[CWG-Stewardship] Client Committee Update: Finalists

[Greg Shatan]

All:

I'd like to clarify the current "state of play" with regard to the
selection and engagement of a law firm.  I may not have been clear enough
in my updates to the CWG on Tuesday's and Thursday's calls and/or the
summarized notes may not have provided sufficient detail.  I will do that
here (and apologies that this is also a very lengthy answer to Matthew
Shears' short question).

In any event, as of Tuesday's meeting, the Client Committee had met with
the 3 shortlisted firms. We then had a call to discuss the three firms and
to determine how to move forward.  All three firms were quite impressive,
both on paper and on the calls, and all three brought teams that were
well-matched to the work we need to do.  As such, it was a relatively
difficult comparison -- there was no "wrong" firm and each had its
particularly strong points.  Nonetheless, there were distinctions and
differences, which became much clearer in the course of our meetings with
the firms. In the course of our "debrief" call, a clear front-runner
emerged, to the point where we felt it was appropriate to move forward with
that firm alone to explore with that firm alone the unique 'nuts&bolts' of
actually working together (timing, working methods, making the process and
results transparent), etc.)  We still felt we were on track to retain a
firm by the end of the week or early the following week.   ICANN legal was
present on this call (since they are part of the engagement), but they
explicitly (and of their own initiative) did not participate in the
discussion when it came to the ranking of counsel -- that was done by the
Client Committee members alone. Finally, I mentioned on Tuesday that a
request had been made of all 3 firms for permission to release their names
and introductory materials to this list.  Since this is an unusual request,
each firm had to consider the questions and go through their own process
(e.g., conferring with the firm's General Counsel) to determine whether and
how that could be done.

As of Thursday's meeting, I reported that the Client Committee has received
a proposed engagement letter (i.e., a letter agreement to retain the firm)
from the front runner which did a good job of reflecting the unique
circumstances of this relationship. I reported that we still hoped to
engage a firm by end of the week or early the following week.  I also
reported that we were still waiting for permission from one firm to release
their name and materials (NB: the Thursday meeting was before U.S. business
hours), and that the names and materials of all three firms would be
released as soon as that permission was received.

After Thursday's CWG meeting, the Client Committee, the front running firm,
and ICANN legal had a conference call to discuss the proposed engagement
letter and the working methods if the firm was retained.  It was a very
fruitful call.  The Client Committee proposed several changes to the letter
to make it even more clear that the firm's instructions would come
exclusively from the CWG (primarily through the Client Committee), and that
their advice would exclusively be to the CWG.  All of these changes were
accepted.

Based on all of the work done by the Committee to date, including the calls
and discussions with the firms and within the Client Committee, and mindful
of (but not pressed by) our timeline, we felt that we were in a position to
make a final decision on the choice of law firm.  That decision has now
been made, and the CWG's co-chairs are preparing an announcement of that
decision.

In the meantime, we received permission from the third firm, and slightly
revised versions of all three firms' introductory materials (revised solely
to remove client names (which cannot be publicly shared (especially when
aspects of their representation are discussed) without each client's
express written permission) and to fix a typo or two).  These were released
to the list on Friday afternoon.  Admittedly, the timing was not ideal, and
may have caused confusion, but it was the earliest they could be released.
In retrospect, it would have been preferable to release these earlier in
the process; however, it's important to note that, in my opinion, much more
was gleaned from the calls with each firm than from their materials with
regard to the suitability of each firm.

I am very excited that we are in a position to move forward with counsel
and for the CWG to get the legal advice we so sorely need to sort out
important aspects of our work.  I trust that you are all enthusiastic as
well, despite a few bumps in the process.

I look forward to working with counsel as we move toward Istanbul, and I
believe that our ability to be productive is now greatly enhanced.

Greg


On Sat, Mar 7, 2015 at 3:50 PM, Matthew Shears <mshears at cdt.org> wrote:

>  Greg and Committee - many thanks - an impressive list.
>
> Not sure if you are interested in immediate reactions... but from their
> introductory materials Gibson Dunn seem to have the best grasp of the
> challenges we face and the value they could add.
>
> Matthew
>
>
> On 3/6/2015 7:52 PM, Greg Shatan wrote:
>
> All,
>
>  As promised, I have attached the introductory materials provided to the
> Client Committee by the three "finalist" law firms:
>
>
>    - Gibson Dunn
>    - Latham & Watkins
>    - Sidley Austin
>
> Best regards,
>
>  Greg Shatan
>
>
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