[CWG-Stewardship] Legal cost reality

Sat Jun 27 16:34:08 UTC 2015

Chuck,

I agree with virtually everything you say.  Just a few small points,
regarding the IANA trademarks:

   - I would not assume that bias (or, to use a less loaded phrase, the
   desire for a particular result) is less of an issue than on any other
   point.  I'm not saying that it is; I'm just saying it should not be assumed.
   - I don't believe ICANN has specific in-house trademark expertise.
   Jones Day appears to handle their trademark portfolio.
   - Jones Day and Sidley are likely to have roughly similar billing
   structures (unless ICANN has an alternative fee arrangement with ICANN
   specifically), so the likelihood of a significant cost savings by using one
   top-notch multinational firm instead of another top-notch multinational
   firm is relatively small.

Greg

On Sat, Jun 27, 2015 at 9:28 AM, Gomes, Chuck <cgomes at verisign.com> wrote:

>  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.
>
>
>
> Chuck
>
>
>
>
>
> *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
>
>
>
> All,
>
>
>
> 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.
>
>
>
> Jonathan
>
>
>
> *From:* Alan Greenberg [mailto:alan.greenberg at mcgill.ca
> <alan.greenberg at mcgill.ca>]
> *Sent:* 26 June 2015 06:57
> *To:* Gomes, Chuck; Seun Ojedeji; James Gannon
> *Cc:* 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.
>
> Alan
>
> At 25/06/2015 05:55 PM, Gomes, Chuck wrote
>
>  Sean,
>
> 500k to date not per month.
>
> Chuck
>
>
> Sent via the Samsung GALAXY S® 5, an AT&T 4G LTE smartphone
>
>
> -------- Original message --------
> From: Seun Ojedeji <seun.ojedeji at gmail.com>
> Date:06/25/2015 5:42 PM (GMT-05:00)
> To: James Gannon <james at cyberinvasion.net>
> Cc: 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!
>
> Regards
>
> sent from Google nexus 4
> kindly excuse brevity and typos.
> On 25 Jun 2015 18:23, "James Gannon" <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.
>
> -James
>
> From: < cwg-stewardship-bounces at icann.org> on behalf of Seun Ojedeji
>
> Date: Thursday 25 June 2015 18:15
>
> To: " cwg-stewardship at icann.org"
>
> Subject: [CWG-Stewardship] Legal cost reality
>
> Hi,
>
> 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.
>
> Regards
>
> sent from Google nexus 4
>
> kindly excuse brevity and typos.
>
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