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

Thu Aug 17 16:02:40 UTC 2017

Hello Mike,

My proposal was based on the thought that Rule 11.d (and, e.g., Bylaw 4.3(a)(iv)) are by their terms about issues of past conduct, addressing claims that ICANN failed to enforce its rights under the IANA Naming Function Contract.

Rule 9, on the other hand, deals with summary dismissal of any claim and thus the notion of imminent harm is in play, at least as I see it.

As regards the Auerbach comment, I think I agree with you – Bylaw 4.3(b)(i) defines materially affected as you note and so Mr. Auerbach’s request that we broaden the foundation for standing to go beyond that is out of our control. That would require a bylaw change and there are other ways available to pursue such a change.

If anyone in the group feels differently about any of this please note it on the call or on the list as soon as possible and recommend an alternative approach with specificity. Let’s try to move issues to first and second reading now. My hope is to get this issue (Standing – Materially Affected) to first reading today (with several days leeway for those only on list).

Best regards,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154

From: Mike Rodenbaugh [mailto:mike at rodenbaugh.com]
Sent: Wednesday, August 16, 2017 5:47 PM
To: McAuley, David <dmcauley at Verisign.com>
Cc: iot at icann.org
Subject: [EXTERNAL] Re: [IOT] "Standing - Materially Affected" comments (for IRP IOT meeting)

Hi David,

What is your justification for treating definitions differently in Sec. 9 vs. Sec. 11?

Re the Auerbach comment, it seems to me that the definition of "materially affected" might alleviate the concern stated in the comment -- 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.

Thanks,

Mike

Mike Rodenbaugh

RODENBAUGH LAW

tel/fax:  +1.415.738.8087

http://rodenbaugh.com

On Tue, Aug 15, 2017 at 11:53 AM, McAuley, David via IOT <iot at icann.org<mailto:iot at icann.org>> 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 11th, 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<tel:(703)%20948-4154>

   From: iot-bounces at icann.org<mailto:iot-bounces at icann.org> [mailto: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<mailto: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:

      a.        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)).

      b.        Make corresponding changes in Section 9 of the USPs as required.

      c.        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<tel:(703)%20948-4154>

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