[IOT] Trying to coordinate Joinder comments

Thu May 11 16:19:46 UTC 2017

I did not read Malcolm's email until now, but my comments on today's call
were highly aligned with Malcolm's.  Great minds, etc.

Greg

*Greg Shatan *C: 917-816-6428
S: gsshatan
gregshatanipc at gmail.com

On Thu, May 11, 2017 at 9:35 AM, Malcolm Hutty <malcolm at linx.net> wrote:

> On 11/05/2017 13:45, McAuley, David wrote:
> > Thanks Malcolm, fair point - we can discuss on call.
> >
> > My initial reaction is to agree but to keep the point I was making to
> > some extent - because that section of bylaw deals with abusive or
> > frivolous claim or defense - which presumably includes an argument by
> > amici.
> >
> > Maybe we could narrow this to allow cost shifting "to the extent"
> > that ICANN incurs cost to defend against an amici argument that is
> > found by the panel to be abusive or frivolous.
>
> > Let's discuss.
>
> I may not be able to make tonight's call, so I'm going to make my
> contribution now.
>
> You assume the amicus would be briefing against ICANN? I'm not so sure.
>
> I would say that the potentially chilling effect of such a provision
> more than outweighs the benefit from dissuading frivolous amicus
> intervention, not least because I don't see much harm done.
>
> There's a real difference between bringing a frivolous case and making a
> frivolous intervention.
>
> A case must be answered, if only to defend against a default judgement.
>
> If ICANN considers the amicus brief to add nothing substantive that's
> new, it can simply ignore it.
>
> And, as I said before, an amicus isn't really on either side. Even if an
> amicus does criticise or oppose one aspect of ICANN's argument, that
> doesn't necessarily amount to a view that the claimant should prevail.
>
> I would be concerned that cost shifting would simply dissuade public
> interest parties from contributing to the process, because they couldn't
> stand the cost if it occurred.
>
> To be honest, I worry that cost shifting even against a claimant might
> have a chilling effect that is worse than what it brings in terms of
> dissuasion. But that's where we ended up in the bylaws, a compromise.
> Extending it to amici I think is taking it too far.
>
> Malcolm.
>
>
> >
> > And again, thank you and,
> >
> > Best wishes, David
> >
> > David McAuley Sr International Policy & Business Development Manager
> > Verisign Inc. 703-948-4154
> >
> > -----Original Message----- From: Malcolm Hutty
> > [mailto:malcolm at linx.net] Sent: Thursday, May 11, 2017 7:29 AM To:
> > McAuley, David <dmcauley at Verisign.com>; iot at icann.org Subject:
> > [EXTERNAL] Re: [IOT] Trying to coordinate Joinder comments
> >
> > Dear David,
> >
> > I think your proposal on amici needs a little refinement, rather than
> > simply applying 4.3(r) to amici.
> >
> > 4.3(r) says that parties shall generally bear their own costs, but
> > that the IRP panel may shift costs to the losing party.
> >
> > I agree that amici should bear their own costs. I do not believe
> > amici should be exposed to share in the costs in the event of cost
> > shifting if they support the losing side, nor should they benefit
> > from a share in the costs that are shifted if they are on the winning
> > side.
> >
> > For that matter, an amicus brief may not obviously be tied to other
> > "side". Amicus briefs can be purely informational, and they can often
> > support or oppose one aspect of a party's position (or the question
> > at issue) without taking any view on the core of the case or who
> > should prevail.
> >
> > But even for amicus briefs that do clearly support one side, I think
> > they should be exempted from cost-shifting either to their benefit or
> > to their detriment.
> >
> > Kind Regards,
> >
> > Malcolm.
> >
> > On 03/05/2017 21:21, McAuley, David via IOT wrote:
> >> Dear members of the IRP IOT,
> >>
> >>
> >>
> >> For our call tomorrow at 19:00 UTC.
> >>
> >>
> >>
> >> Attached are two brief slides with my thoughts on trying to
> >> coordinate disparate joinder comments.
> >>
> >>
> >>
> >> Slide two mentions bylaw section 4.3(s) - which states this: "(s)
> >> An IRP Panel should complete an IRP proceeding expeditiously,
> >> issuing an early scheduling order and its written decision no later
> >> than six months after the filing of the Claim, except as otherwise
> >> permitted under the Rules of Procedure. The preceding sentence does
> >> not provide the basis for a Covered Action."
> >>
> >>
> >>
> >> And mentions bylaw 4.3(r) - which says this: "(r) ICANN shall bear
> >> all the administrative costs of maintaining the IRP mechanism,
> >> including compensation of Standing Panel members. Except as
> >> otherwise provided in Section 4.3(e)(ii), each party to an IRP
> >> proceeding shall bear its own legal expenses, except that ICANN
> >> shall bear all costs associated with a Community IRP, including the
> >> costs of all legal counsel and technical experts. Nevertheless,
> >> except with respect to a Community IRP, the IRP Panel may shift and
> >> provide for the losing party to pay administrative costs and/or
> >> fees of the prevailing party in the event it identifies the losing
> >> party's Claim or defense as frivolous or abusive."
> >>
> >>
> >>
> >>
> >>
> >> Best regards
> >>
> >> David
> >>
> >>
> >>
> >> David McAuley
> >>
> >> Sr International Policy & Business Development Manager
> >>
> >> Verisign Inc.
> >>
> >> 703-948-4154
> >>
> >>
> >>
> >>
> >>
> >> _______________________________________________ IOT mailing list
> >> IOT at icann.org https://mm.icann.org/mailman/listinfo/iot
> >>
> >
> >
> > -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs |
> > Read the LINX Public Affairs blog  London Internet Exchange |
> > http://publicaffairs.linx.net/
> >
> > London Internet Exchange Ltd Monument Place, 24 Monument Street
> > London EC3R 8AJ
> >
> > Company Registered in England No. 3137929 Trinity Court, Trinity
> > Street, Peterborough PE1 1DA
> >
>
>
> --
>             Malcolm Hutty | tel: +44 20 7645 3523
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
>
>                  London Internet Exchange Ltd
>            Monument Place, 24 Monument Street London EC3R 8AJ
>
>          Company Registered in England No. 3137929
>        Trinity Court, Trinity Street, Peterborough PE1 1DA
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