[gnso-rpm-wg] RPM March 15 session - questions from George Kirikos

George Kirikos icann at leap.com
Thu Mar 15 15:20:44 UTC 2018


While you're entitled to your personal views as to what the task of the WG
should be, in my view the accountability and neutrality of providers is an
important issue that should be within the scope of our PDP's review.
Indeed, the topic of whether there should be formal contracts between ICANN
and the providers has been mentioned before in this PDP.

Today's presenter couldn't even tell us who the beneficial owner of NAF
was, a relatively simple question. Let me give a couple of hypothetical
examples, to show why that can be dangerous.

[A] Suppose the law firm of Dewey, Cheetham & Howe (DCW) is the true
beneficial owner of NAF, and that lawyers from DCW initiate  domain name
disputes via NAF -- that's an instant conflict of interest of the provider
itself. They select the panelists, and can steer cases to panelists who
have a history of being complainant-friendly.

[B] Suppose that a venture capital or private equity firm owns NAF, and
also owns Acme Industries. If Acme files a domain name dispute using NAF,
that's also a conflict of interest and calls into question the neutrality
of the provider.

Given the history of NAF, these aren't just theoretical concerns anymore.
We had the attorney general of Minnesota looking out for consumers in the
consumer arbitration sphere. Who does that in the domain sphere? ICANN
needs to be on the lookout for abuses by the provider, instead of
accrediting it once, and not monitoring things afterwards. And that means
policies need to be in place to anticipate these issues, and ensure ongoing
accountability and neutrality.

Today's slides talked about databases of abusive complainants (and perhaps
respondents down the road). It seems only natural to review and question
whether other participants in the DRP, including the provider itself, have
a history of abuse.

This also goes to the issue of forum shopping. If a provider has serious
allegations (and one can look at how credible they were, given the nature
of the settlement and the other related litigation) in its history of
favouring complainants in consumer arbitrations, and that TM owners are the
ones that select the provider, then the potential for abuse is evident. I
didn't get an answer that I found acceptable with regards to how business
practices differ in NAF's consumer arbitration business relative to it's
domain dispute business. Simply saying it was "political" seems to be a way
to deflect the hard analysis and review that should take place. We need to
dig deeper.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/



On Thu, Mar 15, 2018 at 10:57 AM, Corwin, Philip <pcorwin at verisign.com>
wrote:

> My personal view is that it is the task of the WG to determine whether NAF
> and the other two providers are administering the URS in a manner that is
> consistent with the letter and spirit of the rules, procedures, and MOU.
>
>
>
> It is unclear to me how the veracity and disposition of allegations
> brought against NAF in the last decade regarding consumer credit
> arbitrations have any significant relevance to its administration of the
> URS in the current decade.
>
>
>
> Philip S. Corwin
>
> Policy Counsel
>
> VeriSign, Inc.
>
> 12061 Bluemont Way
> <https://maps.google.com/?q=12061+Bluemont+Way+%0D%0AReston,+VA+20190&entry=gmail&source=g>
> Reston, VA 20190
>
> 703-948-4648/Direct
>
> 571-342-7489/Cell
>
>
>
> *"Luck is the residue of design" -- Branch Rickey*
>
>
>
> *From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] *On Behalf Of *George
> Kirikos
> *Sent:* Thursday, March 15, 2018 10:18 AM
> *To:* Lori Schulman <lschulman at inta.org>
> *Cc:* gnso-rpm-wg at icann.org
> *Subject:* [EXTERNAL] Re: [gnso-rpm-wg] RPM March 15 session - questions
> from George Kirikos
>
>
>
> NAF's answer that they "voluntarily" left the consumer arbitration
> business seems incomplete. For example, consider the class-action lawsuit
> that followed, which notes in one order dated August 8, 2011:
>
> CASE 0:10-md-02122-PAM -JSM D
>
> http://www.lieffcabraser.com/pdf/national-arbitration-final.pdf
>
> "Plaintiffs have a strong case, as evidenced by Defendants’ settlement
> with the Minnesota Attorney General for more than $30 million in the summer
> of 2009. " (page 2)
>
> If there was indeed a $30 million "voluntary" payment to Minnesota, I find
> that very interesting.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
>
> http:/www.leap.com/
>
>
>
>
>
>
>
>
>
> On Thu, Mar 15, 2018 at 10:08 AM, Lori Schulman <lschulman at inta.org>
> wrote:
>
> Moot point as question is being posed now.
>
> Lori Schulman
>
> Senior Director, Internet Policy
>
> INTA
>
> +1(202)704-0408
>
>
> On Mar 15, 2018, at 10:01 AM, Kathy Kleiman <kathy at kathykleiman.com>
> wrote:
>
> All, it is very hard to participate remotely. I have done it many times,
> and it is beyond frustrating. Let's try to understand, please. I thank
> Claudio, George and Justin for participating remotely...
>
> Best, Kathy
>
>
>
> On 3/15/2018 9:58 AM, Nahitchevansky, Georges wrote:
>
> George K.  Give it rest.  The providers are here to talk about the URS,
> period.  What you are doing is disruptive and disrespectful of the
> presenters and the WG -- and the work we are trying to do in the short time
> frame we have.
>
>
>
> *From:* icann at leap.com
>
> *Sent:* March 15, 2018 9:48 AM
>
> *To:* susan.payne at valideus.com
>
> *Cc:* gnso-rpm-wg at icann.org
>
> *Subject:* Re: [gnso-rpm-wg] RPM March 15 session - questions from George
> Kirikos
>
>
>
> These *are* questions about their practices, namely how they *differ*
> from the practices in the consumer arbitration business which they
> left, after the Minnesota Attorney General lawsuit, etc. regarding
> alleged abuses in those practices.
>
> Sincerely,
>
> George Kirikos
> 416-588-0269
> http://www.leap.com/
>
> On Thu, Mar 15, 2018 at 9:44 AM, Susan Payne <susan.payne at valideus.com>
> <susan.payne at valideus.com> wrote:
> > Actually I think we should take the opportunity of having the providers
> with us (whether in person or by phone) to get as much information about
> their processes)  That is what they were asked to prepare for and they have
> clearly spent time doing so.  It is very discourteous to MSFD and ADNDC to
> curtail their time in order to direct questions to Forum which are not
> directly related to what the three providers were asked to present on.  And
> indeed discourteous to the WG members who would like to hear from them.
> >
> > I say that not because I want to shield Forum - in fact I suspect Renee
> would appreciate the opportunity to put this long past history to bed - but
> because this is clearly something which can be done as a follow up and it
> is not directly within the scope of the purpose of this meeting with all
> three providers.
> >
> >
> > Susan Payne
> > Head of Legal Policy | Valideus Ltd
> > 28-30 Little Russell Street
> <https://maps.google.com/?q=28-30+Little+Russell+Street+%0D%0A+London,+WC1A&entry=gmail&source=g>
> > London, WC1A
> <https://maps.google.com/?q=28-30+Little+Russell+Street+%0D%0A+London,+WC1A&entry=gmail&source=g>
> 2HN, United Kingdom
> >
> > E: susan.payne at valideus.com
> > D: +44 20 7421 8255
> > T: +44 20 7421 8299
> > M: +44 7971 661175
> >
> >
> >
> > -----Original Message-----
> > From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org
> <gnso-rpm-wg-bounces at icann.org>] On Behalf Of Kathy Kleiman
> > Sent: 15 March 2018 09:24
> > To: gnso-rpm-wg at icann.org
> > Subject: Re: [gnso-rpm-wg] RPM March 15 session - questions from George
> Kirikos
> >
> > Hi George, this is going to be a "last 10 minute" question. That's the
> space reserved for additional questions.
> >
> > Best, Kathy
> >
> >
> > On 3/15/2018 8:42 AM, George Kirikos wrote:
> >> [with the Adobe Connect down, it seems remote participants can only
> >> ask questions via email]
> >>
> >> For NAF:
> >>
> >> According to:
> >>
> >> [A]
> >> https://fedsoc.org/commentary/publications/national-arbitration-forum-
> >> settlement-with-minnesota-attorney-general
> >>
> >> "On July 20, 2009, Minnesota Attorney General Lori Swanson announced
> >> that the country’s largest arbitrator of credit-card and
> >> consumer-collection disputes would no longer handle consumer
> >> arbitrations.
> >>
> >> The National Arbitration Forum’s decision to end its
> >> consumer-arbitration business resulted from a settlement it reached
> >> with the State of Minnesota less than a week after Attorney General
> >> Swanson sued the company in Ramsey County, Minnesota, accusing the
> >> company of violating Minnesota’s consumer-fraud,
> >> deceptive-trade-practices, and false-advertising statutes."
> >>
> >> [B]
> >> https://www.creditcards.com/credit-card-news/minnesota-attorney-genera
> >> l-lawsuit-national-arbitration-forum-1282.php
> >>
> >> "The lawsuit claims the NAF, the largest arbitration company in the
> >> United States, violates state consumer fraud and deceptive trade laws
> >> by hiding its financial ties to collection agencies and credit card
> >> companies. The lawsuit also claims the company violates false
> >> advertising laws by misrepresenting themselves as a neutral
> >> organization. "
> >>
> >> My questions are: (for NAF)
> >>
> >> (1) In light of [A], how do NAF's business practices in handling
> >> domain name disputes differ from those in the consumer-arbitration
> >> business which it left, and how can domain name registrants be
> >> confident that the same abuses which were alleged in consumer
> >> arbitrations are not present in its domain name dispute business?
> >>
> >> (2) In light of [B], who are the beneficial owners of NAF, and do they
> >> have any times to the trademark industry, law firms, or anyone else
> >> that might affect its neutrality? In other words, what is the
> >> "Statement of Interest" (SOI) for NAF itself as an organization?
> >>
> >> Sincerely,
> >>
> >> George Kirikos
> >> 416-588-0269
> >> http://www.leap.com/
> >>
> >> P.S. Further background info at:
> >>
> >> https://library.nclc.org/sites/default/files/Arb10_Appx_O-1.pdf
> >> https://www.citizen.org/sites/default/files/arbitrationtrap.pdf
> >> https://en.wikipedia.org/wiki/Forum_(alternative_dispute_resolution)
> >> _______________________________________________
> >> gnso-rpm-wg mailing list
> >> gnso-rpm-wg at icann.org
> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
> >
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