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

Thu Mar 15 16:17:33 UTC 2018

Consideration of the bona fides of the “accountability and neutrality of providers” may be of interest, but it is well beyond the purview of this working group.  Exploration of this area was wasteful and disrespectful of the presenter and the members of this working group.

Michael R. Graham

From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of George Kirikos
Sent: Thursday, March 15, 2018 8:21 AM
To: gnso-rpm-wg at icann.org
Subject: Re: [gnso-rpm-wg] RPM March 15 session - questions from George Kirikos

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<mailto: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<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<mailto:lschulman at inta.org>>
Cc: gnso-rpm-wg at icann.org<mailto: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/<http://www.leap.com/>

On Thu, Mar 15, 2018 at 10:08 AM, Lori Schulman <lschulman at inta.org<mailto: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<mailto: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<mailto:icann at leap.com>
Sent: March 15, 2018 9:48 AM
To: susan.payne at valideus.com<mailto:susan.payne at valideus.com>
Cc: gnso-rpm-wg at icann.org<mailto: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><mailto: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<mailto: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] On Behalf Of Kathy Kleiman
> Sent: 15 March 2018 09:24
> To: gnso-rpm-wg at icann.org<mailto: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<https://en.wikipedia.org/wiki/Forum_%28alternative_dispute_resolution>)
>> _______________________________________________
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>
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