text:
The Complainant is Gloria-Werke H.Schulte-Frankenfeld GmbH & Co, a German corporation with its principal place of business at Wadersloh, Germany. The Complainant is represented by Dr. Rolf Diekmann, Attorney-at-Law of Lichtenstein, Körner & Partners of Stuttgart, Germany.
The person in whose name the disputed domain name is currently registered is Gloria MacKenzie of Silver Springs, MD, United States of America. A Response on her behalf was filed by Mr. Ari Goldberger of ESQwire.com Law Firm of Cherry Hill, NJ, United States of America. However, Gloria MacKenzie was not the registrant when the Whois record was searched by the Complainant on November 5, 2001. The registrant for the disputed domain name was then Internet Development Corporation (IDC) which was shown also as the administrative, technical and billing contact. The only physical address then given was the State of Maryland, United States of America. A telephone number and an email address <warren@warren.com> were provided. IDC was replaced as Registrant on January 22, 2002 by Gloria MacKenzie for whom a street address and other contact details were given.
This was the same date as that on which the Complaint had been received by World Intellectual Property Organization Arbitration and Mediation Center ("the Center") from the Complainant. A copy of the Complaint was sent to IDC by the Complainant on that day also. A copy was not sent to the Registrar. On February 8, 2002, the Registrar advised The Center that there had not been any change of registrant and that Gloria MacKenzie and IDC are "the same entity with different representative names". That advice was a simple �yes� to an inquiry in those words from the WIPO Case Manager. The Registrar had responded on February 7, 2002 to the Case Manager�s inquiry whether there had been a change of registrant on January 22, 2002, to a different entity or individual and when that transfer had been requested and approved. The Case Manager asked for a telephone number to enable further discussions. Such number was not given and the Case Manager�s attempts to telephone the relevant person at the Registrar�s office were unsuccessful. The Registrar�s reply of February 7, 2002, states: "That is EXACTLY what I provided to you. There was NO transfer. The person changed updated their contact information on 1/22/02. Just have the Complainant file an addendum � maybe I don�t understand what the problem is?"
The Complainant discovered on January 23, 2002, that the Registrar had changed the name of the registrant. The Complainant submitted that this action was a clear case of �cyberflying� and sought to file an amendment to its Complaint, seeking, if necessary, the addition of Gloria MacKenzie as a Respondent.
A thorough account of the numerous interactions in this area can be found in the dissenting opinion of one of the Panelists.
On February 11, 2002, Mr. Goldberger asserted to The Center that Gloria MacKenzie was neither a contact nor an affiliate of IDC which had been but a host for the domain name <gloria.com>. This name had been inadvertently registered in the name of IDC when IDC had changed Registrars for several domain names which it hosted on behalf of clients. Prior to this event, the disputed domain name had been registered since 1995 in the name of Gloria MacKenzie who is still the owner. The change in the name of the registrant was said to be merely action to correct a mistake, initiated by Warren Weitzman, who operates IDC and who is the "Warren" of <Warren.com>. Affidavits from him and from Gloria MacKenzie were filed to support these allegations.
The Panel is concerned with the actions of the Registrar in registering a change of registrant and/or of Mr. Weitzman in procuring the change with apparent ease, at a time when at least Mr. Weitzman knew of a pending Complaint under the Policy. See paragraph 8 (a) of the Policy. If the Registrar was unaware of the pending complaint, then Mr. Weitzman should have informed it.
Under the Policy, which forms part of the registration agreement, a registrant may not transfer a domain name registration to another holder [par.8(a)] or another registrar [paragraph 8(b)] during a pending proceeding under the Policy or for 15 business days after its conclusion.
A complaint is initiated by the trademark owner sending a properly constituted complaint to any Provider approved by ICANN -�Rule 3(a). A copy must already have been sent to the respondent by the complainant � Rule 3(xii). The date of commencement of the proceeding is the date on which the Provider completes its responsibilities in connection with forwarding a copy of the complaint to the respondent (after checking all the formalities, which can take several days) � Rule 4(c).
"To interpret section 8(a) of the Policy in such a way as to permit transfers of registration after notice of the complaint to the respondent but before official commencement of the proceedings by way of notification from the provider would not do justice to complainants who have initiated complaints in accordance with the Policy and the Rules. Moreover such an interpretation would appear to permit, if not encourage the phenomenon of cyberflying, where a registrant of a domain name dispute case, systematically transfers the domain name to a different registrant to disrupt the proceeding".
In that case, the transferee of the domain name was an associate of the respondent who had knowledge of the complaint before the transfer took place. The panel held that neither the change of registrant nor of registrar affected the proceedings. In the event, the new registrar was directed to transfer the domain name <bbcnews.com> to the BBC.
In this case, after receiving the complaint, Mr. Zuccarini transferred three of the Disputed Domain Names to a different registrar and into his own name. The panel finds these circumstances identical to those in the BBC case and that neither the change of registrant nor or registrar affects these proceedings."
To similar effect is the decision in AT & T Corp v. W.N.A. (with various aliases) (WIPO Case No. D2001-1160). In that case a transfer order was made against both the registrant at the time the Complaint was received and the registrant to whom the name was transferred shortly thereafter. The same Registrar was involved as is in the present case.
The Panel is also concerned at the Registrar�s rather unsatisfactory answers to inquiries made by The Center concerning the transfer. The Panel considers that the co-operation of the Registrar in dealing with the Center�s inquiries was less than ideal. Further detail can be found in the dissenting opinion.
However, the Panel, at the outset of the decision, should decide who is the primary Respondent. The Panel considers that IDC must be, on the basis that it was the registrant at the time when Complainant filed its Complaint. Because of the knowledge of the pending complaint of the person controlling IDC, Mr. Weitzman, the registration on January 22, 2002, to Gloria MacKenzie cannot be recognized by the Panel because of the �cyberflying� principles quoted from the WIPO decision above.
The register must be taken as reflecting the correct identity of the registrant of a domain name. There can be no room for a bare trustee or a nominee or an agent holding on behalf of a beneficiary or principal, so far as third parties are concerned. Like shipping and land registers operating in many common law jurisdictions under the "Torrens System", the register must be taken at its face value. However, because of the transfer to Gloria MacKenzie, a majority of the Panel considers that she should also be joined as a Respondent, being an interested party. The majority considers that she has consented to this course.
Accordingly, the majority of the Panel considers that the correct Respondents are IDC and Gloria MacKenzie and grants the Complainant�s request to join Gloria MacKenzie as a Respondent.
The domain name at issue is <gloria.com>. The domain name is registered with eNom, Inc. of Redmond, WA, United States of America ("the Registrar").
The Complaint submitted by the Complainant was received on January 22, 2002, (electronic version) and January 22, 2002, (hard copy) by the Center. An Addendum was made to the Complaint before any dispatch to the Respondent.
- Confirm that the domain name at issue is registered with the Registrar.
- Confirm that the Uniform Domain Name Dispute Resolution Policy was in effect.
- Indicate the specific language of the registration agreement used by the registrant.
- Indicate whether the registrant has submitted in its Registration Agreement to the jurisdiction at the location of the principal office of the Registrar for court adjudication of disputes concerning or arising from the use of the disputed domain name.
- It had not received a copy of the Complaint from the Complainant.
- It is the Registrar of the domain name registration <gloria.com>.
- IDC is not shown as the "current registrant" of the domain name. Gloria MacKenzie is shown as the domain name registrant, administrative, technical and billing contact. A street address in the State of Maryland was provided for her.
- The domain name registration is currently on "lock"
- English is the language of the Registration Agreement.
-- The Registration Agreement was submitted to the jurisdiction of the principal office of the Registrar.
The Registrar has currently incorporated in its agreements the policy for Uniform Domain Name Dispute Resolution adopted by the Internet Corporation for Assigned Names and Numbers (the "Policy").
The Registrar advised that the domain name in question is on "lock". Neither Respondent has sought to terminate the agreement with the Registrar. Accordingly, the Respondents are bound by the provisions of the Policy. The Respondents have not challenged the jurisdiction of the Panel.
The Complainant filed an Addendum to its Complaint on February 14, 2002, (email) and February 18, 2002 (hard copy).
A copy of the Complaint and Addendum was also emailed to the Registrar and ICANN. The addressee was "Internet Development Corporation a/k/a Gloria MacKenzie".
The Complainant elected to have its Complaint resolved by a one-person panel. The Respondent sought a three-person panel. Both parties have paid the required amounts to Center.
The addressees were advised that a Response to the Complaint was required within 20 calendar days and that any Response should be communicated, in accordance with the Rules, by four sets of hard copy and by email.
A Response was filed by email on March 11, 2002, and by hard copy of March 12, 2002, under the name of Gloria MacKenzie and not under the name of IDC. Because Mr. Goldberger filed an affidavit from Mr. Weitzman and referred in the Response to the situation should IDC be the correct Respondent, the Panel assumes that he acts for IDC/Mr. Weitzman as well as for Gloria MacKenzie and that he sees no conflict of interest in acting for them all. In fairness to both Respondents, the Panel has considered all the material filed in the name of Gloria MacKenzie. The Panel concludes from a consideration of all relevant material that she has consented to being joined as a Respondent.
The Center invited the Honorable Sir Ian Barker QC of Auckland, New Zealand to serve as Presiding Panelist in the case. It also invited Mr. Milton Mueller of Syracuse, NY, United States of America and Mr. Cecil O.D. Branson QC. of Salt Spring Island, BC, Canada to be Co-Panelists. It transmitted to all Panelists a Statement of Acceptance and requested a Declaration of Impartiality and Independence.
All Panelists duly advised acceptance and forwarded to the Center an executed declaration of impartiality and independence. The Panel finds that the Administrative Panel was properly constituted in accordance with the Rules and the Supplemental Rules.
On April 4, 2002, the Center forwarded to the Panel by courier the relevant submissions and the record. In terms of Rule 5(b), in the absence of exceptional circumstances, the Panel is required to forward its decision by April 18, 2002. Because of the difficult nature of this case, the Panel�s decision has been delayed to April 25, 2002.
The Panel has independently determined and agrees with the assessment of the Center that the Complaint meets the formal requirements of the Rules and the Supplemental Rules.
The Complainant is a manufacturer of portable fire extinguishers and systems, garden tools and appliances, in particular, sprayers for water and other fluids. Founded in 1945, it has customers in more than one hundred countries. It has trademark registrations in numerous countries including the United States (Federal trademark 1142729, registered February 5, 1985). Its trademarks extend to European countries, Latin America, Middle East, Asia, Africa and the Pacific.
According to the Response, the word �Gloria� is incorporated in 94 active and pending US trade mark registrations: the Internet search engine Google yielded 2.4 million pages on the Internet containing the name �Gloria�. From an Internet yellow pages directory search, there are a 100 businesses in the US incorporating the word.
The disputed domain name resolves to a web-site greeting of two pop-up screens loaded with advertising from an online shop and a credit card company. The pop-up screens are automatically sent to the Windows taskbar at the bottom of the screen: the user has to open and maximize these screens one by one in order to remove them. There is an advertisement indicating that <www.gloria.com> is undergoing development. For development information only, call 301 980111" (the telephone number given for IDC in the Whois information referred to earlier). There is more advertising linked to online shops and a list of links headed "The site has not yet been developed � try searching the Internet on these popular categories".
In June 2000, the Complainant emailed the Respondent to see whether the name could be acquired. Mr. Weitzman replied that the domain name was registered to Gloria MacKenzie but "although she plans on developing this in the future � she would sell it to you if you offered her enough. Please feel free to make an offer on sale or lease". On July 5, 2000, Mr. Weitzman offered to sell the name for a purchase price of $100,000 or grant 3-year lease for $500 each month under the condition that Gloria MacKenzie could use the name for emails. On November 9, 2001, Mr. Weitzman again confirmed Ms MacKenzie�s willingness to sell but would not change his conditions. He stated "gloria.com is a premium domain name and it gets millions of unique visitors we have no intention of giving it away".
It seems that the transfer of Registrars took place on February 9, 2000, from the Whois information (Annex 1 of the Complaint). The Complainant alleged that this date was November 28, 2000, but no documentary proof was offered. Mr. Weitzman'� affidavit says the transfer when the name of the registrant mistakenly became IDC took place in February 2000.
That the domain name is identical to the Complainant�s registered mark. Respondent has no legitimate rights to or interest in the name. She was given none by the Complainant.
Mr. Weitzman is an active cybersquatter with about 750 domain names registered which he holds to sell at a price beyond registration costs. A list of these domain names is secretly stored on the web-site corresponding to each name, e.g. under <gloria.com/statsreferrer.html> the Respondent lists a number of users sent from one of his domain names (e.g. <gloria.com>) to another. The Respondent owns or controls hundreds of four letter domain names which are acronyms of international organizations, universities, public organizations, Spanish translations of well-known web-sites, names of shopping malls as well as minor variations to well-known trademarks (�typosquatting�). The Respondent is not complying with his obligations to provide information and his whereabouts in his registration particulars. The initial Whois inquiry showed IDC as the Respondent with an address only in a state, no street address and no contact person other than an email address and a telephone number. IDC is not shown to be a registered company or business name. Mr. Weitzman has full control over Gloria MacKenzie whom he is using as a pawn in his game of cybersquatting. Mr. Weitzman�s modus operandi has been discussed in an NAF Case, Montgomery Mall Associates Limited v. Smirk Inc (FAO 10400097042).
The contested domain name used is for the benefit of Mr. Weitzman, even though he pretends that the current registrant uses the domain names for her private email address. There is nothing to support this allegation.
The Respondent is guilty of �cyberflying� i.e. changing/transferring a domain name subsequent to receiving notice of a complaint. The registration to IDC took place without Gloria MacKenzie being involved or even informed. Mr. Weitzman used his access to the Registrar�s database to change the name. Because Mr. Weitzman is an experienced cybersquatter, owing hundreds of domain names, it is beyond belief that such a person assumed the ownership of a highly valuable asset by mistake as alleged, and that the registration was changed from that of Gloria MacKenzie through error or inadvertence. The relevant registration must be that shown as at the date of filing of the Complaint. Subsequent transfers of disputed domain names or transfers of registrant�s business should be ignored. There are numerous WIPO decisions to this effect.
This case is distinguishable from those decisions where panels have refused to transfer domain names because generic names or terms have been involved. For example in Rusconi Editore SDA v. Freeview Publishing Inc, WIPO Case No. D2001-0875, <donna.com>, the Respondent was a developer who had designed web-sites and acquired names one by one. He could not have known about the registration at the time he acquired the domain name. Here, the Complainant alleges that the Respondent acquired the domain name when he had already received requests from the Complainant to transfer the name in which the Complainant asserted its rights. Mr. Weitzman could easily have learned about the US trademarks by search so that he had constructive knowledge from the beginning. The information supplied to the Registrar also distinguishes the case from the <donna.com> case.
The registration was in bad faith because of IDC�s actions and because the parties were affiliated. There was a close business relationship between Mr. Weitzman or his company and Gloria MacKenzie which is enough to taint Gloria MacKenzie with his conduct. In 1995 there was bad faith because there was never any intention to build a legitimate web-site for the name; from the beginning, its use was for cybersquatting activities.
IDC is not the correct Respondent but merely a third party domain name hosting service which has been in operation since 1999. From 1995 � 1999, it operated under the name justnet.inc., which took over the management of Gloria MacKenzie�s domain name after she first registered it on September 14, 1995.
IDC currently hosts over 1,000 domain names for third-party registrants. In February 2000, Mr. Weitzman transferred registration of all domain names that IDC was hosting for third parties including <gloria.com> from Network Solutions Inc. (NSI) to eNom, Inc. When the transfer took place, IDC�s contact information was inadvertently used by eNom, Inc. as registrant information. Mr. Weitzmann refers to correspondence between eNom, Inc.�s transfer manager and himself. Prior to the change of Registrars, Ms. MacKenzie was listed as registrant with NSI, the previous Registrar. Until the filing of the Complaint, Ms. MacKenzie was unaware that IDC and not herself was listed as the registrant. This is not a case of �cyberflying�. The above allegations are supported by affidavits from both Mr. Weitzman and Ms. MacKenzie.
The business of dealing in domain names and/or hosting them is a legitimate business.
Paragraph 4(c)(ii) of the Policy applies. The name �gloria� is that by which Ms. MacKenzie is commonly known. She also uses the name for her email address which is a non-commercial use which establishes rights under paragraph 4(c)(iii) of the Policy.
There is no evidence that registration was in bad faith and that Ms. MacKenzie should be deemed to have known of the Complainant�s mark at the time of registration in 1995. In any event, gloria is a common girl�s name to which the Complainant cannot hope to have exclusive rights. The equitable doctrine of laches applies to defeat the Complaint.
Mr. Weitzmann was acting on behalf of Ms. MacKenzie in the negotiations with the Complainant about selling the name. She was never contacted personally but Mr. Weitzman presumed that she would be interested in a good offer.
Respondent relies on the statement of the Panel in the <donna.com> case (supra).
"Donna is commonly used as a women�s name in English. Despite having registered trademarks for that word in particular classes, the Complainant does not have exclusive rights to this common word."
There is no evidence that Ms. MacKenzie had ever heard of Complainant in 1995 when she registered the domain. Its business is based in Germany: there is no evidence that it is well known in the United States.
The Complainant has engaged in reverse domain hijacking and has brought the Complaint in bad faith. This is because the Complainant, when dealing with Mr. Weitzman, must have known that the name was owned by Ms. MacKenzie because Mr. Weitzman stated "she�d sell it to you". Complainant has wrongly disrupted Gloria MacKenzie�s life and caused her substantial hardship and the expense of fighting a massive corporation. The Panel is asked to issue a strong rebuke to the Complainant.
- The domain name has been registered and used in bad faith.
As noted earlier, the Panel must consider the applicability of the criteria under the Policy at the time when registration was put into the name of IDC on February 9, 2000. It accepts the �cyberflying� allegations surrounding the registration to Gloria MacKenzie on January 22, 2002. That transfer should not have been made when Mr. Weitzman knew of the filing of a Complaint.
The Panel considers that the disputed domain name is identical to the Complainant�s registered marks. The first criterion is proved.
The second criterion is also established because IDC has no legitimate rights or interest in respect of the domain name. Complainant gave it none. The situation would have been different had Gloria MacKenzie�s situation been the only one to consider.
This case turns on whether there is sufficient factual material for the Panel to infer that in February 2000, IDC knew or ought to have known of the fame of the Complainant�s mark. Although there was then a United States trademark registration, it was for a product not proved to have been well known in the United States at the time. The word Gloria is a common name for women. The majority does not consider this to be one of those cases where the Panel should infer that the registrant should have conducted a trademark search before registering.
The Complainant has produced no evidence of its operations in the United States in 2000 apart from the registration of the trademark. There is no evidence provided by the Complainant that it had then an extensive presence in the United States or that it had any sizeable sales in that country. Basically, this is another case of a trademark owner in country A expecting that a domain name registrant in country B would have heard of its mark at the date of registration. The majority of the Panel is unable to make that deduction. Accordingly it is unnecessary for the majority to deal with the other aspects of this claim, because the Complainant has failed to prove bad faith registration by Respondent.
The Panel declines to consider the NAF case involving Mr. Weitzman. Each case under the Policy must be considered on the facts presented to the particular Panel which may not be the facts presented to another Panel.
The majority of the Panel considers this case very similar to the <donna.com> case (supra).
are insufficient to overcome the lack of evidence of the fame of the Complainant�s mark in the US at the relevant time. These inferences might have been more persuasive if the domain name had not been a common personal name and, as such, a commodity greatly to be desired by those dealing in domain names.
The Panel also considers that the equitable doctrine of laches has no application in this case. Clearly, the greater the interval between registration and challenge to registration, the harder it will be for a Complainant to prove bad faith at the time of registration. Here the relevant date of registration (February 9, 2000) is less than two years before the filing of the Complaint.
The Panel does not consider that this is an appropriate case for making a declaration in this regard. The Complainant was justified in making a claim when it encountered on search a bewildering lack of registrant information. The only address given was the state of Maryland and no street address was given. Whether this lack of information was the fault of the Registrar or of Mr. Weitzman in changing Registrars or of Gloria MacKenzie does not matter: rather, it was an incentive to the Complainant to bring the proceedings. Besides, Complainant had a long-standing registered trademark in the US.
In one recent case where reverse domain name hijacking was declared, the Complainant did not have a trademark in the country where the domain name was registered. See Supremo n.v./s.a. v. Rao Tella, WIPO Case No. D2001-1357.
Further, since an application for such a declaration is a discretionary remedy, the Panel should look at the parties� conduct. IDC�s action in arranging for the registration to be changed on January 22, 2002, was wrong for the reasons given earlier.
The majority of the Panel considers that the complaint should be dismissed and makes no order for the transfer of the domain name <gloria.com>. The Panel declines to make a declaration of reverse domain name hijacking against the Complainant.
There are two aspects of the majority decision in this case with which I do not agree. The first is the addition of Gloria MacKenzie as a Respondent. The second is failure to find bad faith registration of the domain name <gloria.com>.
While I agree with the concerns of my fellow Panelists that the combined acts of the Registrar and/or of Mr. Weitzman in procuring the change of name with apparent ease, at a time when at least Mr. Weitzman knew of a pending complaint under the Policy, unlike them I believe that we must go into details of what transpired here before an informed decision can be reached as to the proper Respondent in this case. This exercise may assist in the avoidance of a repeat of such action.
On January 22, 2002, the Complaint was received by the Center and by the only Respondent named therein, Internet Development Corporation("IDC"). Subsequent to this, the Registrar altered the Registry entry by substituting Gloria MacKenzie in place of IDC. The Complainant�s counsel, Dr. Diekmann performed a check search of the registration on January 23, 2002, and discovered this change. He immediately objected, and attempted to have the situation clarified. He suggested to the Center that the Respondent had used the short period of time which elapsed between the receipt of the Complaint and the announcement of the arbitration proceedings to manipulate the WHOIS record, and said "My question is now, whether we have to change the Respondent in our Complaint and how this is to be done."
On January 24, 2002, a request for Registrar verification was transmitted by the Center to the Registrar, requesting it verify the several items as mentioned in the page 4 of the majority decision. By email dated January 24, 2001, the Registrar provided the Center with requested information as specified in page 5 of the majority decision.
- who did the changes?
- when exactly the changes took place?
- whether Mr. Warren Weitzman (Internet Development Corporation) is able to change the WHOIS records by himself?
Thank you in advance for your help."
"We must let the UDRP proceedings take its course. We received the request for verification today, so I believe you will have to file an amendment indicating the new registrant as the Respondent. The name has been placed on Registrar Lock in accordance with the UDRP, so I would anticipate no further changes." Dr. Diekmann said to WIPO: "It might be useful to remind the Registrar that it is to co-operate with the Center and to give truthful and complete information irrespective of its flourishing business relationship with the original Respondent in this case. The registrar must not side with the Respondent and must not allow manipulation or deletion of data within the WHOIS record. It is unacceptable, therefore, that the online WHOIS record as available from the Registrar does not even reflect the date of the most recent update (the change of Registrant). In our view, there are just two possible explanations for this: either the Registrar allows the original Respondent -- its customer and the current Registrant's representative for years to manipulate the WHOIS data as he pleases or the Registrar was involved in this act of "Cyberflying" and was instrumental in an attempt to cover-up by preventing the most recent update to appear in a WHOIS record."
"In order to determine when the change of ownership exactly occurred (by hour and minute) we respectfully ask the Center to inquire into this matter again. Also please let us know when exactly the e-mail with the Complaint was received by the Center."
On January 31, 2002, the Center received an e-mail from Mr. Goldberger stating, "I represent the Respondent in the above-filed action. Please notify me when the official notice of Complaint is transmitted and kindly copy me."
On February 1, 2002, the Center e-mailed eNom, about Dr. Diekmann's allegations, reminding it that under paragraph 8(a) of the Policy a Domain Name may not be transferred during an Administrative Proceeding and that "under that paragraph, the Registrar reserves the right to cancel any transfer of a Domain Name registration that is done in violation of that paragraph." The Center asked for confirmation of the date of the transfer, particularly if it was on or after January 22, 2002, and requested the Registrar to consider cancellation of that transfer in the event the transfer occurred on or after January 22, 2002, in violation of paragraph 8(a) of the Policy.
Minutes later the Center e-mailed Dr. Diekmann advising that "it would investigate his assertions with the concerned Registrar" and "if the registration details were changed after the receipt of the Complaint by the Center (January 22, 2002) we will invite the Registrar to exercise its discretion, under para. 8(a) of the Policy to cancel that transfer (in order to reinstate the original Respondent, Internet Development Corporation). The Center will advise the parties once it has confirmed these details with the concerned Registrar."
"the name was locked upon our receipt of the request for registrar verification. The WHOIS data reflects the same contact information now as it did at the time of our verification. A copy of the Complaint was not received from the Complainant (as noted in our response) prior to the request for verification."
"It had only a billing contact listed up until 1/22/02. On 2002-01-22 07:53:49.400 there was a Registrant, Aux[sic] Billing, and Technical contacts added. These contacts are what you see on the domain right now. It is still in the same account, just a different contact information."
Still not satisfied, the Center at 5:56 on the 7th wrote "The Complainant's evidence proves that the Domain Name gloria.com had been registered with 'Internet Development Corporation' (printout of WHOIS search dated January 19, 2002, and December 26, 2001, with different contact details and e-mail addresses.) Please inform us whether there had been a change of Registrant as of January 22, 2002, to a different entity or individual, and when that transfer had been requested and approved. Thank you, and we would also appreciate if you could provide us with your telephone number so that I may call you for further discussion on this."
The final e-mail of the day, at 6:10pm from the Registrar reads: "that is EXACTLY what I provided to you. there was NO transfer. the person changed updated their contact information on 1/22/02. just have the complainant file an addendum ... maybe I don't understand what the problem is?"
At 12:48am on February 8, 2002, the Center replies "Thank you. I take it that the Internet Development Corp. and Gloria MacKenzie are the same and one entity with different representative names." The answer comes back from the Registrar at 7:56pm "yes". It should also be noted that the Center has a handwritten note at this time that "telephone calls to Registrar numerously failed."
Also on February 8, 2002, Mr. Goldberger again advised the Center "I represent Respondent in the above referenced proceeding. Would you be kind enough to update me on the status of the compliance review of the Complaint. I would also appreciate if you could notify me of the official commencement date and complaint notification. Thank you very much."
On February 9, 2002, the Center with a copy to < mailto:ag@esqwire.com advises Dr. Diekmann "The Registrar has confirmed us that there has not been any change of the Registrant recently, and that the current Registrant 'Gloria MacKenzie' is simply the different name contact point for the entity 'Internet Development Corporation' as they represent the same. Therefore, the Complainant is requested to add that contact detail in the Respondent information section as an addendum to the original Complaint already submitted, and then we shall shortly commence with the proceeding upon its receipt." This prompts email from Mr. Goldberger to the Center "for the record Gloria MacKenzie is NOT a contact of affiliate of Internet Development Corporation. The Registrar is not a source for this information. � The appropriate Respondent is Gloria MacKenzie since she is the Registrant as of the time WIPO conducted its Compliance Review.
On February 11, 2002, Dr. Diekmann respectfully asks the Center to consider this matter again, giving a number of reasons in support including the change in the registry information. He asserts that "the Registrant is the one who qualifies as the Respondent and it must not be changed during the proceedings ... the Complainant does not accept the suggestion that the Respondent and the current Registrant are the same. There is overwhelming evidence to the contrary. ... Gloria MacKenzie, the purported Registrant, has never been active under the trade name 'Internet Development.' She is, therefore, not the Respondent." The Center responds the same day and confirms that the argument in Dr. Diekmann's lengthy e-mail of that day "will be brought to the Panel when duly appointed later in the proceedings. In the meantime, please note that the Center does not have the authority to question the veracity of the Registrar's verification, and should you wish to bring up any dispute with them, it should be dealt directly with the concerned Registrar." And in order for us to continue with our proceeding, the Respondent named in the Complaint must correspond to the Registrant currently registered for the domain name, as notified to the Center by the Registrar, namely "Gloria MacKenzie." All your arguments regarding the relationship between the Internet Development Corporation and Gloria MacKenzie can be included in the addendum, as requested previously." There is also a p.s. to this communication "Kindly note that the Respondent is represented by Mr. Ari Goldberger (<mailto:ag@ESQwire.com >) in this case and that all communications by a Party to the Center should be copied to the other Party, pursuant to para. 2(h) of Rules for Uniform Domain Name Resolution Policy. UDNRP." Dr. Diekmann asked "Please let me know in what position this addressee is acting and how he became involved in the present proceeding. Thank you!"
On February 13, 2002, Dr. Diekmann sends to the Center "an amendment to the Complaint as requested" and points out that "we have not replaced the original Respondent but added the current Registrant's name because, as the Registrar stated this name is in reality the original Respondent. Only in connection with the subsidiary request we added a second Respondent. We hope this is sufficient because the current Registrant is now reflected in the name of the Respondent." It is clear to this Panel that this and earlier e-mails from the Registrar and the Center telling Dr. Diekmann what must be done on behalf of the Complainant before the matter can proceed is the only reason that he provided the supplementary Complaint. He continues to insist that the only respondent ought to be IDC, but that it may well be the case that IDC and Gloria MacKenzie are either one and the same or at least in cohoots, but that, if it is necessary for the matter to proceed, he is only then prepared to add a second Respondent. Indeed, the style of cause says "Internet Development Corporation a/k/a Gloria MacKenzie." How can it be said that the Complainant seeks relief against Gloria MacKenzie alone?
"1. There is no timely Response from Internet Development Corporation, the Respondent in this proceeding. The Response received yesterday was not filed on behalf of this company. We respectfully ask the Center to issue a Notification of Respondent Default (Rules para.5a,d).
2. We respectfully ask that the Response filed on behalf of Gloria MacKenzie and the requests made therein be disregarded as she is, at least at this stage, not a party to this Administrative Proceeding. According to the Registrar Confirmation Internet Development Corporation is still registrant, just acting under a different name. The Response does not refute this fact.
3. In [his affidavit] Mr. Weitzman admits having manipulated ("corrected") the WHOIS information after he had received the Complaint. If a new Registrant were accepted at all, this would be a case of Cyberflying. The original Respondent, at least in the view of a majority of previous Administrative Panels, does not have to be replaced by another Respondent to reflect a change of Registrant."
(b) That pursuant to para.8(a) of the Policy the Domain Name registration to the current registrant which occurred after the original Complaint was filed be cancelled. It is my view that under the circumstances, as related above, this is the proper request to make and that our first responsibility is to consider it.
(c) The request that the Center said would be forwarded to us was that a Notification of Respondent Default be made for the reasons stated by Dr. Diekmann. (The Center responded to Dr. Diekmann that same day, acknowledging receipt of the Response and related communication saying, "we hereby confirm that your request will be forwarded to the Panel when duly appointed.")"
After referring to Mr. Goldberger�s email of February 11, 2002, which first raised the allegation that "Internet Development Corporation is a host for the domain name Gloria.com which had been inadvertently left in the name of Internet Development Corporation when it transferred a number of domain names on behalf of its clients to the Registrar Enom," the supplemental Complaint lays out what happened.
"On 13th February the Complainant asked the Registrar to cancel the change of Registrant under para. 8 (a) of the policy but no reply was received so far.
(2) While the Respondent and the second Respondent are distinct in that they represent different individuals the Respondent used the name and address of the second respondent as a sham identity to falsify a legitimate interest in the domain name.
The Respondent has pushed the second Respondent to the front to disrupt these proceedings and to force the Complainant to accept a different Respondent with a possible different legal position regarding the disputed domain name. The respondent wants to have the first name of the second respondent introduced as an argument against the Complainant, an argument not available to the Respondent himself.
�WEITZMAN, WARREN (WW257-ARIN) <mailto:warren@warren.com> Internet Development, 7107 THOMAS BRANCH DR, BETHESDA, MD 20817, 301-469-9444, Record last updated on 06-Dec-2001, Database last updated on 10-Feb-2002 19:55:25 EDT."
(4) The second respondent is merely a pawn in the Respondent�s game of Cybersquatting.
We have already shown that Respondent had had full control over the contested domain name (Complaint sub 5 a cc) ever since it was first registered.
- The website to which the contested domain name resolves has been slightly changed but the characteristics remain the same. Still the user is invited to call the Respondent (not the second Respondent) for information on "development" (i.e. sale, cf. Complaint, p. 14) of the domain name. The only significant change is the removal of the pop-up screens (Annex 21). This shall make the website appear less obtrusive.
The Registrar, who has registered hundreds of domain names for the Respondent and is thus familiar with his business tactics confirmed that the current Registrant represents none other than the Respondent himself. There was some criticism from the complainant in his statement to the Center as to the Registrar�s role in this case. Whereas this criticism is warranted with regard to the Registrar withholding information as to when exactly the change of Registrant took place and permitting changes in the Registrant information, there is without doubt truth in what the Registrar confirmed: The second Respondent is a disguise for the Respondent who seeks to pretend a legitimate interest in the first name �Gloria�.
If the statement given by the Registrar is true, nothing has changed with regard to the Respondent, only the name is different. We respectfully ask the Panel therefore to render its decision against the Respondent but to clarify that the decision is directed against the Respondent under his current name (that of the second respondent).
Possibly, our criticism against the Registrar in our previous statement to the Center was partly due to a misinterpretation of the Registrar�s statement as it was reported to us by the Center. We now understand that the Registrar confirmed that the Respondent remained the Registrant but only chose a different disguise, i.e. the name and address of the second Respondent.
Although it is unacceptable that a Registrar allows its customer to cause confusion by acting under fake or other people�s identity the blame is on the Respondent for Hijacking the identity of the second respondent at the risk that this person, if she exists, is inadvertently thrown into legal proceedings. This is, once more, evidence for the Respondent�s recklessness and malicious intent.
In any case, such a unknowing Registrant would not qualify as a Respondent if only for the reason that she entered no Registration agreement (Annex 2) with the Registrar thus not accepting the Center�s jurisdiction. Rather, the original Respondent remains in this position, even though the Panel is respectfully asked to state that the decision affects the Respondent both under his previous and his current name.
The transfer of contested domain names by Respondents subsequent to receiving notice of a Complaint is known as "Cyberflying". The Panels have unanimously condemned such attempts to evade jurisdiction as a violation of para. 8(a) of the Policy even where the change of Registrar took place prior to the formal commencement of the proceedings (cf. British Broadcasting Corporation v. Data Art Corporation / Stoneybrook, WIPO Case No. D2000-0683; Wal-Mart Stores, Inc. v. James Cann and Save Family Businesses Panel, WIPO Case No. D2000-0830; Infospace, Inc. v. Siavash Jimmy Behain, et al., WIPO Case No. D2000-1631; Kabushiki Kaisha Isetan v. Stars Web International and Isetan, Inc., WIPO Case No. D2001-0732; AT&T Corp. v. W.N.A., a/k/a "Worldwide Network of Attornies" Farouk al Khalifa a/k/a Jaye Rayes and "World of Nettie Atteberry", WIPO Case No. D2001-1160).
If the second Respondent is to be distinguished from the Respondent, and not just a different name, we have before us a case of "Cyberflying" even though the time of name change can not exactly be determined (cf. the Administrative Panel decision in AT&T Corp. v. W.N.A., a/k/a "Worldwide Network of Attornies" Farouk al Khalifa a/k/a Jaye Rayes and "World of Nettie Atteberry", WIPO Case No. D2001-1160, in which the same Registrar as here was involved and which bears some resemblance to the present case).
The accurate date and time of the name change is irrelevant, however. The purported change of Registrants obviously took place without the second Respondent being involved or even being informed. The Counsel for the Respondent even states that the second Respondent did not know she was no longer Registrant of the Domain Name.
IDC could have filed a Response. For reasons it thought advantageous it took the high ground and obdurately refused to be a party to this proceeding. It turns out that the Respondent IDC was incorrect. The law does not allow a party to approbate and reprobate. How can this be used to its disadvantage? To do so encourages similar tactics in the future.
The confusion of the Center is, when administering the file, not surprising given the information provided by the Registrar, by both the Respondent (IDC) and on behalf of the putative Respondent (Gloria MacKenzie). No finding is made, nor need be made, as to whether the confusion referred to was brought about intentionally. At some point in time the Registrar, Ms. MacKenzie and counsel all seem to have been uncertain. This can�t be said of IDC.
The consequences of a failure to file a Response within 20 days of the date of commencement of the Administrative Proceeding is found in Rule 5(e) which states that if a Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint. Any exceptional circumstances in this case are to the discredit of the Respondent.
The second area where I disagree with my colleagues is bad faith registration and use of the domain name by the Respondent .
A complainant is often at a disadvantage in proceeding under the URDP, to having to plead its case with no right of reply, without knowing what defences will be put forward, and absent any pre-hearing discovery. These may be overcome where, under Rule 12 (a), a Panel requests further statements or documents from either of the parties. This Rule is used sparingly by Panels and in my opinion is not apposite in this case.
While it is correct to say that the business of dealing in domain names and/or hosting them is a legitimate business, the Complainant through technological sleuthing has provided evidence of a scheme which is not a legitimate business. From the approximately 1,000 names including <gloria.com> then registered in the name of Gloria MacKenzie, there are hundreds of four-letter domain names which are acronyms of international organizations, universities, public organizations, Spanish translations of well-known web-sites, names of shopping malls as well as minor variations to well-known trademarks ('typosquatting'). A visitor to <gloria.com> would be 'mousetrapped', (which is well-known to be a substantial source of income for cybersquatters,) and involuntarily diverted to pornographic sites. Such activity has frequently been branded as bad faith by Panels. In support of those allegations the Complainant has produced an abundance of evidence to which the Respondent in this case has not responded. No explanations are given for this conduct, even if we look at the Response filed on behalf of Ms. MacKenzie it is not there.
The Respondent created artificial traffic on his web-sites which both increased the market value of his domain names and his profits from advertising which are related to the number of generated clicks. The statistics relating to this artificial traffic were shown in Annex 19 to the Complaint - the web-site <http://www.gloria.com/stats>. Complainant also provided (Annex 25) a print-out from the Internet Archive source code which showed the domain names to which the contested domain name referred �http://web.archive.org/web/*sa_/http://www.gloria.com.� Most of the web-sites to which the user was referred contained offers to purchase the respective domain name. Even on rare occasions when the contested domain name referred to itself, again, without genuine content, there was a sales offer. For instance, on November 28, 1999, the user who visited http://www.gloria.com was referred to a web page headed: "domain name sale" and then automatically carried on to another web-site headed: "If you are interested in the purchase of the domain you requested, please email us: <mailto:warren@warren.com>" Through a link "Domain info" the user was referred to a page with the following text: "Inquiries regarding the purchase of lease of the domain name you originally requested should be directed to Warren at (301)980-1111." The contested domain name also referred to a web-site �http://www.grunk.com�, offering pornographic pictures and live shows. In the meantime this web-site is one and the same as the contested domain name and all the others refer to.
My colleagues have found the inferences to be drawn from Mr. Weitzmann activities as a dealer in and host of domain names and the lack of contact information to be insufficient to overcome the lack of evidence of the fame of the Complainant�s mark in the U.S. at the relevant time. I find otherwise. Granted, the mark is weak, but this doesn�t mean that the Complainant must lose. All material evidence must be weighed to determine bad faith registration and use. In the case such as the one involving <donna.com>, the material facts were that the site was and had been unused, that the name had been registered by the Respondent specifically as part of an income sharing arrangements to develop the site, negotiated some months before contact by the Complainant, and the Panel made a specific finding that "there was no evidence of bad faith at all," by which it must have meant as to registration and use. The United States trademark law has specific constructive notice provisions, the effect of which is to deny lack of actual knowledge as a defence, making it unnecessary to find actual knowledge that in finding bad faith registration and use. See J.Crew International, Inc v. Crew.com, WIPO Case No. D2000-0054 where the name in question <crew.com> was a very generic one. We don�t know in this case whether IDC did a search or not. If he had it would have revealed a 50 registered marks as shown in exhibit 7 to the Response.
I suggest that a proportionality test should be applied to this issue. A balancing of the weakness of Complainant�s mark here against the perfidy exhibited in the conduct on the part of the Respondent in this case obliges me to find that the scales weigh more heavily in favour of the Complainant. The notorious machinations of IDC have been demonstrated by the sleuthing of Dr. Diekmann who has proved to my satisfaction that we have an extremely sophisticated cybersquatter, and cyberflyer here. In cases involving sophisticated uses of the internet, Panels have required a higher duty of inquiry. An example is the <crew.com> case, above, where the Panel said that sophisticated users who elect to ignore reality by not searching will be held to have acted otherwise than in good faith registration and use. " I agree with the Cautionary Comments of the Panel" where they disavowed any obligation of subsequent Panels to hold that in every case a Registrant should be charged with conducting a detailed investigation, only in the unique circumstances and facts of that, or other similar cases. It is my view that our case is a similar case.
Mr. Weitzman's affidavit addresses the, so called, "error" in para 3 of his affidavit where he says "when the transfer took place, e.Nom erroneously used the contact information of IDC for all of the transferred domain names, including gloria.com . He also admits that it was after the Complaint was filed, that "I corrected the registration of gloria.com with e.Nom, so that it now correctly reflects that Ms. MacKenzie is the registrant." If it was an "error", why did not Mr.Weitzman reverse all of the other Domain Names "erroneously" put in the name of the Respondent in this case in February 2000? That this so called "error" was not made by the Registrar is demonstrated in an e-mail from Mr. Weitzman to the Registrar sent on February 9, 2002, where he says "It is our recollection that when transferred in, the registration information became that of my default info., which would have me as the registrant, not the one who originally held the registration." Nothing about any error, much less the error being attributed to e.Nom.com. With respect, the only "error" proven seems to this Panelist to be that of the Respondent, and a deliberate one at that.
1. The Respondent was aware of Complainant�s trade name and trademark and desire to obtain the domain name when he registered it.
2. Obviously, Respondent registered the domain name for just the reason he uses it to date; to offer it for sale and to profit from third parties� advertising he makes available through his domain names. The user who happens to enter one of Respondent�s phony web sites is showered with pop-up screens and thus prevented from leaving a web-site he originally did not wish to visit. His plan is to attract and to trap users who hope to find information from the legitimate owner of the "gloria" trademark.
3. There are no preparations of developing a legitimate web-site for the contested domain name one of the other over 750 domain names Respondent has registered or are under his control.
4. Lack of use and, based on the circumstances, constitute a case of bad faith registration and use (Telstra v. Nuclear Marshmallows, WIPO Case No. D2000-0003).
5. The name was registered to sell it to the Complainant at a price in excess of the Respondent�s out of pocket costs.(para.4(b)(i) UDRP) Offering the domain name for sale on-line directly to Complainant.
6. Contrary to para. 4(b)(ii) Respondent registered the domain name when he knew about Complainant and her desire to register the domain name. Although Ms. MacKenzie had given up the name, he registered it for himself to prevent Complainant from registering it. His numerous domain names and cybersquatting activities show that he is engaged in a pattern of such conduct.
7. It is also a case of para 4(b)(iv) UDRP because Respondent intentionally attempts to attract users to the web-site to profit from the advertisement deals he maintains with third parties.
8. Incomplete and false information particularly as to contact details when the registration is done is bad faith.
Like my colleagues, I believe that the material registration date is February 2000. I cannot conceive of any plausible reason for the registrations being transferred into the name of the Respondent in February 2000 other than to enhance the profitability of the Respondent's deceitful scheme whereby more innocent guests will be, to their detriment, treated in the manner demonstrated here to the commercial gain of the Respondent. This is the only plausible reason I can conceive of being consistent with the Respondent's desperate attempt to replace Ms. MacKenzie as the Registrant. When, getting notice of the Complaint in this case, he realizes that a member of his stable might be released by reason that the Respondent IDC will not be able to demonstrate any legitimate rights or interest in the Domain Name.
With or without the aid of the response by the putative Respondent there is no denial of the facts on which the second assertion above is premised. Numerous Panels have consistently found that precisely this modus operandi, the major purveyor of which is John Zuccarini, amounts to bad faith registration and use. A number of Panels have held that where the Respondent's main business activity consists of the sale of Domain Names incorporating famous names or trademarks and it makes a business of registering famous trademarks with a view to selling them may be sufficient evidence of bad faith pursuant to Article 4(a)(iii). See Riello S.p.A. v. Domain Name Clearing Co. LLC, WIPO Case No. D2001-1046, citing Guerlain SA v. Peikang, WIPO Case No. D2000-0055; Parfums Christian Dior v. Javier Garcia Quintas and ChristianDior.net, WIPO Case No. D2000-0026. It has also been held that a Panel may infer that the Domain Name was registered for the primary purpose of selling, renting or otherwise transferring it to a third party with an interest in that Name where (i) the Respondent offered to sell the Domain Name to the Complainant as soon as contacted by the Complainant. See William Hill Organization Ltd. v. Lisa Janes Stratton, WIPO Case No. D2000-0827. Also, a Respondent taking deliberate steps to ensure that its true identity cannot be determined and a communication with it cannot be made, has been found to be evidence of bad faith.
I am appreciative of the possible apprehension of any fair-minded adjudicator in drawing adverse inferences of guilty conduct at an earlier time by pointing to later conduct. However, I suggest that when, as here, the standard of proof is a preponderance of the evidence, and the evidence in question involves the intent of a party who has every opportunity to respond, such apprehension must be abated. This is particularly the case here due to the effect of the Rule 5(e). Further, in this case, if the affidavits of Ms. MacKenzie and Mr. Weitzman are to be resorted to, the fact that it did not address this subject which was clearly in issue, should also be considered. IDC was able to, and did use, the Domain Name <Gloria.com> in bad faith prior to it being registered in its name in February 2000, even though it was then registered to Ms. MacKenzie. IDC continued to use this name after January 2000 for the same bad faith purposes, but with greater control over it now that it was registered in the Respondent�s name. With bad faith use before and bad faith use after, I would think it proved that the intermediate change in registration was made with the intention of continuing that use and is therefore bad faith registration in February 2000. Any possible doubt one might have about this reasoning must be removed by the evidence of the Respondent�s actions in January 2002 when it appeared that he was in danger of losing a profitable name. Nor should it be forgotten that his ability to transfer the name back to Ms. MacKenzie without having to deal with the registrar was made possible through the way he managed the February 2000 registration. Circumstantial evidence is frequently used in ICANN domain name cases and it has long been an evidentiary principle that the existence of a thing or a state of affairs at the material time may be proved by facts showing the existence at an earlier point of time where this is sometimes referred to as the presumption of continuance. Evidence of motive is admissible in civil cases to assist in explaining a subsequent act. Looking the other way, circumstances occurring subsequent in time to the fact which is to be proved may be relied on to prove that fact. Intention at the time an act is done is often proved by the subsequent conduct of the actor. We have all three here � prior, at the time of registration and subsequent conduct here.
My strongest disagreement with the majority decision is its benign treatment of the "cyberflying": that it finds to have occurred here. The incidence of this invidious practice, which has been increasing expedientially of late, takes place almost always with the intention of illegally interfering with the due process of a dispute resolution mechanism which he Respondent had agreed to abide by when obtaining the right to use its domain name. My strongly held view is the that the conduct which we have seen here is proof that, when entering into this agreement, in February 2000, the Respondent�s intention to follow the rules was limited to those instances where it was not disadvantageous to it. That is why he made it so easy to manipulate the Register in the covert manner we see here. I would be hard put to think of a more serious example of bad faith registration in that it contemplates harm not only to the Complainant here but to any other person with potential claims under the ICANN Policy against the hundreds of names under the control of IDC.
My decision is that the domain name <gloria.com> be transferred to the Complainant.
1. It eventually turns out he was correct in this.
2 . This is incorrect, the Registrar must speak from the commencement of the proceedings which occurs when the Complaint is filed.
3. At this time, the Respondent was (and in this Panel's opinion still is) IDC.
4. It might be a good idea in future for the Notice of Verification to show the time of receipt of the Complaint, which is when the proceeding commences.
5. The only Respondent on the record at this point is IDC. The Complainant was still not aware of Mr. Goldberger's involvement.
6. Dr. Diekmann had no idea who this was at this time.
7. The Center earlier had told Dr. Diekmann "If the registration details were changed after the receipt of the Complaint by the Center would invite the Registrar to cancel the transfer. Yet (not to Dr. Diekmann's knowledge) the Registrar had notified the Center that "the name was locked upon our receipt of the Request for Registrar Verification." Another fact not known to Dr. Diekmann.
8. This conclusion is not correct.
9. What the Complainant did not know was that the Registrar had already been asked to consider reversing the change.
10. This explains why Dr. Diekmann felt that he had to add Gloria MacKenzie in some way to his Complaint; otherwise, it would be dismissed at this stage.
11. This was the first time Dr. Diekmann had been advised of Mr. Goldberger's involvement in the case. As the Respondent of record still was only IDC, the reference in the p.s. to "the Respondent" would be thought by Dr. Diekmann to mean IDC and probably the same could be said of the Center. This is confirmed by what the supplemental Complaint says on page 6.
12. Complainant has never received a response to this request.
13. This confirms what I concluded at footnote 11.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
Roy has tried numerous cases to verdict, including a case in which he secured a defense verdict in a multi-million dollar contract claim by a hospital against a managed care company and a defense verdict for a trucking company in an action alleging wrongful death in an accident. Roy’s appellate experience includes obtaining reversal of a $38,000,000 verdict against an insurance company accused of bad faith in handling an insurance claim and affirmance of a summary judgment in favor of an insurance company in a case testing the outer limits of an agent’s authority to bind the company to unauthorized transactions.
Roy also has significant experience defending financial institutions and manufacturers in class action lawsuits in Mississippi and beyond, including service as lead defense counsel for a bus manufacturer in class litigation and a related nationwide settlement of regulatory claims.
A native Jacksonian, Roy earned a B.B.A. from the University of Texas at Austin and a J.D. from the University of Mississippi School of Law. Every year since 2007, he has been selected for inclusion in Mid-South Super Lawyers. Roy has also been named a Best Lawyer in America from 2012 through the present and by Benchmark Litigation as a Local Litigation Star from 2013 to the present. Additionally, Roy was named to the American Society of Legal Advocates in 2013 and is recognized by ASLA as a Top 100 Litigator in Mississippi.
Away from the office, Roy enjoys travel, live music, and Texas Longhorns football.
Morgan v. MML Investors Services, Inc.
Jennifer Arnold v. Aetna Life Ins. Co.
Pinnacle Trust Co. v. Babcock & Wilcox Power Generation Group, Inc.
Hall v. NewMarket Corp. and Aetna Life Ins. Co.
Adair v. Lease Partners, Inc.
Hill v. Aetna Life Ins. Co.
Mem’l Hosp. at Gulfport v. Aetna Health Mgmt., Inc.
Baptist Mem’l Hosp.-Desoto, Inc. v. Crain Auto., Inc.
Cuevas v. Prudential Ins. Co.
Dubose v. Prudential Ins. Co. of Am.
Butler v. Trustmark Ins. Co.
Wright v. Anthem Life Ins. Co. of Ind.
Kirksey v. Am. Bankers Ins. Co. of Fla.
Craft v. Northbrook Life Ins. Co.
Served on the adjunct faculty of Belhaven University (formerly Belhaven College) as an instructor of Business Law.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
The long-awaited Opinion of Advocate General (AG) Wathelet in the Achmea case has resulted in an unexpected and rather surprising Opinion.
Many observers (including the present writer) had expected that the AG would hammer the final nail on the coffin of intra-EU BITs and arbitral tribunals based on these treaties. After all, the pressure by the European Commission on intra-EU bilateral investment treaties (BITs)/ECT arbitral tribunals to reject their jurisdiction because the intra-EU BITs and arbitration are supposedly incompatible with EU law has been high for many years. Similarly, the European Commission has been pressurising the EU member states to terminate their intra-EU BITs. Indeed, several EU member states have done so, or are in the process of doing so.
In light of these developments, it came as a surprise that the AG concluded that intra-EU BITs and international arbitration based on such BITs, is entirely compatible with EU law. The AG fully rejected the arguments raised by the European Commission and several EU member states.
At first sight, this outcome should be hailed by the arbitration community as a rare support for investor-state dispute settlement (ISD S) in times of a backlash against ISDS, in particular in Europe. Indeed, the “seal of approval” by the AG should take away any doubts as to the claimed potentially incompatibility of intra-EU BITs with EU law. Consequently, and if followed by the Court of Justice of the EU (CJEU), there would be no reason anymore for EU member states to terminate their BITs and equally there would be no reason for the European Commission to continue its fight against these BITs.
However, upon closer inspection, keeping alive intra-EU BITs and intra-EU ISDS comes with a poison pill, namely, in the form of a complete “Europeanization” and thus sub-ordination of intra-EU BITs’ arbitral tribunals under the CJEU.
More specifically, the AG, first of all, equated international arbitral tribunals with domestic courts and tribunals of the EU member states. As a consequence thereof, arbitral tribunals should be entitled to request preliminary rulings from the CJEU as far as the interpretation and application of EU law is concerned.
Already, this conclusion is far-reaching because it would mean that the CJEU would have to significantly change or even reverse its jurisprudence on the strict conditions of what constitutes a domestic court or tribunal that is entitled to request preliminary rulings from it. Moreover, most, if not all, international arbitral tribunals would find it very difficult to consider themselves to be in a similar position as domestic courts – after all, they are created on the basis of international treaties and are supposed to apply and interpret first and foremost, public international law.
Secondly, and potentially even more difficult for international arbitral tribunals to accept, is the AG’s conclusion that because intra-EU BITs’ arbitral tribunals are similar to domestic courts of the EU member states, they are fully bound by the jurisprudence of the CEJU and must apply and interpret relevant EU law (and relevant international law that is an integral part of EU law) fully in line with the jurisprudence of the CJEU.
Again, that would require a significant change in the views international arbitral tribunals usually maintain, as they are not formally bound by any other international court or tribunal, which does not mean that they do not extensively consider and often follow their jurisprudence. However, considering, analysing and possibly following the jurisprudence of other international courts and tribunals is something completely different to being sub-ordinated to and bound by the CJEU.
In short, the AG adopted a very different and more canny strategy than the European Commission: rather than completely eradicating intra-EU arbitral tribunals, he chose to integrate them into the EU legal order and sub-ordinate them under the full control of the CJEU.
Put differently, international arbitral tribunals, which were previously outside the control of the CJEU, would now be “captured” by the CJEU and thus neutralised, meaning they would not be able to deviate from the CJEU decisions.
While this approach may work for arbitral tribunals established under UNCITRAL arbitration rules and having their seat within the EU, it is difficult to see how arbitral tribunals seated outside the EU could be required to be bound by the CJEU or able to request preliminary rulings from the CJEU. This is even less conceivable for ICSID arbitral tribunals, which operate under the self-contained regime of the ICSID Convention.
Thus, the question arises: how will arbitral tribunals constituted under intra-EU BITs react to this approach, if the CJEU were to follow the AG? Moreover, the question arises: what will the consequences be for prospective investors/claimants?
Until the ECJ has delivered its judgment in this case, it is too early to answer these questions. But if the CJEU were to follow the AG, then this will definitely have significant repercussions for intra-EU BITs and arbitral tribunals constituted under them.
Contact me if you need any advice on these issues!
Previously published in the Practical Law Arbitration blog.

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU


text:
WILLIAM MAHER vs. WARREN E. HAYCOCK.
Present: FIELD, C.J., DONAHUE, QUA, COX, & RONAN, JJ.
Upon evidence that on a Lord's day the defendant promised to pay the plaintiff a commission if his house was "sold," that on the same day the plaintiff introduced a customer to the defendant, and that "during the week of" a succeeding Lord's day the defendant and the customer completed arrangements for the sale, with a finding for the plaintiff, the judge must be deemed to have found that the plaintiff was entitled to a commission because the offer of the defendant to pay him a commission was accepted, and a unilateral contract arose, on a secular day.
The right of a broker to a commission promised him if he "sold" certain real estate was not affected by the fact that a deed consummating the sale was dated and delivered on a Lord's day where it appeared that the completion of arrangements for the sale to the customer whom the broker had procured for the owner had occurred on a secular day.
The mere facts that, after a broker had negotiated with an owner on a Lord's day respecting a commission to be paid him if he "sold" real estate of the owner and on that day had introduced a customer to the owner and shown the property to the customer, he did nothing actively to induce the customer to buy, did not affect the broker's right to a commission where it appeared that on a succeeding secular day the owner and the customer completed arrangements for the sale.
CONTRACT. Writ in the Central District Court of Worcester dated November 19, 1937.
Upon a report by Wall, J., after a finding for the plaintiff in the sum of $150, the Appellate Division for the Western District ordered the finding vacated and judgment entered for the defendant. The plaintiff appealed.
J. A. Barnes, Jr., for the plaintiff.
H. P. Grady, for the defendant.
between the plaintiff and the defendant was void by reason of the provision in G. L. (Ter. Ed.) c. 136, Section 5, prohibiting the doing of "any manner of labor, business or work, except works of necessity and charity," on the Lord's day.
Decisive facts which either were admitted or could be found are these: On Sunday, October 31, 1937, the plaintiff went to the defendant's house, identified himself to the defendant as a real estate broker, stated to the defendant that he had a customer, and obtained the defendant's promise to pay the plaintiff "a commission if the house were sold." On the same day the plaintiff brought Craig into the house and introduced him to the defendant, and they all examined the house. The plaintiff told Craig that the price was $5,500. Thereafter negotiations took place directly between the defendant and Craig. During the week of November 7 "the defendant and Craig completed the arrangements for the sale of the property" for $5,000 with an agreement that Craig would reimburse the defendant, if the defendant should be held liable for a commission. On November 14 the property "was sold and conveyed," and the defendant gave a deed to Craig and his wife, dated that day. Both November 7 and November 14 were also Sundays.
findings, and are necessary to support the conclusion. Nicoli v. Berglund, 293 Mass. 426, 428. Weathers v. Jarvis, 294 Mass. 227, 230. The judge must therefore be deemed to have found in accordance with the evidence that all "arrangements for the sale of the property" were completed "during the week of [Sunday] November 7," and hence that the plaintiff produced a purchaser ready, willing and able to buy on the defendant's terms before Sunday, November 14, and on a secular day. For these reasons nothing turns on the fact that the deed bore the date of Sunday, November 14.
The plaintiff is not barred because of what occurred on Sunday, October 31. No contract was made on that day. The plaintiff promised nothing, and he was entitled to nothing for his time and effort as such. The conversation between the plaintiff and the defendant amounted to no more than an offer on the defendant's part which would ripen into a unilateral contract when the plaintiff produced a customer ready, willing and able. Des Rivieres v. Sullivan, 247 Mass. 443, 446. Elliott v. Kazajian, 255 Mass. 459, 461, 462. Chamberlain v. New England Dressed Meat & Wool Co. 279 Mass. 462. John T. Burns & Sons Inc. v. Hands, 283 Mass. 420, 422. He produced such a customer on a secular day. Thus it appears that the contract sued upon was not made on Sunday and did not by its terms call for the doing of business or work on Sunday. Cases like Merriam v. Stearns, 10 Cush. 257, Day v. McAllister, 15 Gray 433, Myers v. Meinrath, 101 Mass. 366, Stevens v. Wood, 127 Mass. 123, Stewart v. Thayer, 168 Mass. 519, Kryzminski v. Callahan, 213 Mass. 207, and Hindenlang v. Mahon, 225 Mass. 445, are not applicable. We think the case falls within a class of cases in which it has been held that a contract not made on Sunday is not rendered void by reason of the fact that preliminary negotiations or even the offer which was later accepted took place on Sunday. Tuckerman v. Hinkley, 9 Allen 452. Bradley v. Rea, 14 Allen 20, 22. Dickinson v. Richmond, 97 Mass. 45. Cranson v. Goss, 107 Mass. 439, 442. Shepley v. Henry Siegel Co. 203 Mass. 43, 45. Silver v. Graves, 210 Mass. 26, 31.
Skinner Irrigation Co. v. Burke, 231 Mass. 555. Bauer v. Bond & Goodwin Inc. 285 Mass. 117, 120. Gibbs & Sterrett Manuf. Co. v. Brucker, 111 U.S. 597, 602. Williston on Contracts (Rev. ed.) Sections 1701, 1707, 1708. Am. Law Inst. Restatement: Contracts, Section 538, Comment a.
In our opinion the situation is not altered even if it be the fact that the plaintiff did nothing actively to induce Craig to buy other than what he did on Sunday, October 31. In Tuckerman v. Hinkley, 9 Allen 452, at page 455, it is said that a contract not fully closed on Sunday "is not void, because some of its terms might have been fixed upon that day, or indeed because most of the business out of which the consideration for the contract arose was transacted on that day." Any other rule would seem to require the result that no party otherwise entitled to be paid for a completed performance, as distinguished from work, labor or services by the day, could recover anything if it should appear that he had performed on Sunday any one item in a long course of preliminaries placing him in a position finally to furnish the completed performance on a secular day. See Stewart v. Thayer, 168 Mass. 519. Such illegality seems too remote from the contract itself to constitute an infirmity in it. We have seen no case which goes as far as that.
It becomes unnecessary to discuss the defendant's requests for rulings in detail. Those which have been argued are, we think, either unsound or immaterial because of the findings.
The order of the Appellate Division that the finding for the plaintiff be vacated and judgment entered for the defendant is reversed, and judgment is to he entered for the plaintiff on the finding of the trial judge.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
Posted March 26th, 2018 by Andrew Miller in Whistleblower Law.
Under the False Claims Act (FCA), the Government is entitled to recover money paid to private parties as a result of fraudulent conduct. Specifically, the Government is entitled to recover up to three times the primary damages it suffered as a result of the fraud, in addition to statutorily-fixed penalties for each false claim for payment that the contractor submitted. Whistleblowers who meet certain criteria and disclose information that leads to the Government’s recovery from fraud are entitled to receive a reward of between 15% and 30% of the Government’s recovery.
That seems straightforward, but what is not always straightforward is how to measure the Government’s damages. For example, it is clear that the Government is entitled to recover every dollar it spent if it contracted with a supplier to purchase bullets, only to discover later that the supplier had, in fact, sold the Government sawdust. The appropriate measure of the Government’s damages is less clear when the Government contracts with a provider of goods or services who unquestionably defrauds the Government but nonetheless provides some purported value to the Government under the contract. For example, what happens if a contractor bribes a Government official to win a contract to build a Government building, and then builds the building pursuant to the terms of the contract? We will assume, for the purposes of this brief article, that bribery of a Government official suffices to bring the corruptly procured contract within the orbit of the FCA’s penalties. But in such a case, can the Government recover the full value of that contract because it was procured through fraudulent means?
As is always the case in the law, the answer depends on the specific factual circumstances of every individual case. In the case of contracts procured through bribery, however, the answer is likely that the Government is entitled to recover damages based on the full value of those contracts. Damages under the FCA must be measured by the amount wrongfully paid to satisfy a false claim. Generally speaking, there have been two circumstances in which courts have awarded damages based on the amount of the full value of the contract despite the contractor’s purported performance of the contract. The first circumstance is one in which the defendant was ineligible to receive payment under the contract, and therefore was not entitled to payment. The second circumstance is one in which the defendant provided an alleged benefit to the Government that was, in fact, worthless to the Government. In the case of contracts procured through corruption, both rationales for awarding damages based on the full value of the contract seem to apply.
First, when a contractor engages in corruption to procure a contract, the contractor is not eligible to make claims for payment under the contract. That is because a contract that is procured by corrupt means is void ab initio, and, thus the contractor is not eligible to receive any payments under the contract. Every court that has squarely addressed the issue has held that an ineligible contractor that fraudulently presents itself as eligible to receive payment under a Government contract is not entitled to receive any payments under the contract, even if it performs its obligations under the contract. Thus, because a contractor procuring a contract through corruption is ineligible to receive payment, such contractors are similarly liable for primary damages equal to the full amount of all claims paid under those contracts.
Second, where a contract or its performance is infected with fraud and corruption—as is the case with a corruptly procured contract—the resulting contract and any work performed pursuant to it can be so tainted as to be entirely worthless to the Government. This is because the harm that the Government suffers due to the corruption is extraordinarily great and can easily outweigh whatever pecuniary value the Government may receive from the corrupt contractor. Indeed, the Senators who drafted the modern FCA, the Supreme Court, and numerous lower courts have explicitly stated that the negative value of corruption is significant and that the value of the tangible benefit that the Government receives under a contract tainted by corruption is diminished significantly by corruption’s significant negative value. Accordingly, in corruption cases, the harm that the Government suffers as a result of the contractor’s misdeeds often eliminates any net value to the Government.
Although cases of outright corruption may seem to rarely occur, the process of federal contracting can, unfortunately, be rife with corruption and fraud. If you have information about a Government contract that has been sullied by corruption or fraud, you should contact an experienced whistleblower attorney, such as those at Sanford Heisler Sharp, LLP, who specialize in Government contracting fraud cases, and have offices in Washington, D.C., New York, Nashville, San Diego, and San Francisco. You could be eligible to recover between 15% and 30% of the entire value of that contract.
 U.S. v. Aerodex, Inc., 469 F.2d 1003, 1011 (5th Cir. 1972).
 United States v. Mackby, 339 F.3d 1013, 1018 (9th Cir. 2003).
 United States ex rel. Compton v. Midwest Specialties, Inc., 142 F.3d 296, 304-305 (6th Cir. 1998).
 Godley v. United States, 5 F.3d 1473, 1476 (Fed. Cir. 1993); United States v. Mississippi Valley Generating Co., 364 U.S. 520, 563 (1961); K&R Engineering Co., Inc. v. United States, 222 Ct. Cl. 340, 355 (Ct. Cl. 1980).
 U.S. ex rel. Longhi v. Lithium Power Techs., Inc., 575 F.3d 458, 473 (5th Cir. 2009).
 Godley, 5 F.3d at 1475.
 S. Rep. No. 99-345, at 3 (“The cost of fraud cannot always be measured in dollars and cents…fraud erodes public confidence in the Government’s ability to efficiently manage its programs.”); Mississippi Valley, 364 U.S. at 562; United States v. Killough, 848 F.2d 1523, 1532 (“When an official acting on behalf of the Government receives money to which he is not entitled for the purpose of inducing that official to act in a certain manner, the Government has been damaged to the extent that such corruption causes a diminution of the public’s confidence in the Government.”).

matches: v. v. v. v. v. v. v. v.


Whenever a court goes out of its way to say in an opinion, “We aren’t deciding issues X and Y,” it’s time to take notice. The omitted issues must be significant, in some way, to what’s being decided; otherwise, there’s no reason to mention them.
And when the opinion is from the Supreme Court of the United States of America, we’d better give the undecided issues a hard look.
On February 27, 2018, the U.S. Supreme Court issues its ruling on the § 546(e) safe harbor defense in Merit Management Group, LP v. FTI Consulting, Case No. 16-784.
In footnotes 2 and 5 of this opinion, the Supreme Court identifies critical issues that were not raised by the parties and that are not addressed in the opinion.
–Footnote 2 deals with the statutory definition of “financial institution.” A prior article (linked here) discusses that issue and Justice Breyer’s comments, at oral argument, on the “customer” portion of that definition.
–Does a transfer of privately traded stock qualify as a “settlement payment . . . in connection with a securities contract” under the § 546(e) safe harbor defense?
The opinion is Geltzer v. Mooney (In re MacMenamin’s Grill Ltd.), 450 B.R. 414 (Bankry. S.D.N.Y. 2011).
(ii) the loan the Debtor took to fund the stock purchase and the related security interest it granted in substantially all of Debtor’s assets.
The shareholder defendants raise a § 546(e) defense, and summary judgment motions are filed on whether the § 546(e) defense applies to them.
Other courts hold, based on the statute’s “plain meaning,” that § 546(e) does apply to “privately traded securities in LBOs, including to insiders” (see, e.g., In re QSI Holdings, Inc., 571 F.3d 545, 550-51 (6th Cir. 2009); Brandt v. B.A. Capital Co., LP (In re Plassein Int’l Corp.), 590 F.3d 252, 258-59 (3d Cir. 2009); Contemporary Indus. Corp. v. Frost, 564 F.3d 981, 987-88 (8th Cir.2009)).
In MacMenamin, the Bankruptcy Court provides an independent analysis of the issue as follows.
§ 761 is also “a key definitional reference within § 546(e), which also appears in Subchapter IV of chapter 7 governing commodity broker liquidations.
Other courts in the Southern District of New York look beyond the “apparently plain language” of § 546(e) to achieve Congressional intent “on a nuanced basis.” One such court, for example, identifies “five factors” to consider regarding the nature of the transaction and its potential impact on markets.
“Clear” and “consistent” legislative history demonstrates that § 546(e) is intended to address market-level risks that are absent from private transactions. So, a result contrary to Congressional intent should not be imposed.
The § 546(e) safe harbor defense is the subject of debate and disagreement these days. The U.S. Supreme Court resolved a narrow issue for us in its Merit Management opinion. But many more issues remain, including those referenced in footnotes 2 and 5 of the Merit Management opinion.
Based upon the wording of those two footnotes, and upon comments in oral arguments, it appears that the winner and loser in Merit Management might have been different, if the footnote 2 issue had been raised by the parties. But the result, apparently, would not have been affected, even if the footnote 5 issue had been raised.
It will be interesting to see how all this plays out in litigation to come.


79.12.010 Who may purchase or lease — Application — Deposit.
Now codified as RCW 79.01.088.
79.12.015 Amateur radio repeater stations — Legislative intent.
Recodified as RCW 79.13.500 pursuant to 2003 c 334 § 557.
79.12.020 Inspection and appraisal — Minimum price of educational lands.
Now codified as RCW 79.01.092.
79.12.025 Amateur radio electronic repeater sites and units — Reduced rental rates — Frequencies.
Recodified as RCW 79.13.510 pursuant to 2003 c 334 § 557.
79.12.030 Maximum and minimum areas subject to sale or lease — Exception — Approval of regents — Duration of leases.
Now codified as RCW 79.01.096.
79.12.035 Retirement of interfund loans — Transfer of timber cutting rights on forest board purchase lands to the federal land grant trusts — Distribution of revenue from timber management activities.
Recodified as RCW 79.64.120 pursuant to 2003 c 334 § 565.
79.12.040 Maximum area of urban or suburban state land — Platting.
Now codified as RCW 79.01.100.
79.12.050 Vacation of plat by commissioner.
Now codified as RCW 79.01.104.
79.12.055 Nonprofit television reception improvements districts — Rental of public lands — Intent.
Recodified as RCW 79.13.520 pursuant to 2003 c 334 § 557.
79.12.060 Vacation on petition — Preference right to purchase.
Now codified as RCW 79.01.108.
79.12.070 Entire section may be inspected.
Now codified as RCW 79.01.112.
79.12.080 Date of sale limited by time of appraisal.
Now codified as RCW 79.01.116.
79.12.090 Survey to determine area subject to sale or lease.
Now codified as RCW 79.01.120.
79.12.095 Geothermal resources — Guidelines for development.
Recodified as RCW 79.13.530 pursuant to 2003 c 334 § 557.
79.12.100 Timber and valuable materials sold separately, when.
Now codified as RCW 79.01.124.
79.12.110 Separate appraisement dispensed with, when.
Now codified as RCW 79.01.128.
79.12.120 Cash payment — Time limit on removal — Reversion — Extension.
Now codified as RCW 79.01.132.
79.12.130 Separate appraisement of improvements before sale or lease — Damages and waste to be deducted.
Now codified as RCW 79.01.136.
79.12.140 Possession after termination of lease — Removal of improvements.
Now codified as RCW 79.01.140.
79.12.150 Reversion of unremoved improvements — Payment by purchaser.
Now codified as RCW 79.01.144.
79.12.160 Deposit by purchaser to cover value of improvements.
Now codified as RCW 79.01.148.
79.12.170 May examine witnesses, compel attendance, etc., in fixing values.
Now codified as RCW 79.01.152.
79.12.180 Sale of land after removal of timber or other material.
Now codified as RCW 79.01.156.
79.12.190 Rules and regulations for removal of timber.
Now codified as RCW 79.01.160.
79.12.200 Reservation of land for reforestation after timber removed.
Now codified as RCW 79.01.164.
79.12.210 Sale of timber damaged by fire.
Now codified as RCW 79.01.168.
79.12.220 Sale of timber damaged by storm or disease.
79.12.230 Sale of timber damaged by storm or disease — Manner of sale — Bond.
79.12.232 Sale of timber on stumpage or scale basis.
Repealed by 1969 ex.s. c 14 § 5.
79.12.234 Sale of timber on stumpage or scale basis — Contract provisions.
79.12.236 Sale of timber on stumpage or scale basis — Cash deposit required.
79.12.240 Disposition of crops on forfeited land.
Now codified as RCW 79.01.172.
79.12.250 Road material — Sale to public authorities.
Now codified as RCW 79.01.176.
79.12.260 Subdivision of contracts or leases.
Now codified as RCW 79.01.236.
79.12.270 Assignment of contracts or leases.
Now codified as RCW 79.01.292.
79.12.280 Effect of mistake or fraud.
Now codified as RCW 79.01.240.
79.12.290 Certificate of appraisement to county auditor — Notice to applicant — Objection to appraisement.
Now codified as RCW 79.01.180.
79.12.300 Fixing date of sale — Notice — Publication and posting.
Now codified as RCW 79.01.184.
79.12.310 Pamphlet list of lands or materials — Distribution.
Now codified as RCW 79.01.188.
Now codified as RCW 79.01.192.
79.12.330 Place of sale — Hours.
Now codified as RCW 79.01.196.
79.12.340 Sales at auction — Minimum price — Exception as to minor timber sales.
Now codified as RCW 79.01.200.
79.12.350 Conduct of sales — Payments — Memorandum of purchase.
Now codified as RCW 79.01.204.
79.12.360 Readvertisement of lands not sold.
Now codified as RCW 79.01.208.
Now codified as RCW 79.01.212.
79.12.380 Terms of payment — Deferral by reason of improvements.
Now codified as RCW 79.01.216.
79.12.390 Certificate to governor of payment in full — Deed.
Now codified as RCW 79.01.220.
79.12.400 Form of contract — Forfeiture — Extension of time.
Now codified as RCW 79.01.228.
Now codified as RCW 79.01.224.
79.12.420 Bill of sale for materials.
Now codified as RCW 79.01.232.
79.12.430 Duration of leases — Restrictions.
Now codified as RCW 79.01.244.
79.12.440 List of lands to county auditor.
Now codified as RCW 79.01.248.
79.12.450 List to be posted — Lease to highest bidder.
Now codified as RCW 79.01.252.
Now codified as RCW 79.01.256.
Now codified as RCW 79.01.260.
79.12.480 Rejection or approval of leases.
Now codified as RCW 79.01.264.
79.12.490 Record of leases — Notice to pay rent — Forfeiture.
Now codified as RCW 79.01.268.
79.12.500 Improver's preference right to lease.
Now codified as RCW 79.01.272.
Now codified as RCW 79.01.276.
Now codified as RCW 79.01.280.
79.12.530 Water right as improvement.
Now codified as RCW 79.01.284.
Now codified as RCW 79.01.288.
79.12.550 Restrictions upon grazing leases.
Now codified as RCW 79.01.296.
79.12.560 Leased lands reserved from sale.
Now codified as RCW 79.01.300.
79.12.570 Share crop leases authorized — Terms — Application.
Recodified as RCW 79.13.320 pursuant to 2003 c 334 § 557.
79.12.580 Notice of leasing — Publication — Contents.
79.12.590 Lease to highest bidder — List of lands — Posting.
79.12.600 Harvest, storage of crop — Notice — Warehouse receipt.
Recodified as RCW 79.13.330 pursuant to 2003 c 334 § 557.
79.12.610 Sale, storage, or other disposition of crops.
Recodified as RCW 79.13.340 pursuant to 2003 c 334 § 557.
79.12.620 Insurance of crop — Division of cost.
Recodified as RCW 79.13.350 pursuant to 2003 c 334 § 557.
79.12.630 Application of other provisions to share crop leases.
Recodified as RCW 79.13.360 pursuant to 2003 c 334 § 557.


text:
One of Apache™ FOP's design goals is conformance to the W3C XSL-FO 1.1 standard, which specifies three levels of "conformance": basic, extended, and complete. Although FOP does not currently conform to any of these levels, it is nevertheless a useful work-in-progress for many applications. The information presented here demonstrates FOP's progress toward the goal of conformance, which progress consists of implementation of specific objects and properties in the standard. The information presented is useful not only to the developers as a sort of "to do" list, but also for setting proper expectations for users and potential users.
The following is a summary of FOP's current support for the standard XSL-FO objects.
§6.4.13 simple-page-master Basic partial partial partial The page width may not change among pages of the same page-sequence unless a forced break is inserted.
§6.6.6 instream-foreign-object Extended yes yes yes Built-in support for SVG only, additional namespaces through optional extensions.
§6.6.11 page-number-citation Extended partial partial partial After the page number is known, no relayout is performed. The appearance may be suboptimal depending on the use case.
Works only for page-sequence so far.
After the page number is known, no relayout is performed. The appearance may be suboptimal depending on the use case.
§6.11.2 bookmark Extended partial partial partial external-destination is not yet supported.
§6.11.3 bookmark-title Extended partial partial partial color, font-style and font-weight are not supported, yet.
§6.12.3 footnote Extended partial partial partial Restrictions with multi-column documents.
§6.13.4 wrapper Basic yes yes yes Only works as expected with inline-level content.
The following is a summary of FOP's current support for the standard XSL-FO properties.
§7.8.5 background-position-horizontal Extended partial partial partial Ignored when background-repeat set to "repeat" or "repeat-x"
§7.8.6 background-position-vertical Extended partial partial partial Ignored when background-repeat set to "repeat" or "repeat-y"
§7.10.1 country Extended yes yes yes For PDF output: Only 2-letter codes from ISO 3166 are supported properly to identify the natural language!
§7.10.2 language Extended yes yes yes For PDF output: Only 2-letter codes from ISO 639 are supported properly to identify the natural language! Also used with complex scripts features.
§7.10.3 script Extended no yes yes Used with complex scripts features to override default script heuristics.
§7.11.5 space-before Basic partial partial partial Space adjustment may not fully work everywhere, yet.
§7.11.6 space-after Basic partial partial partial Space adjustment may not fully work everywhere, yet.
§7.14.4 display-align Extended partial partial partial TODO Check e-g, i-f-o.
§7.16.13 wrap-option Basic partial partial partial Only supported on fo:block.
[1.0 and later] minimal support for <integer> value.
works on all implemented block-level FOs, but not on inline-level FOs.
[1.0 and later] works on all implemented block-level FOs, but not on inline-level FOs.
§7.22.2 leader-pattern Basic yes yes yes Value "use-content" does not work in all circumstances.
§7.23.9 show-destination Extended partial partial partial [1.0 and later] only has effect in PDF output, for external PDF destinations (links pointing to destinations in another PDF), and only works reliably when the PDF is viewed in a standalone PDF viewer.
Adobe's browser plugin, for example, ignores the /NewWindow flag.
§7.30.8 id Basic partial partial partial IDs on table-header, table-footer, table-body, table-row, table-and-caption, table-caption, inline-container and bidi-override are not available, yet.
§7.31.13 font Complete partial partial partial Enum values other than "inherit" not yet supported.
§7.31.22 vertical-align Complete partial partial partial Percentages are not supported, yet.
§7.31.24 xml:lang Complete yes yes yes Very basic parsing; no validation of the specified value.
The following is a summary of FOP's current support for the XSL-FO Core Function Library.

matches: §6 §6 §6 §6 §6 §6 §6 §7 §7 §7 §7 §7 §7 §7 §7 §7 §7 §7 §7 §7 §7 §7