International fugitive Stephen Michael Cohen appealed the 9th Circuit Court of Appeals decision upholding the March 24, 2005 $65 million judgment against him for stealing the domain name Sex.com from Gary Kremen in 1995.
The basis for Cohen’s appeal centers on the 9th District allegedly ignoring Apostille documents stating that he was in the custody of a foreign government—in this case, Mexico.
The first question presented to the Supreme Court is whether it was proper for the 9th Circuit to declare Cohen disentitled under the Fugitive Disentitlement Doctrine after the court was served with Apostille documents allegedly demonstrating that he was taken into custody by the Mexican government while trying to return court-ordered funds to the United States. Second, Cohen claims the 9th Circuit violated his due process rights under the Fifth Amendment by failing to hold a hearing once being served with the Apostille documents pursuant to the Hague Convention.
Since 1981 the United States has been part of the 1961 Hague Convention, which abolished the requirement of legalization for foreign public documents and providing for the simplified certification of public documents, such as Cohen’s Apostille documents, to be used in countries that have joined the convention.
“It’s a dynamite issue. The question is, will they grant cert,” Cohen says.
“It’s [a] pretty straightforward, blatant law. Denying me my due process rights was outrageous. All the facts that were presented in the Sex.com case were facts that were submitted by Gary Kremen, accepted by the court and never tried. There never was a trial. Those facts were never litigated.”
Kremen, however, says Cohen has already made the same losing argument before the courts.
“It’s all ridiculous, but I have to deal with it,” he says. “I’m assuming he’s trying to do this so someplace he can claim there’s no final judgment against him. Thus, we can’t seize some of his assets. That isn’t going to happen in the United States. I’m not sure what effect it will have in Mexico.”
Cohen filed the petition on July 22. One of Kremen’s lawyers, San Francisco-based Richard Idell, received the petition Monday and said Cohen’s latest suit is just more of the same.
“I think the 9th Circuit ruled in the right manner, confirming the earlier ruling. They dismissed his appeal and I don’t think he’ll be successful on this appeal to the Supreme Court,” Idell says. “As you’re probably aware, no opposition needs to be filed to this. The court will decide in due course whether they accept or reject it. We expect they will reject it.”
Cohen, speaking from Mexico, says he believes the court will either deny the petition or immediately reverse the lower court’s decision, but admits that the odds against him are long.
“I’m very realistic about one thing: Your chances before the Supreme Court are very slim,” he says.
If it’s denied, Cohen says this puts the final nail in the Sex.com litigation coffin.
“The case is over. That’s it,” he says. “At this point, it doesn’t make a difference whether they deny it or not. It’s been over for a long time. The name is worthless.
"I am doing this because it is the correct thing to do to correct the record. Kremen never owned Sex.com, it was never in his name and he was never the registered owner of Sex.com."
Although Sex.com may not appear in the legal papers anymore, Cohen and Kremen are likely not finished with litigation. Kremen recently filed suit against Cohen’s ex-stepdaughter, Jhuliana, when she was arrested at the U.S.-Mexican border trying to smuggle 200 pounds of marijuana into the states. In his suit against Jhuliana, Kremen claims Cohen is using her to hide some of his assets to avoid paying the $65 million judgment. Cohen, who reportedly lives in Europe, said he was in Mexico this past week to turn over documents to Jhuliana’s attorney for a counter suit against Kremen and his attorney Timothy Dillon.
Dillon dismissed Cohen’s statement and says he is prepared to enter a default against Jhuliana for failing to file a timely response.
“She’s past her deadline,” Dillon says. “Her attorney called me yesterday asking us not to enter the default.”
To view a copy of Cohen’s Supreme Court petition," \n \n target="_new">click here.
