with my conclusion."

 

[Silentptnr]

Well, sure, but I'd guess their creditors have a different view of that matter as well.



The duty of a bankruptcy trustee to secure and dispose of assets in bankruptcy on behalf of the creditors is not any of those things.

Not every legal dispute boils down to a moral outrage. The Powells availed themselves of the bankruptcy laws in order to avoid paying their obligations to their creditors. That's a perfectly normal thing for a lot of people and organizations, for a lot of reasons.

Whether an asset has emotional value, market value, or whatever, isn't relevant to the fact that if you are going to take advantage of the bankruptcy laws to stiff your creditors - which is fine - then you are also obligated to inventory your assets.

And here we come to one of my pet peeves - the irrational insistence by some domainers that domain names should be "property" instead of personal service contract rights. Quite a few states, Virginia being a prominent example, do not consider domain names to be attachable property in bankruptcy. I don't know whether that's the case in Washington, and the trustee in his withdrawal motion, noted that the status of a domain name as property is unclear. If one is in the "domain names are property" camp, then one would have to agree they should be inventoried as assets in bankruptcy.

But a difference of legal opinion on whether or not the domain name should have been listed as property in the bankruptcy proceeding, does not reduce to any sort of moral question. It's merely a difference of opinion.

So, let's take a simple example of this in action:

A sweet grandmother has all of her savings invested in Peterson National Bank. My neighbor takes out loans from the Peterson National Bank in the amount of $100,000, defaults, and then goes into bankruptcy. He inventories his assets, excludes his car, and his assets are liquidated to the tune of $50,000.

Who got screwed there? My neighbor? No, he had the benefit of borrowing $100,000, paying back $50,000, and thus shorting the Peterson National Bank, and by extension the sweet granny who had her money there.

But, hey, stuff happens, and that's why bankruptcy laws are there (for those who can afford it, and as long as we are talking about casino owners and not, say, student loans which can't be discharged in bankruptcy).

So a few years goes by and I'd like to buy my neighbors car. We can't reach an agreement, but I find out he excluded it from his bankruptcy inventory. So, I go back to the trustee, say he excluded it, and seek to buy the car from the trustee on behalf of the bankrupt estate.

There is utterly no moral defect in my doing that. None. I can't even see how you can characterize that as some kind of underhanded behavior in the least. It was my neighbor who didn't include it in the inventory when he was screwing the Peterson National Bank and all the grannies who save their money there.

So, who is the "bad guy" in that scenario? Yes, bankruptcy trustees get paid. Of course they do. Ever since the 13th Amendment, that's just a fact of life. Your local McDonald's induces their employees to show up every day by paying them money. You seem to want to define that as "bribery".

Now, sure, one can argue about whether the car was of de minimus value, or whether it was subject to exclusion, there are QUITE A FEW domainers who have sought to buy assets from court-appointed trustees. If you want to start flinging turds about the practice of buying assets from court-appointed trustees, I can assure you that you are including a pretty good chunk of the industry there. In fact, that's pretty much the whole argument going on in the Associated Recovery cases in Texas and Virginia, where the claimed successor to Jeff Baron's assets is accusing everyone who bought domain names from the trustee - including a prominent member of the ICA represented by David Weslow - of conversion for having bought names from a court-appointed trustee.

So is it a "bribe" in this case, but not in the other case where Weslow represents the buyers from the court trustee? Because that's, generally stated, what Associated Recovery is claiming in those suits.

You are casting an awfully wide net. That's all I'm saying. I don't know if you've looked into the Associated Recovery cases, but it's almost a Who's Who of the domain industry.

Now, yes, the 2010 market value of "HeidiPowell.com" was pretty much nil, but if my expert in that proceeding was sounding off elsewhere with loaded language suggesting that the expert opinion was driven by some animus instead of objective professional considerations, I'd be kind of disappointed that my expert was undermining my case.

I thought the role of the bankruptcy court is to provide protection to those who legimately seek it and the adjudicate between the debtor and the creditors. The reference to "stiffing" the creditors is not accurate. Creditors are notorious for unfair practices such as 20 day billing cycles versus 30 day payment cycles resulting in extended interest payments.

The central issue here is simple. The ownership of the domain name. The tactics used by the plaintiff were legal but unscrupulous. That's what this is about. It is so tiring seeing good people attacked by bad people using the legal system. Where does it end? It's high time that people are required to consider costly consequences of frivolous legal actions.

I don't think that citizens who have sought the protection of the bankruptcy court should be vulnerable to anyone that wants to re-open their case hoping to find some nugget of non disclosure in order to gain assets. Creditors are given a defined amount of time to challenge a petition for bankruptcy. Once that door shuts, should be end of story.

 

[Keith]

Well, you'll get a range of opinions on that from all sorts of folks in all sorts of situations. Many domain registrants consider themselves to be the "owner" of the domain name who can "sell" the domain name, instead of a "lessee" of the domain name who can charge a premium for re-assigning the lease. If you want to characterize it as a lease, then it begs the question of whom you believe the "owner/lessor" to be?

But, Joseph, if these things are going to be decided on maternal expressions of outrage, then have a look at this one, and let me know if you think David Weslow's clients in the Associated Recovery case are thieves because they bought names from a court-appointed trustee, as claimed by the plaintiff in that case

In the case of domains, you are required to keep up on your payments or forfeit the "asset", much like a car, whether it's leased or purchased on a payment plan.

I'd also really like to know how you put a value on a domain in that kind of situation.

I guess if there are clear and binding offers to buy that could be used for a value. But what other measures could there be and who could be trusted to set them?

I bet there are several $100 binding offers to buy domains that might sell for 5 figures if auctioned off.

 

[jberryhill]

But what other measures could there be and who could be trusted to set them?

Typically, the parties engage experts for that purpose, and the court decides whom it believes. In one branch of the murky swamp of Jeff Baron cases, for example, it went thusly:

http://www.leagle.com/decision/In BCO 20121122081/IN RE ONDOVA LIMITED COMPANY

13. This court describes herein the categories or types of Domain Names for a variety of reason. First, the question of value of these names has been hotly disputed at the Confirmation Hearing. Mr. Baron has objected vehemently to the sale of the Domain Names. He believes they are worth $60+ million, which is far less than the $5.2 million Winning Bid for the Domain Names. But the credible evidence from the Confirmation Hearing (from the Receiver; the Chapter 11 Trustee; Mr. Baron; Matthew Morris (the Receiver's expert); Thies Lindenthal (Mr. Baron's expert); and Steve Lieberman, a lawyer representative for the Winning Bidder, by telephone) just does not support such a conclusion. As pointed out, a great many of the Domain Names are Typo-Squatting Names (subject to challenge as trademark infringing and likely to be culled out, as further described below) or are Pornography Names (many of which will be culled out because of their Child Pornography nature). The Generic Names are the names that mostly have potential interest and value and some history of earning revenue. The court also points out the nature of the Domain Names for another reason. Mr. Baron has represented himself as being a "grandfather" of the internet and a business entrepreneur being deprived of his livelihood. Mr. Baron has spent enormous time in the court system, purportedly to protect his business interests. The Confirmation Hearing was the first time this bankruptcy court (and perhaps any court) has been given a full flavor for the nature of the Domain Names. As set forth above, a great majority of the names are centered around what is commonly referred to as typo-squatting or cyber-squatting and, essentially, involves leasing a name that is arguably subject to another person's trademark. And, while this court does not pass judgment on the societal value of the Pornography Names, certainly, it does not pass the "smell-test" (or good faith notions) to ask this court or any other court to value or protect Mr. Baron's right to Child Pornography Names such as "naked13yearolds.com."

 

[jberryhill]

The reference to "stiffing" the creditors is not accurate.

Well, it all depends on whether you are one of the creditors, or whether you decide to run for president.

The primary creditor was the US Dept. of Education, which had a different view of the situation in their unsuccessful appeal of the bankruptcy discharge. The way they looked at it is described in their appeal in Case 2:13-cv-00465-JLR Document 9 Filed 06/17/13:

---------
For instance, the Powells’ bank statements from 2010 to 2012 reflect that the Powells still routinely visited Slo-Pitch Pub and Casino and Silver Reef Casino. See (Tr. Ex. D-3). In fact, the Powells visited them at least 45 times in 2010. Id. (per their bank statements). Mrs. Powell denies that she and Mr. Powell gamble at these casinos. See (TTR at 134) (stating that they eat out at these casinos and visit with friends). However, there is no question that the Powells have gambled there in the past. Mrs. Powell testified that she reported gambling winnings from Slo-Pitch Pub and Casino in 2005. See (TTR at 132); (Tr. Ex. D-1) (W-2G reflecting winnings). And Mrs. Powell testified that Mr. Powell reported gambling winnings from Silver Reef Casino in 2008. See (TTR at 132-133); (Tr. Ex. D-2) (W2-G reflecting winnings). Mrs. Powell also admits that around the time of taking out the student loan, she was playing in poker tournaments. See (TTR at 138-39) (stating that she began playing in them in 2005).


The circumstantial evidence shows that the gambling has continued. Between 2006 and 2011, the Powells’ credit card statements not only show money spent at the same two casinos, but also show large ATM cash withdrawals at those locations, on those same dates. See, e.g., (Tr.Ex. D- 4) (Alaska Airlines Credit Card Statements). For example:

1. January 30, 2008: An entry for Silver Reef Casino in Ferndale, WA. Id. at 30. And an entry for ATM withdrawals from a Ferndale WA ATM for $400. Id. at 29.
   
2. April 27, 2008: An entry for Silver Reef Casino in Ferndale, WA. Id. at 33. And an entry for an ATM withdrawal from a Ferndale WA ATM for $200. Id. at 34.
   
3. November 19, 2008: An entry for $200 taken with the notation “ATM Transaction, Slo Pitch.” Id. at 41.
   
4. November 20, 2008: An entry for $200 taken with the notation “ATM Transaction, Slo Pitch.” Id. at 41.
   
5. November 24, 2008: An entry for $100 taken with the notation “ATM Transaction, Slo Pitch.” Id. at 42.
   
6. November 26, 2008: Two $100 entries taken with the notation “ATM Transaction, Slo Pitch.” Id. at 42.
   

These examples were noted to the Bankruptcy Court in closing argument. See (TTR at 174-175). There are also other examples from other years. When the Powells visited Las Vegas in 2009 (while the loan was in forbearance for “economic hardship”), the Powells’ credit card statement shows a $400 ATM withdrawal from Caesar’s Palace and another ATM withdrawal for $400 from The Orleans Casino, Las Vegas. See (Tr.Ex. D-4), 57 and 59. Likewise, in 2010, entries for Slo-Pitch Pub and Casino align with ATM cash withdrawals. See, e.g., (Tr.Ex. D-3), at 1 (December 20, 2010 charge to Slo Pitch and December 20, 2010 ATM withdrawal for $320).6 These incidents provide strong evidence that the Powells have continued to gamble well into the period of their loan repayment obligations.
--------

The Dept. of Education, it should be noted, lost that appeal. But the "creditors" were US taxpayers and not some payday loan outfit.

 

[jberryhill]

The central issue here is simple. The ownership of the domain name. The tactics used by the plaintiff were legal but unscrupulous.

You have my unqualified agreement on that point.

 

[DU]

Mrs. Powell denies that she and Mr. Powell gamble at these casinos

Should have said "strenuously denied".

By the way, I became a grandfather a few months ago, so anyone who disagrees with me is hereby on notice of my automatic credibility pass attaching to everything and anything I say. You shall henceforth refer to me as Grandfather Berryhill.

Congratulations.


I know I said I would leave but it got interesting again.

 

[Silentptnr]

Well, it all depends on whether you are one of the creditors, or whether you decide to run for president.

The primary creditor was the US Dept. of Education, which had a different view of the situation in their unsuccessful appeal of the bankruptcy discharge. The way they looked at it is described in their appeal in Case 2:13-cv-00465-JLR Document 9 Filed 06/17/13:

---------
For instance, the Powells’ bank statements from 2010 to 2012 reflect that the Powells still routinely visited Slo-Pitch Pub and Casino and Silver Reef Casino. See (Tr. Ex. D-3). In fact, the Powells visited them at least 45 times in 2010. Id. (per their bank statements). Mrs. Powell denies that she and Mr. Powell gamble at these casinos. See (TTR at 134) (stating that they eat out at these casinos and visit with friends). However, there is no question that the Powells have gambled there in the past. Mrs. Powell testified that she reported gambling winnings from Slo-Pitch Pub and Casino in 2005. See (TTR at 132); (Tr. Ex. D-1) (W-2G reflecting winnings). And Mrs. Powell testified that Mr. Powell reported gambling winnings from Silver Reef Casino in 2008. See (TTR at 132-133); (Tr. Ex. D-2) (W2-G reflecting winnings). Mrs. Powell also admits that around the time of taking out the student loan, she was playing in poker tournaments. See (TTR at 138-39) (stating that she began playing in them in 2005).


The circumstantial evidence shows that the gambling has continued. Between 2006 and 2011, the Powells’ credit card statements not only show money spent at the same two casinos, but also show large ATM cash withdrawals at those locations, on those same dates. See, e.g., (Tr.Ex. D- 4) (Alaska Airlines Credit Card Statements). For example:

1. January 30, 2008: An entry for Silver Reef Casino in Ferndale, WA. Id. at 30. And an entry for ATM withdrawals from a Ferndale WA ATM for $400. Id. at 29.
2. April 27, 2008: An entry for Silver Reef Casino in Ferndale, WA. Id. at 33. And an entry for an ATM withdrawal from a Ferndale WA ATM for $200. Id. at 34.
3. November 19, 2008: An entry for $200 taken with the notation “ATM Transaction, Slo Pitch.” Id. at 41.
4. November 20, 2008: An entry for $200 taken with the notation “ATM Transaction, Slo Pitch.” Id. at 41.
5. November 24, 2008: An entry for $100 taken with the notation “ATM Transaction, Slo Pitch.” Id. at 42.
6. November 26, 2008: Two $100 entries taken with the notation “ATM Transaction, Slo Pitch.” Id. at 42.

These examples were noted to the Bankruptcy Court in closing argument. See (TTR at 174-175). There are also other examples from other years. When the Powells visited Las Vegas in 2009 (while the loan was in forbearance for “economic hardship”), the Powells’ credit card statement shows a $400 ATM withdrawal from Caesar’s Palace and another ATM withdrawal for $400 from The Orleans Casino, Las Vegas. See (Tr.Ex. D-4), 57 and 59. Likewise, in 2010, entries for Slo-Pitch Pub and Casino align with ATM cash withdrawals. See, e.g., (Tr.Ex. D-3), at 1 (December 20, 2010 charge to Slo Pitch and December 20, 2010 ATM withdrawal for $320).6 These incidents provide strong evidence that the Powells have continued to gamble well into the period of their loan repayment obligations.
--------

The Dept. of Education, it should be noted, lost that appeal. But the "creditors" were US taxpayers and not some payday loan outfit.

The fact is, none of that matters. These expenditures were a drop in the bucket compared to what these creditors routinely do to consumers. I could go on and on about the injustices that exist in the credit world, but that is not, in my opinion, the subject here.

As a matter of fact, its interesting to read the biography of the fitness trainer. Receptionist, turned trainer, turned "Life Coach". I mean really. "As a transformation specialist, I am a trainer, life coach, friend, therapist (not licensed), mom, sister, daughter, doula (yes, for one of our Season Four peeps), stylist, hair dresser, nutritionist…I am whatever people need me to be to make sure they have the most successful transformation possible. When you care so much about people, you will do anything to help them realize their own potential."

I think I'm going to gag. I eat people like this for lunch everyday in debate.

Some would even say that her multiple baby daddys is an issue too. Not our business. I certainly don't care. Based on this however, there is a chance that the fitness woman might even change her last name again....then what?

 

[jberryhill]

I think I'm going to gag.

Yup. "I am whatever people need me to be" if there's a dollar in your pocket. She's a fine example of vacuous self-obsession. Then again, that kind of thing seems to be popular these days. There was a time when people who constantly boasted about themselves were considered people to avoid.

 

[Keith]

Now I'm curious...

If the .com owner has legitimate content, could she file a udrp against the .net owner?! That would really teach the hijacker...

 

[NameAcquisitions]

This is ultimately about a name. Not a trademark. Both are Heidi Powell. Both have legitimate interests in their names/sites. A lot of people focus on the date. Buy really, no matter when grandma Powell got the .com, the other Heidi couldn't just take it from her because she is famous. Possibly if someone else owned it. But not someone with the name. Udrp would be ridiculous either way. IMO. I'm not a lawyer.

 

[Slanted]

But assume you were to declare a domain in a bankruptcy filing - how do you put a value on it? To my knowledge, there is zero way to put a true value on any one domain.

The way I got involved in this case – and the only way I am involved, really – was answering a request by David Weslow, made through the ICA, for a statement regarding the market value of the domain name HeidiPowell.com.

Because I'm primarily a domain market analyst and have gathered a fair chunk of data, this was an area where I knew I could shine some light on the facts. So I looked at cases where first-name-last-name domains have sold at auction – for instance at GoDaddy Auctions, which I've monitored every day since 2014 – examining price distributions when sales do occur, and measuring the frequency of those auction sales against the much higher incidence of domains dropping without any bids at all. Conclusion 1: Market interest is rare. Conclusion 2: Prices are usually quite low even when there is non-zero market interest.

Additionally, I examined other name combinations – specifically (A) the most popular first names + Powell and (B) the most popular last names + Heidi. I was able to show that the majority of these are not registered at all. Even with far more people alive in the USA using those names, the market demand is thus LESS THAN reg fee. Conclusion 3: Average market value for the vast majority of first-name-last-name combinations such as HeidiPowell.com falls somewhere between $0 and $10.

Now, yes, the 2010 market value of "HeidiPowell.com" was pretty much nil, but if my expert in that proceeding was sounding off elsewhere with loaded language suggesting that the expert opinion was driven by some animus instead of objective professional considerations, I'd be kind of disappointed that my expert was undermining my case.

Yes, I've considered that. But any expert is bound to have some perspective on ethics as well as facts. If I publicly condemn X, that condemnation doesn't contradict the facts I have assembled. Irrelevant, ad hominem.

I made absolutely sure to gather facts that any layperson outside the domain industry can easily verify. They can see for themselves that the bulk of domain names like HeidiPowell.com aren't even registered. Even given hundreds or thousands of people sharing the name, the market value is negligible.

Even if someone believes I have some sort of ax to grind, that makes no difference. Empirical facts are empirical facts. If the lawyers involved choose to disregard the facts I have assembled, dismissing them because I have spoken out, then they are ignoring logic and failing to do their duty. I have more faith in lawyers than that. Am I wrong?

 

[Slanted]

@jberryhill,

The gambling thing is probably misunderstood by people who don't live in Washington. There's a lot of tribal land in Washington and hence a lot of casinos. I lived on Bainbridge Island (across from Seattle) for some time. Although I personally spent most of my off time in Seattle, most of my Navy shipmates as well as the local residents in nearby towns like Poulsbo and Silverdale chose to spend their Friday and Saturday nights hanging out at the Squamish casino. Bainbridge, for instance, basically shut down at 6 p.m. The forest is really dark without street lights, especially that far north in winter. And that makes the casino a bright and attractive spot to meet up.

Even though Seattle was only a ferry ride further, culturally Seattle is more youth-oriented and more liberal. So for most people, the neighborhood casino is 50-75% of the night life. That's where people would go to socialize, have dinner, hear live bands, etc. Week after week, all year long. Taking money out of an ATM at a Washington casino really doesn't imply an insidious gambling addiction. That would smear pretty much all the active duty Navy guys stationed there plus most of the Washington locals.

 

[Slanted]

Whether an asset has emotional value, market value, or whatever, isn't relevant to the fact that if you are going to take advantage of the bankruptcy laws to stiff your creditors - which is fine - then you are also obligated to inventory your assets.

Inventory your assets, sure – but within reason! Not your toothbrush. Not each used pair of socks. Not the business cards you may have printed for yourself. Not personal letters you may have received. Etc. Most domain names are worth less than $10.

A domainer probably ought to catalogue his domains as assets in the event of bankruptcy because a domainer does buy them on the presumption of market value. So should a corporation, whose primary web address may have accrued some value due to marketing. For instance, BestBuy needed to consider BestBuy.com an asset. But should a person be forced to declare as a sellable asset their own personal name, used as a .COM for their own email?

I strongly object to that. First, on the basis of common sense – because the domain intrinsically has so little market value that it's on par with a stack of printed business cards or a worn pair of shoes. Second, because a person's personal name as a domain name ought to be privileged. Our own name isn't in the same category as some generic premium .COM or some brand name for a defunct business. The law ought to consider that a personal name is a unique case, in which special rights do inhere.

Yes, I know domain industry professionals who buy valuable domain names from trustees after bankruptcy. But those domains usually have demonstrable market value. They're also a different type of domain – generic words or phrases, LL or LLL acronyms, or brand names made valuable for SEO or in terms of consumer name recognition after years of big-budget marketing (e.g. RadioShack.com or BestBuy.com or Borders.com). The case of HeidiPowell.com is essentially unlike those other cases.

Here's how I see this case, John. Imagine that you went bankrupt. Imagine that you once received some personal letters from the late supreme court justice Antonin Scalia, after a torrid Berryhill-Scalia love affair. Those letters have no market value. They're just ink and paper, and there is no hot market of Scalia collectors, bidding furiously for documents concerning his sex life. So a bankruptcy court would be right to pass over such personal letters without inventorying them – (1) because they're of negligible value; (2) because they're quite personal.

But let's suppose there is exactly 1 person in the world who is obsessed with Scalia's sex life: Me. Although you want to hold onto those letters as a memento of the late love of your life, I want to take them from you so that I can use them as a prop in my own smutty Scalia fantasies. Am I right to take them from you? No. But because of your bankruptcy I can take advantage of the situation. By offering a bribe of $xx,xxx, I can IMPOSE a market value on those scraps of paper. I can re-open bankruptcy proceedings and confiscate those letters from you. Merely because I want what you have and you happened to go bankrupt, I can attach a bribe to ANYTHING you own and effectively take ANYTHING from you – never mind that it's otherwise worthless in the open market. In this situation, greed is given an unnatural standing in law. To this I do object.

Not every legal dispute boils down to a moral outrage.

Obviously, I'm not a lawyer. And I've made some carless mistakes, misremembering as a UDRP what was (uncommonly) a lawsuit. (It had been several months since I read the details.) My disagreeing with John Berryhill on matters of Law would be as foolish as me arguing with Stephen Hawking re. astrophysics. What I am confident of is the market demand for the domain name HeidiPowell.com; and I regard it as an absurd outrage that a bankruptcy case would focus on this domain, especially when it the woman's own personal name.

This case really isn't a priority of mine, and I have no time for it. But I was asked to help, and I don't like turning people away who ask me for help. It isn't necessary to boil this dispute down to "moral outrage". But it might be boiled down to some moral clarity, and I think it does. Grandma Powell ought to be able to keep her name / domain, whereas the fitness trainer – who has obviously acted unethically – ought to be rebuffed.

 

[DU]

Taking money out of an ATM at a Washington casino really doesn't imply an insidious gambling addiction. That would smear pretty much all the active duty Navy guys stationed there plus most of the Washington locals.

These incidents provide strong evidence that the Powells have continued to gamble well into the period of their loan repayment obligations.

I would think that a trip to Vegas and $800 withdrawn ... and $700 over a week from an ATM along with credit card bills .... shows that,circumstantially at least, not full attention was paid to a debt obligation for a student loan.

I don't know where you get the language of smear or claims of an insidious gambling addiction.

But let's suppose there is exactly 1 person in the world who is obsessed with Scalia's sex life

There might be another obsessed with Granfather Berryhill's sex life making 2 people!

It's slightly different because while the name is probably of negligible value, the other Heidi Powell was, I believe, famous at the time and thus it arguably did have value to her. Had she claimed it at the time would that change things? Would it then be stealing or using the system? Is it just the after the fact aspect that gets the disapproving eye?

Many domainers buy names that only have one or two potential buyers.... seems the Trustee took care of the issue anyway... and I'm sure that as kinky as Scalia and GB could get we'd be safe from exposure to the sordid details in that case also.

 

[Slanted]

These incidents provide strong evidence that the Powells have continued to gamble well into the period of their loan repayment obligations.

True or false, that's nothing to do with domain owner rights. And none of anybody's business here, I should think.

 

[Keith]

Additionally, I examined other name combinations – specifically (A) the most popular first names + Powell and (B) the most popular last names + Heidi. I was able to show that the majority of these are not registered at all. Even with far more people alive in the USA using those names, the market demand is thus LESS THAN reg fee. Conclusion 3: Average market value for the vast majority of first-name-last-name combinations such as HeidiPowell.com falls somewhere between $0 and $10.

All the analysis in the world is irrelevant when you have something that is truly one of a kind. With domains, the real value consists of 2 parts and 2 parts only - what will someone pay and what will someone accept.

My first/last name sat unregistered for years, I didn't care. Then someone paid $8 at Godaddy, held for a year and dropped it. Dropcatch scooped it up when it deleted and wants $x,xxx. They won't accept less and I wouldn't pay $8. Now what's the real value?!

Some domains sit idle and the owner tells you it's simply not for sale. How do you value those domains? Truth is that you can't. You can guess like Estibot for example, but we all know valuation tools/analysis, is worthless.

If Heidi Powell wants to ask $10 or $1 million, she's entitled. If the fitness thief pays the ask then we've established value. No other way to go about putting a number on it.