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

[Jeff Neuman]

Personal Opinion – Not my Employer’s or as the Co-Chair

Good discussion so far.  Mike is correct that ICANN added all of the Ts and Cs in Module 6 late in the implementation process and the policy never called for this specific provision.  That said we do need to recognize that while we should have accountability mechanisms, we should also have some protections for ICANN. ICANN does not have infinite resources and needs to quickly dispense with frivolous or bullying law suits. ICANN must make choices and when choices are made there is always an unhappy party.  That unhappy party will always allege some complaint.

For those of you who remember back in the early to mid-2000s, there was a massive piece of litigation that nearly wiped them out (even though many believed that ICANN acted appropriately).  Ultimately that litigation was settled perhaps in some part because although ICANN believed it was right, it did not have the resources to defend itself.  Regardless of whether they were right or wrong, that case did involve a gTLD assignment/TLD bidding process.  We need to make sure this does not happen to ICANN in the future..

That does not mean that they should be immune to every kind of lawsuit.  Cases involving fraud, willful misconduct, or gross negligence should not be excluded regardless of whether the ninth circuit or US Law could allow it.

Jeffrey J. Neuman
Senior Vice President |Valideus USA | Com Laude USA
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From: gnso-newgtld-wg-wt2-bounces at icann.org [mailto:gnso-newgtld-wg-wt2-bounces at icann.org] On Behalf Of Mike Rodenbaugh
Sent: Wednesday, February 15, 2017 1:20 PM
To: Jim Prendergast <jim at galwaysg.com>
Cc: gnso-newgtld-wg-wt2 at icann.org
Subject: Re: [Gnso-newgtld-wg-wt2] Relative article in regards to Terms and Conditions of Applicant Guidebook

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<mailto: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<mailto: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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