[IOT] Tolling of Time for Filing
Mike Rodenbaugh
mike at rodenbaugh.com
Tue Jun 8 17:49:54 UTC 2021
Hi all,
I would implore us to find a better 'start from' date on these time
periods, than the 'date of publication on ICANN's website.' Because that
is completely within ICANN's control, sometimes they don't publish for
months, their website is huge, and it is very difficult to monitor that
huge website for changes. At bare minimum, it should be specified exactly
where on that huge website that ICANN's official actions are published.
Also it seems that Prong 2 will be subsumed within Prong 1, because ICANN
undoubtedly will argue that claimant 'reasonably should have known' of the
action upon date of publication on the website.
We should put the onus on ICANN to send written notice to directly affected
parties of actions that impact them, with time periods starting from the
notice date. Of course many or most actions are not specific to certain
parties, so I suggest there should be something the the US Federal
Register, or the USPTO Official Gazette... where ICANN's actions are
published regularly once a month, so that practitioners and public will
know when and where to find ICANN's official actions, and can subscribe to
that email list.
Thanks for considering these thoughts.
-Mike
[image: Logo]
Mike Rodenbaugh
address:
548 Market Street, Box 55819
San Francisco, CA 94104
email:
mike at rodenbaugh.com
phone:
+1 (415) 738-8087
On Tue, Jun 8, 2021 at 8:04 AM Susan Payne via IOT <iot at icann.org> wrote:
> Dear IOT members
>
> For the purposes of our call today we will be trying to agree on when it
> may be appropriate to toll the time limits for filing. I am attaching a
> short slide deck setting out a strawperson proposal, based on the
> discussions we have had to date, informed by the public comment input. For
> convenience, the slide text is also reproduced below. Please also note the
> time limits for the various accountability mechanisms set out in the email
> below this one in the chain, which was circulated before a previous call.
>
>
>
> I look forward to speaking later today.
>
>
>
> *Time for Filing: Proposal for tolling of time limits*
>
> Time for filing of the IRP should be (subject to tolling, dealt with
> below):
>
> - *Prong 1*: No more than 120 days of when the Claimant *becomes aware
> or reasonably should have become aware of the material effect of the action
> or inaction giving rise to the Dispute.* [Note: wording in italics is
> from the Interim Rules and taken from Bylaws: 4.3(b)(i) definition of a
> Claimant and 4.3(n)(iv)(A)]
> - *Prong 2*: And in any event, no more than [24/36] months from the
> date of such action or inaction
> - [subject to the safety valve language which ICANN Legal are
> working on]
> - “date of the action or inaction” for the purposes of the repose
> shall run from the date of publication on the ICANN website. [Note: this
> will give a fixed date, knowledge of which is available to all, and will be
> an incentive for prompt publication]
>
>
>
> Both time limits for the time for filing (Prongs 1 and 2) shall be tolled
> for the time expended on other accountability mechanisms filed in a timely
> manner, as follows:
>
> - *CEP* – any time spent in CEP.
> - Where there has been a CEP, therefore, time for an IRP would
> begin to run from the date one party gives notice to the other that it is
> terminating the CEP
> - Question: should this instead run from publication on the ICANN
> website that the CEP has terminated, in order to give certainty to third
> parties?
>
>
>
> - *RFR* – any time spent seeking a reconsideration on matters directly
> related to the Dispute.
> - Time for an IRP would therefore begin to run from the publication
> of:
> - Board decision on the recommendation of the BAMC; or
> - BAMC summary dismissal
>
>
>
> - *Ombuds Complaint *– any time spent in pursuing an Ombuds complaint,
> provided that this was filed within 60 days of when the Claimant becomes
> aware or reasonably should have become aware of the material effect of the
> action or inaction.
> - Where there has been a timely Ombuds complaint, time for an IRP
> would begin to run from the date of publication of:
> - The Ombuds’ declining jurisdiction or giving notice that it
> does not have jurisdiction over the Complaint
> - the Ombuds determination/decision/recommendation [Note: ICANN
> Legal to please assist with identifying the appropriate conclusion of an
> Ombuds Complaint]
>
>
>
> - *DIDP *– any time spent awaiting a decision on a first DIDP on
> matters directly related to the Dispute, provided that this was filed
> within 60 days of when the Claimant becomes aware or reasonably should have
> become aware of the material effect of the action or inaction.
> - Where there has been a timely DIDP, time for an IRP would begin
> to run from the date of publication of:
> - Org’s decision on the DIDP
> - Question: should this allow for more than one DIDP? [Note: RySG
> comments had proposed 2x DIDPs for the 120 day time limit and 2x DIDPs for
> the repose if 24 months, none if repose is 36 months]
>
> *Other Issues on Timing*
>
> Do we need to identify and address uncertainties in when a potential
> Claimant “becomes aware or reasonably should have become aware” of the
> action/inaction under prong 1?
>
> - 2nd PC: INTA: term overly vague. “include a test for identifying
> when a claimant is deemed to be under inquiry notice injury and the clock
> begins to run. Such tests have been devised under U.S. jurisprudence and
> there may be other jurisdictions that apply similar tests.”
>
> Other?
>
>
>
>
>
>
>
>
>
> Susan Payne
> Head of Legal Policy
> Com Laude
> *T* +44 (0) 20 7421 8250
> *Ext* 255
> <https://comlaude.com/>
>
> *From:* IOT <iot-bounces at icann.org> *On Behalf Of *Susan Payne via IOT
> *Sent:* 11 May 2021 17:27
> *To:* iot at icann.org
> *Subject:* [IOT] IRP-IOT: Timing of other accountability mechanisms
>
>
>
>
>
> Dear IOT members
>
>
>
> On our last call we discussed the possible other accountability measures
> which it might be appropriate to toll IRP time limits for, and agreed it
> would be helpful to have a clearer picture of the time these processes
> take. The below is my best assessment – hopefully Sam or Liz will correct
> me if I have this wrong, but in any event there are various timings
> expressed as “where possible” and some steps with no clear time limit that
> I can find, giving rise to an overall lack a clear outer time
> limit/duration.
>
>
>
> I hope this is a useful background to keep in mind when we are considering
> tolling. Bearing all of this in mind, perhaps the simplest approach in
> order to toll for the time taken by these other accountability mechanisms,
> if the group agree this is appropriate, would be to have the time to bring
> an IRP start to run from the publication of the final decision on any of
> these mechanisms, where brought, or, in the case of CEP, the date that one
> party notifies the other in writing that they consider the CEP is at an end:
>
>
>
> *Request for Reconsideration*
>
>
>
> *Action*
>
> *Bylaws timing*
>
> Filing of request
>
> 30 days from action/decision etc
>
> Review by BAMC; sent to Ombuds
>
> ?
>
> Ombuds to recuse or respond
>
> 15 days
>
> BAMC decision
>
> 30-90 days, where possible
>
> Requestor rebuttal
>
> 15 days
>
> Board decision
>
> 45 days
>
> *135 days from receipt of RFR by BAMC*
>
>
>
> Many of these timings are “where possible” and so there is a degree of
> flexibility, however the Board decision within 135 days of receipt of the
> RFR is expressed as “shall”.
>
> Clearly a complainant who pursues an RFR would be very likely not to know
> the final outcome within the 120 days assigned for filing an IRP.
>
>
>
> *Cooperative Engagement Process*
>
>
>
> *Action*
>
> *Timing in current process document*
>
> Initiate
>
> 15 days of minutes
>
> Icann appoint rep
>
> 2 days
>
> Initial telephone conference
>
> 3 days
>
> Follow up meeting
>
> 7 days
>
> Parties can agree to extend discussions
>
> ?
>
> IRP filing deadline tolled
>
> 15 days, unless parties agree differently
>
>
>
> These timings come from the CEP process document, which is based on the
> former Bylaws process and so does need to be reviewed and redrafted.
>
>
>
> In practice, think anyone engaged in a CEP would confirm the process took
> significantly longer than 15 days. Often many months.
>
>
>
> *DIDP*
>
>
>
> *Action *
>
> *Timing in policy*
>
> Submission
>
> No specific time limit
>
> ICANN response where possible
>
> 30 days
>
>
>
> *Ombuds*
>
>
>
> *Action*
>
> *Timing in Ombuds Framework*
>
> Complaint
>
> 60 days - Discretion to refuse if over 60 days from the act
>
> Ombuds investigation and draft report
>
> ?
>
> Response to draft report by complained-about body
>
> 30 days where possible
>
>
>
> There was a question about whether the Ombuds has jurisdiction. According
> to the Framework
> <https://www.icann.org/en/system/files/files/ombudsman-framework-26mar09-en.pdf>,
> they do:
>
> “The ICANN Ombudsman will receive and have jurisdiction over complaints of
> unfairness concerning: • Decisions, actions, or inactions by one or more
> members of ICANN staff; • Decisions, actions, or inactions by the Board of
> Directors that may be inconsistent with the Articles of Incorporation or
> the Bylaws. • Decisions, actions, or inactions by constituent bodies”.
>
>
>
> Susan Payne
> Head of Legal Policy
>
> <https://comlaude.com/>
>
> 28-30 Little Russell Street,
> London WC1A 2HN, UK
> *T* +44 (0) 20 7421 8250
> *Ext* 255
>
> comlaude.com
>
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> <https://twitter.com/comlaude?lang=en>
> <https://www.facebook.com/ComLaude/>
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> message in error, please return it to the sender (deleting the body of the
> email and attachments in your reply) and immediately and permanently delete
> it. Please note that Com Laude Group Limited (the “Com Laude Group”) does
> not accept any responsibility for viruses and it is your responsibility to
> scan or otherwise check this email and any attachments. The Com Laude Group
> does not accept liability for statements which are clearly the sender's own
> and not made on behalf of the group or one of its member entities. The Com
> Laude Group is a limited company registered in England and Wales with
> company number 10689074 and registered office at 28-30 Little Russell
> Street, London, WC1A 2HN England. The Com Laude Group includes Nom-IQ
> Limited t/a Com Laude, a company registered in England and Wales with
> company number 5047655 and registered office at 28-30 Little Russell
> Street, London, WC1A 2HN England; Valideus Limited, a company registered in
> England and Wales with company number 6181291 and registered office at
> 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a
> company registered in Scotland with company number SC197176 and registered
> office at 15 William Street, South West Lane, Edinburgh, EH3 7LL Scotland;
> Consonum, Inc. dba Com Laude USA and Valideus USA, a corporation
> incorporated in the State of Washington and principal office address at
> Suite 332, Securities Building, 1904 Third Ave, Seattle, WA 98101; Com
> Laude (Japan) Corporation, a company registered in Japan with company
> number 0100-01-190853 and registered office at 1-3-21 Shinkawa, Chuo-ku,
> Tokyo, 104-0033, Japan; Com Laude Domain ESP S.L.U., a company registered
> in Spain and registered office address at Calle Barcas 2, 2, Valencia,
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