Appellants Brief in Associated Recovery v. John Does 1-44 Et Al

Case: 18-10596 Document: 00514686782 Page: 1 Date Filed: 10/17/2018
Case No. 18-10596
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
ASSOCIATED RECOVERY, LLC.,
Plaintiff - Appellant
v.
JOHN DOES 1-44; 744.COM; 028.COM; 3DCAMERA.COM; FNY.COM; ET AL.,
Defendants - Appellees
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ASSOCIATED RECOVERY, LLC
v.
JOHN DOES 1-44; 744.COM; 028.COM; 3DCAMERA.COM; FNY.COM;

VERISIGN INCORPORATED, et. al.,
Defendants -Appellees
---------------------------------------------------------------------------------------------------------------------
ASSOCIATED RECOVERY, LLC,
v.
LINDA BUTCHER; CBRE GROUP INCORPORATED; VIVIAN ROSENTHAL;

WILLIAM WOLFSON; PRIVECO INCORPORATED; STEVE PARMA; SOL
PERLSTEIN; RADICAL INVESTMENTS MANAGEMENT L.L.C.; TUMULT
INCORPORATED; DGB PARTNER INCORPORATED;
TOBYCLEMENTS.COM L.L.C.; TRUE MAGIC L.L.C.; JANNO L.L.C.;
POWER HOME TECHNOLOGIES L.L.C.; LOOKOUT INCORPORATED;
SLICE TECHNOLOGY INCORPORATED, formerly known as Project Slice
Incorporated; STEVE FORTUNA; MOINC-US; TELEPATHY
INCORPORATED; ONIG L.L.C.; NEWS LIMITED; WORLDWIDE RETALING
L.LC.; STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY;
ALL-PRO FASTENERS INCORPORATED; BUYERS INTERNATIONAL
GROUP L.L.C.; CREATION MEDIA L.L.C.; DHARSHINEE NAIDU; KATE

SPADE; ALANSIS CORPORATION; FANTASY SPIN GAME L.L.C.;
GOLDRUN INCORPORATED; ALANSIS.COM INCORPORATED,
Appeal from the Final Judgment of United States District Court

For the Northern District of Texas, Dallas Division
Case No. 3:16-cv-01025-L
APPELLANT'S OPENING BRIEF
/s/ Conrad Herring

Conrad Herring, Esq.
California State Bar No. 157057
3525 Del Mar Heights Road, No. 305
San Diego, CA 92130
858-792-1539
conrad@conradherring.com
ATTORNEY FOR APPELLANT,

Associated Recovery, LLC
CERTIFICATE OF INTERESTED PERSONS
Appellant, by and through his attorney of record, Conrad Herring, certifies
that the following listed persons and entities have an interest in the outcome of
this appeal and underlying proceedings. These representations are made in order
for the judges of this Court to evaluate possible conflicts of interest,
disqualification, or recusal.
I. Parties
Appellant:
Conrad Herring, Esq. Bar No. 157057
San Diego, CA 92130
858-792-1539
Attorney for Appellant Associated Recovery, LLC
STATEMENT REGARDING ORAL ARGUMENT
Appellant Associated Recovery does not require oral argument but will
participate at the Court's direction. The issues presented in this appeal are
narrow, requiring only for the Court to determine if Collateral Estoppel bars
Appellant's claims. As to this issue, the Court need only determine whether the
Sales Orders in the Receivership of Jeffrey Baron, Case No. 3:09-cv-00988-L,
were reversed on appeal when this Court reversed the Receivership in
Netsphere, In. v. Baron 703 F.3d 296 (5th Cir. 2012) (Netsphere I).
-i-
TABLE OF CONTENTS
I. STATEMENT OF JURISDICTION . . . . . . 2
II. STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . 2
III. STATEMENT OF THE CASE . . . . . . . 3
A. THE PARTIES . . . . . . . . . 3
B. PRIOR ACTIONS RELEVANT TO THE APPEAL . . . . 5
C. PROCEDURAL HISTORY . . . . . . . . 4
1. Early History . . . . . . . . 4
2. District Court Authorizes Sales of Domain Names . . .

6
3. The Appellate Court Reverses the Receivership Order . . . 8
4. Relevant Procedural History of Appellant's Action to Recover Domain

Names Purportedly Sold During the Receivership. . . . . 11
D. STATEMENT OF FACTS . . . . . . . 12
IV. SUMMARY OF ARGUMENT . . . . . . . 20
V. ARGUMENT . . . . . . . . . 23
THE DISTRICT COURT ERRED WHEN IT GRANTED APPELLEES'

RULE 12(b)(6) MOTION TO DISMISS BASED ON THE AFFIRMATIVE
DEFENSE OF COLLATERAL ESTOPPEL.
A. STANDARD OF REVIEW . . . . . . 23
B. COLLATERAL ESTOPPEL DOES NOT BAR APPELLANT'S CLAIMS. .

24
1. The District Court’s finding that the Appellant is collaterally

estopped from asserting claims relies on the factually incorrect
conclusion that this Court did not reverse the Sales Orders. . 24
-ii-
2. The issues litigated in Netsphere I are not identical to the issues in this
matter, and therefore precludes the application of collateral estoppel. 33
3. Even if this Court determines that the issues in Netsphere I and

this litigation are identical, Appellant has not been afforded the
opportunity to fully and fairly litigate the issues surrounding the
reversed Sales Orders in Netsphere I. . . . . 36
4. Even if this Court finds that Appellant’s claims are identical and
have been fairly and fully litigated in court, special circumstances
exist that make it unfair to the Appellant to apply this doctrine. . 39
C. THE DISTRICT COURT DID NOT ADDRESS OR RULE ON ANY OTHER

GROUNDS RAISED BY APPELLEES FOR DISMISSAL UNDER RULE 12(B)(6) . 41
CONCLUSION 44
Certificate of Electronic Service 45
Certificate of Compliance 46
-iii-
TABLE OF AUTHORITIES
Cases
A.J. Taft Coal Co. v. Connors, 829 F.2d 1577 (11th Cir.1987) 38
Allen v. McCurry, 449 U.S. 90, 94–95, 101 S.Ct. 411, 415 (1980) 25
Atlantic Coast Line R.R. Co. [**16] v. St. Joe Paper Co., 216 F.2d 832, 833
(5th Cir. 1954), cert. denied, 348 U.S. 963 (1955) 22,33
Breen v. Centex Corp., 695 F.2d 907 (5th Cir. 1983) 36
Brister v. A.W.I., Inc., 946 F.2d 350, 354 & n. 1 (5th Cir.1991) 24
Busby v. Jones, 134 Tex. 241, 133 S.W.2d 566, 571 (1939) 27
Butler v. Eaton 141 U.S. 240, 11 S.Ct. 985, 35 L.Ed. 713 (1891)) 32
Compagnie Des Bauxites de Guinee v. L'Union Atlantique S.A. d'Assurances

723 F.2d 357, __ (3rd Cir, 1983) 38
Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1422 (5th Cir. 1995) 24, 25-29, 38, 39
Cuvillier v. Taylor, 503 F.3d 397 (5th Cir. 2007) 25
Dow Chemical v. U.S. E.PA., 852 F.2d 319, 323 (5th Cir. 1987) 36
General Universal Sys., Inc. v. Hal, Inc., 500 F.3d 444 (5th Cir.2007) 15
Gospel Army v. Los Angeles, 331 U.S. 543, 546, 67 S.Ct. 1428
L.Ed. 1162 (1947) 33
Hicks v. Quaker Oats Co., 662 F.2d 1158, 1168 (5th Cir. Unit A, 1981) 26
Hudson v. C.I.R. 71 F.3d 887 [published in full-text format at 1995

U.S. App. LEXIS 41801], 1995 WL 725812, at *3 (5th Cir. 13 Nov. 1995)) 26
In re Baron, 593 Fed. Appx. 356 (5th Cir. 2014) 3, 26
Lormand v. U.S. Unwired, 565 F.3d 228, 232 (5th Cir. 2009) 24
Madison v. Gordon, 39 S.W.3d 604 (Tex. 2001) 43
-iv-
Media, Express Media Group, LLC v. Express Corp., 2007

WL 1394163* 5-6 (N.D.Cal.) 31
Netsphere v. Baron, 703 F.3d 296 (5th Cir. 2012) 4, 6, 9-11, 21, 26, 32, 35, 42
Netsphere, Inc. v. Baron, 799 F.3d 327 (5th Cir. 2015) 4

Netsphere, Inc. v. Gardere Wynne Sewell, LLP, 657 Fed. Appx. 320 4,29
(5th Cir. 2016)
Orca Assets, G.P. v. Burlington Res. Oil & Gas Co., 464 S.W.3d 403,
408-409 (Tex. App.–Corpus Christi 2015, pet. denied) 27
Swanson v. Grassedonia 647 S.W.2d 716
(Tex. App.-Corpus Christi 1982, no writ). 44
Rai v. La. State Univ. 714 F.3d 322 (5th Cir. 2013) 23-24
Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994) 27
Test Masters Educ. Services, Inc. v. Singh, 428 F.3d 559, 570 (5th Cir. 2005)) 24
Tex. Dep't of Transp. v. A.P.I. Pipe and Supply, LLC, 397 S.W.3d 162,
166 (Tex. 2013) 27
United States v. Shanbaum,10 F.3d 305, 311 (5th Cir.1994) 24,40
United States v. Webber, 396 F.2d 381, 386 (3rd Cir. 1968) 25
Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th Cir.1991) 22,33
Federal Statutes
28 U.S.C. section 1291. 1
Federal Rules of Civil Procedure

Rule 12(b)(6) 1,11,23-25,41-43
-v-
I.
STATEMENT OF JURISDICTION
This appeal is from a final judgment of the District Court entered on April 12,
2018. ROA.290, 2960-2961.
Appellant timely filed its Notice of Appeal on May 14, 2018. ROA.2963-2967.
This Court has jurisdiction pursuant to Title 28, Section 1291 from a final
judgment of the District Court, which dismissed Appellant's Complaint without
prejudice. ROA.290.
II.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
In the District Court action, Appellant seeks to recover domain names that
were liquidated during a failed and improper receivership:
1. Whether the District Court erred by granting the Appellees' motions to
dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted;
2. Whether this Court reversed and vacated the orders authorizing the sale of
certain domain names (“Sale Orders”);
3. Whether collateral estoppel bars recovery of domain names quitclaimed
during the receivership for dramatically less than fair market value, where the
purchasers knew, at the time of purchase, that their interests in the domain names
-1-
would be extinguished upon a reversal on appeal, and where the Sale Orders were
reversed.
a. Does collateral estoppel apply to district court orders that were reversed on
appeal?
b. Does collateral estoppel bar an action to recover the fair market value of
the domain names less the purchase price of the domain names, where the Sale
Orders were reversed on appeal, where the purchasers paid dramatically less than
fair market value, and where the purchasers knew that their interests in the domain
names would be extinguished upon a reversal of the Sale Orders?
III.
STATEMENT OF THE CASE
A. The Parties
This action began as three separate lawsuits filed by Appellant against purchasers
of contingent interests in certain internet domain names (the "Domain Names")
during the failed and improper receivership of Jeffrey Baron.
The cases were consolidated by the Northern District of Texas, Dallas Division
into Civil Action No. 3:16-CV-1025-L.1 The two cases consolidated under 3:16-
cv-1025-L are No. 3:16-cv-434, which was commenced in the United States
District Court for the Eastern District of Virginia, Alexandria Division (“Virginia
1
The Order Consolidating the cases appears at ROA.1779-1780.
-2-
Action”); and No. 3:17-cv-651, which was commenced in the United States
District Court for the eastern District of Texas, Marshall Division (“Marshall
Action”).2
Appellant filed the Virginia Action on December 31, 2015 against John Does
1-44 and 44 associated internet domain names.
Appellant filed the Marshall Action on February 8, 2016 against 64 named
defendants identified as registrants of the Domain Names. Before the Marshall
Action was transferred to the Northern District of Texas, 22 of the 64 defendants
were dismissed from the case, leaving 44 defendants (“Marshall Defendants”).
Following consolidation, Appellant filed its Third Amended Complaint on June
1, 2017. ROA.2235. The defendants at that time consisted of registrants of 206 of
the Domain Names (referred to as “Registrant Defendants” for convenience”) and
domain name registrars.3
The Appellees in this case are exclusively Registrant Defendants and are as
follows:
 Lookout, Inc.
 Ye Yu
2
The Civil Docket for the Virginia Action appears at ROA.66-91 and the Civil Docket for the
Marshall Action at ROA.92-126.
3
A complete list of the domain names and registrars is contained in Paragraph 9 of the Third
Amended Complaint and also appears as Exhibit A to the March 28, 2018 Memorandum and
Opinion. ROA.2205-2210, 2887-2893.
-3-
 Steve Fortuna
 Consolidated Defendants 4
B. PRIOR ACTIONS RELEVANT TO THE APPEAL.
Several prior appellate and district court decisions are relevant to the issues
presented by this appeal:
 Netsphere, Inc. v. Baron, 703 F.3d 296 (5th Cir. 2012) (Netsphere I)
 Netsphere, Inc. v. Baron, 799 F.3d 327 (5th Cir. 2015) (Netsphere II)
 Netsphere, Inc. v. Gardere Wynne Sewell, LLP, 657 Fed. Appx. 320 (5th
Cir. 2016) (Netsphere III)
 In re Baron, 593 Fed. Appx. 356 (5th Cir. 2014)
 Baron v. Schurig, No. 3:13-CV-3461-L, 2014 WL 25519 (N.D. Tex.

Jan 2, 2014)
 Baron v. Vogel, 3:15-CV-232-L, 2016 WL 1273465 (N.D. Tex. Mar.

31, 2016)
 Netsphere, Inc. v. Baron, 3:09-CV-00988-L (Netsphere Action or

Netsphere Litigation)
C. PROCEDURAL HISTORY
1. Early History
The relevant history of proceedings began in 2009 with an action commenced in
the district court: Netsphere Inc. et al v. Baron et al, Case No. 3:09-cv-00988-L,
4
The Consolidated Defendants are 55 defendants in the consolidated action and they are listed out
individually in the Memorandum and Opinion at ROA.2914-2915.
-4-
docket 1. On August 15, 2009, while this litigation was pending, one of the
defendants, Ondova Limited Company, filed a Chapter 11 bankruptcy petition in the
Bankruptcy Court for the Northern District of Texas: In re Ondova, Case No. 09-
34785-SGJ-ll. The Netsphere litigation in the district court was then settled under the
supervision and approval of the bankruptcy court.
On November 24, 2010, the Chapter 11 trustee in the Ondova bankruptcy case
moved for an emergency ex parte order, off the record, and without notice to
Baron, placing him into a receivership. The district court signed the order
appointing a receiver (the "Receivership Order") the same day as the trustee's motion,
November 24, 2019. ROA.8648 @ Dkt. No. 123, 124. The Receivership Order was
docketed under the same caption and case number as Netsphere, Inc. v. Baron,
3:09-cv-00988. RAO.2282. Consequently, although the actions were completely
separate and distinct, both the Netsphere Action and the receivership action were
short titled as "Netsphere, Inc. v. Baron."
The purported basis for the receivership order was the alleged vexatious litigation
conduct by Baron in the Ondova bankruptcy proceedings.5
On December 2, 2010, the Receivership Order was appealed to this Court.
5
The allegations that Baron was engaging in vexatious litigation tactics were never tested or
proven in an adversarial hearing. Baron's alleged conduct has been assumed by parties and the
courts since 2010. Baron has since challenged the allegations that he ever engaged in vexatious
tactics in any court and has presented compelling evidence that the allegation made against him in
support of the receivership order were knowingly false and fraudulent. See Baron v. Sherman,
Case No. 18-10182 (5th Cir. 2018) (appellate decision pending).
-5-
Netsphere, Inc., 703 F.3d 296 at 306. ROA.2311-2312.
After the Receivership Order was signed by the district court, the receiver
immediately seized all cash, revenue, and all of Baron’s assets. The receiver also
seized an inter vivos trust, "the Village Trust." The Village Trust owned and
controlled two companies, Novo Point, LLC and Quantec, LLC, which managed
valuable portfolios of domain names. Id. at 304. The receiver seized these entities
too. Id.
2. District Court Authorizes Sales of Doman Name
In ex parte, sealed motions, the receiver moved to sell certain domain names
owned by Novo Point (the “Domain Names”) despite already having seized over
four million dollars in cash and other liquid assets from Baron, Novo Point, and
Quantec. The district court granted three separate orders granting the motions and
authorizing Damon Nelson, an individual appointed by the court, to sell the
Domain Names.6 These Sale Orders were entered on February 4, 2011, January 31,
2012, and May 3, 2012. ROA.2901,2315, 2348-2351,2352-2361.
Baron and Novo Point separately appealed each of three Sale Orders, which this
Court assigned to separate case numbers, as follows:
 Appeal of sale order entered February 7, 2011,

5th Circuit Case No. 11-10290. ROA.2317;
6
On February 28, 2014, the district court vacated its own order of April 22, 2011, purportedly
appointing Damon Nelson as the manager of Novo Point. ROA.6789 @ Dkt. No. 1368.
-6-
 Appeal of sale order entered January 31, 2012,

5th Circuit Case No. 12- 10003. ROA.2363;
 Appeal of sale order entered May, 3, 2012,

5th Circuit Case No. 12-10657. ROA.2368.
Novo Point argued, on February 1, 2012, that the district court should stay the
domain names sales, in part, because the most fundamental aspects of the sales
process were concealed, the buyers appeared to be insiders and/or acting in
collusion with insiders, and the sales prices were approximately 2% of the market
value of the domain names.7 ROA.6805-6829.
Pursuant to verbal instructions from this Court by telephone, on May 23,
2011, the district court stayed the ex parte Sale Orders along with most other
orders related to the receivership. ROA.6800-6803; See also Baron v. Schurig,
2014 U.S. Dist. LEXIS 180, WL 25519 *15 (N.D. Tex. Jan. 2, 2014).
Nevertheless, on April 24th, 2012, the district court determined sua sponte that it
was no longer bound by the stay. ROA.6831-6832.
3. Damon Nelson Quitclaims Rights in the Domain Names

After the district court determined it was not bound by the stay, Damon
Nelson proceeded to negotiate with certain persons to transfer certain rights of
Novo Point in the Domain Names, described more thoroughly infra in the
7
Although the sales prices of individual sales were concealed, an aggregate figure for some
of the sales combined was disclosed.
-7-
Statement of Facts. Nelson disclosed Novo Point’s claim to the Domain Names
and the pending appeal of the Sale Orders to each buyer prior to each transaction.
In the conveyance documents, Nelson expressly disclaims all warranties
whatsoever, releasing Nelson, Novo Point, “Novo Point’s successors [and]
assigns” from various claims and even indemnifies Novo Point and its from “all
Losses arising out of, based upon or relating to any of the Domain
Names”.ROA.593 ¶ 4, 597 ¶ 4, 608 ¶ 4, 2270 ¶ 4.
In other word the buyers acquired only a contingent interest in the Domain
Names subject to the existing claims of all claimants, including Novo Point.
4. Appellate Court Reverses the Receivership Order
On November 9, 2012, this Court enjoined the closing of any sales of
domain names.8 Thereafter, on December 18, 2012, the Court issued an opinion in
Netsphere I. The Court reversed the receivership “with directions to vacate the
receivership…”, and explained that the district court never had subject-matter
jurisdiction over any of the domain names or any power to issue any of the orders
because no issue concerning any such domain name had ever been raised in the
civil action independently from those pertaining to the receivership-related orders,
and Novo Point had never even been a party in the action. ROA.2373-2403;
8
Netsphere Order, Case No. 10-11202 (Document No. 00512049121).at 6.
-8-
Netsphere, Inc. v. Baron, 703 F.3d 296 (5th Cir. 2012). On April 19, the mandate
reversing the Receivership Order was entered. ROA.2407-2410.
In addition to the reversal of the Receivership Order, this Court also issued
eleven separate mandates, reversing the Sale Orders, the payment of receivership
fees (“Fee Orders”), and various other orders related to the Receivership Order.
All three Sale Orders were reversed in separate mandates entered on April 19,
2013:
 Sale order entered February 7, 2011 - Reversed and Remanded,

5th Circuit Case No. 11-10290. ROA.2411-2412;
 Sale order entered January 31, 2012 - Reversed and Remanded,

5th Circuit Case No. 12- 10003. ROA.2415-2416;
 Sale order entered May, 3, 2012 - Reversed and Remanded,

5th Circuit Case No. 12-10657. ROA.2417-2418.
Table 1: Disposition of Sale Orders
Dist. Ct. Order Type of Order Notice of Appeal 5th Cir. Mandate Judgment

Date, Docket No. Dist. Ct. Dkt. No. Case No. 5th Cir. Dk. No.
2‐7‐2011, #288 Sales of Domain Names 341 11‐10290 512089307 reversed
1‐31‐2012, #807 Order ‐ Sell Domain Names 814 12‐10003 512089344 reversed
5‐3‐2012, #906 Order ‐ Sell Domain Names, et al. 982 12‐10657 512089401 reversed

In addition to reversing the Sale Orders, this Court also prohibited the sale of
any domain names or other assets. Netsphere, Inc. 703 F.3d at 314.
-9-
Along with the Sale Orders, the Court reversed all of the Fee Orders. These
mandates were entered on April 19, 2013 as well:
 Fee orders entered March 14, 16-17, 2011; April 04, 2011;
Appealed on April 19, 2011; ROA.2328-2332;
Reversed, 5th Circuit Case No. 11-10390. ROA.2413-2414.
 Fee orders entered February 7, 2011;

Appealed on March 22, 2011; ROA.2363-2365;
Reversed 5th Circuit Case No. 11-10290. ROA.2411-2412;
 Fee orders entered December 12, 2011; January 31, 2012;

Appealed on February 7, 2012; ROA.2363-2364;
Reversed, 5th Circuit Case No. 12-10003. ROA.2415-2416;
 Fee order entered May, 3, 2012;

Appealed on June 22, 2012; ROA.2367-2371;
Reversed, 5th Circuit Case No. 12-10657. ROA.2417-2418.
The Court remanded the case for reconsideration of all of the Fee Orders with
direction consider meaningful discounts of the fees in light of the fact that the
receivership was improper. Netsphere, Inc v. Baron, 703 F.3d at 313-14.
The Court also ordered that everything subject to the receivership, other than
cash of $1.6 million, should be expeditiously released to Baron under a schedule to
wind up the receivership. Id.
On March 27, 2015, the district court entered an order discharging the receiver
-10-
and awarding additional fees to the receiver for services performed from May 2013
until the receiver's discharge. ROA.8764 @ Dkt. No. 1447. These payments
depleted the remaining $1.6 million dollars cash in the receivership accounts.
Netsphere, Inc v. Baron, 703 F.3d. at 322. ROA.613.
The district court did not enter any new orders reauthorizing Sale Orders, nor
did the court authorize any new sales of receivership assets. ROA.6761-6799. This
Court’s Opinion also prohibited the sale of any receivership assets. Netsphere, Inc
v. Baron, 703 F.3d at 314.
5. Relevant Procedural History of Appellant’s Action to recover

Domain Names sold during the receivership
On March 23, 2017, the District Court entered an order consolidating cases
3:17-CV-424-L and 3:17-CV-651-L under case no. 3:16-CV-1025-L. ROA.1779-
1780.
A Third Amended Complaint was filed on June 1, 2017 incorporating all
remained defendants of the three consolidated cases. ROA.2235-2419. Numerous
Defendants filed or joined motions to dismiss the Third Amended Complaint under
Rule 12(b)(6).9
9
Defendant Lookout, Inc. filed an Amended Motion to Dismiss under R12(b) on June 14, 2017.
ROA.2437-2462. Defendant Ye Yu filed a Motion to Dismiss on June 20, 2017. ROA.2498-
2502. Consolidated Defendants filed a Motion to Dismiss on June 28, 2017. ROA.2575-2580.
Defendant Steve Fortuna filed a Joinder in that Motion to Dismiss on July 14, 2017. ROA.2659-
2669.
10
ROA.7198-7200. As much of the proceedings were conducted ex parte and under seal, the
identification of the assets and purchasers have never been fully disclosed to Appellant or its
predecessors-in-interest, so only an approximate figure can be calculated.
-11-
Appellant filed its Response to the Motions to Dismiss on July 31, 2017.
ROA.2719-2748, and on August 4, 2017. ROA.2798-2824.
Reply briefs were filed by the Defendants. ROA.2798-2824, 2855-2860, 2875-
2885, 2886-2891, 2892-2893.
On March 28, 2018, the District Court entered its Memorandum Opinion and
Order in which it granted the Motions to Dismiss, excepting a breach of contract
claim. The court held that that collateral estoppel barred the claims asserted in
Appellant's Third Amended Complaint. ROA.2899-2947. Judgment was entered on
April 12, 2018. ROA.2960-2961.
Appellant timely filed its Notice of Appeal on May 14, 2018. ROA.2963-2965.
An Amended Notice of Appeal was filed on May 14, 2018. ROA.2966-2967.
C. STATEMENT OF FACTS
Despite the nearly decade long history of litigation giving rise to Appellant's
current action and this appeal, the facts necessary to decide this case are relatively
short. Appellant seeks to recover the Domain Names which were quitclaimed
during the improper receivership of Novo Point and other persons. Appellant's
claims are based on this recovery and on the damages suffered as a result of the
Appellees’ continued exercise of control over the Domain Names.
-12-
The District Court dismissed Appellant's claims under Rule 12(b)(6) on the
grounds that they were barred by collateral estoppel. The court did not address or
rule on any other issues raised in the various Rule 12(b)(6) motions.
During the pendency of the receivership, the receiver purported to sell the
contingent interests in the Domain Name to raise an additional approximately $1.8
million dollars.10
Of the approximately $11 million dollars11 taken in by the receivership in
total, the district court authorized approximately $6 million dollars to be paid as
professional fees and costs of the receivership, $1.6 million of which was spent
after the Court reversed the receivership order.12
The receiver never paid any creditors or claimants of Baron, Quantec, Novo
Point or anyone associated with them. Rather, the receiver managed to spend over
$6 million dollars litigating and defending the right to maintain the receivership
and to sell the contingent interests in the Domain Names in order to continue
funding this effort. In effect, the receiver spent millions of dollars in order to
protect the right to keep spending millions of dollars.
10
ROA.7198-7200. As much of the proceedings were conducted ex parte and under seal, the
identification of the assets and purchasers have never been fully disclosed to Appellant or its
predecessors-in-interest, so only an approximate figure can be calculated.
11
ROA.6852-8188.
12
When this Court reversed the receivership on December 12, 2012, the receivership held
approximately $1.6 million in cash, according to the Opinion. Prior to his discharge almost two
years after the reversal, the receiver spent this entire amount and completely depleted the cash in
the receivership before walking out the door.
-13-
The receiver sought district court authorization on three separate occasions to
sell domain name assets. Each time, the receiver filed his motions ex parte, under
seal, without identifying the names being sold, the price of each names being sold,
or the identity of the proposed buyers. ROA.4968, ROA.8671 @ Dkt. No. 424,
ROA.8676 @ Dkt. No. 480, ROA.8709 @ Dkt. No. 883. The court granted the
authorization each time without disclosing any of this fundamental information.
Baron and Novo Point appealed each of the Sale Orders and also sought to stay the
sales pending appeal of the receivership. (See, supra, section III. C..)
As set out more fully above in the Statement of the Case, the Sale Orders were
reversed on Appeal. The District Court disagreed.
In a related case, which concerned similar orders vacated in Netsphere I,
Baron v. Schurig, the district court recognized that its Orders in the Receivership
Action that depended on the Receivership are void ab initio.In that case, where one
of the appealed Fee Orders entered by the district court was at issue (“ May 2011
Fee Order”), the court explained that all orders “based on the Receivership Order”
were void; reasoning that:
The fate and validity of the May 18, 2011 Fee Order are necessarily tied to
that of the Receivership Order because the Fee Order is expressly based on
the Receivership Order and the establishment of the receivership, which
were held to be improper. Because the district court lacked authority and
jurisdiction to establish the receivership to secure a pool of assets to pay
Baron's Former Attorneys, it also lacked jurisdiction to enter the May 18,
2011 Fee Order, based on the Receivership Order…
-14-
Baron v. Schurig, WL 25519, at *14.
The district court then explained that the order is void:
A judgment is void if the court that rendered it lacked jurisdiction over the
subject matter of the parties. Accordingly, the court concluded that even if
the May 18, 2011 Fee Order, which is based on the improper Receivership
Order, constitutes a judgment, it is void and unenforceable against Baron
because the district court lacked jurisdiction over the subject matter of the
order and the parties affected by the order.”) (internal citations omitted).
...
Thus, in light of the Fifth Circuit's holding regarding the receivership, the
May 18, 2011 Fee Order … cannot support an award of attorney's fees to
Baron's Former Attorneys … because the Fee Order derived its existence
from the creation of the receivership and Receivership Order and therefore
cannot exist separate and apart from them.
Id. at *15.
The mandate rule, as explained by the district court, prohibited it from
breathing life into the May 18 Fee Order:
More to the point, “[t]he mandate rule requires a district court on remand to
effect our mandate and to do nothing else.” General Universal Sys., Inc. v.
Hal, Inc., 500 F.3d 444, 453 (5th Cir.2007) (citations omitted). The court has
neither the inclination nor effrontery to disregard this well-settled precedent.
Id.
Also addressed in the order was this Court’s Clarification Order and
statement concerning the timing of the vacature of the receivership:
Moreover, the court's conclusion the May 18, 2011 Fee Order did not
survive the reversal of the Receivership Order is not affected by the Fifth
Circuit's Order of Clarification and statement that all district court orders in
place prior to the December 18, 2012 opinion shall remain in place. When
read in the context of the entire Order of Clarification, rather than in
isolation, it is clear that this statement was intended merely to convey that
-15-
immediate action in accordance with the Fifth Circuit's December 18, 2012
opinion and instructions on remand was not necessary; rather, the status quo
as to all district court orders, including the reversed Receivership Order,
would continue during the interim period until the mandates issued.
Id.
Negotiated in secrecy, the transactions between Appellees and Mr. Nelson
were not conducted at arms-length, and Mr. Nelson was negotiating monetary
kick-backs to induce him to sell at prices drastically less than fair market value.
ROA.6804-6829. The prices paid by Appellees for their interest in the Domain
Names were approximately one to two percent of the fair market value of the
Domain Names. Id, ROA.4970 ¶107, 5157 ¶ 89.
Before the closing of the transactions, Appellees and/or their predecessor-in-
interest had actual notice that Novo Point claimed to own the Domain Names, had
appealed each of the district court’s orders, and, claimed each such order was void
ab initio because, among other reasons, Novo Point was never a party to the civil
action in which the orders were issued. ROA.2268-2269.
Prior to the closing of each such purported transaction, Novo Point
had no actual knowledge of any details of such transaction, and Novo
Point never actually authorized or ratified any such purported transfer of
ownership at any point.ROA.2268 ¶ 22.
Before the closing of each such transaction, each such Appellee
and/or predecessor-in-interest to each Appellee, had actual knowledge that:
-16-
a. Novo Point claimed to own the Domain Names and
had appealed each of the District Court’s orders, as outlined
supra, claiming each such order was void ab initio and
never had any actual legal force or effect because, among
other reasons, Novo Point was never a party to the civil
action in which the orders were issued;
b. Novo Point claimed that, in reality, neither the
receiver nor Mr. Nelson ever had any actual legal right to
possess, control or manage any of the Domain Names
whatsoever, or the ability to effectuate any legally valid
transfer of any right, title or ownership interest in any of the
Domain Names; and
c. Each of Novo Point’s appeals posed a risk of reversal,
which could establish as a matter of law that, in reality, no
purported transfer of ownership of any Domain Name to a
Appellee or a predecessor-in-interest of a Appellee ever
actually divested Novo Point of any right, title, or ownership
interest in such Domain Name or effectuated any legally
valid transfer of any right, title or ownership interest in
such Domain Name or had any legal effect with respect to
-17-
any such right, title or ownership interest whatsoever.
ROA.2268-2269.
Such actual awareness of the risk posed by Novo Point’s above-
described claims and appeals led one or more of the Appellees or
predecessors- in-interest of such Appellees to negotiate with Mr. Nelson to
provide express warranties of title and to assume an obligation to
indemnify such Appellee(s) or predecessor(s)-in-interest against monetary
loss in the written agreement(s) purporting to sell a Domain Name or
Domain Names to such Appellee(s) or predecessor(s)-in-interest, but Mr.
Nelson refused to do so, and none of the agreements include any
express warranty of title or provision obligating Mr. Nelson to indemnify
a Appellee or predecessor-in-interest – in fact, on the contrary, each such
agreement includes an express disclaimer of any warranty whatsoever.
ROA.2269.
The transactional document through which each Appellee purchased
their contingent interest in one or more of the Domain Names expressly
provided in conspicuous capital letters as follows:
LIMITATIONS OF LIABILITY
The Limitations of Liability included six provisions eliminating all
warranties of purchase and an agreement for the buyer to indemnify the
-18-
seller. These provisions amounted to the seller quit claiming the Domain
Names to Appellees or Appellees predecessors-in-interest and Appellees
only acquiring an extinguishable interest in the Domain Names..
ROA.592,593, 597,598, 607,608, 2269,2270.
In short, each such transactional document amounts to no more
than a quitclaim instrument, which warrants absolutely nothing,
including title, and in fact, disclaims all warranties. Under the express
terms of the assignment, each Appellee or predecessor-in-interest to each
Appellee: (1) Assumed all risks; (2) Released Novo Point, the receiver and
Mr. Nelson and their attorneys, and even Novo Point’s “successors [and]
assigns” (e.g., successor-in- interest, Associated Recovery) from liability,
“which may have existed prior to, or contemporaneously with, the
execution of this Agreement, or subsequent to the execution of this
Agreement”; and (3) “[A]gree[d] to indemnify and hold [all of those
other parties, including Associated Recovery] harmless from and
against, and to pay to [each of those parties including Associated
Recovery] the amount of any and all Losses arising out of, based upon
or relating to any of the Domain Names. Id.
That Appellees were taking only a quit claim is evidenced by the fact
that they were paying pennies on the dollar for the Domain Names.
-19-
In view of the above-described risks and the unfavorable terms of
each such transactional document, the monetary consideration paid by
each Appellee or predecessor-in-interest to each Appellee for each
purported transfer of ownership of a Domain Name was dramatically
below the value of the Domain Name to Novo Point and also
dramatically below what the fair market value of such Domain Name
would have been if such risks did not exist or the terms were more
favorable. The consideration paid by Appellees and/or Appellees’
predecessors-in-interest was approximately one percent of the value of the
Domain Names. ROA.4970 ¶107, 5157 ¶ 89, 2271 ¶ 27.13
IV.
SUMMARY OF ARGUMENT
The central issue before this Court is whether collateral estoppel bars
Appellant's action to recover Domain Names, or their net value, that were
transferred during the failed and improper receivership of Jeffrey Baron. In order
to determine whether collateral estoppel applies, it must first be determined
whether this Court reversed the district court orders authorizing the Sale Orders
when the Court reversed the receivership order for lack of jurisdiction.
Contingent interests in the Domain Names were conveyed to buyers
13
Although Novo Point estimated the prices to be 2% of market value and Appellant estimated the
prices to be 1 % of value, these should not be construed as material distinctions.
-20-
pursuant to three separate district court orders.
Each of the Sale Orders were separately appealed and given separate
appellate case numbers. The Fee Orders, authorizing the receivership fees, were
also appealed.
This Court reversed the receivership order on December 12, 2012.
Netsphere, Inc., 703 F.3d 296 at 315.This Court also issued separate mandates
reversing the Fee Orders and each of the separate Sale Orders. There is a separate
mandate for each case number representing each of the separately appealed Sale
Orders.
In reversing the Receivership Order and all the other orders appealed, this
Court remanded the case back to the district court to reconsider the allowable
receivership fees. The district court was required to take into consideration the fact
that the receivership was reversed and that the district court lacked jurisdiction
over Baron and the assets seized by the receivership.
After several days of hearing, the district court reauthorized over $6 million
dollars in fees and costs requested by the receiver and other claimants and issued a
new fee order to replace the reversed Fee Orders. However, the district court did
not reauthorize any of the Sale Orders. The court terminated the receivership on
March 27, 2015 without ever addressing the issue of the reversed Sale Orders.
An order that is reversed on appeal is void. The reversed order carries no
-21-
legal effect, and is treated as a nullity. Wheeler v. John Deere Co., 935 F.2d 1090,
1096 (10th Cir.1991); see also Atlantic Coast Line R.R. Co. [**16] v. St. Joe
Paper Co., 216 F.2d 832, 833 (5th Cir. 1954), cert. denied, 348 U.S. 963 (1955).
In concluding that collateral estoppel barred Appellant's action to recover the
Domain Names, the District Court found that this Court did not reverse the Sale
Orders. Consequently, the entire foundation of the District Court's judgment is
undermined because the Sale Orders were, in fact, reversed as the mandates and
judgments clearly establish.
The reversal of the Sale Orders does not affect the reconsideration of the
receivership fees on remand. Those fees were reconsidered and a new fee order
was authorized. But, the quitclaim sales that funded a small portion of those fees
were never re-authorized and remained null and void.
The Appellees and/or the predecessors-in-interest of Appellees purchased
only contingent interests in the Domain Names and have always known w that they
were merely purchasing a quitclaim instrument, subject to the claims of Novo
Point and the reversal on appeal of the Sale Orders and Receivership Orders.
Because the Sale Orders are void, Appellant is the legal title holder and is
therefore entitled to recover the Domain Names. Appellant is also able to prove
that the Appellees were not good faith purchasers because they (i) paid pennies on
the dollar; (ii) signed an "as is" contract disclaiming all warranties, and assumed
-22-
the sole risk of loss if the Sale Orders were reversed; and (iii) were aware that Sale
Orders were appealed, were subject to reversal and aware that their interests in the
Domain Names would thereupon be extinguished..
The Appellees raised several other grounds for granting their motions to
dismiss under Rule 12(b)(6). However, the District Court did not rule on any of
these alternate grounds. Therefore, the judgment should be reversed and remanded
so that the District Court may consider these alternate grounds and further
determine whether Appellant should be given leave to amend its complaint, if
necessary.
V.
ARGUMENT
THE DISTRICT COURT ERRED WHEN IT GRANTED

APPELLEES' 12(b)(6) MOTION TO DISMISS BASED ON THE
AFFIRMATIVE DEFENSE OF COLLATERAL ESTOPPEL
A. STANDARD OF REVIEW
1. Motion to Dismiss under Fed. R. Civ. P. 12(b)(6).
An appellate court reviews de novo a district court’s dismissal of a case for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Lormand v. U.S.
Unwired, 565 F.3d 228, 232 (5th Cir. 2009); Cuvillier v. Taylor, 503 F.3d 397, 401
(5th Cir. 2007). The Court may affirm a district court's Rule 12(b)(6) dismissal on
any grounds raised in the lower court and supported by the record. Rai v. La. State
-23-
Univ. 714 F.3d 322, 330 (5th Cir. 2013).
Because of the harshness of remedy, motions to dismiss under Rule 12(b)(6)
“are viewed with disfavor and are rarely granted.” Lormand, 565 F.3d at 232
(quoting Test Masters Educ. Services, Inc. v. Singh, 428 F.3d 559, 570 (5th Cir.
2005)).
B. COLLATERAL ESTOPPEL DOES NOT BAR APPELLANT'S CLAIMS.
1. The District Court’s finding that the Appellant is collaterally estopped

from asserting claims relies on the factually incorrect conclusion that this
Court did not reverse the Sale Orders.
Four conditions must be met before collateral estoppel may be applied to bar
re-litigation of an issue previously decided by a court of competent jurisdiction: (1)
the issue under consideration is identical to that litigated in the prior action; (2) the
issue was fully and vigorously litigated in the prior action; (3) the issue was
necessary to support the judgment in the prior case; and (4) there is no special
circumstance that would make it unfair to apply the doctrine. Copeland v. Merrill
Lynch & Co., 47 F.3d 1415, 1422 (5th Cir. 1995), citing, United States v.
Shanbaum,10 F.3d 305, 311 (5th Cir.1994).
Collateral estoppel will not preclude litigation of an issue unless both the facts
and the legal standard used to assess them are the same in both proceedings.
Copeland, 47 F.3d at 1423, citing Brister v. A.W.I., Inc., 946 F.2d 350, 354 & n. 1
(5th Cir.1991) (even when issues are stated in “nearly identical language,”
-24-
collateral estoppel is unavailable when there are disparate policies underlying each
inquiry which result in definite differences in application and result).
Further, “collateral estoppel is unavailable when a ‘new determination of the
issue is warranted by differences in the quality or extensiveness of the procedure
followed in the two courts.’” Copeland, 47 F.3d at 1423, quoting,
RESTATEMENT (SECOND) OF JUDGMENTS § 28(3).
The principle underlying the doctrine of collateral estoppel is "simply that later
courts should honor the first actual determination of a matter that has been
litigated." Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction, §
4416. Thus, the doctrine incorporates the recognition that a party should not be
permitted to prevail in successive lawsuits by taking "inconsistent
positions." United States v. Webber, 396 F.2d 381, 386 (3rd Cir. 1968).
However, collateral estoppel is improper when there is an absence of detailed
findings of fact and conclusions of law from the prior proceeding. In re Ryan, 408
B.R. 143, 166 (Bankr. N.D. Ill. 2009). Importantly, collateral estoppel cannot be
applied when an issue in the present case was unessential to the prior judgment or
order. Allen v. McCurry, 449 U.S. 90, 94–95, 101 S.Ct. 411, 415 (1980).
Collateral Estoppel likewise does not apply to orders or judgments that have
been reversed on appeal. "When a trial court's judgment is vacated, reversed, or
set aside by an appellate court, collateral estoppel will not preclude relitigation of
-25-
the trial court's conclusions of law or findings of fact." Hicks v. Quaker Oats Co.,
662 F.2d 1158, 1168 (5th Cir. Unit A, 1981); Ferguson v. Baron (In re Baron) 593
Fed. Appx. 356, 361 (5th Cir. 2014); see also Hudson v. C.I.R. 71 F.3d 887
[published in full-text format at 1995 U.S. App. LEXIS 41801], 1995 WL 725812,
at *3 (5th Cir. 13 Nov. 1995) ) (Citing Hicks v. Quaker Oats Co., 662 F.2d 1158,
1168 (5th Cir. Unit A, 1981); also Ferguson v. Baron (In re Baron) 593 Fed.
Appx. 356, 361 (5th Cir. 2014) (By vacating the fee order, the district court
negated any preclusive effect of that order.).
In the present case, the entire crux of the District Court’s holding that
Appellant’s claims were barred by collateral estoppel rests on the repeated
erroneous finding that the Sale Orders at issue were not reversed by this Court in
Netsphere, Inc. v. Baron, 703 F.3d 296 (Netsphere I). Hence, the District Court
avoided the primary issue before it of whether a reversed order negated its
preclusive effect.
The District Court correctly noted that this Court “resolved the receivership
issue in Baron’s and Novo Point’s favor in Netsphere I and reversed the
appointment of the receiver after concluding that the district court lacked authority
to establish the receivership” (the issue at hand in Netsphere I). But the court then
ignored the mandates issued by this Court reversing and remanding the three
specific Sale Orders. Further, by disregarding the mandates, the court was able to
-26-
construe other facts (often incorrectly) to come to the conclusion that Fifth Circuit
implicitly affirmed the sale authorization orders despite the express mandates to
the contrary.
It is uncontroverted that this Court specifically reversed the Sale Orders based
on the separate mandates that were entered on April 19, 2013. ROA.2411-2412,
2415-2418. Ignoring the mandates, the District Court repeatedly found otherwise:
“[the Fifth Circuit] did not reverse or vacate the prior orders that
authorized the sales and transfers of Domain Names . . .” ROA.2903;
"[the Fifth Circuit] did not reverse the orders authorizing the sales of
Domain Names or immediately dissolve the receivership;" ROA.2928;
". . . Associated Recovery's claims still fail because they are based on
the flawed assumption that the sales of the Domain Names were void
ab initio. . ." ROA.2928.
"Accordingly, for the foregoing reasons, the court concludes that,

because the orders authorizing the sales of Domain Names and related
sales agreements were not reversed or voided as a result of Netsphere
I, Novo Point had no ownership or possessory right to the Domain
Names to assign to Associate Recovery. . ."
ROA.2932.
This factual determination is plainly incorrect, which in turn created an
erroneous basis for the District Court to hold that collateral estoppel barred
Appellant's claims.
-27-
The District Court attempted to support its findings regarding the Sale Orders
by pointing to facts in underlying and related matters, often taking these facts out
of context. For instance, the District Court points to this Court’s denial of motions
to stay the sales of the Domain Names pending appeal in as support for the
conclusion that the Sale Orders were not nullified by the reversal of the
receivership. ROA.2928-2929.
However, the orders pertaining to the stay of any domain name sales all
predated the reversal of the receivership in Netsphere I. The denial of a motion to
stay the sales does not conflict with nor is it inconsistent with the later judgment on
appeal reversing the entire receivership and also reversing the Sale Orders.
Additionally, the record on appeal indicates that this Court believed the Domain
Names sales had been stayed by the district court pending the appeal of the
receivership.
The District Court further erroneously relies on this Court’s opinion in
Netsphere III, on a wholly unrelated issue, to support its belief that the sale of
Novo Point’s assets was affirmed by the Court’s holding in Netsphere I. The
District Court is mistaken. There was no express holding or specific language
affirming any of the receivership orders in Netsphere I.
In Netsphere III, this Court relied on the law of the case doctrine to uphold the
use of cash assets in the receivership to pay receivership fees even though the
-28-
receivership itself was improper because the district court lacked subject matter
jurisdiction over the receivership assets. Netsphere, Inc. v. Gardere Wynne Sewell,
L.L.P, 657 F. App’x 320 (5th Cir. July 8, 2016) (Netsphere III). 14
The District Court also points to this Court’s Order of Clarification in
Netsphere, Inc. v. Baron, 2012 U.S. App. LEXIS 27248 (5th Cir. Dec. 2012) as
additional support for its finding that the Sale Orders were not reversed.
ROA.2929. The District Court noted that the language in the clarification order
stated: “The district court orders that were in place prior to the release of our
opinion remain in place.” 2012 U.S. App. LEXIS 27248 at *4.
However, the phrase "remain in place" did not mean that the orders in effect
prior to the reversal of receivership would remain in place forever following the
mandate and the final wind up of the reversed receivership. Such an interpretation
is inconsistent with the mandates as well as the full context of the Clarification
Order, which reads as follows:
As stated in Federal Rule of Appellate Procedure 41, the mandate that

signifies the finality of the Court's decision is not in the usual course
issued with the opinion. Instead, it issues later under the varying
14
The law of the case doctrine is a discretionary rule of practice which does not limit
the power of the court to revisit a legal issue. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct.
1382, 1391, 75 L.Ed.2d 318 (1983); Tel–Phonic Services, Inc. v. TBS Int'l Inc., 975 F.2d 1134,
1138 (5th Cir.1992). The doctrine permits a change of position when it appears that the original
ruling in the case was wrong. Arizona v. California, 460 U.S. at 619 n. 8, 103 S.Ct. at 1391 n.
8. Thus, this Court is not bound by its earlier determination in Netsphere III.
-29-
circumstances set out in the Rule. The December 18, 2012 decision of
the Court is at this time still subject to alteration by the panel or by the
en banc court, and consequently it is not final. The district court orders
that were in place prior to the release of our opinion remain in place.
Upon the issuance of the mandate by this Court, the conclusions of our
opinion become final and the district court and parties may rely on the
rulings it contains.
2012 U.S. App. LEXIS 27248 at *4.
Read in this context, the "remain in place" language of the clarification order
offers no support for the contention that the Sale Orders somehow survived both
the reversal of the receivership order and mandates that followed specifically
reversing the Sale Orders. These mandates did not say "affirmed" or "affirmed in
part." The mandates stated that the appealed orders were "reversed and
remanded." ROA.2411-2412, 2415-2418.
The District Court's interpretation of the "remain in place" language is also at
odds with its own previous ruling addressing this very language. In this previous
ruling, the district court stated as follows:
"When read in the context of the entire Order of Clarification, rather

than in isolation, it is clear that this statement was intended merely to
convey that immediate action in accordance with the Fifth Circuit’s
December 18, 2012 opinion and instructions on remand was not
necessary; rather, the status quo as to all district court orders, including
the reversed Receivership Order, would continue during the interim
-30-
period until the mandates issued."
2014 U.S. Dist. LEXIS 180 at *47.
In the Schurig ruling, the district court also explained that the orders
dependent on the receivership are void. Id. at *44-46.
Consequently, based on the District Court’s own prior opinion, the
clarification order offers no support for the contention that the Sale Orders were
not reversed. The clarification order is silent on the matter and offers no guidance
whatsoever on this issue.
The District Court also relied, in part, on the absence of certain types of orders
that would be consistent with the reversal of the Sale Orders. For example, the
court pointed out that there was no order from this Court "to return to Baron or
Novo Point the cash generated from the sale of the Domain Names." ROA.2928.
The District Court does not cite any authority for this reasoning. Moreover, it
is difficult to see how an order that was not made by this Court can overrule an
order that it did make. This Court reversed the receivership and specifically
reversed the Sale Orders as evidenced the express mandates.
In a similar vein, the District Court also stated that this Court "did not reverse
or vacate the prior orders that . . . awarded fees and expenses paid from the cash in
the receivership fund, which was generated from the prior sales of Domain Names
at issue in this case." ROA.2903. This finding is in error. The court offers no
-31-
support for this finding other than by inferring that, because Netsphere I allowed
for the payment of receivership fees from the assets of the receivership, the Sale
Orders were not reversed by this Court.
Contrary to the District Court's finding, the fee orders were explicitly
reversed pursuant to four separate mandates issued on April 19, 2013. ROA.2411-
2418. This Court's opinion in Netsphere I also made it clear that the fees
previously awarded must be reconsidered in light of the reversal of the
receivership. Netsphere v. Baron, 703 F.3d at 313:
Fees already paid were calculated on the basis that the receivership
was proper. Therefore, the amount of all fees and expenses must be
reconsidered by the district court. Any other payments made from the
receivership fund many also be reconsidered as appropriate.
Assuming arguendo that the Netsphere I Opinion gave the district court
discretion to reconsider the Sale Orders as it did the Fee Orders, it makes no
difference since the District Court declined to do so. The district court did not
reconsider the Sale Orders on remand. It cannot do so now, in a subsequent
separate case, in order to breathe new life into the reversed orders. The Sale
Orders are void.
When an order is reversed by a court of appeals, it renders the order void ab
initio. "A judgment reversed by a higher court is without any validity, force, or
effect, and ought never to have existed." Id.(quoting Butler v. Eaton, 141 U.S.
-32-
240, 11 S.Ct. 985, 35 L.Ed. 713 (1891)). "Reversal of a judgment and remand for
a new trial places the parties in the same position, insofar as relief is concerned, as
if the case had never been tried." Id.
"To "reverse" a judgment means to overthrow, vacate, set aside, make void,
annul, repeal or revoke it.” Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th
Cir.1991) (quoting Black’s Law Dictionary 1319 (6th ed. 1990). See also Atlantic
Coast Line R.R. Co. [**16] v. St. Joe Paper Co., 216 F.2d 832, 833 (5th Cir.
1954), cert. denied, 348 U.S. 963 (1955).
The reversal of a judgment and remand for a new trial places the parties in
the same position, insofar as relief is concerned, as if the case had never been tried.
See Gospel Army v. Los Angeles, 331 U.S. 543, 546, 67 S.Ct. 1428, 1430 L.Ed.
1162 (1947).
In summary, because the District Court erroneously concluded that the Sale
Orders at issued were not reversed, making them null and void, it’s finding that
Appellant’s claims are barred by collateral estoppel must fail. Collateral estoppel
cannot apply where the prior orders were reversed on appeal.
The opposite is true. It is the Appellees who are barred from attempting to
relitigate the validity of the Domain Name quitclaim sales. Title rests with
Appellant, and this fact cannot be challenged.
2. The issues litigated in Netsphere I are not identical to the issues in this
matter, and therefore preclude the application of collateral estoppel.
-33-
In Netsphere I, this Court was asked to determine the validity of the
appointment of a receiver. As noted by this Court, “the central issue on appeal is
whether a court can establish a receivership to control a vexatious litigant.”
Netsphere v. Baron, 703 F.3d at 305. This was a question of law, with this Court
determining that the district court did not have subject matter jurisdiction over
property that was not subject to the underlying dispute, specifically Baron’s
personal property and assets held by Novo Point and Quantec. This Court
concluded that the receivership improperly targeted assets outside the scope of the
litigation, which was an improper use of the receivership remedy, therefore
vacating the order appointing a receiver. Id. at 307.
Specifically, this Court noted in Netsphere I that “In light of our holding that
the receivership order was improper, we need not address the outstanding motions
that were carried with this case.” Id. at 313. While this Court did specifically
reverse the Sale Orders at issue, it did not expressly address factual and legal issues
relating to the reversed Sale Orders. The only express determination by this Court
in Netsphere I with regards to the Sale Orders at issue was the mandate reversing
those Sale Orders.
In the present litigation, Associated Recovery seeks recovery of damages
related to the sale of a contingent interest in domain names. Once this Court
reversed the Sale Orders, issues not presented in Netsphere I, and definitely not
-34-
addressed, arose as to the legality of those sales and the rights of Novo Point
regarding those Domain Names. In fact, whether those Sale Orders were properly
stayed pending appeal is an issue in and of itself, not addressed in Netsphere I. As
discussed above supra, while this Court originally formally denied the stay of the
Sale Orders at issue here, on May 23, 2011, this Court instructed the district court
to stay the Sale Orders. It is apparent from comments made at the oral argument
for Netsphere I, and from this Court’s comments in Netsphere I, that this Court
believed all Sale Orders had been stayed pending appeal. 703 F.3d at 315, n. 2
(“We stayed the closing of sales resulting from an auction of domain names. Our
ruling means no closing may occur, and the stay is made permanent.”) Since these
Sale Orders were not stayed as anticipated by this Court, new issues arose relating
to those Sale Orders after Netsphere I.
Associated Recovery asserted claims for declaratory judgment based on its
ownership of the void sales of Domain Names in Netsphere I; relief based on
alleged ACPA violations; unfair competition; common law trademark
infringement; conversion; and unjust enrichment. ROA.2275-2278.
The issues presented in Netsphere I and the present litigation are not identical.
This Court in Netsphere I was not asked and did not determine the rights of Novo
Point as to the Sale Orders at issue once those Sale Orders were reversed. This
Court did not expressly determine the disposition of Novo Point’s assets that were
-35-
subject to the Sale Orders, nor determine the buyers or Novo Point’s rights
pursuant to sales that were now null and void. There was no discussion at all as to
issues regarding the purported sale of those Domain Names. Because there are new
issues to litigate with respect to the Sale Orders and Domain Names, collateral
estoppel cannot apply. Copeland, 47 F.3d at 1423. See also Dow Chemical v. U.S.
E.PA., 852 F.2d 319, 323 (5th Cir. 1987) (“once an appellate court has affirmed on
one ground and passed over another, preclusion does not attach to the ground
omitted from its decision), citing 18 C Wright, A. Miller, E. Cooper, Federal
Practice and Procedure §3321 (1981); Breen v. Centex Corp., 695 F.2d 907, 915-
916 (5th Cir. 1983).
3. Even if this Court determines that the issues in Netsphere I and this
litigation are identical, Appellant has not been afforded the opportunity to
fully and fairly litigate the issues surrounding the reversed Sale Orders in
Netsphere I.
It is a stretch of the imagination to assert that the issues supporting
Appellant’s causes of action were fully and vigorously litigated where (i) the issues
were never raised in a trial court; (ii) Novo Point was expressly enjoined from
litigating issues in the district court by virtue of the receivership order; 15 (iii) the
sales were not disclosed to Appellant or to Appellant’s predecessor-in-interest: (iv)
15
At the time of the 2013 Fee Order, all of Plaintiffs claims against Defendants’ were owned by
the receivership estate, pursuant to the Order Appointing Receiver, and Baron was enjoined from
pursuing same except for the purpose of tolling the statutes of limitation.
-36-
Baron and Novo Point were deprived of conducting discovery; and (v) they were
deprived of the ability to investigate the issues surrounding the sales and their
claims.
In the Receivership Action, Novo Point and Baron were prohibited from
hiring counsel and Novo Point was prevented from participating in the case, except
ostensibly through lawyers hired, controlled and directed by the receiver—the very
same lawyers who were Movants and beneficiaries of the Sale Orders.16 In
addition, Baron was prohibited from paying any counsel. In the 2015 Fee Order
proceeding,17 the district court in the in the Receivership Case did not even conduct
a hearing or permit discovery, instead determining the issues merely on unsworn
pleadings.
Moreover, the identity of the Domain Names and the purchasers have been
concealed from Appellant and its Predecessor-in-Interest and have never been fully
disclosed. Likewise, the motions to sell the Domain Names were filed ex parte
and under seal and have never been fully disclosed. The identity of assets sold and
the purchasers were not even known to Associated Recovery and all of its
Predecessor-in-Interest at the time of the decisions that the District Court relies on
16
The district court in the Netsphere Case ordered that Novo Point and Quantec were not permitted
to have independent counsel, which remained in effect until at least May 2013.
17
ROA.6789-6797.
-37-
in applying collateral estoppel against Appellant.18
When issues are not fully litigated in the underlying litigation, courts have
found that there is not preclusion due to collateral estoppel. Copeland v. Merrill
Lynch & Co., Inc. 47 F.3d 1411, 1415 (5th Cir, 1995)(debtor for breach of
agreement to propose joint plan for debtor's reorganization to bankruptcy court
was not fully and vigorously litigated in bankruptcy confirmation hearing, for
purposes of collateral estoppel, where issue for confirmation court was whether to
compromise debtor's claim against creditor in Chapter 11 proceeding to determine
confirmability of proposed plan of reorganization which was far cry from
preponderance of evidence standard principal would face in federal district court
on his breach of contract claim.); A.J. Taft Coal Co. v. Connors, 829 F.2d 1577,
1581 (11th Cir.1987) (declining to apply collateral estoppel where the issue
was not fully litigated, which resulted in the prior court tendering a conclusion
“without thoroughly examining” the issue); and Compagnie Des Bauxites de
Guinee v. L'Union Atlantique S.A. d'Assurances 723 F.2d 357, 361 (3rd Cir, 1983)
(“not fully litigated” and no preclusive effect when court did not allow adequate
discovery in issue sought to be held to have preclusive effect).
Further, collateral estoppel is unavailable when a “new determination of the
issue is warranted by differences in the quality or extensiveness of the procedure
18
While one of Appellant’s Predecessor’s-in-Interest received a copy of at least one of the
motions, that copy redacted most of the pertinent information.
-38-
followed in the two courts.” Copeland 47 F.3d at 1415, quoting Restatement
(second) of Judgments § 28(3). Issues surrounding the Sale Orders could not be
litigated in Netsphere I, as the Sale Orders were not reversed until the mandates
were issued by this Court. Appellant and Predecessors-in-interest were afforded no
opportunity in Netsphere I to address issues regarding the Sale Orders once they
were reversed. As such, collateral estoppel cannot apply to the claims brought by
Associated Recovery as it has not been afforded an opportunity to vindicate its
rights.19
4. Even if this Court finds that Appellant’s claims are identical and have
been fairly and fully litigated in court, special circumstances exist that make
19
Furthermore, before an issue can be given preclusive effect, issues in which a litigant is
entitled to a jury under the Seventh Amendment must be afforded that opportunity. The issues
raised by Plaintiffs are indeed issues at common law and have a right to have a jury determine
contested issues of fact. To do otherwise would contravene the Seventh Amendment. The
Seventh Amendment provides: “In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any Court of the United States, than according to the rules of
the common law.” It is precisely because the Framers of the Constitution believed that they
might receive a different result at the hands of a jury of their peers than at the mercy of the
sovereign's judges, that the Seventh Amendment was adopted. Juries can make a difference, and
numerous Supreme Court cases, recognized this obvious fact. Thus, in Colgrove v. Battin, 413
U.S., at 157, the Supreme Court stated that “the purpose of the jury trial in . . . civil cases [is] to
assure a fair and equitable resolution of factual issues, Gasoline Products Co. v. Champlin Co.,
283 U.S. 494 (1931) . . . .” And in Byrd v. Blue Ridge Rural Electrical Cooperative 356 U.S., at
537 , the Supreme Court conceded that “the nature of the tribunal which tries issues may be
important in the enforcement of the parcel of rights making up a cause of action or defense . . . .
It may well be that in the instant personal-injury case the outcome would be substantially
affected by whether the issue of immunity is decided by a judge or a jury.” See Curtis v. Loether,
415 U.S. at 198,; cf. Duncan v. Louisiana, 391 U.S. 145 (1968). Jurors bring to a case their
common sense and community values; their “very inexperience is an asset because it secures a
fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye.” H. Kalven
& H. Zeisel, The American Jury 8 (1966).
-39-
it unfair to the Appellant to apply this doctrine.
The fourth prong of a collateral estoppel determination requires that no
special circumstances exist that would make the application of the doctrine unfair.
Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1422 (5th Cir. 1995),
citing, United States v. Shanbaum,10 F.3d 305, 311 (5th Cir.1994).
In the present case, there are several bases for finding special circumstances
that render collateral estoppel unfair to Appellant.
First, the Appellees paid pennies on the dollar for their contingent interests in
the Domain Names, knowing that their rights would be extinguished if the
Receivership Order was reversed. Appellees took a huge advantage of an improper
receivership to unjustly enrich themselves at the expense of Novo Point.
In the Netsphere I opinion, this Court articulated its reasons for allowing the
receivership fees to be paid from the receivership assets. Regardless of how strong
this reasoning may or may not be as to payment of fees, nothing in the opinion
would justify allowing one party to reap windfall profits while other parties suffer
such staggering losses. Here, Appellees seek to walk away with assets worth
approximately 10,000% greater than the prices they paid. This is especially unfair
where the mechanism for this disparity was the failed and improper receivership.
Second, the sales of the contingent interests in the Domain Names took place
in secret, depriving Baron and Novo Point from objecting to the sale prices of the
-40-
Domain Names or to prove the actual fair market value of the Domain Names.
Third, this Court’s appellate panel appeared to believe that the Sale Orders
were stayed in the district court until oral arguments. It was clear from the
comments and questions of the judges during oral argument in Netsphere I, that the
Court was surprised to learn that the district court had acted in a manner
inconsistent with a stay.
Fourth, the receiver spent an inordinate amount of money on the failed
receivership, over $6 million dollars. The receiver did not pay any creditors or
claimants of Baron and Nov Point. All the money was spent litigating the right to
maintain the receivership and continue to spend more money. The receiver even
managed to spend the $1.6 million dollars on hand after the Court reversed the
receivership. Had there been $2.6 million dollars available after the reversal, the
receiver would have found a way to spent it all.
Based on the unfairness and inequities to Novo Point, collateral estoppel
should not bar Appellant from recovering at least the difference between the sales
price of the Domain Names and their fair market value. Accordingly, the District
Court erred when it granted Appellees’ Motions to Dismiss based on the
affirmative defense of collateral estoppel.
C. THE DISTRICT COURT DID NOT ADDRESS OR RULE ON ANY OTHER GROUNDS
RAISED BY APPELLEES FOR DISMISSAL UNDER RULE 12(b)(6).
-41-
Appellees raised a host of additional avoidance and affirmative defenses in
their motions to dismiss the consolidated claims. These defenses are either
frivolous or require factual determinations by the District Court.20 Regardless of
the merits of these defenses, the District Court did not rule on any issue other than
collateral estoppel.
While this Court may affirm a judgment of dismissal pursuant to Rule 12(b)(6)
on any grounds raised in the lower court, no such grounds are appropriate here.
For example, Appellees raise the statute of limitations. However, the applicable
statute cannot be determined unless the district court decides on the choice of
law. Some jurisdictions impose a two-year statute while others allows for four-
years to bring a cause of action related to the recovery of the Domain Names at
issue herein.
The statute of limitations affirmative defense is nevertheless frivolous. The
original complaints in these consolidated actions were filed within one-year of the
accrual date.
The causes of action accrued no earlier than March 27, 2015, the date that the
district court discharged the receiver and entered the final order terminating the
receivership. Netsphere, Inc v. Baron, 703 F.3d at 322. ROA.613.
20
Appellant addressed these issues in its responses to Appellees' motions to dismiss. ROA.2738,
2743, 2766.2768-2788,2790-2795.
-42-
Case No. 3:17-cv-00424-L, Northern District of Texas, was transferred from
the Eastern District of Virginia, case no. 1:15-cv-1723. The original complaint was
filed on was filed on December 31, 2015. ROA.3064.
Case No. 3:17-cv-00651-L, Northern District of Texas, was transferred from
the Eastern District of Texas, case no. 2:16-cv-00126. The original complaint was
filed on February 8, 2016. ROA.4928.
Accordingly, even without a determination on choice of law and applicable
statute of limitations, Appellant filed its Complaints well within the shortest
statutory period of two-years.
Appellees also raise the claim of "bona fide purchaser" as a defense. Again,
however, this defense requires numerous factual findings, including choice of law,
and is not appropriate for a Rule 12(b)(6) motion. Moreover, the contracts
Appellees signed for the purchase of Domain Names did not convey clear title
from Novo Point. At the time they entered into the transactions, the purchasers
were aware of Novo Point’s claims and knew that their rights might be
extinguished if the Receivership Order was reversed. Appellees could not acquire
valid title to the Domain Names from the Receiver. (See quit claim contracts.
ROA.592,593, 597,598, 607,608, 2269,2270.) To qualify as a bona fide purchaser,
"one must acquire property in good faith, for value, and without notice of any
third-party claim or interest." Madison v. Gordon, 39 S.W.3d 604, 606 (Tex.
-43-
2001); see Swanson v. Grassedonio, 647 S.W.2d 716, 718 (Tex. App.-Corpus
Christi 1982, no writ).
V.
CONCLUSION
Based on the foregoing, this Court should reverse the judgment of the District
Court and remand the case to allow Appellant to proceed with its causes of action
against Appellees. Collateral Estoppel does not bar any of Appellant's causes of
action.
Date: November 05, 2018 Respectfully submitted,
/s/ Conrad Herring

San Diego, CA 92130
858-792-1539
Attorney for Appellant,

Associated Recover, LLC
-44-
CERTIFICATE OF SERVICE
Conrad Herring hereby certify that on November 5, 2018, he caused a true and
correct copy of the foregoing Appellant's Opening Brief, to be electronically served
on Appellees counsel of record via the CM/ECF system:
/s/ Conrad Herring

San Diego, CA 92130
858-792-1539
-45-
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
Certificate of Compliance With Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because:
this brief contains 9,433 words, excluding the parts of the brief exempted by
Fed. R. App. P. 32(a)(7)(B)(iii), or
this brief uses a monospaced typeface and contains [ ] lines of text,

excluding the parts of the brief exempted by Fed. R. App .P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type style requirements of Fed. R. App. P. 32(a)(6) because:
this brief has been prepared in a proportionally spaced typeface using,

Microsoft Office Word, 2003 edition, in Times New Roman - 14 point, or
this brief has been prepared in a monospaced typeface using [

] with [ ].
Dated: September 10, 2018 /s/ Conrad Herring

San Diego, CA 92130
858-792-1539
Attorney for Appellant,
ASSCOCIATED RECOVERY, LLC.
-46-
United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
October 17, 2018
Mr. Conrad C. Herring

3525 Del Mar Heights Road
Room 305
San Diego, CA 92130
No. 18-10596 Associated Recovery L.L.C. v. John Does 1-

44, et al
USDC No. 3:16-CV-1025
USDC No. 3:17-CV-424
Dear Mr. Herring,

The following pertains to your brief electronically filed on
October 17, 2018.
Failure to timely provide the appropriate number of copies may
result in the dismissal of your appeal pursuant to 5TH CIR. R. 42.3.
Caption on the brief does not agree with the caption of the case
in compliance with FED. R. APP. P. 32(a)(2)(C). Caption must
exactly match the Court's Official Caption (See Official Caption
below)
Note: Once you have prepared your sufficient brief, you must
electronically file your 'Proposed Sufficient Brief' by selecting
from the Briefs category the event, Proposed Sufficient Brief, via
the electronic filing system. Please do not send paper copies of
the brief until requested to do so by the clerk's office. The
brief is not sufficient until final review by the clerk's office.
If the brief is in compliance, paper copies will be requested and
you will receive a notice of docket activity advising you that the
sufficient brief filing has been accepted and no further
corrections are necessary. The certificate of service/proof of
service on your proposed sufficient brief MUST be dated on the
actual date that service is being made. Also, if your brief is
sealed, this event automatically seals/restricts any attached
documents, therefore you may still use this event to submit a
sufficient brief.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Mary Frances Yeager, Deputy Clerk
504-310-7686
cc: Mr. Mark Richard Backofen
Mr. R. William Beard Jr.
Mr. Joel Christian Boehm
Mr. Brian Casper
Mr. Matthew Thomas Furton
Ms. Debra E. Gunter
Mr. Michael E. Hassett
Mr. Timothy Brooks Hyland
Mr. Darin M. Klemchuk
Mr. William Robert Lamb
Ms. Claire Molle Maddox
Mr. James Mark Mann
Mr. Jerome A. Moore
Mr. Brian Pandya
Mr. Adam Pierson
Mr. Brantley Ross Pringle Jr.
Mr. Jason Richerson Sr.
Mr. Franklin Michael Smith
Case No. 18-10596
ASSOCIATED RECOVERY L.L.C.,

v.
JOHN DOES 1- 44; 744.COM; 028.COM; 3DCAMERA.COM; FNY.COM; ET AL,
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
v.
JOHN DOES 1- 44; 744.COM; 028.COM; 3DCAMERA.COM; FNY.COM;
VERISIGN INCORPORATED; ET AL,
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
v.
LINDA BUTCHER; CBRE GROUP INCORPORATED; VIVIAN ROSENTHAL;
WILLIAM WOLFSON; PRIVECO INCORPORATED; STEVE PARMA; SOL
PERLSTEIN; RADICAL INVESTMENTS MANAGEMENT L.L.C.; TUMULT
INCORPORATED; DGB PARTNER INCORPORATED; TOBYCLEMENTS.COM L.L.C.;
TRUE MAGIC L.L.C.; JANNO L.L.C.; POWER HOME TECHNOLOGIES L.L.C.;
LOOKOUT INCORPORATED; SLICE TECHNOLOGY INCORPORATED, formerly
known as Project Slice Incorporated; STEVE FORTUNA; MOINC-US;
TELEPATHY INCORPORATED; ONIG L.L.C.; NEWS LIMITED; WORLDWIDE
RETAILING L.L..C.; STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY; ALL-PRO FASTENERS INCORPORATED; BUYERS INTERNATIONAL
GROUP L.L.C.; CREATION MEDIA L.L.C.; DHARSHINEE NAIDU; KATE
SPADE; ALANSIS CORPORATION; FANTASY SPIN GAME L.L.C.; GOLDRUN
INCORPORATED; ALANSIS.COM INCORPORATED,
United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
November 07, 2018
Mr. Conrad C. Herring

3525 Del Mar Heights Road
Room 305
San Diego, CA 92130
No. 18-10596 Associated Recovery L.L.C. v. John Does 1-

44, et al
USDC No. 3:16-CV-1025
Dear Mr. Herring,

We have reviewed your electronically filed appellant's brief and
it is sufficient.
You must submit the 7 paper copies of your brief required by 5TH
CIR. R. 31.1 within 5 days of the date of this notice pursuant to
5th Cir. ECF Filing Standard E.1.
Failure to timely provide the appropriate number of copies may
result in the dismissal of your appeal pursuant to 5TH CIR. R. 42.3.
The paper copies of your brief/record excerpts must not contain a
header noting "RESTRICTED". Therefore, please be sure that you
print your paper copies from this notice of docket activity and
not the proposed sufficient brief/record excerpts filed event so
that it will contain the proper filing header. Alternatively, you
may print the sufficient brief/record excerpts directly from your
original file without any header.
Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________
Renee S. McDonough, Deputy Clerk
504-310-7673
cc:
Mr. Mark Richard Backofen
Mr. R. William Beard Jr.
Mr. Joel Christian Boehm
Mr. Brian Casper
Mr. Matthew Thomas Furton
Ms. Debra E. Gunter
Mr. Michael E. Hassett
Mr. Timothy Brooks Hyland
Mr. Darin M. Klemchuk
Mr. William Robert Lamb
Ms. Claire Molle Maddox
Mr. James Mark Mann
Mr. Jerome A. Moore
Mr. Brian Pandya
Mr. Adam Pierson
Mr. Brantley Ross Pringle Jr.
Mr. Jason Richerson Sr.
Mr. Franklin Michael Smith

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Case: 18-10596 Document: 00514686782 Page: 1 Date Filed: 10/17/2018

Case No. 18-10596

IN THE UNITED STATES COURT OF APPEALS

ASSOCIATED RECOVERY, LLC.,

JOHN DOES 1-44; 744.COM; 028.COM; 3DCAMERA.COM; FNY.COM; ET AL.,

JOHN DOES 1-44; 744.COM; 028.COM; 3DCAMERA.COM; FNY.COM;

LINDA BUTCHER; CBRE GROUP INCORPORATED; VIVIAN ROSENTHAL;

GROUP L.L.C.; CREATION MEDIA L.L.C.; DHARSHINEE NAIDU; KATE

Appeal from the Final Judgment of United States District Court

APPELLANT'S OPENING BRIEF

/s/ Conrad Herring

ATTORNEY FOR APPELLANT,

CERTIFICATE OF INTERESTED PERSONS

Appellant, by and through his attorney of record, Conrad Herring, certifies

for the judges of this Court to evaluate possible conflicts of interest,

Attorney for Appellant Associated Recovery, LLC

STATEMENT REGARDING ORAL ARGUMENT

Sales Orders in the Receivership of Jeffrey Baron, Case No. 3:09-cv-00988-L,

were reversed on appeal when this Court reversed the Receivership in

II. STATEMENT OF ISSUES PRESENTED FOR REVIEW . . . 2

III. STATEMENT OF THE CASE . . . . . . . 3

B. PRIOR ACTIONS RELEVANT TO THE APPEAL . . . . 5

2. District Court Authorizes Sales of Domain Names . . .

3. The Appellate Court Reverses the Receivership Order . . . 8

4. Relevant Procedural History of Appellant's Action to Recover Domain

IV. SUMMARY OF ARGUMENT . . . . . . . 20

THE DISTRICT COURT ERRED WHEN IT GRANTED APPELLEES'

B. COLLATERAL ESTOPPEL DOES NOT BAR APPELLANT'S CLAIMS. .

1. The District Court’s finding that the Appellant is collaterally

3. Even if this Court determines that the issues in Netsphere I and

C. THE DISTRICT COURT DID NOT ADDRESS OR RULE ON ANY OTHER

Certificate of Electronic Service 45

Breen v. Centex Corp., 695 F.2d 907 (5th Cir. 1983) 36

Compagnie Des Bauxites de Guinee v. L'Union Atlantique S.A. d'Assurances

Cuvillier v. Taylor, 503 F.3d 397 (5th Cir. 2007) 25

Hudson v. C.I.R. 71 F.3d 887 [published in full-text format at 1995

In re Baron, 593 Fed. Appx. 356 (5th Cir. 2014) 3, 26

Madison v. Gordon, 39 S.W.3d 604 (Tex. 2001) 43

Media, Express Media Group, LLC v. Express Corp., 2007

Netsphere, Inc. v. Baron, 799 F.3d 327 (5th Cir. 2015) 4

Federal Rules of Civil Procedure

2018. ROA.290, 2960-2961.

judgment of the District Court, which dismissed Appellant's Complaint without

STATEMENT OF ISSUES PRESENTED FOR REVIEW

were liquidated during a failed and improper receivership:

1. Whether the District Court erred by granting the Appellees' motions to

state a claim upon which relief can be granted;

certain domain names (“Sale Orders”);

3. Whether collateral estoppel bars recovery of domain names quitclaimed

names would be extinguished upon a reversal of the Sale Orders?

STATEMENT OF THE CASE

of contingent interests in certain internet domain names (the "Domain Names")

during the failed and improper receivership of Jeffrey Baron.

1-44 and 44 associated internet domain names.

Appellant filed the Marshall Action on February 8, 2016 against 64 named

defendants identified as registrants of the Domain Names. Before the Marshall

Action was transferred to the Northern District of Texas, 22 of the 64 defendants

were dismissed from the case, leaving 44 defendants (“Marshall Defendants”).

Following consolidation, Appellant filed its Third Amended Complaint on June

1, 2017. ROA.2235. The defendants at that time consisted of registrants of 206 of

the Domain Names (referred to as “Registrant Defendants” for convenience”) and

domain name registrars.3

B. PRIOR ACTIONS RELEVANT TO THE APPEAL.