However even through its was labeled as “warning letter”, the FDA also went to the service providers of the sites  and registrars of the domain names subject to the warning letter and told them “that the site illegal activities may give them grounds to terminate service to their customers.”

And according to one report the “warning letter” seems to have worked as about 90 of the sites named in the warning letter that were US based, have already been taken down.

Now I’m no great fan of these sites and actually they drive me crazy, as I get well over 5,000 spam e-mail’s everyday advertising drugs for sale.

Still I have a problem with any governmental agency unilaterally determining that your activity is illegal, without giving the site owner the opportunity of a hearing or trial and an opportunity to present a defense to the claim of illegality, going directly to the ISP and registrars asking that the site’s services be terminated.

No due process.

No hearing, no trial.

Nothing.

The fact that ISP and registrars as so willing to terminate services based on a letter from a governmental body is troubling.

As we discussed this last year in relation to the Kentucky domain seizures and the Cuba domain seizures, we believe this is further evidence that you might be safer hosting your domains and sites outside of the US and registering them with a Non-US based registrar before you wake up one day to find out some governmental agency determines your domain is “illegal”

InvestingFunds.com, maybe the first financial site to not only cover the usual investments you would expect to see on a financial site, like stocks, bonds, real estate, currency and commodities, but also domain names.

The site will be incorporating other domains into the site over time to create a financial network of sites covering all investments including domain names.

Take a look at the site and I think you will be really impressed with the design, content and functionality.

You can get live prices for all major markets, commodities and currency rates.

The site’s the brand child of Howard Neu who also launched Malpracticeattorneys.com last week.

As we have discussed here we thought the release was overly broad and the literally reading would release Oversee and Snapnames from all and any liability for any activity on SnapNames related or not related to the bidder Halvarez which was the bidder ID of Nelson Brady, a former employee and officer of the SnapNames.

The language we objected in the document was the following which sought a release:

“”Relating to the auctions for and acquisition of the Domains, including without limitation, any Claims relating in whole or in part to the bidding activity of the SnapNames user associated with the user name “halvarez”

Our objection was simply that since the only thing being offered was compensation for bidding activities related to halvarez the release should be limited to the activities of Halvarez.

Today Oversee sent over the following statement:

“”"”Update to Rebate Offer Acceptance Agreement

On November 6, 2009, SnapNames (via Rust Consulting) communicated an offer to provide a rebate to customers with accounts impacted by inappropriate bidding activity from one of its former employees.

Included with that communication was a Rebate Offer Acceptance Agreement for customers to complete and return to Rust Consulting, the third-party administrator managing the rebate offer.

Several SnapNames customers expressed concerns about the agreement’s language.  After considering these comments, we concluded that a section of the original agreement, addressing the scope of release of potential claims, could be interpreted as too broad and not what the company intended, and therefore should be clarified.

Accordingly, the revised copy states precisely that the agreement addresses only the SnapNames auctions in which there was bidding activity from the user name “halvarez.”  Please see the marked relevant paragraph below.

Customers who have already communicated their acceptance of the rebate do not need to take further action at this point—their rebates are already being processed for payment.  However, if they prefer the revised language, they can print, sign and return the updated document.  In that event, we will destroy the original acceptance agreement.

Calculation of rebate amounts

As discussed in the November 6 communication from Rust Consulting, to determine the rebate offer amount, SnapNames hired an independent, third-party forensic accounting firm to perform a thorough review of these auctions and calculate the rebate.

The firm reviewed data regarding all of the bidders in an affected auction, including the bids each bidder placed in the auction and the maximum bids the bidders indicated they were willing to place in the auction; from this data, it was determined what the winning bid would have been had halvarez never placed a bid in the auction.  This amount was then subtracted from the actual price paid for the domain name to determine the amount of the rebate for that auction.

Upon further review of this data, SnapNames has learned that for a small number of accounts (less than 5% of the auctions impacted by halvarez), calculations failed to account for changes in our bidding system over time.  In those cases, there will be a resulting upward adjustment of between $1 and $5 per auction.  Affected customers do not need to take any action—they automatically will be paid the higher amount.  If a payment has already been processed, the customer will be issued an additional check for the difference (or credit will be added to the customer’s SnapNames account, according to the customer’s decision).

Bidders and domain names in auctions won by Halvarez

Customers and selected bloggers have asked SnapNames to offer compensation to bidders who competed in auctions won by the Halvarez user name.

Regrettably, SnapNames does not own these names and cannot unwind the sale of these names or otherwise offer them up for auction again.  SnapNames is not offering any rebate or other compensation to bidders who lost names to Halvarez.

Although it cannot discuss the details of any ongoing legal issues, SnapNames intends to pursue the legal remedies it may have with respect to this matter.

Additional options for sending your rebate acceptance

As detailed previously, customers electing to accept the rebate offer can execute and return the Rebate Offer Acceptance Agreement to:

SnapNames Rebate Administrator
P.O. Box 98
Minneapolis, MN  55440-0098

We have made additional options available for returning the agreement.  Customers may:

·         Fax your executed offer to (503) 200-1232
·         E-mail a scanned copy of the executed offer to snapnamesrebateoffer@snapnames.com

So the release as modified will say:

I, the undersigned, individually and jointly, for myself and my successors, assigns, trustees, partners, joint venturers, directors, officers, affiliates, associates, managers, licensees, and for any other claiming through or under each or all of them and for any person or entity with or for whom I may have purchased the above mentioned names (collectively, the “Releasors”) hereby release and forever discharge, acquit, covenant not to sue and acknowledge complete satisfaction from, SnapNames, and its past and present parent companies (including Oversee.net), affiliates, successors, assigns, agents, attorneys, servants, representatives, employees, independent contractors, trustees, administrators, predecessors-in-interest, insurers, partners, joint venturers, stockholders, members, directors, officers, parent companies, associated companies, holding companies, subsidiaries, divisions, affiliates, associates, managers, licensees, accountants and consultants of any of the foregoing (collectively, the “Releasees”) for any and all claims, actions, arbitrations, charges, complaints, grievances, hearings, causes of action, actions, suits, damages, costs, expenses, judgments, liabilities, demands, inquiries, investigations, proceedings or suits of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, previously existing, or now existing, or hereafter arising, in law or in equity (collectively, the “Claims”), which the Releasors or any of them had, may have had, or now has, from the beginning of time to today’s date against the Releasees, collectively, or any of the Releasees, individually, for or by reason of any matter whatsoever relating in whole or in part to the bidding activity of the SnapNames user associated with the user name “halvarez” (the “Released Matters”) for damages, restitution, disgorgement, unjust enrichment, civil penalties, statutory penalties, injunctive and/or declaratory relief, whether class, individual, representative, or otherwise in nature, including costs, expenses, penalties, and attorneys fees.

Mason Cole”"

If you already executed the release, you can ask that the previous release you signed to be destroyed and replaced with this release.

Now I can hear a lot of you hitting the keyboards already ready to comment on here to say, I don’t believe Oversee when they say it was all a misunderstanding.

I’m going to say it just doesn’t matter.

Other than for chest banging or ego boosting, what is the difference, whether Oversee and its attorneys meant as they say that the release was only requiring people to waive were there right’s to make a claim based on the bidder Halverez, and after reading our comments and/or the comments of Rick Schwartz on his blog or Howard Neu’s analysis of the release, realized that the domainer community read the release to say something quite different than how they read it, or whetor whether having read these posts and the comments realized that very few people were going to sign the release as stated, they decided to modify it.

The modification now clearly indicates the waiver is limited to the bidding activities of Halvarez.

The bottom line is that the release has been changed for the benefit of all domainers into a document that can be considered by domainers for settlement, which the previous version in my opinion could not.

Our major objection to the release have now been overcome and the release now becomes a real option which we are going to strongly consider signing as well.

The release now would not bar you from seeking claims or damages for any other bidders that were found to be fraudulent, other than Halvarez, or other any other improprieties that maybe found later to be going on at Snapnames.com.

So if Brady or any other insider at Oversee/Snapnames.com was found in the future to have engaged in shill bidding under any other bidder ID other than Halvarez, you would still have the same claim you would have had, if you did not sign the release.

Likewise if any other actionable improprieties at Snapnames are discovered, unrelated to Halvarez, you would still have a right to bring an action.

So just to be clear lets review what you would be getting and what you would be giving up if you signed the release and took the offered settlement.

If you take the settlement, you of course get cash (or credit at snap if you prefer)

Cash is good.

Cash is immediate.

And all of the cash goes to you, none goes to attorney’s.

You are going to be compensated for those auctions you won where Halvarez finished 2nd.

However, if Halvarez bid in an auction you won, but did not finish 2nd, you get no compensation under the settlement.

What your giving up:

Any other claim for damages on the actions of the bidder Halvarez, including a right to sue individually or by joining a class action.

I have seen some discussions about the possibility of tremble damages under consumer protection laws and the possibility of punitive damages.

I have no idea of whether such claims are sustainable or would apply in this situation and you will need to consult with an attorney experienced with such matters to get their opinion.

By signing the release you would also be giving up any claim for damages caused by Halvarez bidding but not finishing in 2nd place.

Again I have no idea of whether such a claim is sustainable and you should consult with an attorney to see what they believe your ultimate gains could be but you also need to realize that litigation is something that can certainly drag on for years, including appeal.

Finally remember if  “worst comes to worst” there is always a risk that this company might be forced into, or file for protection from its creditors and in which case you become an unsecured creditor, which is never a good position to be in.

The other ancillary benefit to Oversee/Snapnames.com is the change in the release may take some heat off the theory that there are other issues Oversee is aware of and that they were trying to “sneak” such issues into a release.

This modified release should help ease those concerns.

This case involved several domains containing “811″ combined with a state.

The domains at issue were:

alabama811.com, al811.com, la811.com, louisiana811.com, tennessee811.com, tenn811.com, and tn811.com

811 was set up by the FCC in March 2005 to as the national abbreviated “One Call” dialing code for providing advance notice of excavation activities to underground facility operators.

So 911 like 811, 511 and 311 were set up by the federal government to provide a one call solution for a specific purpose.

We know 911 is for emergency’s, 511 is for traffic information, 311 is for city information and services and 811 was set up for “”alert the proper authorities to imminent excavation work, thereby avoiding potential service interruptions and safety hazards.”

“”As with other One Call designations, a resident of any state of the United States may simply dial a three-digit number and make a local telephone call to obtain this sort of information.”"

Many states have designed the handling of the 811 system to the not-for-profit entity public utility commissions or other regulatory agency’s, including the states at issue here;  Alabama, Louisiana; and Tennessee.

So lets start with this fact

None of Complainants owned a registered trademark for 811.

However a trademark was filed by with the  (“USPTO”) by “a Common Ground Alliance”, a trade association which represents its members involved in providing 811 services.

Complainants also argued they have common law rights in term “811” through use in commerce.

The domain holder registered the domain names in 2007.

“Screen shots of the home page submitted with the WIPO Complaint, showed an “under construction” (registrar) page, with links to “commercial, tourist, and state-related activities in the applicable state.”

Now for the decision”

While the panelist found:

“”The USPTO-registered trademark held by Common Ground Alliance is not relevant since none of the Complainants has claimed license rights from the mark owner; none has even alleged membership in the Alliance, much less proven derivative rights by reason of membership.”

However the panelist agreed with the complaints they had a common law right based on usage even though none of the complainants may have even begun administering the 811 service when the domain were registered:

“”"While Respondent may not have had these three Complainants specifically in mind at the date of registration, he surely knew that someone would (and by 2007 probably had begun to) manage 811 the network in these states. Registration and subsequent use were at Respondent’s peril under the Policy should the operators demonstrated service mark rights in the combination of the applicable state name and 811 at the time of registration, as the Panel has found Complainants have done.”"

“”Respondent admits knowledge of the FCC Order designating 811 for special services. Respondent’s principal in his Declaration states that at the time of registering the disputed domain names he was “aware of the implementation of a nationwide 811 call system for use in connection with avoiding digging problems related to underground utility lines.”

“”"For similar reasons Respondent’s acquisition and use of the disputed domain names have been in bad faith, by attracting members of the public seeking a Complainant or the 811 services it provides by use of marks in which the Complainants hold common law rights. Respondent has registered similar domain names for at least 42 other states in addition to Alabama, Louisiana, and Tennessee.

“”The fact that the content of the “under construction” pages may have been selected by a registrar rather than Respondent does not absolve Respondent of bad faith. “”

“”Such conduct falls squarely with the example of bad faith in paragraph 4(b)(iv) of the Policy, which does not require that Respondent benefit so long as the use is commercial and someone benefits. “”

Bottom line of this decision, Domains that touch upon governmental functions can be taken even if not parked by the holder, even in the absence of a registered trademark.

What does this say for other governmental type of domains?

Newyorkpublictransportation.com or Floridapublicschools.com for example, are those domains at risk?

How about Newyorktaxcollector.com?

The possibilities are really endless and so are the questions.

Any of our domain attorney’s want to weight in on this one?

3 of the domains were three letter .com’s and one was a very good insurance domain.

APN.com sold for $14,401.

APN like any three word domain stands for plenty of organizations, but the most frequent seems to be for Access Point Name.

InsuranceClaim.com sold for $12,100

LMD.com sold for $12,100

OGT.com also sold for $12,000

OGT  stands for Ohio Graduation Test which seems to be a requirement in that state and for which there are several Google ads.

Here are all the domain with bids as of the time of publication 1:45pm EST.

Those with an (r) by the amount have reached reserve and will sell, the others have bids but the reserve price has not been reached.

To see our picks from the auction, check out our post here.

To join the auction or to add to your watch list, just click on the link so we can take some of Oversee’s cash.

During a heated back and forth discussion he asked:

“”Hypothetically, what would you do, right now, if you were Oversee, that would make everyone in the world happy over this crappy situation?””

So I answered him and that answer is now forming the basis of this post.

Its been two weeks since Oversee broke the Scandal.

Since, then blogs and forums have been lite up with discussions, conspiracy theories and accusations on a daily basis, without a word from Oversee.

Oversee offered up a settlement agreement with a release, which as we discussed previously is not sign-able, and the whole situation seems to be in a stalemate.

I think the time has come for a plan of how Oversee can fix this mess.

I don’t think this industry is going to be better off if Oversee fails.

I think the domain space will suffer if one of its, maybe the largest company in the space, sinks under the pressure of the scandal.

So here is my answer to Mr. Berryhill’s hypothetical question of what Oversee should do to fix this situation.

As this letter is meant to be read by Oversee and SnapNames.com to push them to action, I’m closing this post to comments.

I do not want this to become another vehicle for people to beat up Oversee and Snapnames.

There are plenty of places you can vent, bitch, criticize and accuse Oversee and Snapnames, including in the comment section of this blog on other posts.

I want this to serve as an attempt to get Oversee to fix the situation and begin the closure process.

1. File a criminal complaint against Brady and announce that you have done so.

We are big boys and girls here and realize how the world works.

Once Oversee files a criminal complaint its out of their hands and up to the law enforcement agency to decide whether to pursue it or not.

Once Oversee files a criminal complaint we all know that Oversee would be the “victim” in a criminal proceeding and could not comment on an ongoing criminal matter.

However, the failure of Oversee to file criminal charges and make that public that it has done so, is causing many in the domainer community to think there is much more to the story (which there may or may not be).

Domainers feeling range from a “Deep Throat” theory that Brady knows things that would implicate others in the company to other criminal conduct and therefore isn’t seeking prosecution.

Filing a criminal complaint would go a long way to make domainers believe this incident is related to Brady alone.

2. Offer some compensation for the bidding of Brady where he did not finish in 2nd but actively bid (more than just the opening bid).

Oversee needs to offer some compensation for situations where Brady bid up on a domain but did not finish second

There is no way of knowing what would have happened in an auction like clash.com where Brady bid $22,500, $25,000 and $27,500 and wound up as the third highest bidder in an auction ending at $30K.

There is no way of computing or really even guessing what would have happened.

But one things for sure, Brady’s bidding did not make the ending price cheaper for the buyer.

The ending price of the domain may have still wound up where it sold, but it may have wound up for much less.

We will never know.

What is the actual damage Brady caused by bidding but not finishing second?

We have no way of determining an exact figure, but the damage is certainly higher than zero, which is what Oversee is currently offering for such situations.

I know I would, and think most the domainer community would feel much better about accepting a settlement if Oversee offered something, to compensate domainers for these auctions.

For myself its not so much the money but the principal.

I would like Oversee to say something like; “hey we know you were damaged by this bidding, neither one of us know how much, but in good faith and to move on so we can have a good working relationship going forwardwe are going to give you a premium over your actual damages to compensate you for Brady’s bidding when he didn’t finish second.

Let’s say by offering a 10%-20% premium on top of the actual damage already computed, I think domainers would recognize Oversee is trying to remedy the situation and make its customers happy.

There is no perfect answer but at least it would be an attempt to compensate its customers.

3. Limit the release to the issue at hand, Brady/Halvarez bidding.

The release needs to be modified so that in accepting the settlement for Halvarez bidding, you are only waiving your rights to seek damages relating to  Halvarez’s bidding.

Instead of the release saying:

“”Relating to the auctions for and acquisition of the Domains, including without limitation, any Claims relating in whole or in part to the bidding activity of the SnapNames user associated with the user name “halvarez”

The release needs to be modified to say:

“Relating to the auctions for and acquisition of the Domains, any Claims relating in whole or in part to the bidding activity of the SnapNames user associated with the user name “halvarez”.

Seems simple enough.

By signing the modified release I’m suggesting, domainers would give up their rights to seek and additional damages for actions related to Halvarez’ bidding in exchange for the settlement amount.

If other shill bidding unrelated to Halvarez is found to exist or other improprieties in accounting or other issues unrelated to Halvarez’s bidding is found, domainers would have the right to seek compensation and damages.

The whole idea of this process should be for Oversee to get a substantial number of domainers receiving this settlement agreement to accept it.

Right now the release in my opinion is way too broad cannot be signed.

A modified release would get allow more domainers to execute it.

4. Oversee should hiring a true third party forensic accounting firm to go through all 1,000,000 auctions

I’m suggestion that domainers want a true third party to pull all the data from all the auction like I did for my own account, and have a date certain when those results will be announced.

They should be proactive and look for other bidding improprieties throughout their system and make a commitment to have this done by a date certain and of course offer restitution is anything else is found.

5.  Statements and Status Reports

Its been two weeks since Oversee broke the news and there have been a ton of material written on the situation.  Oversee has been accused in blogs and forums of everything but being involved in the Kennedy Assassination.

A company cannot remain completely silent when it is reputation is being raked over the coals on a daily basis.

You cannot let claims, charges, and conspiracy theories to hang in the air without refuting at least some of them.

I suggest that Snapnames/Oversee issue a statement immediately to combat, admit or deny the accusations levied against them on blogs and forums and then commit to issuing a status report on some regular basis be it weekly,  bi-weekly or monthly.

So Oversee, for the sake of your company, your employees and in the industry as a whole try to fix this situations.

Make a move.

The ball is in your court.

Today Time Warner announced that AOL will begin trading on December 10th, 2009.

It will mark the return to the stock market for AOL, which was bought by Time Warner about 9 years ago in what is largely regarded as being one of the most disastrous corporate mergers in history.

Time Warner shareholders of record on Nov. 27 will receive one share of AOL stock for every 11 shares of Time Warner common stock.

When AOL’s announced it plan to merge with Time Warner n January 2000, AOL was valued at $163 billion.

Based on today’s closing price of Time Warner’s stock of $32.35 and its 1.17 billion outstanding shares, AOL’s market cap would be around $3.44 billion.

Your reading it right.

$163 Billion to $3.44 billion in  less than a decade.

Ouch.

How important was this merger to Time Warner?

At the time of  acquisition Time Warner even renamed their company to AOL/Time Warner.

The merger between old media and new media never seemed to work.

AOL bleed subscribers and Time Warner could never figure out how to blend offline brands such a Time Magazine and Warner Brothers Studio with an internet service and content provider.

Back in July 2009, Time Warner bought the 5% of AOL that Google owned for $283 Million dollars.

Google originally bought its 5% share of AOL for over $1 Billion.

Now it looks like Google got a good price.

Based on today’s valuation, 5% of AOL would be worth only $172 Million.

According to Mr. Cutts, the most important new factor for SEO rank maybe the speed at which your site loads.

“We are thinking more and more that site speed should be a factor in search ranking.”

“Maybe its fair to say it you have a very fast site you should get a bonus or if you have an awfully slow site, maybe users don’t want that”

To see a video from Google on how to increase the load time of your sites check out this Google link.

Google also has a tool that you can download if you have FireFox called Page Speed to test the speed of your site.

As we typically do, we have selected some of what we regard to be the better or more interesting domains.

The first group of domains currently have bids on them and if they have hit reserve they will have an (r) by the price, otherwise just have bids, but as of time of publication, have not hit reserve.

To join or watch any of the auctions please click on the link so we can grab some of Oversee’s cash.