Jeffrey Baron’s Emergency Motion forStay Pending Appeal Page 1Stephen R. CochellThe Cochell Law Firm, P.C.7026 Old Katy Road, Ste. 259Houston, Texas 77096Telephone: (713)980-8796Facsimile: (214) 980-1179srcochell@gmail.comCounsel for Jeffrey BaronIN THE UNITED STATES BANKRUPTCY COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISIONIN RE: §§ONDOVA LIMITED COMPANY, § CASE NO. 09-34784-SGJ§ (CHAPTER 11)DEBTOR. §JEFFREY BARON’S RESPONSE TO TRUSTEE’S COMMENT ON BARON’SEMERGENCY MOTION FOR STAY PENDING APPEALTO THE HONORABLE JUDGE OF SAID COURT:Jeffrey Baron (“Baron”)1Appellant, files this Response to the Trustee’s CommentsRegarding Jeffrey Baron’s Emergency Motion for Stay Pending Appeal [957] and states:1. The Trustee’s position underscores the need for a stay to allow investigation. As setout below, the Trustee’s position appears to be a reaction to potential criticism of theUnited States Trustee’s Office for violating the Congressional mandate in Rule1It is respectfully noted that the Trustee refers to Jeffrey “Barron” instead of Jeffrey “Baron”throughout her brief.Case 09-34784-sgj11 Doc 958 Filed 11/28/12 Entered 11/28/12 12:09:16 DescMain Document Page 1 of 7Jeffrey Baron’s Emergency Motion forStay Pending Appeal Page 29003(b) prohibiting the Trustee from participating in ex parte discussions withbankruptcy or trial judges.2. Baron objected to any ex parte communication between this court and Mr. Liebermanduring the hearing but was particularly concerned that the witness was still on thewitness stand testifying when the Court cleared the courtroom and engaged in an exparte communication that was apparently designed to change the witness’ refusal totestify in a way that allowed the Court to approve the sale. Counsel advised theTrustee of his concerns about the Trustee’s failure to object to the communicationprior to filing Baron’s Motion for Stay Pending Appeal, at which time the AssistantUnited States Trustee became very incensed and angry at the suggestion that theTrustee failed to comply with Rule 9003(b).3. The Trustee engages in a series of ad hominem arguments that reflect that theTrustee’s Office has lost objectivity about its role in this case. The Trustee did notmerely participate in an “in camera session with the Court.” [Doc. 957at 1]. Rule9003(b) states, in pertinent part, that: “Except as otherwise permitted by applicablelaw, the United States trustee and assistants to and employees or agents of the UnitedStates trustee shall refrain from ex parte meetings and communications with the courtconcerning matters affecting a particular case or proceeding.” This Congressionalprohibition is not optional and subject to the after-the-fact rationalization by anyTrustee. Congress said what it meant and meant what it said. Ex partecommunications are prohibited.Case 09-34784-sgj11 Doc 958 Filed 11/28/12 Entered 11/28/12 12:09:16 DescMain Document Page 2 of 7Jeffrey Baron’s Emergency Motion forStay Pending Appeal Page 34. Counsel was unable to cross examine this witness on what happened at the hearingbecause he was not there. If there was a legitimate issue to be addressed, it shouldhave been raised on the record, and subject to cross examination by Baron’s counsel.The record is sealed, presumably because the Court felt there was something thatshould not be disclosed to the public, or to Baron. Baron moved to recuse the trialjudge because of the ex parte communication and conduct of the trial judge. If theCourt now believes that the communication is or was not improper, then the Courtmay decide to unseal the record.5. The issue is not whether the Trustee supports or opposes unsealing of a transcript, orwhether the communication, in the Trustee’s opinion, did not impact confirmation.The issue is that an ex parte communication occurred in the middle of a witness’testimony, after counsel moved to strike the witness’ testimony, and where the Courtabandoned its role as neutral and impartial fact-finder by holding an ex parte hearingafter which the witness changed his testimony. If this type of contact had beeninitiated by one of the trial attorneys in the middle of a witness’ testimony, the Courtwould legitimately be concerned about witness tampering.6. Since the Trustee raises the issue of its participation in the ex parte communication,counsel respectfully suggests that the United States Trustee should have been atcounsel’s side objecting to the ex parte communication---not participating in acommunication prohibited by Congress. It is deeply disturbing that the Trustee failsto understand a basic duty mandated by Congress---to protect the integrity ofbankruptcy process and maintain confidence in the judicial system.Case 09-34784-sgj11 Doc 958 Filed 11/28/12 Entered 11/28/12 12:09:16 DescMain Document Page 3 of 7Jeffrey Baron’s Emergency Motion forStay Pending Appeal Page 47. The Trustee also seeks to redefine other issues raised by Baron. Baron is notobjecting to the Court refusing to transfer domain names with sexually suggestivetitles. Baron is objecting to unsupported, unnecessary character attacks suggestingthat he is a pornographer. Baron testified and explained how the domain names werecreated and there is no evidence that shows that any of the domain names wereactually used to sell pornography. Under a First Amendment analysis, the name itselfis not “pornographic.” All that being said, Baron never objected, and does not objectto the names being culled out. The Trustee’s argument on a non-issue is devoid ofmerit and again, suggests that the Trustee is not objectively viewing the facts in thiscase.8. The Trustee then criticizes counsel for Baron for failing to produce evidence of theReceiver’s exclusion of competing bidders. Counsel for Baron represented to theCourt that he had hearsay evidence of exclusion of a qualified bidder, but was not in aposition to present the evidence that day, requesting a brief continuance.a. Before this court confirmed the Chapter 11 Plan, counsel filed JeffreyBaron’s Emergency Motion to Clarify [Dkt. 937] and specifically told theCourt that he was prepared to submit the “declaration of a potential bona fideand qualified bidder who will testify that the was excluded from the auctionby the receiver and/or his counsel.”b. Counsel also warned that the Court “should not blindly accept the telephonicrepresentations of an attorney withyout allowing discovery of Mr. Lieberman,the two off-shore companies and Domain Holdings to ensure the integrity ofthe bankruptcy process.”Case 09-34784-sgj11 Doc 958 Filed 11/28/12 Entered 11/28/12 12:09:16 DescMain Document Page 4 of 7Jeffrey Baron’s Emergency Motion forStay Pending Appeal Page 5c. Regrettably, the Trustee did not join in Baron’s Motion.d. Counsel filed a Motion on Appearance of Impropriety [Dkt. 938] setting outin detail Baron’s concerns about the integrity of the bankruptcy process.e. Regrettably, the Trustee did not join in Baron’s Motion.f. The Court did not express interest in the declaration referred to, which hasnow been filed.g. Baron’s counsel has filed motions for continuance, a contempt motion and amotion to compel and for continuance---all designed to obtain informationthat clearly was relevant then, and that are still relevant to determining if thebankruptcy process has been tainted by misconduct.9. The documents that would reveal the extent to which bidders were rejected by theReceiver, were ordered by the Court to be produced by the Receiver on October 19,2012. The Trustee did not, and still does not express interest in these documents,which would appear directly relevant to the issue of exclusion of bidders. Instead,the Trustee seeks attorney work product information and privileged communicationsfrom counsel for Baron.10. The Trustee asserts that: “While the Trustee’s Office has worked and is working togather the facts, the facts are not well developed. Additional evidence, includingevidence in Barron’s possession, is required. The issue is not ripe.” [Doc. 957 at 4].The Trustee did nothing while Baron filed motions and attempted to obtain evidencethat would demonstrate the failure of the bankruptcy process, despite full knowledgeof Baron’s limited resources and the ability of one lawyer to oppose two large lawfirms without meaningful discovery.Case 09-34784-sgj11 Doc 958 Filed 11/28/12 Entered 11/28/12 12:09:16 DescMain Document Page 5 of 7Jeffrey Baron’s Emergency Motion forStay Pending Appeal Page 611. The Trustee cannot have it both ways; that is, tell the Court that there is a need toinvestigate this case, but then suggest that a stay should not be granted. The Trustee’sduty is to ensure the integrity of the bankruptcy process---not engage in proceduraldebate about a serious issue going to the heart of the bankruptcy process.12. Incredibly, the Trustee fails to provide any guidance to the Court about the collusionbetween Special Jewel, Trans and Domain Holdings. There is now evidence beforethe Court that requires further investigation.13. Regrettably, it appears that the United States Trustee does not intend to pursue acritical breakdown in the bankruptcy process.14. In sum, Baron respectfully submits that the Trustee has lost objectivity about her rolein this case and has simply become another advocate for the Receiver and Trustee.WHEREFORE, Jeffrey Baron prays that this Court grant his Motion for Stay PendingAppeal and for such other and further relief to which it may show himself justly entitled.Very respectfully,/s/ Stephen R. CochellStephen R. CochellThe Cochell Law Firm, P.C.Texas Bar No. 240442557026 Old Katy Rd., Ste 259Houston, Texas 77096(713)980-8796 (phone)(713)980-1179 (facsimile)srcochell@cochellfirm.comCase 09-34784-sgj11 Doc 958 Filed 11/28/12 Entered 11/28/12 12:09:16 DescMain Document Page 6 of 7Jeffrey Baron’s Emergency Motion forStay Pending Appeal Page 7CERTIFICATE OF SERVICEThis is to certify that, on November 27, 2012, a copy of the above was served on allcounsel of record through the Court’s ECF filing system./s/ Stephen R. CochellStephen R. CochellCase 09-34784-sgj11 Doc 958 Filed 11/28/12 Entered 11/28/12 12:09:16 DescMain Document Page 7 of 7![]()