[IOT] Possible work remaining for IOT

Thu Jul 22 17:19:34 UTC 2021

Please let’s try to keep things civil gents.

I think it is appropriate for us to look at what the Bylaws say on this point and assess whether the rules are consistent.

If others in the group have experience of whether this fee becomes the subject of a cost-award at the end of the process that would seem to be relevant additional information.

Many thanks
Susan

Susan Payne
Head of Legal Policy
Com Laude
T +44 (0) 20 7421 8250
Ext 255
[cid:image001.png at 01D77F26.1E48EEE0]<https://comlaude.com/>
From: IOT <iot-bounces at icann.org> On Behalf Of Mike Rodenbaugh via IOT
Sent: 22 July 2021 17:20
To: Mike Silber <silber.mike at gmail.com>
Cc: iot at icann.org
Subject: Re: [IOT] Possible work remaining for IOT

I am quite sure the purpose of this group is to enhance ICANN's woefully deficient, so-called Accountability Mechanisms -- not to provide a platform for disgruntled and snarky former ICANN Board members to denigrate legitimate concerns expressed by any member of the community.

Back to the substance, fwiw, ICDR calls it an 'administrative fee' -- thus indicating it is a fee for administration of the IRP, which the plain language of the Bylaws require ICANN to pay for.  More importantly, whatever the fee is called, the real question is whether ICANN should force claimants to pay $6,000 merely for the entry fee to file an IRP case?

Even from ICANN's point of view, that seems a really bad idea since court proceedings can be brought much more cheaply.  From the community's point of view, I think it is a substantial and intentional barrier that ICANN has created in order to stifle the ability of claimants merely to file a case.

I think it is well within the group's purview to discuss the issue, and ideally to make a Rule, in accord with the plain language of the Bylaws, that ICANN shall pay all ICDR administrative fees -- except possibly a nominal filing fee much closer to $400 than to $6000.

[Logo]

Mike Rodenbaugh

address:

548 Market Street, Box 55819

San Francisco, CA 94104

email:

mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>

phone:

+1 (415) 738-8087

On Thu, Jul 22, 2021 at 2:20 AM Mike Silber <silber.mike at gmail.com<mailto:silber.mike at gmail.com>> wrote:
I was quite sure the purpose of this group was to improve and finalise processes - rather than affording a platform for a disgruntled litigant to ventilate their/their client’s issues?

I also think there is a huge difference between ICANN bearing the costs of “maintaining the IRP mechanism” and ICANN bearing the costs of a party launching an IRP (that is not a Community IRP). At least that is my plain reading of the language. The alternative reading would require ICANN to maintain a deposit with the ICDR just in case a potential IRP arises.

If my learned friend wants to suggest any wriggling, I would recommend he proposes a change to the bylaws to revise the current language - which to my mind does not (on a plain reading) lead to the conclusions to which both my learned colleagues have leapt, with Olympic gold medal winning distances.

On 22 Jul 2021, at 01:31, Mike Rodenbaugh via IOT <iot at icann.org<mailto:iot at icann.org>> wrote:

Really.  Perhaps ICANN wants to try to explain it to this group...

I requested ICANN to pay that fee in the .hotel IRP, they refused.  I asked the so-called Emergency Panelist to require ICANN to pay it, he refused (subject to review by the full IRP panel, just recently appointed).  I will continue to ask....

[Logo]
Mike Rodenbaugh
address:
548 Market Street, Box 55819
San Francisco, CA 94104
email:
mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>
phone:
+1 (415) 738-8087

On Wed, Jul 21, 2021 at 2:46 AM Malcolm Hutty <Malcolm at linx.net<mailto:Malcolm at linx.net>> wrote:
Really?

From Section 4.3:

(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.

To me, that expresses a clear rule that the costs of the IRP itself are picked up by ICANN, that Claimants other than the EC pay the cost of their own professional advice and representation, and ICANN also covers those costs for the EC.

What is ICANN’s excuse for wriggling out of this?

From: IOT <iot-bounces at icann.org<mailto:iot-bounces at icann.org>> On Behalf Of Mike Rodenbaugh via IOT
Sent: 20 July 2021 19:03
To: iot at icann.org<mailto:iot at icann.org>
Subject: Re: [IOT] Possible work remaining for IOT

As for other issues, I had posted an email re IRP Fees last Sept.  Now the fee is $6,750 merely to initiate an IRP at the ICDR.  I think that is an administrative fee that the Bylaws require ICANN to pay.  But ICANN denies that, and forces claimants to pay it.  I think it should cost far less to file a challenge to an ICANN decision.  Note that it costs just $400 to file a lawsuit in U.S. federal court.

Also, we should discuss when an RFR is 'summarily dismissed' by the BAMC, which has only happened very rarely in the past.  But it appears very unclear how or when such a dismissal can or must be challenged.  And so that is another scenario that needs review by this group, imho.

Thanks,
Mike
<~WRD0001.jpg>

Mike Rodenbaugh

address:
548 Market Street, Box 55819
San Francisco, CA 94104

email:
mike at rodenbaugh.com<mailto:mike at rodenbaugh.com>

phone:
+1 (415) 738-8087

On Tue, Jul 20, 2021 at 9:51 AM Susan Payne via IOT <iot at icann.org<mailto:iot at icann.org>> wrote:
Hi David
Thank you for your thoughtful email.  I will respond in writing as a follow up, but hope we will be able to also consider these suggestions on the upcoming call.

For convenience, hopefully, I have made a very light-touch update to the short slide deck we have been using to frame the discussion on tolling – to correct a few areas of ambiguity that came up on the last call, as promised.  These are noted in red.
The updated version is attached and we can review this on the call.

Speak to those who are able to make it shortly.

Susan

Susan Payne
Head of Legal Policy
Com Laude
T +44 (0) 20 7421 8250
Ext 255
<image001.png><https://comlaude.com/>
From: IOT <iot-bounces at icann.org<mailto:iot-bounces at icann.org>> On Behalf Of McAuley, David via IOT
Sent: 20 July 2021 12:20
To: iot at icann.org<mailto:iot at icann.org>
Subject: [IOT] Possible work remaining for IOT

Dear IOT colleagues,

Susan asked us to note any work items that we think remain to be done. In my personal opinion, these are possible tasks remaining beyond those mentioned by Susan on the last call:

•    To develop a recall process relating to members of the standing panel – see Bylaw 4.3(j)(iii);

•    To consider the development of additional independence requirements for members of the standing panel, including term limits and restrictions on post-term appointment to other ICANN positions – see Bylaw 4.3(q)(i)(B) on conflicts of interests of members of the standing panel;

•    Do we want to establish ‘limitations’ on appeals? – see Bylaw 4.3(w) which states:

o  Subject to any limitations established through the Rules of Procedure, an IRP Panel decision may be appealed to the full Standing Panel sitting en banc within sixty (60) days of issuance of such decision.

o   One possible limitation which I think we may want to consider is whether non-binding IRPs (see Bylaw 4.3(x)(iv)) should be appealable.

o   Additionally, in this respect, is it within our remit to consider whether non-binding IRPs should constitute precedent?

•    Is there ambiguity regarding a standing panel’s ability to ‘adjudicate’ a stay of ICANN action or just to ‘recommend’ a stay? See Bylaws 4.3(o) and 4.3(p). If there is ambiguity, is there anything within our remit to help clarify?

•    Finally, with respect to the Rule 4 (Time for Filing) issue that we are currently discussing,  should we clarify that the rule we eventually develop is either an affirmative defense that ICANN can raise, or not, as it sees fit or, alternatively, a firm matter of standing that the panel should invoke on its own without exemption, subject only to the savings language that Sam and Liz are working on?
Best regards,
David

David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.
703-948-4154

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