[IOT] FW: IRP problem

[McAuley, David]

Dear IRP IoT team,

In my last mail of a few moments ago I mentioned an e-mail from Kathy Kleiman regarding a possible addition to the supplemental rules - below is the e-mail for our discussions next Tuesday.

I deleted the document that Kathy added inasmuch as it simply duplicated the message - happy to send it along if anyone wants to see it.

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

From: Kathryn Kleiman
Sent: Wednesday, September 21, 2016 7:16 PM
To: 'Burr, Becky' <Becky.Burr at neustar.biz<mailto:Becky.Burr at neustar.biz>>
Subject: RE: IRP problem

Hi Becky,
Tx you for the opportunity to share with you my deep concern about the IRP and who is included in an IRP proceeding.  I include my thoughts below - and also as an attached Word doc.

As you know, certain parties are using the IRP as an appeal of independent third party proceedings. But they are doing so without ever providing a) notice or b) opportunity to participate to all equal and materially-affected parties in underlying proceedings administered by third party panels.
Although there is an opportunity to seek to be heard, it is flawed because such a filing a) comes very late in the process - only after ICANN has published the Independent Review Process Documents on its website (which can be weeks after the initial filing) and there is no guaranteed right of notice or to be heard by directly-opposing (and winning!) parties in the underlying third party proceeding. Further, under current rules, counsel for the Claimant is allowed to (and does) raise strong objections against the intervention of directly opposing parties from the underlying dispute (and has successfully blocked such participation in past IRP cases).
No other forum I know prevents equal and materially-affected parties from being equal participants to the appeal or review de novo of their decision. After the costs, time and headaches of the String Confusion Objections, Legal Rights Objections and Community Objections, before the International Centre for Dispute Resolution, Arbitration and Mediation Center of the World Intellectual Property Organization and International Center of Expertise of the International Chamber of Commerce, respectively, we respectfully recommend the following changes to the IRP Supplemental Procedures be made to allow all materially-affected parties to the underlying dispute an equal right to be heard in the IRP.
(Note: These changes to the IRP Supplementary Procedures were designed by myself and senior litigator Robert Butler based on the rights of appeal under US law.)

A.      IRP "COVERED ACTIONS" WILL EXPRESSLY INCLUDE "DECISIONS OF PROCESS-SPECIFC EXPERT PANELS"
The Updates to ICDR Supplementary Procedures (Draft) will expressly include third party expert panel decisions as a basis for an IRP filing:
In Section 1, Definitions, COVERED ACTIONS include "decisions of process-specific expert panels that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; ... "
Yet, these COVERED ACTIONS, for example, arising from the Dispute Resolution Procedures of the Applicant Guidebook have "materially affected" third parties - namely the Objectors or Applicants (depending on who won the Dispute Resolution Procedure).
Often these "materially affected" parties have undergone months of filings and arguments before the Dispute Resolution Service Provider and great expense. Accordingly, and under these circumstances, we recommend that the Updated Supplementary Procedures be revised to include:

I.                    Notice to all Parties to the Underlying "Process-Specific Expert Panel," and include:

o   A full copy of the Request for Independent Review Process, and all Exhibits, Appendices, Witness Statements and other materials provided;

o   Sent to the most recent email address used to send copies of pleadings and other submission in the underlying DRSP to representatives of the Opposing Party or Parties;

o   Sent at the same time as the submission to the IRP Panel and ICANN; and with

o   Certification to the IRP Panel that All Required Notices have been served and a copy of the names, organizations and email addresses to which they were served.
(Note: Should there be preliminary proceedings, e.g., Requests for Interim Relief prior to the Request for Independent Review Process, the same Notice Procedure set out above must be followed with the same Opportunity to be Heard below - as the rights of opposing party are often what is directly at stake!)

II.                  Opportunity to be heard.

Currently, an IRP is a battle between the Claimant and ICANN. But where the COVERD ACTION is a decision by a third party DRSP, the best party to assist in the De Novo review of the IRP Panel is the Opposing Party or Parties in the underlying DRSP. It is their rights and the decision in their favor that is being challenged by the IRP.



But where the Opposing Party or Parties is small, e.g., a Smaller Community to a Community Objection, the underlying DRSP and their hard-won victory may have wiped out the resources the organization has available for disputes and appeals.



Accordingly, we suggest two (2) options for an Opposing Party or Parties to participate in the IRP of their expert panel decision:

A.      The right to be included outright. They should have the right to intervene as full and equal participants in the IRP - with a full opportunity to file pleadings, participate in the hearing(s), engage in discovery and participate in the payment of the proceeding. In such a circumstance, there would be no ex parte discussion allowed between the Claimant and ICANN; all communications would include all parties to the proceeding.

B.      Alternatively, and to ensure that no group is silenced due to financial constraints, a Party or Party is allowed a single filing in response to the Request for Independent Review Process and a Request for Interim Relief. Such a pleading would:

1.       Be of a limited length, e.g., 20 pages;

2.       Be limited to the record of the Dispute Resolution Procedure on which the IRP is based and claims being made about it in the Claimant's materials;

3.       Require no payment; and

4.       Provide no ongoing rights of intervention, discovery, hearing or other participation in the IRP proceeding.
Overall, in the specific situation where the material rights of one party are being challenged by another party to a third-party expert panel decision, the above procedures are the only way we know to balance of rights of all equal and materially-affected parties, and provide a guaranteed right to be heard by the party that won the underlying proceeding. No one should be locked out of their own appeal.

Many thanks for your consideration,
Kathy

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