[CWG-Stewardship] Legal cost reality

Gomes, Chuck cgomes at verisign.com
Sat Jun 27 13:28:44 UTC 2015

I don't disagree with anything Jonathan says but as we try to finish the work, including implementation, to effectively manage costs I believe the following would be helpful to keep in mind:

*         The ICANN General Counsel's office and its primary outside Council firm Jones Day has demonstrated an extreme bias for protecting the corporation at all costs even when that may conflict with the public interest.  In my opinion, that is the primary source of the mistrust in the community and that is why independent legal advice was needed and I believe will be needed going forward.  I am not suggesting that fiduciary responsibilities should be ignored but rather that the Board needs to seek a balance between its fiduciary duties and its commitment to the community instead of always protecting the corporation as they have consistently done.  In our meeting in Istanbul, I thought that Sidley made that point very well.

*         In cases where bias may not be as big a problem (e.g., the IANA trademark) we should compare what it costs to use expertise in the General Counsel's office and ICANN's existing outside Counsel relationships to what it would cost to use Sidley Austin.  Of course, there are two key assumptions here: 1) the right level of legal expertise is available; 2) the costs of in-house legal support and ICANN's existing outside Counsel is provided.

*         From the announcement by NTIA about the planned transition to now, ICANN leadership and some Board members have visibly pushed back on certain strong accountability mechanisms.  It is important to remember that their first plan in responding to NTIA's request was a top down approach controlled by ICANN instead of a truly bottom-up multi-stakeholder approach; it was only because we united in opposition that they changed their approach.  It was also evident in Buenos Aires that Fadi and some board members were pushing back on some of the accountability mechanisms under consideration.  Just to give one example, Fadi expressed a concern that what the CCWG was considering involved much more than what NTIA does; of course, he is right about that, but it needs to be recognized that the only way to avoid that would be to give the oversight to another government, which is not an option.  A multi-stakeholder solution will naturally involve more than oversight provided by one government.  Fadi also pointed out that to satisfy the U.S. Congress, we cannot provide a solution that involves governments inappropriately; I agree with that but he left out the point that to satisfy the U.S. congress we will have to provide a solution that gives the community the authority to hold ICANN accountable.

*         We need to work to minimize legal costs without compromising our ability to produce the best solutions possible.  In my opinion that will still require independent legal advice to avoid the clearly demonstrated bias described above.  Let's just manage the costs for that advice as effectively as possible.


From: Jonathan Robinson [mailto:jrobinson at afilias.info]
Sent: Saturday, June 27, 2015 1:08 AM
To: 'Alan Greenberg'; Gomes, Chuck; 'Seun Ojedeji'; 'James Gannon'
Cc: cwg-stewardship at icann.org
Subject: RE: [CWG-Stewardship] Legal cost reality


At this stage, we have not seen detailed bills. The bill signed off by the board will have been for the work of Sidley on both CCWG & CWG (to the best of my knowledge).
I expect the work was most intense as they got up to speed with all of the background information and work of both groups.

That said, I think we do need to work hard to control / manage bills and that was part of the motivation for having the client committee in the first place.
A key question for us as a group is when / how do we use Sidley in the pre-NTIA proposal submission phase and in the post-NTIA submission phase?
Two factors which will impact that are (a) the scope as defined in our initial engagement letter and (b) ICANN's approach to funding.

In any case, I suspect we all have a similar sentiment. Great quality of work and necessary contribution but costs need to be managed as best as possible.


From: Alan Greenberg [mailto:alan.greenberg at mcgill.ca]
Sent: 26 June 2015 06:57
To: Gomes, Chuck; Seun Ojedeji; James Gannon
Cc: cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] Legal cost reality

Actually Chuck, the Board motion was approval of the costs incurred through 31 March 2015, and Sidley Austin was only engaged on 6 March. So that appears to be the charge for the first 3 weeks or so.

My recollection is that they are billing a bit under $1000 per hour, so that would amount (in round numbers to 500 hours or 60 8-hour days in 25 calendar days.

Our Sidley legal team consists of several people, and presumably for the first week or so, many of them were "catching up", which presumably accounts for a fair part of this. Then, Holly and Sharon were in Istanbul for several days.

Overall, pretty high, but I am guessing the remaining months had a lower per-month rate.


At 25/06/2015 05:55 PM, Gomes, Chuck wrote


500k to date not per month.


Sent via the Samsung GALAXY S(r) 5, an AT&T 4G LTE smartphone

-------- Original message --------
From: Seun Ojedeji <seun.ojedeji at gmail.com<mailto:seun.ojedeji at gmail.com>>
Date:06/25/2015 5:42 PM (GMT-05:00)
To: James Gannon <james at cyberinvasion.net<mailto:james at cyberinvasion.net>>
Cc: cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] Legal cost reality

With due respect James, I am in no way belittling the work of legal council. I am rather wondering how we as a community recognising this huge cost did not better strategize on how/when to engage external council. The amount that has been spent on all participants of the ccwg and cwg(for remote/physical meetings) would seem to be competing with the total cost of legal advice (perhaps legal would even be more).

The deed has been done and we can't rewrite history. My comment is targeted more on the fact that we need to think of how we engage legal more efficiently going forward.

For the record, when Greg said top notch council are expensive, 500k monthly is just beyond my imagination!


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kindly excuse brevity and typos.
On 25 Jun 2015 18:23, "James Gannon" <james at cyberinvasion.net<mailto:james at cyberinvasion.net> > wrote:
Our legal advice has been critical to our process and Sidley have been crucial to our successes.
I think we should be thanking them for their service, and yes top notch legal services are not cheap.
It is most certainly something that I have no issue with the community exercising its prudence over however lets not limit ourselves in any way to engage with our counsel.
From: < cwg-stewardship-bounces at icann.org<mailto:cwg-stewardship-bounces at icann.org>> on behalf of Seun Ojedeji
Date: Thursday 25 June 2015 18:15
To: " cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>"
Subject: [CWG-Stewardship] Legal cost reality
I hope those who want to always push issues to external legal advice would appreciate the need to be strategic and prudent about this. Over 500,000USD already spent on Sidley is definitely not what we like ICANN to keep spending it's resources on.
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kindly excuse brevity and typos.
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