The Supreme Court of Kentucky released what turned out to be a non-decision on March 19th, 2010 on the 141 online gaming-related domain names like online poker sites the state tried to confiscate. The Supreme Court officially changed the Court of Appeals decision in favor of the Interactive Media Entertainment and Gaming Association (iMEGA) and Interactive Gaming Council (IGC)-but it is only on a temporary basis.
The court decided that IGC and iMEGA did not show any power to litigate on behalf of unknown domain registrants. It means that a person who owns one of the online companies that is a member of one of the associations must declare ownership to one of the online domain names.
IGC and iMEGA have twenty days to refile before the Kentucky Court of Appeals and file an affidavit from an individual stating that they are a member of one of the associations and that that the association has the power to represent them.
iMEGA head Joe Brennan Jr. said that he already had one member volunteered to speak out in a conference call regarding with the decision on the association's membership. Brennan said that they are going to refile it and they will get one of their members to give an affidavit for the court that they are a part of the company and that thet are an official part of iMEGA and that is all that they need in order to proceed.
Brennan said that if they prevail, it will work for all unnamed online domain owners. The encouraging portion of the decision was that "numerous arguments supporting the grant of writ of prohibition have been shown-although all arguments may have some substance, none can be actually considered unless filed by a group with standing".
So as long as the groups carefully follow this rule, it appears that their lawsuit can win on merits. They will not have to file any additional arguments and will have to refile the case with the Court of Appeals, making a motion to have the lawsuit moved back to the Supreme Court of Kentucky and another decision-a real decision-will be released on past arguments.
Brennan said that it does not usually happen that a state court states that "do this and come back to refile the case". The decision does not affect the overall standing of standing of iMEGA to represent the online gaming industry in the courts, as it has like in last year's 3rd Circuit Court of Appeals challenge of the UIGEA (Unlawful Internet Gambling Enforcement Act).
The decision is that where there is a finite number of 141 affected parties, iMEGA is not representing the whole industry but these specific affected parties. So one of the individuals has to admit ownership of an organization connected with iMEGA.
The group has avoided acknowledging its members to keep them out from the scrutiny of the Department of Justice. Brennan said that from the start, the main reason why they kept the names of the 141 companies confidential is they did not want to make anyone a target for retaliatory action. He added that they do not want to place anyone in an uncomfortable position and until now, that kind of representation has been acceptable with the federal courts.
04/18/2010 12:42 PM