[Acct-Legal] Let's kick off!

Wed Feb 4 15:11:56 UTC 2015

I arrive very early Sunday morning and leave Saturday morning

J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz

From: <McAuley>, David <dmcauley at verisign.com<mailto:dmcauley at verisign.com>>
Date: Wednesday, February 4, 2015 at 8:22 AM
To: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Cc: "ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>" <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>>
Subject: Re: [Acct-Legal] Let's kick off!

I would be happy to get together as well. Cannot do it Sunday night or Thursday night but other evenings seem ok so far. – Leave Friday afternoon.

David McAuley

From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Tuesday, February 03, 2015 11:31 PM
To: León Felipe Sánchez Ambía
Cc: McAuley, David; ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>
Subject: Re: [Acct-Legal] Let's kick off!

Leon and all,

It would be a pleasure to get together and discuss this further in Singapore.  I'll be arriving Friday morning (6 Feb) and leaving Thursday night (technically Friday morning).  You have my email; my Skype is gsshatan and my cell is +1-917-816-6428.  My schedule is the usual madness, but I have several open "beer slots."

I have made significant progress in assembling the "short list" of potential legal counsel for the CWG -- this may get to you via Lise Fuhr (CWG Co-Chair), who received a request for it -- but going forward, it will be easier for us to communicate directly.  I have a couple more calls to make tomorrow, but I am already feeling good about our list.  While it took a while to get on track, in the end I think we'll be "spoiled for choice."  I will circulate a document with the list as it stands before I leave tomorrow evening (technically, my flight spans 3 days, even though my layover in Dubai is less than 2 hours...).

I look forward to seeing you all in Singapore.

Greg

On Tue, Feb 3, 2015 at 11:15 PM, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>> wrote:
Dear Greg and David,

Thanks for this fruitful discussion. I will be arriving on Saturday noon and will be leaving on Sunday.

It would be great to find a time for all of us to sit down and brainstorm. A beer can help ;-)

The CWG scoping document seems almost 100% compatible with our needs although we might need to fine tune it, of course, according to our charter/needs, but it is a great document and a great start. Thanks Greg for putting it together!

I like Robin’s idea of not having to re-build ICANN corporate structure but that leaves out the Contract Co. alternative as far as I can see. Therefore I suggest that we keep in mind both alternatives as we will have to provide answers on both avenues when time comes.

My idea is very much like Robin’s but it would also include representatives from IANA customers and I* corporations as well as any other, so to speak, stakeholder that might be relevant to the process (being mindful of how open-wide this could be but trying to narrow down as much as possible).

Would you feel comfortable trying to find an hour or so at some evening during the week so we can all sit and talk?

Which would be your preference?

See you all in Singapore! Safe travels.

León
El 03/02/2015, a las 11:50, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> escribió:

David,

This is a good point, and links to some larger issues.  Some quick thoughts:

1.  Since IRP, the CWG-proposed IAP, etc. are all "private" arbitration/dispute resolution procedures, my preliminary view would be that discovery/requests for documents in the course of these procedures can be almost whatever we want it to be (subject to legitimate confidentiality and legal privilege concerns).  Nonetheless, "real" legal advice on this would be welcomed, and legal counsel advice on properly setting up or renovating DRPs will be most useful.

2.  ICANN's approach is indicative of a litigation risk avoidance mentality that ICANN has adopted over the course of years.  Colloquially, I think of this as the "Fortress ICANN" approach.  This may not have been inspired by Jones Day originally, but they certainly govern themselves according to it, and since they are more constant than ICANN management or in-house counsel, they may well be the standard bearers for it now.  This is one way to approach interactions with the community, but it is not the only way.

3.  A philosophical key to improving ICANN accountability is breaking down the "Fortress ICANN" mentality.  (By the way, "we" (the stakeholders) are the barbarians storming the fortress in this analogy -- apologies to any actual barbarians on this list).  Many of us have become so used to it that we take it as a given -- but it really needs to be challenged at a fundamental level.

Greg

On Tue, Feb 3, 2015 at 12:39 PM, McAuley, David <dmcauley at verisign.com<mailto:dmcauley at verisign.com>> wrote:
Thanks Greg.

I should also note my cell phone is US based – 571-299-8624<tel:571-299-8624>.

As we think about the California non-profit element of legal advice, it might be good to keep in mind one aspect of accountability that we have not much focused on yet in the group but that will be important – document review (discovery in US legal parlance).

ICANN will need to have a more reasonable document review policy to complement the IRP or other review panel mechanism. In some reconsideration requests that I have read it almost becomes circular for a claimant – ICANN almost demands identification of a document to share it but the claimant can’t identify it without getting a chance to review documents. ICANN is likely concerned about the near-ruinous US discovery practice that is used as a weapon but some reasonable discovery process should be put in place – should be worthwhile asking if a California non-profit can open itself to such review absent a court order.

David McAuley

From: Greg Shatan [mailto:gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>]
Sent: Tuesday, February 03, 2015 11:00 AM
To: McAuley, David
Cc: León Felipe Sánchez Ambía; ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>
Subject: Re: [Acct-Legal] Let's kick off!

All:

I look forward to seeing you all in Singapore and working with you on engaging legal counsel for both the CWG and the CCWG.  Here is the latest version of the CWG "scoping document."  Fundamentally, we (the CWG "client committee") are viewing this as primarily a corporate governance project, with additional critical requirements in the non-profit and trust legal areas, and with expertise in California law in these areas also a requirement.  In our case (particularly with reference to the "Contract Co." model), it is also requires corporate structuring and corporate formation expertise (which should not be a problem with any corporate law firm); this may not be as critical for the CCWG.

I am arriving early Friday and leaving very early Friday. In addition to email, my mobile is +1-917-816-6428<tel:%2B1-917-816-6428> and my Skype is gsshatan.

Best regards,

Greg

On Tue, Feb 3, 2015 at 8:25 AM, McAuley, David <dmcauley at verisign.com<mailto:dmcauley at verisign.com>> wrote:
Hi Leon, legal team

I hope to get a chance to meet you all in person in Singapore - plan to arrive late Saturday and leave late Friday.

Let's try to get some time together

Cheers,

David McAuley

-----Original Message-----
From: McAuley, David
Sent: Sunday, February 01, 2015 1:53 PM
To: 'León Felipe Sánchez Ambía'; ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>
Subject: RE: [Acct-Legal] Let's kick off!

Dear CCWG Accountability legal questions subgroup,

Greetings.

I attended the Frankfurt F2F remotely and so I may have missed a bit of the discussion about our group – especially during the breaks.

I wanted to note my plan to be at ICANN52 in Singapore and have on my schedule all four of our CCWG meetings (that includes the somewhat informal Sunday late-afternoon get together).

Here are my initial thoughts on the document Leon and Grace kindly sent around.

The CWG’s “Issues for Independent Legal Advice” document raises certain questions/issues we might discuss:

1.      Should we not coordinate our efforts along the independent legal advice line with the CWG? I would say yes. The need for a unified advice string seems important. If we were to get advice that contradicts that of the CWG it could complicate/delay things.

2.      That includes the process of identifying counsel of course and we should confirm among ourselves how we work with CWG legal group.

3.      It seems to me that the need for this advice will continue through the transition process rather than be a one-time set of questions and answers – as things change in the proposal preparation process. Do others see things this way?

4.      The CWG’s document is very thoughtful:

a.      The context-setting on first page and a half seems fine. “The CWG’s Responsibilities” is also fine – we should add a section about our responsibilities along the way and here I would be happy to help but probably not begin the process given what was probably missed by not being present in Frankfurt.

b.      Where CWG explains external and internal solutions we might explain WS1 and WS2 and the critical need (under California non-profit law) for WS1 efforts to be in place or to be committed in a timely manner that is guaranteed to be enforceable. There must be no wiggle-room on timely enforceability in California courts of those measures that were committed to (if not in place in a reasonable time) and so we might check with counsel that this is achievable, what it might take for standing to press the issue, and what timeliness might mean in this context – must there be explicit schedules in the “firmly committed” area?

c.      We might also explore the concept of stress-testing with outside counsel although I suspect this is less critical inasmuch as we assume (I think) that this stress testing will be done before a transition could occur. But it might be prudent to bring up this notion of stress testing just to check that we are not overlooking something – thoughts?

d.      And we will want to confirm that a Cal. non-profit as constituted post-transition will be able to enter into an arrangement under which it will be subject to external review of questions of substance and process where enforceable binding decisions can be rendered.

I will start drawing up proposed questions for us to consider and look forward to yours.

David McAuley

-----Original Message-----
From: ccwg-accountability5-bounces at icann.org<mailto:ccwg-accountability5-bounces at icann.org> [mailto:ccwg-accountability5-bounces at icann.org<mailto:ccwg-accountability5-bounces at icann.org>] On Behalf Of León Felipe Sánchez Ambía
Sent: Wednesday, January 28, 2015 10:12 AM
To: ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>
Subject: [Acct-Legal] Let's kick off!

Hello everyone,

Yesterday I circulated the (so far) last version of the scoping document drafted by the CWG. That could be a starting point for our scoping exercise as well but I would also like to kick the brainstorming from our side too.

I liked the alternative suggested by Robin in the mailing list and I think we should definitely take a deeper look into that.

Just to help us focus on the work we will be delivering I would like to emphasize that while looking at the “what do we need?” our final document should reflect the questions on “how can we…?” from a legal perspective.

Jonathan Zuck also sent an email to the general list with interesting points. That could also help us feed our discussion.

All thoughts and ideas welcome!

Best regards,

León
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