[Gnso-newgtld-wg-wt2] Relative article in regards to Terms and Conditions of Applicant Guidebook

[Mike Rodenbaugh]

Agree that Donuts' appeal will supercede all of the rulings to date on this
issue.  But likely will not be any opinion from the Ninth Circuit for at
least a year.

I do not recall any community support or input about the covenant not to
sue, instead I recall it being added very late by ICANN Legal.

I think it is a really important broader issue about ICANN's accountability
mechanisms, which have no judicial backstop as to the New TLD Program if
the covenant not to sue is valid, as it appears the courts are willing to
hold.  But it is also a really important issue for this group to consider.
Should we recommend that ICANN *not* include any such covenant in future
rounds?  I lean that way pretty strongly, but we should have a thorough
discussion on this because ICANN Legal and Board almost certainly would
push back to the extent they can do so.

Best,
Mike

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Wed, Feb 15, 2017 at 2:14 AM, Jim Prendergast <jim at galwaysg.com> wrote:

> I would hesitate to draw any conclusions from this case as it's not over.
> Once it's over that's a different scenario.
>
> Donuts also has an appeal in their .web case where this issue may also be
> re-litigated.
>
> Best to wait and see on both fronts before drawing any conclusions.
>
> I do have a question on the covenant to not sue. Was that called for in
> the GNSO recommendations or by the community?  Or was that something ICANN
> legal put in on their own accord?
>
> On Feb 15, 2017, at 2:22 AM, Michael Flemming <flemming at brightsconsulting.
> com> wrote:
>
> Dear All,
>
> Prior to our call this Thursday to discuss the T&Cs (Module 6) of AGB,
> there was a suggestion to share this article in regards to the most recent
> episode of the .africa court case. The previous ruling that stated the
> "covenant not to sue" was unenforceable, has now been overturned in the
> latest ruling on the case. As such, by this ruling, the covenant is now
> enforceable.
>
> http://domainincite.com/21529-africa-to-finally-go-live-
> after-judge-denies-injunction
>
> My own understanding and interpretation of this is as it resonates in the
> article, the covenant not to sue ICANN is enforceable. However, I would
> very much like to hear back from our participants with a more legal
> background on this.
>
> I don't think this is case closed for us on the T&Cs, but perhaps will
> provide for better discussion material this Thursday.
>
> Any thoughts?
>
> Regards,
>
> Michael Flemming
>
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