[council] [Ext] RPM PDP Complaint referral

[McGrady, Paul D.]

I agree.  I could have just as easily been on a plane and not have been able to forward his email.

From: council <council-bounces at gnso.icann.org> On Behalf Of Carlos Raul Gutierrez
Sent: Thursday, October 25, 2018 10:40 AM
To: council at gnso.icann.org
Subject: Re: [council] [Ext] RPM PDP Complaint referral


Thank you Nathalie,



I think is a good idea to let Phil Corwin access the Council list DIRECTLY for issues relating to the IGO/RPM for the time being.
---
Carlos Raúl Gutiérrez
carlosraul at gutierrez.se<mailto:carlosraul at gutierrez.se>
+506 8837 7176
Aparatado 1571-1000
COSTA RICA




El 2018-10-25 17:33, Nathalie Peregrine escribió:
Dear Council,

Staff has been releasing Phil Corwin's emails on the Council list as Council was cc-ed and as non-councilors do not have posting rights to the Council mailing list . Moving forward if the councilor the email was directed to, as a general rule, could forward the email to the Council list him/herself, this would be helpful.

Thank you,

Kind regards,

Nathalie

From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> on behalf of "council at gnso.icann.org<mailto:council at gnso.icann.org>" <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Reply-To: "Corwin, Philip" <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Date: Thursday, October 25, 2018 at 5:27 PM
To: Paul McGrady <PMcGrady at winston.com<mailto:PMcGrady at winston.com>>, "council at gnso.icann.org<mailto:council at gnso.icann.org>" <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: Re: [council] [Ext] RPM PDP Complaint referral

Thanks

Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: McGrady, Paul D. [mailto:PMcGrady at winston.com]
Sent: Thursday, October 25, 2018 11:21 AM
To: Corwin, Philip <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>; council at gnso.icann.org<mailto:council at gnso.icann.org>
Subject: [EXTERNAL] RE: Re: [Ext] RPM PDP Complaint referral

Thanks Phil for the clarification and update.  Apologies if I misspoke about prior comments about possibly resigning.  I was pretty sure you did so on one of the PDP Leadership calls.  Either way, as you note far below, you believe that resignation of one or more of the co-chairs may be necessary if no satisfactory response to this situation occurs before November 7th.

By copy of this email, I am forwarding your email below and these comments to the Council list.

Best,
Paul


From: Corwin, Philip <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Sent: Thursday, October 25, 2018 10:04 AM
To: McGrady, Paul D. <PMcGrady at winston.com<mailto:PMcGrady at winston.com>>; council at gnso.icann.org<mailto:council at gnso.icann.org>
Subject: RE: Re: [Ext] RPM PDP Complaint referral
Importance: High

Paul:

I don't recall stating that I was considering resignation from my co-chair role at this WG previously, but it's not worth debating. While I can't speak for any of the other co-chairs, my conversations with them over the past 24 hours have indicated that at least one is giving consideration to similar action due to potential exposure to litigation and inability to administer the WG effectively in the wake of the letter received from Mr. Kirikos' attorneys this week. Finally, I understand that I have no authority to suspend the WG and made the suspension statement contemplating the context of possible resignations of more than one co-chair.

As I am responding to you, I would also like to state that I was contacted by ICANN Legal yesterday and asked if I would meet to discuss this matter with Samantha Eisner and John Jeffrey in Barcelona. I immediately responded in the affirmative but was notified mid-day today that JJ's schedule does not permit such a meeting here. I have already indicated to Legal the times next week that I am available for a discussion, as well as my belief that there is a need for a satisfactory resolution prior to the next scheduled meeting of the WG on November 7th.

Finally, Goran just made a statement regarding this matter at the conclusion of the Public Forum. While I welcome his direction that JJ take charge of an immediate review with the aim of assisting the WG in moving forward, his statement did include one significant factual error. I am therefore appending this email with the text of another that I just sent out in that regard.

I do hope that this matter can be resolved swiftly so that the WG can continue to make progress and stay on its timeline.

As I do not have posting privileges to the Council email list, I would ask that you forward response this to it/thanks in advance.

Best, Philip


Goran just made the statement below on the ESB dispute within the RPM WG at the conclusion of the Public Forum, which I captured from the raw transcript. The statement references the letter received on Monday from Mr. Kirikos' attorneys, and states that he has assigned JJ to look into the issues surrounding the matter.

Goran's statement that, "WE UNDERSTAND THAT THERE HAVE BEEN DISPUTES WITHIN THE GROUP, AND IT'S MORE OR LESS BEEN STALLED FOR THE LAST SEVEN MONTHS" is factually incorrect. Greg Shatan's ESB complaint was filed in June, so its resolution has been stalled for four months. However, the WG has made substantial progress on its work during the past few months, including the consideration, and adoption for Initial Report public comment purposes, of 34 sub-team recommendations and 33 individual proposals for URS operational and policy modifications. However, the escalation of outside counsel involvement beyond the original ESB complaint to occurrences within WG meetings does threaten its further progress absent a satisfactory resolution.



>>GORAN MARBY:   JUST ON ON THE QUESTION -- DURING THE DAY WE HAVEN'T RECEIVED ANY QUESTION ABOUT IT FROM HERE, BUT I STILL WOULD LIKE TO DO -- BECAUSE WE UNDERSTOOD THERE'S BEEN A LOT OF QUESTIONS AND SOME SORT OF DISCUSSION WB WITHIN THE COMMUNITY, SO I WOULD LIKE TO MAKE A STATEMENT AND NOW I HAVE TO FOLLOW A SCRIPT WHICH IS NOT ALWAYS VERY EASY FOR ME.
BUT EARLIER THIS WEEK AFTER (INDISCERNIBLE) OF THE LEADERSHIP OF THE GNSO FLAGGING AN ISSUE WITHIN THE RIGHTS PROTECTION MECHANISM PDP WORKING GROUP, I HAVE ASSIGNED JOHN JEFFREY, J.J., OUR GENERAL COUNSEL, TO LOOK INTO THE ISSUE SURROUNDING THIS MATTER.
I DID THIS FOLLOWING A REQUEST FOR ASSISTANCE FROM THE GNSO LEADERSHIP IN THE LAST FEW WEEKS, ACTUALLY.
WE UNDERSTAND THAT THERE HAVE BEEN DISPUTES WITHIN THE GROUP, AND IT'S MORE OR LESS BEEN STALLED FOR THE LAST SEVEN MONTHS.  SINCE ASSIGNING J.J. ON MONDAY WE RECEIVED A LETTER FROM THE COMMUNITY MEMBERS' LAWYER, J.J. HAD ALREADY STARTED IN THE VIEWS WITH THE COMMUNITY MEMBERS TRYING TO UNDERSTAND THE ISSUES BEHIND THE COMPLAINT AND WE CONSIDER THIS LETTER AS A PARTI ALSO INVOLVED J.J. TO HELP TO ASSIST THE COMMUNITY.  ICANN ORG TAKES THIS ISSUE VERY SERIOUSLY.  THE REVIEW WILL BE CONDUCTED WITH THE GOAL OF HELPING THE WORK OF THE -- TO PROCEED FORWARD.  I HAVE PROBLEMS READING A SCRIPT.
THANK YOU VERY MUCH.


Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: council [mailto:council-bounces at gnso.icann.org] On Behalf Of McGrady, Paul D.
Sent: Thursday, October 25, 2018 10:41 AM
To: council at gnso.icann.org<mailto:council at gnso.icann.org>
Subject: [EXTERNAL] [council] FW: Re: [Ext] RPM PDP Complaint referral
Importance: High

FYI below.  Phil has threatened to resign from the Co-Chair role before, which would be unfortunate and a little disruptive.  This time he indicates that there may also be an "indeterminate suspension of the working group's activities."  I'm not sure Co-chairs are allowed to suspend PDPs without Council's OK.  Obviously, this situation has now reached a critical point and threatens the timeline of this PDP which, if you believe in the existence of dependencies between this PDP and the Sub Pro PDP, could result in a delay of Round 2, ultimately affecting ICANN's revenue stream.  So, I think we should take this up as a matter of urgency.  I don't know if this is properly under Item 2 (Liaisons) of our agenda for later this evening or item 9 (dysfunctional PDPs).  If neither, can we please add it?

Best,
Paul


From: Corwin, Philip <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Sent: Thursday, October 25, 2018 9:15 AM
To: peg.rettino at icann.org<mailto:peg.rettino at icann.org>
Cc: Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>; john.jeffrey at icann.org<mailto:john.jeffrey at icann.org>; kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>; brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>; McGrady, Paul D. <PMcGrady at winston.com<mailto:PMcGrady at winston.com>>
Subject: RE: Re: [Ext] RPM PDP Complaint referral
Importance: High

Thank you, Peg.

I certainly understand that John has a busy schedule during the meeting. However, it is very unfortunate that at least a preliminary discussion was unable to take place here in Barcelona.

The current situation involves an alleged violation of the Expected Standards of Behavior (ESB), which is a Board-adopted accountability measure. Agreement to comply with the ESB is a threshold requirement for participation by any individual in any ICANN activity. The individual alleged to have violated the ESB has taken the position that it is unenforceable against him under the current GNSO Guidelines, which raises the question of whether his consent to abide by it was sincere and valid. He has introduced private counsel into the enforcement procedure, when my prior experience with ESB enforcement actions in the context of GNSO working groups is that it is meant to be an informal procedure, with appeal of any adverse decision to GNSO Council available under section 3.7 of the Guidelines.

These actions have rendered the co-chairs unable to  perform their ESB enforcement role, and the individual claiming to be harmed  by the alleged ESB violation has stated that the introduction of private counsel into the procedure is fundamentally unfair to him. There is also the claim by the accused individual that two of the three co-chairs are biased against him and must recuse themselves due to his own prior actions, a claim with which I disagree. Finally, the accused individual maintains a Twitter account with 1822 followers (as of today) to which he has in the past reposted his communications made on working group email lists; creating the possibility that statements made regarding this situation will be distributed to a large audience of unknown individuals and harm the public reputation of the co-chairs.

Under these circumstances, it was justified and welcome for Council to take the matter out of the hands of the co-chairs at the conclusion of the GNSO discussion of it that took place on Sunday the 21st, with the co-chairs being told that the matter would be dealt with further by Council in consultation with ICANN Legal.

Since Sunday an additional communication from the accused individual's attorneys makes clear that their involvement now extends beyond the original allegation, and that any statement or action of any of the co-chairs to or in regard to their client in the context of working group meetings may trigger further communications by them to ICANN Legal. This escalation of their involvement means that the co-chairs not only have no present ability to decide ESB complaints, but that any direct engagement by the co-chairs with their client may be the subject of further action by private counsel, including the implicit threat of litigation brought against the co-chairs individually. This situation will have a substantial chilling effect on the ability of the co-chairs to administer the working group in an effective and orderly manner, especially since the communication received to date from ICANN Legal on the subject of indemnification under Section 20.1 of the Bylaws provides no firm assurance that the co-chairs will be regarded as "agents" eligible for indemnification if they are the targets of private litigation, and the co-chairs are also now aware that there are no ICANN-adopted Guidelines for "good faith" conduct in such situations.

The next scheduled meeting of the Working group is scheduled for 1700 UTC on Wednesday, November 7th.  In my view it is imperative that some satisfactory response to this situation occur before that date, as failure to do so may result in an indeterminate suspension of the working group's activities and/or the resignation of one or more of the co-chairs.

It is my understanding that the Legal staff may wish to interview the co-chairs individually as a preliminary step. If that is correct then I will be available for such a discussion next week at the following times (all US Eastern time):

  *   Monday – late afternoon
  *   Tuesday – afternoon
  *   Wednesday – unavailable
  *   Thursday -afternoon
  *   Friday – afternoon (noting that the next planning call of the co-chairs generally takes place at 1500 UTC on Friday, and that the November 2nd call would involve planning for the meeting scheduled for November 7th)

I look forward to further discussion with ICANN Legal staff on this matter.

Sincerely,
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: Peg Rettino [mailto:peg.rettino at icann.org]
Sent: Thursday, October 25, 2018 6:41 AM
To: Corwin, Philip <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Cc: Samantha Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
Subject: [EXTERNAL] Re: Re: [Ext] RPM PDP Complaint referral

Hi Phil,

Unfortunately John's schedule simply can't work.

This discussion will need to be a phone call either later next week or the week that follows.

I'll be in touch late next week to coordinate schedules.

Wishing you a safe return!

Best,
Peg


--
Peg Rettino
Project Specialist & Executive Assistant to John Jeffrey
General Counsel and Secretary
ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094
peg.rettino at icann.org<mailto:peg.rettino at icann.org>
Skype: peg.rettino
Direct: 310-301-3868





From: "Corwin, Philip" <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Date: Thursday, October 25, 2018 at 10:15 AM
To: Peg Rettino <peg.rettino at icann.org<mailto:peg.rettino at icann.org>>
Cc: Sam Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>, Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>, "brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>" <brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>>
Subject: Re: Re: [Ext] RPM PDP Complaint referral

I do hope we can meet today, as I believe that timely resolution of this matter is critical to the success of this PDP.

I am available from to 12 to 5 today.
Sent from my iPhone

On Oct 24, 2018, at 4:02 PM, Peg Rettino <peg.rettino at icann.org<mailto:peg.rettino at icann.org>> wrote:
Hi Phil,

Apologies, it's been a very hectic afternoon.

Will need to look at tomorrow. Appreciate your flexibility.

Stay tuned,
Peg

From: "Corwin, Philip" <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Date: Wednesday, October 24, 2018 at 4:00 PM
To: Peg Rettino <peg.rettino at icann.org<mailto:peg.rettino at icann.org>>
Cc: Sam Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
Subject: RE: Re: [Ext] RPM PDP Complaint referral

As I haven't yet heard back, I could be available up to 6 tonight.

If that doesn't work then tomorrow I could meet between 9 and 9:50 (receiving award for Council service at 10) or, preferably, any time between 12 noon and 5 pm.

Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: Peg Rettino [mailto:peg.rettino at icann.org]
Sent: Wednesday, October 24, 2018 6:14 AM
To: Corwin, Philip <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Cc: Samantha Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
Subject: [EXTERNAL] Re: Re: [Ext] RPM PDP Complaint referral

Thank you Phil, I appreciate it.

Hope to send you something soon.

Best,
Peg



From: "Corwin, Philip" <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Date: Wednesday, October 24, 2018 at 11:58 AM
To: Peg Rettino <peg.rettino at icann.org<mailto:peg.rettino at icann.org>>
Cc: Sam Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
Subject: Re: Re: [Ext] RPM PDP Complaint referral

Today I am generally free to step out of meetings and come by anytime between 12 and 5.

If that doesn't work I can look at tomorrow.
Sent from my iPhone

On Oct 24, 2018, at 11:54 AM, Peg Rettino <peg.rettino at icann.org<mailto:peg.rettino at icann.org>> wrote:
Hi Phil,

It would be helpful to know your availability (today & tomorrow) firstly given I'm working with two fluctuating calendars.

Thank you in advance!

Best,
Peg


--
Peg Rettino
Project Specialist & Executive Assistant to John Jeffrey
General Counsel and Secretary
ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094
peg.rettino at icann.org<mailto:peg.rettino at icann.org>
Skype: peg.rettino
Direct: 310-301-3868








From: "Corwin, Philip" <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Date: Wednesday, October 24, 2018 at 11:39 AM
To: Sam Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
Cc: Peg Rettino <peg.rettino at icann.org<mailto:peg.rettino at icann.org>>
Subject: Re: [Ext] RPM PDP Complaint referral

I would be pleased to meet with you. Let me know your availability.
Sent from my iPhone

On Oct 24, 2018, at 11:37 AM, Samantha Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>> wrote:

​Hi Phil -



John and I are trying to connect with people who are on the ground here in Barcelona to help gain a better understanding of the situation.  Please let us know if you have a few minutes to talk before you leave.  Peg Rettino, cc'd here, can schedule us from our side.



Best,

Sam



____

Samantha Eisner

Deputy General Counsel, ICANN

12025 Waterfront Drive, Suite 300

Los Angeles, California 90094

USA

Direct Dial: +1 310 578 8631

________________________________
From: Corwin, Philip <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Sent: Monday, October 22, 2018 7:58 AM
To: Samantha Eisner
Subject: RE: [Ext] RPM PDP Complaint referral

Greg is here in Barcelona.

George is not here. So far as I am aware George has never attended an ICANN meeting. But Robin Gross is here, and she filed the attached on his behalf.

Best regards

Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: Samantha Eisner [mailto:Samantha.Eisner at icann.org]
Sent: Monday, October 22, 2018 10:28 AM
To: Heather Forrest <haforrestesq at gmail.com<mailto:haforrestesq at gmail.com>>; Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>; George Kirikos <icann at leap.com<mailto:icann at leap.com>>
Cc: Austin, Donna <Donna.Austin at team.neustar<mailto:Donna.Austin at team.neustar>>; rafik.dammak at gmail.com<mailto:rafik.dammak at gmail.com>; Kathy Kleiman <kathy at kathykleiman.com<mailto:kathy at kathykleiman.com>>; Beckham, James Brian <brian.beckham at wipo.int<mailto:brian.beckham at wipo.int>>; Corwin, Philip <pcorwin at verisign.com<mailto:pcorwin at verisign.com>>
Subject: [EXTERNAL] Re: [Ext] RPM PDP Complaint referral


​Dear Greg & George,



If either of you are here in Barcelona at ICANN63, I'm here if you'd like to meet in person to provide information or discuss.



Thanks,

Sam



____

Samantha Eisner

Deputy General Counsel, ICANN

12025 Waterfront Drive, Suite 300

Los Angeles, California 90094

USA

Direct Dial: +1 310 578 8631

________________________________
From: Heather Forrest <haforrestesq at gmail.com<mailto:haforrestesq at gmail.com>>
Sent: Sunday, October 21, 2018 9:31 AM
To: Greg Shatan; George Kirikos
Cc: Samantha Eisner; Austin, Donna; Rafik Dammak; Kathy Kleiman; Beckham, James Brian; Corwin, Philip
Subject: [Ext] RPM PDP Complaint referral

Dear Greg, George,

Following the update today provided by the RPM PDP WG Co-Chairs to the GNSO Council on the status of the unresolved complaint between you, GNSO Council leadership (myself, Donna Austin, Rafik Dammak) have discussed the matter with ICANN Legal.

We have been advised to refer the matter of the involvement of legal counsel in your PDP-related complaint to ICANN Legal.

All correspondence in relation to this matter from this point should be sent to Samantha Eisner, Deputy General Counsel, who is copied in this message.

Kind regards,

Heather Forrest, GNSO Chair
Donna Austin, GNSO Council Vice Chair
Rafik Damma, GNSO Council Vice Chair

________________________________
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