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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NETSPHERE, INC.,
MANILA INDUSTRY, INC.,
AND MUNISH KRISHAN
PLAINTIFFS,
v.
JEFFREY BARON AND
ONDOVA LIMITED COMPANY,
DEFENDANTS
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CIVIL ACTION NO. 3:09-cv-0988-L
JEFFREY BARON’S OBJECTION TO
THE RECEIVER’S REQUEST, AS SUPPLEMENTED,
FOR APPROVAL OF FINAL ACCOUNTING, APPLICATION
FOR PAYMENT AND REQUEST FOR ORDER OF FINAL DISCHARGE
[Relates to ECF Docs 1397 and 1398]
TO THE HONORABLE SAM A. LINDSAY, UNITED STATES DISTRICT JUDGE:
Jeffrey Baron (“Baron”) hereby files his Objection to the Receiver’s Request, as Supple-
mented, for Approval of Final Accounting, Application for Payment and Request for Order of
Final Discharge, and for cause, would respectfully represent:
I.
INTRODUCTION
1. In Section III of the Receiver’s Supplemental Application For Payment and No-
tice of Filing of Petition for Certiorari, the Receiver makes his final claim for fees and expenses
for himself and for of a host of professionals for a failed and vacated receivership (the “Supple-
ment”). ECF Doc 1398. The Supplement supplements the Receiver’s Request for Approval of
Case 3:09-cv-00988-L Document 1400 Filed 04/22/14 Page 1 of 26 PageID 67801
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Final Accounting, Application for Payment and Request for Order of Final Discharge filed on
April 14, 2014 (the “Receiver’s Request for Payment”). ECF Doc 1397. This final blow to Bar-
on, who has been practically bludgeoned to death by the fees charged by the Receiver and his
professionals in this vacated receivership, is incredible in its duplicity, in the excessiveness of the
hourly rates charged, the total number of hours allegedly logged by these lawyers and the Re-
ceiver for doing little more than reviewing pleadings and sending and responding to interoffice
emails among numerous lawyers. The fees and expenses are simply outrageous, unjustified and
barred by the Mandate of the Fifth Circuit..
II.
THE RECEIVER’S REQUEST THAT THE FIFTH
CIRCUIT’S FEE LIMITATION BE DISREGARDED
2. The period covered by the Receiver’s Request for Payment is May 1, 2013
through Receivership Closing, which the Receiver anticipates will occur on May 15, 2014. In
the Fifth Circuit’s December 18, 2012, opinion and decision in Netsphere v. Baron,
1
the Fifth
Circuit directed the District Court to reconsider “the amount of all fees and expenses” of the Re-
ceiver, and that in such reconsideration, “equity may well require the fees to be discounted mean-
ingfully from what would have been reasonable under a proper receivership.” Id. at 313. The
Fifth Circuit also concluded “that everything subject to the receivership other than cash currently
in the receivership, which Baron asserts in a November 25, 2012 motion amounts to $1.6 mil-
lion, should be expeditiously returned to Baron under a schedule to be determined by the district
1
703 F3d 296 (5th Cir. 2012)
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court for winding up the receivership.” Id. at 313-314. The Fifth Circuit instructed that “the new
determination by the district court of reasonable fees and expenses to be paid to the receiver,
should the amount be set at more than has already been paid, may be paid from the $1.6 million,”
and “[t]o the extent the cash on hand is insufficient to satisfy fully what has been determined to
be the reasonable charges by the receiver and his attorneys, those charges will go unpaid.” Id. at
314.
2
3. In its opinion and decision issued hours before the involuntary bankruptcy fil-
ing, the Fifth Circuit clearly and unequivocally instructed the district court to limit the pay-
ment of any future fees and expenses to the receiver and his attorneys to “cash on hand” as of
December 18, 2012: “everything subject to the receivership other than cash currently in the
receivership” was to be returned to Baron.
3
By the time the Fifth Circuit had overruled all
petitions for rehearing and rehearing en banc, and had issued its mandates on April 19, 2013,
the Receiver had advised Fifth Circuit of the existence of the Baron involuntary bankruptcy
proceeding, but the Fifth Circuit did not alter or amend its December 18, 2012 opinion or de-
cision at all.
4. “Cash” is defined in Black’s Law Dictionary (8th Edition) as ‘money or the
equivalent; usually ready money. Currency and coins, negotiable checks, and balances in bank
accounts.’ Also See Hardy v. State, 102 S.W3d 123, 131 (Tex. 2003) (citing Webster’s Third
2
In the Receiver’s Application for Immediate Payment of Liquidated and Allowed Pre-Petition Fees of the Receiver
and Those He is obligated to Pursuant to 11 U.S.C. § 543 filed with the Bankruptcy Court on November 7, 2013,
ECF Doc 380, in Bankruptcy Case 12-37921-sgj7, at pp 5-6, the Receiver asked the Bankruptcy Court to adopt this
view.
3
In truth, the amount of “cash on hand” in the receivership on December 18, 2012, as admitted by the Receiver, was
$1,196,744.313. Everything collected or claimed by the receiver since this date, must be returned to Baron.
Any other result would be in contradiction to the Fifth Circuit’s Opinion and Mandates.
Case 3:09-cv-00988-L Document 1400 Filed 04/22/14 Page 3 of 26 PageID 67803
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New Int’l Dictionary 346 (1961); A.W. Cullum & Co. v. Calvert, 450 S.W.2d 419, 423
(Tex.Civ.App.1970) ("Cash has been defined as that which circulates as money ...," but trading
stamps are not cash for purposes of sales tax laws.)
5. Now, for the first time the Receiver is taking a different position in the Receiver’s
Request for Payment, as Supplemented. The Receiver now claims that the cash on hand on De-
cember 18, 2012, was really $4,106,015.08, while in the next breath admitting that the cash bal-
ance was $1,196,744.31.
4
The Receiver obviously wishes this Court to disregard the Fifth Cir-
cuit’s fee limitation set out in the December 18, 2012, decision and opinion and the mandates
issued on April 19, 2013,
5
as to which limitation the Receiver has never raised an objection, ei-
ther in its petitions for rehearing before the Fifth Circuit, before this Court or before the Bank-
ruptcy Court, at least until now.
6. The Receiver’s Attempt at Redefining “Cash” is Misplaced. Despite the re-
ceiver’s erroneous assertions about his definition of “cash”, 1) claims against Netsphere are
not cash; 2) Novo Point and Quantec’s receivables are not cash; 3) Baron’s custodial IRA
accounts including stocks are not cash. These items must all be returned to Baron.
4
The Receiver cleverly explains this in footnote 4 of his Supplement, as follows:
“As set forth below, this amount appropriately includes the cash in Receivership accounts
($1,196,744.31); Accounts Receivable (totaling $1,147,761.18 including the 2012 Netsphere Set-
tlement Payment ($600,000.00), the estimated amount due from the Ondova Bankruptcy Trustee
for the disgorgement of a prior payment ($379,761.18), and withholdings from Domain Holdings
Group of monthly monetizer payments of approximately $150,000.00 for the month of December
2012); and the value of Mr. Baron’s IRAs and brokerage accounts that were subject to and under
the control of the Receivership ($1,761,509.59).”
5
ECF Docs 1255-1263, 09-cv-988.
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7. Moreover, this Court has already recognized the limitation set by the Fifth Cir-
cuit. In the Amended Memorandum Opinion issued by this Court on January 2, 2014, in Case
3:13-cv-03461-L
, this Court stated:
In reversing the Receivership Order, the Fifth Circuit directed the district
court to vacate the receivership and discharge the receiver, his attorneys and em-
ployees.” Id. at 315. No fees or expenses other than those incurred by the Receiv-
er were authorized by the Fifth Circuit, and the payment of the Receiver’s fees
expenses was to be limited to the $1.6 million in cash remaining in the receiver-
ship. Any fees or expenses exceeding that amount would go unpaid. The Fifth
Circuit instructed that all other assets in the receivership were to be “expeditiously
released to Baron under a schedule to be determined by the district court for wind-
ing up the receivership.” Id. at 313-14. The Fifth Circuit also made clear that
“[n]o further sales of domain names or other assets [were] authorized,” and that
the stay imposed as to the closing on sales resulting from an auction of domain
names was “permanent.” Id. at 314 n.2.
Id. at p 7.
8. The receiver made at least $1,579,953.88 in fee and expense disbursements since
December 18, 2014.
6
Therefore, under the Fifth Circuit’s fee cap of “cash on hand”, which was
at most $1,600,000.00, the Receiver can only recover an additional $20,046.12 in the Receiver’s
best case scenario.
7
III.
THE RECEIVER’S FEES SHOULD
BE DISCOUNTED MEANINGFULLY FROM WHAT WOULD
6
Docket Court Date Order Amount
1288 District Court 2/20/2013 Order Approving Fees -Doc 1190 $ 17,575.88
1227 District Court 4/16/2013 Order Approving Pmt of Mediator's Fees $ 12,000.00
1233 District Court 5/23/2013 Order granting Fees for Receiver Professionals $ 118,126.05
433 Bk Court
6
12/31/2013 Order Granting Fees $1,414,676.05
1388 District Court 5/9/2013 Order granting Receiver’s Expenses $ 17,575.90
Total $1,579,953.88
7
In truth, the amount of “cash on hand” in the receivership on December 18, 2012, as admitted by the Receiver, was
$1,196,744.317.
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ORDINARILY BE REASONABLE UNDER A PROPER RECEIVERSHIP
9. The Fifth Circuit in Netsphere v Baron held as follows:
“In light of our ruling that the receivership was improper, equity may well
require the fees to be discounted meaningfully from what would have been rea-
sonable under a proper receivership. Fees already paid were calculated on the ba-
sis that the receivership was proper. Therefore, the amount of all fees and expens-
es must be reconsidered by the district court. Any other payments made from the
receivership fund may also be reconsidered as appropriate.”
703 F.3d at 303.
10. After the Fifth Circuit opinion and decision was issued on December 18, 2012,
and the mandates issued on April 19, 2013, Judge Ferguson reconsidered the fees awarded to the
Receiver and his counsel. On May 29, 2013, Judge Ferguson issued an Order on Receivership
Professional Fees. ECF Doc 1287, Case 09-0988. Judge Ferguson found that “equity requires
that the Receiver’s fees [should] be allowed at 70%.” Id. at 37. Judge Ferguson also found that
the fees and expenses of the Dykema firm should be reduced to 90% for the period from Decem-
ber 18, 2012 and April 4, 2013, and 95% for the month of April 2013. Id. at 42-3.
11. Finally, Judge Ferguson ruled that”
“If an order for relief is denied and this Court must begin the wind down
process as instructed by the Fifth Circuit, the Court ORDERS that any monies
paid out during the wind down process be paid in the following order:
1. Dykema Gosset
2. Other unpaid Receivership professionals under the Order Granting
Motion for Fee Application for the Receiver in Regard to Certain
Miscellaneous Receivership Professionals (Docket No. 1282)
3. Receiver, Peter Vogel
Each claim is to be paid in full before the next claimant may receive anything.
These fees must be paid from the available cash in the Receivership estate and no
other assets may be sold to satisfy these claims.”
Id. at 45.
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12. Thus, this Court must take into consideration the limitation imposed by the Fifth
Circuit to “cash on hand” at the time of the December 18, 2012 Opinion, which was certainly no
greater than the $1,600,000 mentioned in the Opinion.
8
Additionally, before even applying such
limitation, the Court must discount the fees and expenses being requested by the Receiver and
his professionals meaningfully from what would have been reasonable under a proper receiver-
ship. As noted, assuming that the cash on hand was $1,600,000, the unused portion of the cap, at
this time, is no greater than $20,046.12; that is, the maximum amount this Court may award at
this time is no greater than $20,046.12.
9
IV.
THE RECEIVER AND HIS
ATTORNEYS SHOULD NOT BE COMPENSATED FOR
FILING PLEADINGS IN THE BANKRUPTCY COURT AND
ATTENDING HEARINGS THAT DID NOT BENEFIT THE RECEIVERSHIP ESTATE
13. The Fifth Circuit has ruled in Speakman v. Bryan, 61 F.2d 430, 431 (5th Cir.
1932), that receivership fees in a reversed and vacated receivership may be charged against a re-
ceivership estate only “to the extent that they have inured to its benefit”. Thus, the authority to
take funds from an estate in a reversed receivership is limited to “reimbursement out of the prop-
erty for his expenditures which have actually benefited the estate”. Id. at 432. Other circuits
have concurred. Franklin v. City of New York, 144 F. 2d 571 (2
nd
Cir. 1944 ("allowances, if any,
which may be made by the district court;" and that such allowances must be made in accordance
8
As noted, the Fifth Circuit limit to “cash on hand” at the time of the Opinion was actually $1,196,744.318
9
The receiver made at least $1,579,953.88 in fee and expense disbursements since December 18, 2014. Therefore,
under the Fifth Circuit’s fee cap of “cash on hand”, which was at most $1,600,000.00, the Receiver can only recover
an additional $20,046.12 in the Receiver’s best case scenario.
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with the principle which controls the allowance of counsel fees in receivership cases, namely,
benefit to the receivership estate” ). Here, despite the receiver’s assertions to this court that he
was an unwilling participant in the involuntary bankruptcy, the facts demonstrate that the receiv-
er actively advocated for the involuntary bankruptcy and then billed massively for the failed ef-
fort.
A. The Fifth Circuit Clarifies its December 18, 2012 Decision.
14. On December 27, 2012, the Receiver filed an Emergency Motion to Clarify Status
of Mandate and Stay Pending Remand and Discharge of Receiver, in the Fifth Circuit. ECF Doc
00512095875, at p. 5-6, in Fifth Circuit Case No. 12-10489, also attached as Exhibit A to ECF
Doc 95, Bankruptcy Case No. 12-37921. Therein, the Receiver advised the Fifth Circuit that an
involuntary bankruptcy case had been filed nine days earlier, and asked the Fifth Circuit to clari-
fy its December 18, 2012, decision and opinion.
15. On December 31, 2012, aware of the bankruptcy petition, the Fifth Circuit panel
ruled on the Receiver’s Emergency Motion and held:
“No assets that were brought under control of the receiver will be released imme-
diately from that control even when the mandate is issued. The district court will
thereafter have the authority to manage the process for ending the receivership as
quickly as possible.”
See December 31, 2012 Fifth Circuit Order. ECF Doc 00512097486 in Fifth Circuit Case No.
10-11202; also ECF Doc 1130-1, District Case Case No. 09-988.
B. The Fifth Circuit Issues Mandates Enforcing its December 18, 2012 Decision and
Opinion.,
16. With full knowledge of the Involuntary Bankruptcy Case, and having considered
and denied cross motions for rehearing and rehearing en banc, the Fifth Circuit did not alter its
December 18, 2012, decision and opinion, and on April 19, 2013, issued numerous mandates,
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commanding the District Court to enforce the directives in its December 18, 2012, decision and
opinion, to wind down the receivership expeditiously and return the assets to Jeffrey Baron,
NOVO and QUANTEC. ECF Docs 1255-1263, District Case Case No. 09-988.
17. Notwithstanding the April 19, 2013 Mandates issued by the Fifth Circuit, and
without a trial on the merits, on June 26, 2013, Bankruptcy Judge Jernigan issued findings of fact
and conclusions of law in support of order for relief, and then issued an order for relief placing
Jeffrey Baron in bankruptcy, thereby freezing Mr. Baron’s assets and the assets of NOVO and
QUANTEC yet again. ECF Docs 239 & 240 in Bankruptcy Case 12-37921. The Bankruptcy
Court concluded that Baron’s former attorneys, the Petitioners, had standing under 11 U.S.C.
§303(b) to file and proceed with the Involuntary Bankruptcy Case.
18. On July 8, 2013, Jeffrey Baron perfected his appeal of the Order for Relief. ECF
Doc 257 in Bankruptcy Case 12-37921.
C. Judge Jernigan Issues Sua Sponte Report and Recommendation
19. At the urging of the Reciver, On July 29, 2013, Bankruptcy Judge Jernigan issued
a Sua Sponte Report and Recommendation to the District Court Proposing Disposition of Assets
Held in the Overruled Receivership of Jeffrey Baron, in Accordance with Section 541-543 of the
Bankruptcy Code [ECF Doc 1304-1 in District Case No. 09-0988] (“Sua Sponte Report and
Recommendation”). In the Sua Sponte Report and Recommendation, Judge Jernigan opined that
the involuntary bankruptcy proceeding created an “intervening circumstance” that required the
turnover of the receivership assets, including all of NOVO and QUANTEC’s assets, to the bank-
ruptcy trustee in accordance with 11 U.S.C. §543, notwithstanding the Fifth Circuit’s decision
and mandate. The receiver aggressively attempted to convince the Bankruptcy court to expedite
transferring the receivership assets to the bankruptcy court, in circumvention of this Court’s ju-
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risdiction. See Receiver’s Motion to Show Cause Why Receiver Should Not Turnover Novo Point
and Quantec Assets to Bankruptcy Trustee in View of Recent Testimony and Filings (bankruptcy
dkt 372), billing over $_____ dollars to the estate to effectuate . Despite the fact that This Court
never adopted Judge Jernigan’s Sua Sponte Report and Recommendation, the receiver re-
ceiver billed massively preparing for the hearing on his motion to transfer the assets, conducting
discovery, deposing witnesses, including traveling outside of the Northern District to do so.. This
work was completely unnecessary and contrary to the best interests of the receivership es-
tate.
D. This Court Reverses Bankruptcy Judge Jernigan’s Order for Relief.
20. This Court granted Baron’s appeal, and reversed the Order for Relief in an
Amended Memorandum Opinion and Judgment entered on January 2, 2014. ECF Docs 52 & 53
in District Case No. 13-3461. The effect of this Court’s order was that the assets of Baron, NO-
VO and QUANTEC were never transferred to the involuntary bankruptcy estate, but remained
subject to the Receivership.
E. The Receiver and His Counsel Have Churned the Bankruptcy File Relentlessly for a
Year, and the Receivership Estate Has Received No Value for Such Work.
21. From December 18, 2012, forward, the Receiver and his counsel were pounding
the bankruptcy file as hard as they could. In at least one instance, the Receiver and two senior
partner level lawyers of the Dykema law firm attended a status conference at a combined hourly
rate of at least $1,900, which hearing could have been attended by one senior level bankruptcy
associate. In numerous days of mediation, three partner level lawyers of the Dykema law firm
plus the Receiver attended for several days, another case of blatent over-staffing. In several oth-
er instances, the Receiver and a senior level lawyer from the Dykema law firm attended several
hearings, charging at least $1,300 per hour, when a senior level bankruptcy associate could have
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handled the hearing. Partners were drafting pleadings that could have been drafted by senior
bankruptcy associates. All of the hearings were attended by at least one senior level Dykema
partner, but could have been attended by a senior bankruptcy associate or not attended at all. A
great majority of the filings and appearances involved the Receiver attempting to get his profes-
sionals paid.
22. The truth of the matter is that the Receiver had “no dog in the fight” insofar as the
bankruptcy proceeding was concerned. His job was to wait and see what the Bankruptcy Court
did in regards to entering an order for relief, make interim requests for payment from the bank-
ruptcy court, and follow the instructions of the bankruptcy court.
10
If an order for relief was en-
tered, the receivership was over and the receiver would be required to turnover the receivership
assets to the Bankruptcy Court.
11
If no order for relief was entered, the receivership continued.
But having one, two and sometimes three partner level lawyers attending every single bankrupt-
cy hearing during the year the involuntary bankruptcy proceeding was pending was an abuse.
23. Instead of simply “treading water”, which would have been the sensible thing to
do, the Receiver attended every bankruptcy hearing during the pendency of the bankruptcy with
one, two and sometimes three senior partner level attorneys “in tow”. The following is a sample
list of hearings and pleadings that were a waste of time and of no benefit to the Receivership Es-
tate.
10
Section 543(a) of the Bankruptcy Code provides that upon the commencement of a bankruptcy case, a custodian,
including a Receiver, is to turn over the debtor’s property to the trustee and provide an accounting. On January 17,
2013, the Bankruptcy Court entered an Order, which was later approved by Judge Ferguson, directing the Receiver
to “maintain all receivership assets pending further order,” waiving the requirement of 11 U.S.C. § 543(a) that the
Receiver, as a custodian, turn over same to the then-interim bankruptcy trustee, pending the determination of wheth-
er Baron was a debtor and the scope of his estate.
11
See Jordan v. Independent Energy Corp., 446 F.Supp. 516 (N.D. Tex. 1978) ("[Clreditors would be irreparably
harmed by their inability to secure access to the rights afforded creditors under the [Bankruptcy 1 Act. An order [by
a federal district court in a federal receivership 1 restricting access to the bankruptcy court, other than as specifically
provided by Congress in the Bankruptcy Act, would not be in the public interest").
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a. On December 21, 2012, the Receiver’s counsel, Jeffrey Fine, attended a hearing be-
fore the Bankruptcy Court that was totally unnecessary.
b. On January 16, 2013, the Receiver’s counsel, Jeffrey Fine, attended a scheduling
conference before the Bankruptcy Court where the scheduling for the trial of the in-
voluntary petition was addressed. The Receiver attended by telephone. The Receiv-
er had “no dog in this fight” and there was no benefit to the Receivership Estate from
such attendance. The hourly rate for the attendance at this hearing was over $1,300.
c. On February 12, 2013, Jeffrey Fine filed a Notice of Fifth Circuit Directive and Re-
quest to Preserve Status Quo of Receivership Pending Fifth Circuit Action that was
totally unnecessary. ECF Doc 60 in Bankruptcy Case 12-37921.
d. On February 12, 2013, Jeffrey Fine filed a Motion to pay Receiver's Expedited Ap-
plication for Payment of Receivership Expenses Pursuant to the Interim Order that
was simply an effort to get the Receiver’s fees and his counsel’s fees approved. This
did not benefit the Receivership Estate. ECF Doc 61 in Bankruptcy Case 12-37921.
e. On February 12, 2013, Jeffrey Fine filed a Motion to pay Request to Clarify Receiv-
er's Authority to Pay Counsel that was simply an effort to get the Receiver’s fees and
his counsel’s fees approved. This had no discernable benefit the Receivership Es-
tate. ECF Doc 63 in Bankruptcy Case 12-37921.
f. On February 13, 2013, the Receiver and the Receiver’s counsel, Jeffrey Fine attend-
ed a hearing before the Bankruptcy Court that was totally unnecessary. There was no
benefit to the Receivership Estate from such attendance. The hourly rate for the at-
tendance at this hearing was over $1,300.
g. On February 20, 2013, Jeffrey Fine filed a Motion to pay Receiver's Expedited Ap-
plication for Payment of Receivership Expenses that was totally unnecessary. ECF
Doc 70 in Bankruptcy Case 12-37921.
h. On February 20, 2013, the Receiver’s counsel, Jeffrey Fine, attended a hearing be-
fore the Bankruptcy Court that was totally unnecessary. There was no benefit to the
Receivership Estate from such attendance.
i. On March 18, 2013, the Receiver and the Receiver’s counsel, Jeffrey Fine attended a
hearing before the Bankruptcy Court that was totally unnecessary. There was no
benefit to the Receivership Estate from such attendance. The hourly rate for the at-
tendance at this hearing was over $1,300.
j. On April 4, 2013, the Receiver and two of the Receiver’s partner level counsel, Jef-
frey Fine and David Schenck, attended a hearing before the Bankruptcy Court that
was totally unnecessary. There was no benefit to the Receivership Estate from such
attendance. The hourly rate for the attendance at this hearing was over $1,900.
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k. On April 12, 2013, Jeffrey Fine, the Receiver’s counsel, filed a Motion for order to
show cause Why WIPO and ICANN Should not Be Held in Contempt that was total-
ly unnecessary. ECF Doc 122 in Bankruptcy Case 12-37921.
l. On April 17, 2013, Jeffrey Fine, the Receiver’s counsel, filed an Application for
compensation for Dykema Gossett PLLC. ECF Doc 128 in Bankruptcy Case 12-
37921.
m. On June 24, 2013, the Receiver’s counsel, Jeffrey Fine, attended a hearing before the
Bankruptcy Court that was totally unnecessary.
n. On July 15, 2013, the Receiver and the Receiver’s counsel, Jeffrey Fine, attended a
hearing before the Bankruptcy Court that was totally unnecessary. The hourly rate
for the attendance at this hearing was over $1,300.
o. On July 26, 2013, the Receiver’s counsel, Jeffrey Fine, attended a hearing before the
Bankruptcy Court that was totally unnecessary.
p. On October 3, 2013, the Receiver filed with the Bankruptcy Court the Receiver's
Motion for Authority to Immediately Comply with Mandate, for Wind Down Plan
and Discharge, and for Payment Consistent with the May 29, 2013 Order of this
Court. ECF Doc 352 in Bankruptcy Case 12-37921.
q. On October 28, 2013, the Receiver’s counsel, Jeffrey Fine, attended a hearing before
the Bankruptcy Court that was totally unnecessary.
r. On October 31, 2913, the Receiver filed in the Bankruptcy Court a nineteen page
Expedited Motion for order to show cause Why Receiver Should Not Turnover No-
vo Point and Quantec Assets to Bankruptcy Trustee in View of Recent Testimony
and Filings. ECF Doc 372 in Bankruptcy Case 12-37921.
s. On October 31, 2013, the Receiver’s counsel, Jeffrey Fine, attended a hearing before
the Bankruptcy Court that was totally unnecessary.
t. On November 7, 2013, the Receiver filed with the Bankruptcy Court a fourteen page
Application for (1) Immediate Payment of Liquidated and Allowed Pre-Petition Fees
and Expenses of the Receiver and Those He Is Obligated to, Pursuant to 11 U.S.C.
§§ 503(b)(3)(E), 503(b)(4) and 543(c), and (2) Approval of Ongoing Compensation,
Reimbursement of Expenses and Payment of Legal Fees From the Estate, seeking
approval from the Bankruptcy Court to be paid fees and expenses. ECF Doc 380 in
Bankruptcy Case 12-37921.
u. On November 14, 2013, the Receiver’s counsel, Jeffrey Fine, attended a hearing be-
fore the Bankruptcy Court that was totally unnecessary.
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v. On November 22, 2013, the Receiver and the Receiver’s counsel, Jeffrey Fine, at-
tended a hearing before the Bankruptcy Court that was totally unnecessary. The
hourly rate for the attendance at this hearing was over $1,200.
w. On December 4, 2013, the Receiver’s counsel, Jeffrey Fine, attended a hearing be-
fore the Bankruptcy Court that was totally unnecessary.
x. On December 17, 2013, the Receiver and the Receiver’s counsel, Jeffrey Fine, at-
tended a hearing before the Bankruptcy Court that was totally unnecessary. The
hourly rate for the attendance at this hearing was over $1,300.
V.
AFTER SPENDING $5,200,000 ON RECEIVERSHIP FEES,
THE RECEIVER HAS FAILED TO DETERMINE WHO THE RIGHTFUL
OWNER AND MANAGERS ARE OF NOVO POINT, LLC AND QUANTEC, LLC
24. In the Supplement, at ¶ 4, p 4, the Receiver laments about having “been served,
today, April 15, 2014, with the attached Petition for Writ of Certiorari to the United States Su-
preme Court filed by Novo Point and Quantec by Mr. Schepps and Mr. Payne.” The Receiver is
apparently distraught over being dragged into more litigation with Mr. Payne, who alleges that he
is the duly appointed attorney (by Ms. Katz”) for Novo Point and Quantec.
25. This is quite incredible. Mr. Schepps is an attorney known to the Receiver to be a
creditor who has alleged a three million dollar claim against Novo Point and Quantec. How do
we know this? Christopher Payne has appeared before Judge Ferguson and testified, incredibly,
that he represents Mr. Schepps in connection with Schepps claim against Novo Point and Quan-
tec. Of Course, the Receiver is also well aware of the fact that Christopher Payne has filed nu-
merous pleadings before this Court in which he purports to represent Novo Point and Quantec.
This is an obvious conflict of interest that the Receiver and his counsel, the Dykema firm, have
done nothing to resolve for over a year.
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26. This is all the more distressing when considering that Receiver has claimed Novo
Point and Quantec as assets of the Receivership.
12
In fact, there are orders entered by Judge Fer-
guson to such effect. Yet, the Receiver and his counsel, the Dykema firm, have done nothing
stop these shenanigans. Instead, they spend Jeffrey Baron’s money in a ludicrous effort to re-
spond to the pleadings filed by Christopher Payne. This is an issue that could have and should
have been resolved by the Receiver filing with this Court at any time within the last year or more
a Motion to Show Authority. The Receiver’s failure to have such matters cleared up and adjudi-
cated constitutes either “gross negligence” or a breach of the Receiver’s fiduciary duties owed to
the Receivership Estate.
27. Moreover, the Receiver has done nothing to determine who the rightful manager
of Novo Point and Quantec might be. After paying $5,200,000 in receivership fees and expenses
to himself and his legal counsel, the Receiver and his attorneys, the Dykema firm, have done
nothing to determine this issue.
28. Granted this Court has expressed its view of late that the Court in the Netsphere
Acton, captioned above, does not have jurisdiction to make such a determination. However, the
Receiver and his counsel could have and should have instituted a separate declaratory judgment
action to make such determination. This failure cannot be laid at the feet of Baron and the Vil-
12
See ¶ 15 of the Motion for Order to Show Cause filed in the Bankruptcy Court on October 31, 2013, ECF Doc
372, in Bankruptcy Case 12-37921sgj7, at p 6, where the Receiver stated:
“In support of this request, the Receiver notes, as the Court is and will be aware from taking judi-
cial notice of its file in this and related matters, that the Receiver has been in possession of Novo
Pint, LLC and Quantec, LLC and the Domain Assets by virtue of an Order of the District Court,
continues to hold same and from time to time to make certain renewal payments as necessary to
maintain the Domain Assets within them under the Orders of the Fifth Circuit, this Court and the
District Court pending a wind-down of the receivership.”
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lage Trust, who have been in such a severe financial lockdown that they could not fund the pur-
suit of such declaratory relief.
29. The Receiver’s attorneys have taken the deposition of Lisa Katz, a true and cor-
rect copy of which is attached hereto as Exhibit “1”. Lisa Katz was promoted into this position
by Schepps, an alleged creditor of Novo Point and Quantec and a disbarred Texas lawyer work-
ing with Schepps, as the putative manager of Novo Point and Quantec, and if this Court would
read Katz’ deposition, it is believed that the Court would be astonished at the degree of ignorance
and lack of professional qualifications exhibited by Ms. Katz in her deposition. In the face of
this deposition, the Receiver has sat silent for months if not years, allowing Katz to engage
Payne -- an attorney with a huge conflict of interest fully known to the Receiver and his counsel -
- to file flagrantly disruptive pleadings with this and other Courts. When asked by the under-
signed counsel, the Receiver’s counsel, Jeff Fine, could not produce one document that substan-
tiated the fact that Katz was the manager of Novo Point and Quantec, notwithstanding that such
documents had been requested at her deposition. See Exhibit “2” attached hereto.
30. However, the Receiver’s counsel, Mr. Fine, says it best in a Motion for Order to
Show Cause he filed in the Bankruptcy Court on October 31, 2013, ECF Doc 372, in Bankruptcy
Case 12-37921sgj7.
“16. Accordingly, the Receiver respectfully suggests that the trusts’ ob-
jections as represented by Mr. Payne can and should be resolved without delay by
directing all interested in the Domain Assets, including and especially Mr. Payne
on behalf of the Entities, to appear and show both his authority to file pleadings
and cause why the Domain Assets should not be turned over to Mr. Baron’s bank-
ruptcy trustee. Such a hearing would permit the termination of the receivership
and conclusion of the bankruptcy without delay. Notice of this motion will be
served on Mr. Payne and Ms. Garrett by email to the address used in their filings
in the District Court and by certified mail, return receipt requested.”
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Id. at 7. Before this Motion could be heard, this Court dismissed the Baron bankruptcy, but there
is no excuse for the Receiver’s failure to file a new declaratory judgment action to determine the
rightful owner of these valuable assets that have been under the control of the Receiver for over
two years, entities that the Receiver has sucked $5,200,000 from to pay the Receiver and his
counsel’s bloated fee requests. Instead, the Receiver sat silent while the Court turned the rem-
nants of these valuable assets over to Lisa Katz, contrary to the wishes of Jeffrey Baron, who the
Receiver well knows is vitally interested in the survival of these entities.
13
31. This Court should consider the above facts when considering whether to grant the
Receiver and his attorneys any further fees and expenses. Professionals get rewarded for suc-
cess, not for simply churning the file, administering assets, and doing so poorly.
VI.
THE RECEIVER AND HIS COUNSEL HAVE FOR THE MOST
PART ENGAGED IN CHURNING THE FILE AND OVERSTAFFING
MATTERS WITH MULTIPLE LAYERS OF PARTNERS AND ASSOCIATES.
32. Several instances of gross overstaffing have been addressed above, in Section IV.
In this section, Baron will point to evidence of gross churning and overstaffing by the Receiver
and his attorneys, principally the Dykema firm. It is impossible for Baron, with limited re-
sources and a limited response time (one week), to respond to all of the excessiveness exhibited
13
In lobbying for a turnover of the Receivership assets to the Bankruptcy Estate of Jeffrey Baron, the Receiver ar-
gued in paragraph 11 of his Motion for Order to Show Cause filed in the Bankruptcy Court on October 31, 2013,
ECF Doc 372, in Bankruptcy Case 12-37921sgj7, at p 5, that:
“This Court has already found that: (a) Mr. Baron is ultimately the beneficiary of the Village Trust
(the Cook Islands trust, that owns the entities that own the Quantec/Novo Point Domain Names);
(b) Mr. Baron contributed assets that he controlled to the Village Trust and likely should be con-
sidered a settlor of it; and (c) Mr. Baron has at all times (through an elaborate web of entities) con-
trolled the quite amorphous Quantec/Novo Point Domain Assets.”
Instead of doing the right thing, the Receiver and his counsel have done the expedient thing, taking the path of least
resistance, by allowing this Court to turnover the Novo Point and Quantec assets to Baron’s enemies.
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by the Receiver and his attorneys, but Baron will ask this Court to reflect on just one typical
month, July 2013, as an examples which will prove the point.
A. The Receiver’s Invoice for July 2013.
33. The Receiver’s Invoice for July 2013 is excerpted and attached hereto as Exhibit
“3”. In July 2013, the Receiver had 16 entries on his invoice. Each entry had the exact same
description: “Review pleadings, files, emails, send emails, and related conversations with Re-
ceiver's counsel.” The total hours spent by the Receiver for the month of July amounted to
33.70. The hourly rate charged by the Receiver was $800.00. This invoice is an embarrassment,
abusive, and an obvious example of overbilling - “pounding the file” unmercifully - even to a
casual observer.
14
The description does not alert the public to the actual pleadings reviewed, why
there was a need to review such pleadings by such a senior level lawyer charging an hourly rate
of $800.00 who had a team of lawyers appointed to represent him (the Dykema firm), how such
review benefited the receivership estate, why this review could not have been accomplished by
an associate or a capable paralegal. This Honorable Court should not countenance such a shoddy
billing practice. This will not withstand the scrutiny of an appellate court. This is one example
of one month’s billing practice that has been repeated month after month from October 2010
forward. Poor Jeffrey Baron’s fortune has been depleted to zero by these pernicious practices.
This billing practice would not be appropriate where the receivership was upheld by the Fifth
Circuit: it is certainly not appropriate in a failed receivership, where the Fifth Circuit has in-
structed this Court to exercise heightened scrutiny.
14
It is so abusive as to constitute a breach of fiduciary duty.
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Page 19 of 26
B. Dykema’s Invoice for July 2013.
34. Dykema’s invoice for July 2013, is excerpted and attached hereto as Exhibit “4”.
Dykema spent 49.30 hours during the month of July 2013, on Receivership matters, charging a
total of $27,748.00. Not one minute of the time billed was attributable to paralegal or asso-
ciate time. All of this time was spent by two senior partners, Jeffrey Fine, whose hourly rate was
$560.00 and David J. Schenck, whose hourly rate was $570.00.
35.
C. Conclusion for July 2013.
36. Between the Receiver and the Dykema firm, Vogel, Fine and Schenck, three sen-
ior level partners, spent a total of 81.2 hours on Receivership matters. Not one minute of associ-
ate or paralegal time was spent. The docket sheets for the Netsphere Action, Case No. 3:09-cv-
00988-L, for the month of July 2013, are attached hereto as Exhibit “5”. Not one pleading was
filed by Fine or Schenck or anyone else at the Dykema firm. Not one pleading was filed by any
other party. One wonders what the pleadings were that Vogel reports in his billing records that
he reviewed day after day during the month of July. The docket sheets for the Baron Bankruptcy,
Case No. 12-37921-sgj7, for the month of July 2013, are attached hereto as Exhibit “6”. These
docket sheets reflect the following events occurred:
a. A five page Notice of Appeal of Order for Relief and an amendment thereto were
filed by Baron on July 8, 2013;
b. A one page motion was filed by Baron on July 8, 2013, requesting an extension of
time to find new counsel;
c. The bankruptcy trustee attempted to subpoena Gerrit Pronske for a deposition and
Pronske and the trustee fought about the issue on July 0-10, 2013;
d. An order was entered appointing an attorney for the Chapter 7 Trustee was entered
on July 12;
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e. The Receiver filed an Accounting Report on July 12, 2013;
f. The Receiver filed on July 14, 2013, his Notice of Receiver’s Inventory Report of
April 19, 2013;
g. Baron filed a two-page Motion for approval to release a portion of money to retain
bankruptcy counsel on July 15, 2013;
h. Baron filed a Motion for Stay Pending Appeal on July 15, 2013;
i. Pronske filed Statement of Financial Affairs on July 15, 2013;
j. Fine attended a status conference on July 15, 2013, along with the Receiver, charg-
ing collectively an hourly rate of more than $1,300;
k. Several orders were entered on ministerial matters from July 15, 2013, to July 26,
2013;
l. The Court filed its Sua Sponte Report and Recommendation to the District Court on
July 26, 2013; and
m. Fine attended a hearing on July 26, 2013.
37. Under the circumstances, it is hard not to reach the conclusion that Vogel’s time
records are inaccurate and probably fabricated. They bear no resemblance to the events that oc-
curred during the Month of July 2013.
38. The stewardship by Vogel of the Baron Estate’s assets, as exemplified by the
billings for the month of July 2013, is deplorable and unacceptable. One can only conclude that
the Receiver and his attorneys have engaged in a wholesale effort to milk Baron’s Receivership
Estate in favor of lining their own pockets, charging astronomical hourly rates attributable to
three senior level lawyers, Vogel, charging $800.00 per hour; Fine, charging an hourly rate was
$560.00 and Schenck, charging an hourly rate was $570.00, for a total of $1,930.00 per hour.
Vogel, as receiver, owes fiduciary duties to the Receivership Estate. Vogel has failed to oversee
and manage his attorneys as a good steward of the Receivership Estate, and, instead, allowed
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senior partners at the Dykema firm to perform all of the work, to the exclusion of the employ-
ment of associates and paralegals. Vogel’s time records are totally deficient, and do not contain
entries that are contemporaneous with the events that occurred. Such records are non-
descriptive, and unhelpful to this Court in discharging its duties to review the Receiver’s fee re-
quests and approve only those fees and expenses that benefited the Receivership Estate. The fee
requests of the Receiver should, in equity and under the doctrine of fairness, be denied in their
entirety.
39. The Dykema firm failed in its duty to manage the representation in the best inter-
ests of the client, the Receivership Estate Dykema failed to utilize associates and paralegals,
and, instead, charged for two senior partner level lawyers. Dykema attended bankruptcy court
hearings that were not necessary for the Receiver or its attorneys to attend. Pending the conclu-
sion of the involuntary trial, the Receiver did not need to participate in the Baron Bankruptcy
with the exception, perhaps, of requesting authority for distribution and payment of fees and
complying with requests for information by the Bankruptcy Court. Otherwise, there was nothing
for the Receiver to do: he had no “dog in the fight”. If the order for relief was entered, it is clear
that the Receivership assets would have to be turned over to the Chapter 7 Trustee, If the order
for relief was not entered, the Receivership would continue on to conclusion. Participation at the
level described above in section IV, supra, and in this section was totally unwarranted and unnec-
essary. If Dykema argues that attendance was prudent, associate level attorneys could and
should have been utilized.
40. Any Court reviewing the billing practices of Vogel and his counsel, Dykema,
should be concerned. Any client, in this case, Baron, as the ultimate beneficiary of the Receiver-
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ship Estate, would have every right to be upset over what has transpired in this case. This Court
should not add insult to injury by awarding the Receiver’s requested fees and expenses.
41. As indicated above, neither the time allotted for this response nor the availability
of funding for legal and accounting personnel to review the invoices submitted by the Receiver
permits a full or adequate review of the billing practices of the Receiver and his attorneys, prin-
cipally the Dykema firm. However, a cursory review of the remaining months suggests that
these practices prevailed throughout the tenure of the Receiver and his attorneys, to the detriment
of the Receivership Estate and its ultimate beneficiary, Jeffrey Baron.
VII.
IF THE COURT IS INCLINED TO GRANT
ADDITIONAL FEES, BARON REQUESTS LEAVE
42. In the event that this Court is inclined to award additional fees for the receiver and
his counsel, Baron requests that this Court allow him time to hire an expert to review the fee bills
and opine on the reasonableness and necessity of such fees. As this Court is aware, all of Bar-
on’s assets have been sequestered by this receivership until recently and thus Baron has been
prevented from hiring an expert. Furthermore, Baron has had approximately one week to pre-
pare a response to the Receiver’s Fee Request, as Supplemented.
VIII.
WHERE THERE IS NO JURISDICTION
OVER THE PROPERTY, FEES CANNOT BE PAID.
43. For more than a century the Supreme Court has recognized that the exercise of
federal court power must be limited to the particular matters placed at issue before a court. E.g.,
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Reynolds u. Stockton, 140 U.S. 254, 268 (1891). The Supreme Court has rigorously limited fed-
eral court power to the finite bounds of the court's authority. Any order issued beyond a court's
jurisdiction has, here-to-fore, been void. See U.S. Catholic Conference v. Abortion Rights Mobi-
lization, Inc., 487 U.S. 72, 76-77 (1988) (a court's power to issue any order "cannot be more ex-
tensive than its jurisdiction").
44. For two centuries the rulings of the Supreme Court have been clear: "If there was
no jurisdiction, there was no power to do anything but to strike the case from the docket. In that
view of the subject the matter was as much coram non judice as anything else could be, and the
award of costs and execution was consequently void." Mayor v. Cooper, 73 U.S. 24 7, 250-251
(1868). Likewise, a court "not having jurisdiction of the res, cannot affect it by its decree". Fall
u. Eastin, 215 U.S. 1,11 (1909). Since the ruling in the seminal case of Lion Bonding & Surety
Co. u. Karatz, 262 U.S. 640, 642 (1923), the law has been that when a federal court lacks juris-
diction to impose a receivership, it is "necessarily without power to make any charge upon, or
disposition of, the assets". Id.
45. The Fifth Circuit found that the receivership imposed by the district court below,
seized "property that was not the subject of the underlying dispute". The Fifth Circuit correctly
held that ''A court lacks jurisdiction to impose a receivership over property that is not the subject
of an underlying claim or controversy."
IX.
THIS COURT DOES NOT HAVE JURISDICTION
TO GRANT THE RECEIVER AND HIS COUNSEL A RELEASE
46. Clams as to whether acts of the receiver constituted gross negligence or breaches
of fiduciary duty are not the subject of this action and cannot, as a matter of law, be determined
Case 3:09-cv-00988-L Document 1400 Filed 04/22/14 Page 23 of 26 PageID 67823
Page 24 of 26
at this time. The orders issued by Judge Furgeson, state what they state, and this Court should
not be providing carte blanche releases for matters that are not the subject of this suit. This Court
lacked the subject matter jurisdiction to grant the receivership in the first instance. The Fifth
Circuit vacated the receivership order, and this Court has ruled that this means that every order
entered by the Court is of no force or effect because such orders derive “their existence from the
creation of the receivership and the Receivership Order and therefore cannot exist separate and
apart from them.” See this Court’s Amended Memorandum Opinion, at p 25, ECF Doc 52 in Dis-
trict Court Case 3:13-cv-03461-L.
47. The receiver diverted millions of dollars of the estate’s cash to vigorously defend
its own receivership in a meritless defense in the Fifth Circuit.
15
From the inception of the re-
ceivership, Baron repeatedly demanded that his cash in the entire amount of all claims against
him—claims largely solicited by the receiver, be held in the registry court so that the receivership
could be terminated. The receiver repeatedly objected to these efforts and to repeated attempts to
close down the receivership. The receiver appeared to be intent on burning through every asset
that he could lay his hands on
48. Not only did the receiver spend all of the cash in the receivership that existed in
December 2012, it failed to pay one dime of income taxes on the money that the Receiver took in
throughout the entire tenure of the receivership. Instead of paying taxes on receivership income
as required by law, the receiver skimmed the money generated by the receivership, using pre-tax
15
Defending a Receivership or in defense of fees sought are not properly chargeable against the receivership estate.
US. v. Larchwood Gardens, Inc., 420 F.2d 531, 535 (3rd Cir. 970); In re Marcuse & Co., 11 F.2d 513, 516 (7th Cir.
1926) (denying fees where receiver acted as litigant and not neutral party).
Case 3:09-cv-00988-L Document 1400 Filed 04/22/14 Page 24 of 26 PageID 67824
Page 25 of 26
dollars to pay himself and his counsel, and defrauding the government of its share. (further ex-
plained in Document: 00511604732, COA5 10-11202).
49. The receiver hired the “best” lawyers that (Baron’s) money could buy and aggres-
sively opposed all efforts of Baron to obtain use of his funds to hire counsel. The receiver was
thus successful in preventing Baron from having virtually any representation in this Court and
woefully inadequate representation in the Fifth Circuit and bankruptcy court. The fact that Baron
won the appeals with his “rag tag” volunteer team lawyers should speak volumes as to the merits
of the receiver’s position. The Fifth Circuit overturned over 60 orders of the District Court that
were advocated and defended by the Receiver.
X.
THE FIFTH CIRCUIT MANDATED
THAT BARON’S NON-CASH PROPETY BE RETURNED
50. In his proposed order, the receiver requests this Court to authorize him to “store,
maintain or abandon or destroy” Baron’s property (his books and records). All of Baron’s prop-
erty, including his books and records must be returned to him per the mandate of the Fifth Cir-
cuit. None should be destroyed or maintained by the receiver.
Respectfully submitted this 22
nd
day of April 2014.
/s/ Stephen R. Cochell
Stephen R. Cochell, Esq.
The Cochell Law Firm, P.C.
7026 Old Katy Road, Ste. 259
Houston, Texas 77096
Telephone: (713)980-8796
Facsimile: (214) 980-1179
srcochell@cochellfirm.com
Attorney-in-Charge for Jeffrey Baron
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Page 26 of 26
Leonard H. Simon, Esq.
PENDERGRAFT & SIMON, LLP
TBN: 18387400; SDOT No. 8200
Admitted to Practice in NDOT
THE RIVIANA BUILDING
2777 Allen Parkway, Suite 800
Houston, Texas 77019
Telephone: (713) 528-8555
Facsimile: (832) 202-2810
lsimon@pendergraftsimon.com
Co-Counsel for Jeffrey Baron
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was served
via ECF on all parties receiving ECF Notices in the above-captioned case on April 22, 2014.
/s/ Leonard H. Simon
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