Response to Trustee Comments on Emergency Stay Motion

Jeffrey Baron’s Emergency Motion for  
Stay Pending Appeal    Page 1 
 
Stephen R. Cochell 
The Cochell Law Firm, P.C. 
7026 Old Katy Road, Ste. 259 
Houston, Texas 77096 
Telephone: (713)980-8796 
Facsimile: (214) 980-1179 
srcochell@gmail.com 
Counsel for Jeffrey Baron 
 
 
IN THE UNITED STATES BANKRUPTCY COURT 
FOR THE NORTHERN DISTRICT OF TEXAS 
DALLAS DIVISION 
 
IN RE:    § 
    §   
ONDOVA LIMITED COMPANY,  §  CASE NO. 09-34784-SGJ 
    §  (CHAPTER 11) 
DEBTOR.    § 
 
 
JEFFREY BARON’S RESPONSE TO TRUSTEE’S COMMENT ON BARON’S 
EMERGENCY MOTION FOR STAY PENDING APPEAL 
 
TO THE HONORABLE JUDGE OF SAID COURT: 
 
Jeffrey Baron (“Baron”)
1
 Appellant, files this Response to the Trustee’s Comments 
Regarding 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 set 
out below, the Trustee’s position appears to be a reaction to potential criticism of the 
United  States  Trustee’s  Office  for  violating  the  Congressional  mandate  in  Rule 
                                                          
 
1
 It is respectfully noted that the Trustee refers to Jeffrey “Barron” instead of Jeffrey “Baron” 
throughout her brief. 
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Jeffrey Baron’s Emergency Motion for  
Stay Pending Appeal    Page 2 
 
9003(b)  prohibiting  the  Trustee  from  participating  in  ex  parte  discussions  with 
bankruptcy or trial judges.   
2.  Baron objected to any ex parte communication between this court and Mr. Lieberman 
during the hearing but  was particularly concerned that the witness was still on the 
witness stand testifying when the Court cleared the courtroom and engaged in an ex 
parte communication that was apparently designed to change the witness’ refusal to 
testify in  a  way  that  allowed  the  Court  to  approve  the  sale.  Counsel  advised  the 
Trustee of his  concerns about the Trustee’s failure to object to the communication 
prior to filing Baron’s Motion for Stay Pending Appeal, at which time the Assistant 
United  States  Trustee  became  very  incensed  and  angry  at  the  suggestion  that  the 
Trustee failed to comply with Rule 9003(b). 
3.  The  Trustee  engages  in  a  series  of  ad  hominem  arguments  that  reflect  that  the 
Trustee’s Office has lost objectivity about its role in this case.  The Trustee did not 
merely participate in an “in camera session with the Court.”  [Doc. 957at 1].  Rule 
9003(b) states, in pertinent part, that: “Except as otherwise permitted by applicable 
law, the United States trustee and assistants to and employees or agents of the United 
States trustee shall refrain from ex parte meetings and communications with the court 
concerning matters affecting a particular case or proceeding.”  This Congressional 
prohibition    is  not  optional  and  subject  to  the  after-the-fact  rationalization  by  any 
Trustee.    Congress  said  what  it  meant  and  meant  what  it  said.    Ex  parte 
communications are prohibited.   
 
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Jeffrey Baron’s Emergency Motion for  
Stay Pending Appeal    Page 3 
 
4.  Counsel was unable to cross examine this witness on what happened at the hearing 
because he was not there.  If there was a legitimate issue to be addressed, it should 
have 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 that 
should not be disclosed to the public, or to Baron.  Baron moved to recuse the trial 
judge because of the ex parte communication and conduct of the trial judge.  If the 
Court now believes that the communication is or was not improper, then the Court 
may decide to unseal the record.   
5.  The issue is not whether the Trustee supports or opposes unsealing of a transcript, or 
whether 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 Court 
abandoned its role as neutral and impartial fact-finder by holding an ex parte hearing 
after which  the witness  changed his  testimony.    If this type of  contact had been 
initiated by one of the trial attorneys in the middle of a witness’ testimony, the Court 
would 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  at 
counsel’s  side  objecting  to  the  ex  parte  communication---not  participating  in  a 
communication prohibited by Congress.  It is deeply disturbing that the Trustee fails 
to  understand  a  basic  duty  mandated  by  Congress---to  protect  the  integrity  of 
bankruptcy process and maintain confidence in the judicial system. 
 
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Jeffrey Baron’s Emergency Motion for  
Stay Pending Appeal    Page 4 
 
7.  The  Trustee  also  seeks  to  redefine  other  issues  raised  by  Baron.  Baron  is  not 
objecting to  the  Court refusing to  transfer  domain  names  with sexually  suggestive 
titles.  Baron is objecting to unsupported, unnecessary character attacks suggesting 
that he is a pornographer.  Baron testified and explained how the domain names were 
created  and  there  is  no  evidence  that  shows  that  any  of  the  domain  names  were 
actually used to sell pornography.  Under a First Amendment analysis, the name itself 
is not “pornographic.”   All that being said, Baron never objected, and does not object 
to the names being culled out.    The Trustee’s argument on a non-issue is devoid of 
merit and again, suggests that the Trustee is not objectively viewing the facts in this 
case. 
8.  The Trustee then criticizes counsel for Baron for failing to produce evidence of the 
Receiver’s  exclusion  of  competing  bidders.  Counsel  for  Baron represented  to  the 
Court that he had hearsay evidence of exclusion of a qualified bidder, but was not in a 
position to present the evidence that day, requesting a brief continuance.  
a.   Before  this  court  confirmed  the  Chapter  11  Plan,  counsel  filed  Jeffrey 
Baron’s  Emergency  Motion  to  Clarify  [Dkt.  937]  and  specifically  told  the 
Court that he was prepared to submit the “declaration of a potential bona fide 
and qualified bidder who will testify that the was excluded from the auction 
by the receiver and/or his counsel.”   
b.  Counsel also warned that the Court “should not blindly accept the telephonic 
representations of an attorney withyout allowing discovery of Mr. Lieberman, 
the two off-shore companies and Domain Holdings to ensure the integrity of 
the bankruptcy process.” 
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Jeffrey Baron’s Emergency Motion for  
Stay Pending Appeal    Page 5 
 
c.  Regrettably, the Trustee did not join in Baron’s Motion. 
d.  Counsel filed a Motion on Appearance of Impropriety [Dkt. 938] setting out 
in 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 has 
now been filed. 
g.  Baron’s counsel has filed motions for continuance, a contempt motion and a 
motion  to  compel  and  for  continuance---all  designed  to  obtain  information 
that clearly was relevant then, and that are still relevant to determining if the 
bankruptcy process has been tainted by misconduct. 
9.  The documents that would reveal the extent to which bidders were rejected by the 
Receiver, 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 communications 
from counsel for Baron. 
10. The Trustee asserts that:  “While the Trustee’s Office has worked and is working to 
gather the facts, the facts are not well developed.  Additional evidence, including 
evidence 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 evidence 
that would demonstrate the failure of the bankruptcy process, despite full knowledge 
of Baron’s limited resources and the ability of one lawyer to oppose two large law 
firms without meaningful discovery.    
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Jeffrey Baron’s Emergency Motion for  
Stay Pending Appeal    Page 6 
 
11. The Trustee cannot have it both ways; that is, tell the Court that there is a need to 
investigate this case, but then suggest that a stay should not be granted.  The Trustee’s 
duty is to ensure the integrity of the bankruptcy process---not engage in procedural 
debate 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 collusion 
between Special Jewel, Trans and Domain Holdings.  There is now evidence before 
the Court that requires further investigation.  
13. Regrettably, it appears that the United States Trustee does not intend to pursue a 
critical breakdown in the bankruptcy process. 
14. In sum, Baron respectfully submits that the Trustee has lost objectivity about her role 
in 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 Pending 
Appeal and for such other and further relief to which it may show himself justly entitled.  
 
Very respectfully, 
 
/s/ Stephen R. Cochell 
Stephen R. Cochell 
The Cochell Law Firm, P.C. 
Texas Bar No. 24044255 
7026 Old Katy Rd., Ste 259 
Houston, Texas 77096 
(713)980-8796 (phone) 
(713)980-1179 (facsimile) 
srcochell@cochellfirm.com 
 
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Stay Pending Appeal    Page 7 
 
CERTIFICATE OF SERVICE 
 
This is to certify that, on November 27, 2012, a copy of the above was served on all 
counsel of record through the Court’s ECF filing system. 
 
/s/ Stephen R. Cochell 
Stephen R. Cochell 
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