[IOT] "Standing - Materially Affected" comments (for IRP IOT meeting)

[Malcolm Hutty]

In case I don't make it to our call, I would like to say I support
David's proposed approach.

Malcolm


On 15/08/2017 19:53, McAuley, David via IOT wrote:
> Dear members of the IRP IOT,
> 
>  
> 
> One of the issues I wish to get to First Reading on this coming Thursday
> is the issue regarding Standing – i.e., materially affected.
> 
>  
> 
> Please see my prior email below.
> 
>  
> 
> In addition, we previously discussed this issue at our meeting on May
> 11^th , the transcript of which you can access here:
> https://community.icann.org/pages/viewpage.action?pageId=64084338&preview=/64084338/66063101/IRP_IOT_0512ICANN1300UTC.pdf
> 
>  
> 
> The discussion on materiality is about two-thirds of the way in.
> 
>  
> 
> Here are the slides that were presented:
> https://community.icann.org/pages/viewpage.action?pageId=64084338&preview=/64084338/64950115/IRP%20slides%20for%20meeting%20May%2011%2C%202017.pdf
> 
>  
> 
> I propose to handle this materiality issue as per my mail below and also
> with these points:
> 
>  
> 
>   * As for standing with respect to “imminent harm” recommend: 
> 
>  
> 
>  1. Revise the definition of Claimant (Section 1 of USPs) to take into
>     account the strict provisions of bylaw section 4.3(p) (even though
>     the definition of Claimant in the USPs follows the provision of
>     bylaw section 4.3(b)(i)).
> 
>  
> 
>  2. Make corresponding changes in Section 9 of the USPs as required. 
> 
>  
> 
>  3. Recommend against changing provisions of Section 11.d of the USPs
>     and recommend that they be left unchanged
> 
> Best regards,
> 
> David
> 
>  
> 
> David McAuley
> 
> Sr International Policy & Business Development Manager
> 
> Verisign Inc.
> 
> 703-948-4154
> 
>  
> 
> *From:* iot-bounces at icann.org [mailto:iot-bounces at icann.org] *On Behalf
> Of *McAuley, David via IOT
> *Sent:* Monday, May 08, 2017 3:04 PM
> *To:* iot at icann.org
> *Subject:* [EXTERNAL] [IOT] "Standing - Materially Affected" comments
> 
>  
> 
> Dear members of the IRP IOT:
> 
>  
> 
> Here below is my suggestion for handing comments listed in our summary
> table as “*Standing – Materially Affected*”.  [We have briefly discussed
> this issue under #’s 5 and 6 of the “segmenting email
> <http://mm.icann.org/pipermail/iot/2017-March/000172.html>” but both
> Malcolm and Becky have since weighed in and so we should discuss this a
> bit further.]
> 
>  
> 
> The public comments repository for the proposed rules can be accessed
> here
> <https://www.icann.org/public-comments/irp-supp-procedures-2016-11-28-en>.
> 
>  
> 
> This suggestion deals with these specific comments and related emails
> from members of our team:
> 
>  
> 
>  1. From Karl Auerbach (Auerbach comment
>     <https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/msg00003.html>);  
> 
> 
>  
> 
>  2. From the International Trademark Association (INTA comment
>     <https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfyVMCP8h4dU.pdf>);
> 
>  
> 
>  3. From Malcolm Hutty’s related email
>     <http://mm.icann.org/pipermail/iot/2017-April/000200.html>; and 
> 
>  
> 
>  4. From Becky Burr’s related email
>     <http://mm.icann.org/pipermail/iot/2017-April/000202.html>. 
> 
> *Summary of Comments:*
> 
> * *
> 
>  1. The Auerbach comment says, in part://
> 
> /The //standing requirement that one be " materially affected"
> is// //excessively legalistic and narrow./
> 
> / /
> 
> /… The proposed "materially affected" standing limit will further
> empower// //those who have financial interests in matters regulated by
> ICANN and// //correspondingly disempower those who merely suffer, en
> masse, a shared// //harm that is difficult to measure on an individual
> basis./
> 
> / /
> 
> /… The foundation for standing should be broadened to recognize
> several// //factors. At a minimum it should encompass any person who
> uses a domain// //name, IP address, or IANA protocol parameter. At a
> minimum it should// //encompass any person or entity listed in any
> "whois" entry. It ought to// //encompass any person or entity that
> constitutes the "public" as// //construed by the California law of
> "public benefit" corporations under// //which ICANN has obtained its
> legal existence.// …/
> 
>  
> 
>  2. The INTA comment says, in part:
> 
>  
> 
> The “materially affected” standard is essentially too restrictive
> because it fails to offer a remedy for imminent injury or harm. INTA
> asks that we change the definition of CLAIMANT to be:
> 
>  
> 
> /A CLAIMANT is any legal or natural person, group, or entity including,
> but not limited to the Empowered Community, a Supporting Organization,
> or an Advisory Committee, that has been materially affected by a
> Dispute. To be materially affected by a Dispute, the Claimant must
> suffer an actual *or imminent* injury or harm that is directly and
> causally connected to the *conduct complained of*./
> 
> / /
> 
> INTA//goes on to suggest that the same definition apply in Section 9 of
> the USPs which allows for a summary dismissal for lack of standing. It
> also suggests the new standard apply in USPs Section 11.d regarding
> claims for breach of the IANA Naming Functions Contract. //
> 
> / /
> 
>  3. Malcolm’s email says, in part:
> 
>  
> 
> /... It is in nobody's interest to prevent an IRP case being brought over
> the mere technicality that something that is certain and imminent has
> not yet occurred, but becomes irreversible and so moot the instant it
> does occur. .../
> 
>  
> 
> /I would therefore like to ask our group to explore whether there is
> anything that might be done within the existing bylaws that might go at
> least some way towards addressing INTA's underlying concern, even if not
> in quite the manner they proposed./
> 
>  
> 
>  4. Becky’s email says, “/I would have thought that the provision of
>     injunctive relief addresses this issue/”.
> 
>  
> 
> *Draft USP Rule:*
> 
> * *
> 
> The draft rule being commented upon is section 1. Definitions
> (definition of Claimant, footnote omitted):
> 
> / /
> 
> /A CLAIMANT is any legal or natural person, group, or entity including,
> but not limited to the Empowered Community, a Supporting Organization,
> or an Advisory Committee, that has been materially affected by a
> Dispute. To be materially affected by a Dispute, the Claimant must
> suffer an injury or harm that is directly and causally connected to the
> alleged violation./
> 
> * *
> 
> *Bylaw Section 4.3(p) *provides:
> 
> /(p) A Claimant may request interim relief. Interim relief may include
> prospective relief, interlocutory relief, or declaratory or injunctive
> relief, and specifically may include a stay of the
> challenged ICANN action or decision until such time as the opinion of
> the IRP Panel is considered as described in _Section 4.3(o)(iv)_, in
> order to maintain the //status quo//. A single member of the Standing
> Panel ("*Emergency Panelist*") shall be selected to adjudicate requests
> for interim relief. In the event that no Standing Panel is in place when
> an Emergency Panelist must be selected, the IRP Provider's rules shall
> apply to the selection of the Emergency Panelist. Interim relief may
> only be provided if the Emergency Panelist determines that the Claimant
> has established all of the following factors:/
> 
> /(i) A harm for which there will be no adequate remedy in the absence of
> such relief;/
> 
> /(ii) Either: (A) likelihood of success on the merits; or (B)
> sufficiently serious questions related to the merits; and/
> 
> /(iii) A balance of hardships tipping decidedly toward the party seeking
> relief./
> 
> * *
> 
> *Our IRP IOT role:*
> 
> * *
> 
> As we do our work we are instructed by the bylaws, among other things,
> to provide rules that will facilitate the “just resolution of disputes”
> (Bylaw Section 4.3(a)(vii)) and ensure “fundamental fairness and due
> process” (Bylaw Section 4.3(n)(iv)).
> 
> * *
> 
> *My recommendations (as participant, not as lead):*
> 
> * *
> 
>  1. With respect to the Auerbach comment, it seems to go beyond bylaws
>     provisions and should be rejected as beyond our scope. 
> 
>  
> 
>  2. With respect to the INTA comment, I think INTA, Becky, and Malcolm
>     have a good point. I suggest we ask our drafters at Sidley to:
> 
>  
> 
>      1. Revise the definition of Claimant to take into account the
>         provisions of bylaw section 4.3(p) (even though the definition
>         of Claimant in the USPs follows the provision of bylaw section
>         4.3(b)(i)).   
> 
>  
> 
>      2. Make corresponding changes in Section 9 of the USPs as required.
> 
>  
> 
>      3. I am not convinced that we should change Section 11.d of the
>         USPs and recommend that they be left unchanged. 
> 
> *Differing views:*
> 
> * *
> 
> If you have a concern with what I propose or have another suggestion,
> please make it on list *as soon as possible *and *as specifically as
> possible*. Please couch it in terms/language that can be acted upon as a
> decision if adopted (i.e. in language that would be a sufficient
> instruction to our outside lawyers that they could draft appropriate
> language).
> 
>  
> 
> Best regards,
> 
> David
> 
> / /
> 
> David McAuley
> 
> Sr International Policy & Business Development Manager
> 
> Verisign Inc.
> 
> 703-948-4154
> 
>  
> 
> 
> 
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> 


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            Malcolm Hutty | tel: +44 20 7645 3523
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