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Thursday, October 19, 2006

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Andrew Engel

What!!! The repeat player myth isn't a myth after all? What a surprise. Great work. Perhaps in light of these two "cracks" courts will be a bit more permissive in allowing more expansive discovery.

Now, when will you be able break through their "quasi-judicial immunity?"

Gary Kennedy

Respondent’s Response to the Panel’s Final Decision
Regarding Case #FA0609000808307
XM Satellite Radio v. Gary Kennedy (xmstations.com & xm-stations.com)

This panel’s decision should be considered as the poorest written decision of all the NAF published decisions. I don’t mind losing this decision if it wasn’t based upon ignorance and lack of integrity. This decision has the tone of being written in a hurry to meet the deadline, is based upon total ignorance, and is suspiciously biased. The forum coordinator should have line item veto power with regard to ignorance. This panel ignored many rules of evidence, along with who has the responsibility to prove their statements. It is puzzling that FRE RULE 408 can be used in some decisions, but not others. This entire case was based upon unsupported or unproven “beliefs” as to “my” actions. “Circumstantial evidence” would not hold up in a court of law. Kyle Kennedy’s offer to sell the domain names was not proven by the complainant other than in writing for $100.00. His actions had nothing to do with my legal intent for the domains’ use. I should not have to prove any action one way or the other with regard to Kyle Kennedy. This panel used “inferences” that were not proven by the complainant. My “complicity” with Kyle Kennedy also was not proven.

This panel’s ignorance of what happened with my registrar “ItsYourDomain.com” is what caused you to believe I was earning “click fees”. Within in days of registering these domains, a lock was placed on these domains by ICANN and Whois. Therefore, “inactive use” or “merely holding without active use”, should not be held against me since I had no control of these domains until this complaint was finalized. I was prevented from redirected them to our website for our intended business venture. Also, IYD immediately, as they do with all the domains they manage, redirect the domains to a “Coming Soon” page that lists other similar websites. I had no control or knowledge of their practice. I never received a “click fee”, nor would I ever have received one. I never used these domains for any “commercial benefit”. This panel did not even check with IYD to determine if I was telling the truth or not. They should have contacted IYD to find out why they use parked domains for “their” commercial benefit. This is gross ignorance of this panel and this opinion should be challenged or vetoed. Retired attorneys do not have any business serving as panelist until they are more informed with the business operations of domain registrars. I did learn from these hopeless panelists. I learned it is not what is right that matters the most, it is who is doing the fighting and how the fight was fought. Much of our country’s legal system is like this. Remember this, exposing gross ignorance is not sour grapes. This response will be published on the internet.

Gary Kennedy, Respondent

CC: Ian Barker, Panelist, Panelist, Atty.
Carolyn M. Johnson, Panelist, Houston,TX Atty.
R. Glen Ayers, Panelist, San Antonio,TX Atty.

R. Mullen

I am an NAF arbitrator. I love this work and do it because the legal system is LESS likely to give consumers a decent break. You might not like the administrative side of things, but to be frank, if someone allows a FORM to control the oucome of a case, that person shouldn't be doing this kind of work.

Second, if people who spent all their energy slamming the system spent a fraction of that time educating consumers on how to USE the system to their benefit, I suspect they would find that many consumers would prefer it to their so-called "day in court." The way I read the on-line critique, one would think that court "justice" is closer to exoneration from debt than the more torturous rubber stamp a judge is going to give to a valid debt. The justice in court comes from payment plans anyway, --something available come enforcement time which goes through a court anyway.

Third, correct me if I'm wrong but Judge Judy is arbitration. Judge Hatchett is arbitration. Judge Joe is,--you guessed it! ARBITRATION. Now, yes, it's TV, but if you want non-neutral, biased, ridiculous views of dispute resolution, then recognize that TV audiences seem to love it! What we independent arbitrators do is take the ridiculous out and try to do the right thing the SAME way a judge might.

Fourth, I've read some of the studies and what is conscipuously ABSENT from most which purport to show administration bias is the simple fact that these cases usually involve debt which is valid and owing. THAT'S the main reason companies win. The other is that consumers don't PARTICIPATE in the process and the lawyers who do don't bother to read the rules! Encouraging consumers to stick their heads in the sand is irresponsible. Thanks to changes in the bankruptcy code, it's simply no longer possible to stop debt collection by "getting one's day in court" anyway.

Consumer arbitration is one opportunity to do one's own legal work and do just as well as any lawyer could, because there ARE conscientious arbitrators out there who really believe in the process and believe in self-determination. Give me good argument and the basis for it, and you'll find arbitration as good as any "day in court." I'll be doing a lot of on-line eduation myself consistent with a neutral position, -- so stay tuned.

Doe

Most disputes never go to court even when consumers DO have the right to sue, because they settle. Thus, leverage afforded by keeping the right to sue is very important for consumers to keep. If the corporation they're up against knows they cannot sue, the corporation has little or no incentive to settle. Arbitration will keep the complaint out of public record in 49 states, and the arbitrator will likely be from a firm that woos businesses for work and does repeat work for them. This is such an obvious potential for bias that it alone should be reason to ban mandatory arbitration clauses in consumer contracts.

The courts are not fun, I agree...but being forced to give up that constitutional right is just wrong. When entire industries use arbitration clauses, and those products and services are required in today's society, then it SHOULD be thrown out of court as a contract of adhesion, but it's not anymore. Consumers do not do repeat biz with arbitrators, nor do consumers know ahead of time what all the arbitration fees will be. If it was good for consumers it would not have to be mandatory, would it?

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I received a notice from the National Arbitration Forum?
It said that my case had been dismissed at the request of the other party. I didn't even know that I HAD a case against me. is there anything that I need to do?

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They should have contacted IYD to find out why they use parked domains for “their” commercial benefit. This is gross ignorance of this panel and this opinion should be challenged or vetoed. Retired attorneys do not have any business serving as panelist until they are more informed with the business operations of domain registrars. I did learn from these hopeless panelists. I learned it is not what is right that matters the most, it is who is doing the fighting and how the fight was fought. Much of our country’s legal system is like this. Remember this, exposing gross ignorance is not sour grapes. This response will be published on the internet.

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The second crack in the wall comes in a deposition of Harvard Law Professor Elizabeth Bartholet, taken on September 26, 2006, by a lawyer challenging the NAF as being biased in a consumer case against Gateway Computers. Professor Bartholet had also served as an independent contractor arbitrator for the NAF, until she resigned. Her February 8l, 2005 resignation letter expressed her concern that NAF’s system is biased in favor of lenders and against individuals. NAF fought hard to block Professor Bartholet from testifying in the Gateway case, but after a lot of back and forth, a court basically ruled that she would be permitted to testify so long as she did not give the names of particular parties whose cases she had handled as an arbitrator. Her deposition describes how she was also blackballed by a credit card company after she ruled against it in a single arbitration. At the time that the credit card company decided to block her from hearing any more cases involving itself, she was scheduled to hear a number of other consumer cases. NAF sent out letters to the consumers falsely stating that she would no longer be the arbitrator in their cases, because she supposedly had a scheduling conflict. The professor did not have a scheduling conflict, however, but the NAF sent out this explanation rather than the true one that she had been blackballed by a lender who didn’t like how she had ruled in a past case. Professor Bartholet has testified eloquently about how NAF operates a systematically unfair system that is biased against credit card companies.

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Did you ever expect a corporation to have a conscience,when it has no soul to damned,and no body to be kicked?Do you understand?

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