[IOT] FW: Preparation for tonight's call on timing issue

Greg Shatan gregshatanipc at gmail.com
Wed Apr 26 19:44:45 UTC 2017

I have to say that I found it unfortunate that the Jones Day document read
more like a reply brief responding to Sidley, than it did client advice.
Phrases like "In fact, Sidley appears to concede as much" are a dead
giveaway.  The critical point that Jones Day misses is any explanation why
it would be appropriate or desirable if a time bar "could result in claims
being foreclosed before an injury, and hence knowledge of an injury, had
ever arisen."  Jones Day only says that this feasible.  Jones Day also
argues that accountability is not well-served by delays between an action
and an IRP.  However, whether something is a delay depends entirely on when
the clock starts.  In the case of a claim based on an injury, it would be
counter to accountability if such claims were foreclosed before an injury
had even arisen, merely because the injury occurred some time after the
original action.  In the case of an injury, the clock should start when the
injury occurred, or when the injured party knew the injury had occurred.
As long as the injured party acts in a timely manner based on that
timeline, there is no "delay."


*Greg Shatan *C: 917-816-6428
S: gsshatan
Phone-to-Skype: 646-845-9428
gregshatanipc at gmail.com

On Wed, Apr 26, 2017 at 8:13 AM, Malcolm Hutty <malcolm at linx.net> wrote:

> Dear Liz,
> Thank you for sending Jones Day's reading of the Bylaws regarding the
> timing issue. I set out below areas where I disagree, and reasons why I
> think Sidley's reading is to be preferred.
> That said, I think we should not allow the wood to blind us to the
> trees. Even if Jones Day were correct that we are *permitted* under the
> Articles to set a fixed deadline that would strike out otherwise valid
> Claims merely because the Claimant could not reasonably have known they
> had a case any earlier, there is still no good reason why we should
> choose to do so.
> I was very heartened when Samantha said on our previous call that ICANN
> did not consider it in its interests to minimise the number of IRP
> cases, but considered the process an important contribution towards the
> success realisation of their goals. Having achieved consensus on that
> objective, there is no need to strike out claims unless the passage of
> time (and corresponding loss of evidence and witnesses) would prevent
> the IRP from resolving the dispute fairly. Nonetheless, we have
> compromised on 120 days after the Claimant becomes aware of the harm,
> which is likely on most occasions to be a much more rigorous schedule.
> We would only be undermining what Samantha tells us is also ICANN's
> objective by preventing the hearing of cases that could not have been
> brought any sooner.
> Detailed responses on Jones Day's comments follow below.
> Malcolm.
> > The Bylaws further provide that the determination concerning the
> > appropriate number of days a claimant has to file an IRP was a decision
> > left to the IRP IOT.  /See/ Section 4.3(n)(iv);/see also /Annex 7 of the
> > CCWG report, paras. 18-19./ /It is thus entirely consistent with the
> > Bylaws and within the IRP IOT's discretion to propose a rule that limits
> > the total number of days a claimant may have to file an IRP.
> That claim is open to challenge.
> Certainly, Section 4.3(n)(iv) commands that the Rules of Procedure must
> address
> "(A) The time within which a Claim must be filed after a Claimant
> becomes aware or reasonably should have become aware of the action or
> inaction giving rise to the Dispute;"
> Firstly, note that reference is to "time", not "number of days".
> Secondly, the fact that the Rules of Procedure must address the time
> issue doesn't in itself support your suggestion that the IOT has
> unfettered discretion as to how to address the timing issue.
> Thirdly, note (as Sidley do) that the very clause Jones Day cites as
> permitting an arbitrarily fixed cap actually requires the time rule to
> be based on the date of the Claimant's actual or imputed knowledge.
> >  Sidley
> > emphasizes that that decision must be tethered in some fashion to the
> > time a claimant knew or should have known of the action giving rise to
> > the dispute; the current draft rule (as posted for comment) meets that
> > standard.  The IRP IOT also is empowered under the Bylaws and the CCWG
> > Proposal to recommend that, to further the purposes of the IRP, a
> > claimant reasonably "should have known" or "should have become aware" of
> > the challenged action within 12 months of the time the offending conduct
> > occurred.  Nothing in the Bylaws or the CCWG Report suggests that the
> > IRP IOT can't recommend a rule to that effect.
> I disagree. At the least, the following suggest otherwise:
> 1. Section 4.3(n)(iv) says that the test of imputed knowledge must be
> based on what it was *reasonable* to have known. It is therefore not
> open to us to declare that what was reasonable in advance, and have that
> supersede what was actually reasonable.
> 2. Section 4.3(n) says that the purpose is to achieve "fundamental
> fairness and due process". Any rule antithetical to that purpose would
> be invalid.
> 3. Section 4.3(a) says that the purpose of the IRP is "to hear and
> resolve Disputes". A rule that tends to prevent that is also invalid.
> See also 4.3(a)(vii) "Secure the accessible, transparent, efficient,
> consistent, coherent, and just resolution of Disputes." and 4.3(a)(ix)
> "(ix) Provide a mechanism for the resolution of Disputes".
> > In fact, Sidley appears to concede as much in its 4 January 2017 memo
> > (at p. 4):  */"It may be that the IRP Subgroup has determined that 12
> > months is the period in which a claimant reasonably should have known of
> > the action or inaction giving rise to the Dispute in all
> > circumstances."/*  While Sidley goes on to express its view that such a
> > determination could be subject to criticism because "it could result in
> > claims being foreclosed before an injury, and hence knowledge of an
> > injury, had ever arisen," it appears that Sidley previously agreed that
> > such a determination was feasible under the Bylaws.
> I think this is misrepresenting Sidley's position. They acknowledged
> that an argument could be made that, in a particular case, the facts
> might align with a determination that the the Claimant ought reasonably
> to have known before a given date. However Sidley also warned us against
> relying on that as a general rule, because on a different set of facts
> there might be no such alignment, and then the rule would be shown to be
> invalid.
> > Furthermore, eliminating the statute of repose entirely is inconsistent
> > with the CCWG's stated goal of enhancing ICANN's accountability.  As
> > stated in Annex 7 of the CCWG Report: “The overall purpose of the
> > Independent Review Process (IRP) is to ensure that ICANN does not exceed
> > the scope of its limited technical Mission and complies with its
> > Articles of Incorporation and Bylaws.”  (CCWG Report at ¶ 1).  In
> > particular, the CCWG proposal makes clear that the IRP “should … ensure
> > that ICANN is accountable to the community and individuals/entities.”
> >  (/See also id/. ¶ 7.)  Permitting IRPs challenging ICANN Board or Staff
> > actions to be brought at any time does not further this purpose; to
> > ensure accountability, actions should be challenged in a timely manner.
> Firstly, this paragraph aims at a straw man: we have rejected the
> proposal that IRP cases could be brought "at any time". We have said
> they must be brought within 120 days of when the Claimant knew or ought
> to have known that they were harmed.
> Secondly, there is a major logical flaw in Jones Day's suggestion that a
> fixed arbitrary limit would encourage IRP cases to be filed more
> promptly: we have already required them to be brought promptly once the
> Claimant is aware. It is not possible encourage Claimants who are
> ignorant that they might have a claim to bring it more promptly by
> striking out their claims when they do become aware: the only thing that
> could help them bring it more promptly would to be make them aware sooner.
> Accordingly, all that a fixed deadline would achieve would be to strike
> out some claims that would otherwise be heard. This is directly contrary
> to the declared purpose of the IRP that you cite.
> > Finally, Draft Rule 4 already constitutes a substantial expansion from
> > the time limitations set forth in the previous iteration of ICANN’s
> > Bylaws.
> True. As part of transition we substantially strengthened the IRP, in
> order to make ICANN fit for transition. Deviation from pre-transition
> Bylaws is entirely deliberate.
> > In an
> > effort to “[e]nsure that ICANN is accountable to the community and
> > individuals/entities for actions or inaction outside its Mission or that
> > otherwise violate its Articles of Incorporation of Bylaws” (CCWG Report
> > ¶ 7), the IRP IOT sought “to balance the fact that individuals may not
> > always become aware of ICANN actions when they occur with the need for
> > certainty about the finality of ICANN actions.”  (Report of the IRP IOT
> > at 3, 31 October 2016.)
> That is so. And that balance that was struck was to recommend that there
> should be a time limit, but that this should be based on the Claimant's
> awareness (including when he should reasonably have been aware).
> > As a result, the CCWG proposed (following much debate) that claimants be
> Correction: the CCWG has not proposed anything. It is not correct to
> ascribe CCWG approval to our first draft.
> The IOT - we - proposed it. All the CCWG has done is authorised us to
> circulate our first proposal for public comment. Implicitly, the CCWG
> has called on us to reconsider our proposal in response to the
> substantial adverse public comment we received.
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
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