[Gnso-newgtld-wg] Appeals Standard of Review

Jeff Neuman jeff.neuman at comlaude.com
Thu Oct 17 15:54:47 UTC 2019 

Jamie,

A couple of points:


  1.  I think at a high level the group agrees that an applicant who is successful in an appeal from an evaluation should not have to bear the costs of that appeal.  How the appeals adjudicator is paid in such a case should not be our concern – meaning we should not dictate whether ICANN pays or the evaluator just eats the costs.  We only need to recommend that the Applicant should not have to.
     *   In the very few cases ICANN had to re-do an evaluation (less than we can count on one hand), either ICANN or the evaluator bore the cost.  It is not important who bore the cost but just that the successful appellant did not.
  2.  If there is an appeals process, which for which I believe there is support, then the number of appeals and the costs of those appeals, I would argue would be directly correlated to the standard of review:
     *   If we have a De Novo review, then the costs are likely to increase (as you are essentially re-doing the evaluation), and the success rate of appeals is likely to increase especially where reasonable minds can differ on an outcome.  This could result in an overall increase in the costs of the New gTLD program for all of the applicants.
     *   If we have a clearly erroneous standard, then there are likely to be less successful appeals (unless the evaluators are really incompetent), and therefore, ICANN bearing the costs of successful appeals (Or the evaluator bearing the costs), would generally not result in an overall increase of the costs of the program.
  3.  This brings me back to my original recommendation:
     *   For all appeals (other than conflict of interest), we should only use the clearly erroneous standard.
     *   For conflicts of interest appeals, which are very fact specific, it makes more sense to use a do novo standard.
So, lets get some more comments on the Standard of Review.

Jeff Neuman
Senior Vice President
Com Laude | Valideus
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Jamie Baxter
Sent: Thursday, October 17, 2019 8:18 AM
To: Steve Chan <steve.chan at icann.org>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review

Thanks Steve

I do not see any detail in the RFP that responds to my question below. Can you please assist with informing the working group on what ICANN's current policy is on addressing evaluation costs resulting from applicants prevailing in accountability mechanisms, as outlined in my example.

I believe this is important to understand as the group continues discussing how to handle costs related to the appeals process under consideration. I believe it provides valued insights on how evaluators/panels are held to account (if at all) according to the contracts ICANN has established with the service providers. Presumably ICANN has consider a contingency for when third party contractors make mistakes or don't follow ICANN policy.

Thanks
Jamie
-------- Original Message --------
Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review
From: Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>>
Date: Wed, October 16, 2019 4:14 pm
To: Jamie Baxter <jamie at dotgay.com<mailto:jamie at dotgay.com>>, Jim Prendergast <jim at GALWAYSG.COM<mailto:jim at GALWAYSG.COM>>,
"Jeff Neuman" <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>,
"gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Dear Jamie, Jim, all,

The vendor selection process was subject to an open, competitive bidding process. You can find a timeline of events, including the initial publication of the call for Expressions of Interest (EOIs), the list of respondents, and the ultimate selection of evaluation panels here: https://newgtlds.icann.org/en/about/evaluation-panels-selection-process

The EOIs lay out the subject areas that interested parties were required to respond against.

Best,
Steve



From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> on behalf of Jamie Baxter <jamie at dotgay.com<mailto:jamie at dotgay.com>>
Date: Wednesday, October 16, 2019 at 12:29 PM
To: Jim Prendergast <jim at GALWAYSG.COM<mailto:jim at GALWAYSG.COM>>, Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>, "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review

I too would appreciate knowing the answers to Jim's questions below.

As raised on a prior call discussing who covers the cost of appeals, I think there is value in understanding ICANN's current practice and/or policy with handling additional evaluator/panelist expenses that come from applicants prevailing in accountability mechanisms. For example, who was responsible for the expenses behind the EIU conducting the 2nd CPE on .GAY when the Board confirmed the EIU's panelists/evaluators did not follow proper procedure?

I would assume that some type of policy exists as part of the contract with the service providers, given that the service providers much be informed about the accountability mechanisms they may be subject to.

Jamie
-------- Original Message --------
Subject: Re: [Gnso-newgtld-wg] Appeals Standard of Review
From: Jim Prendergast <jim at GALWAYSG.COM<mailto:jim at GALWAYSG.COM>>
Date: Tue, October 15, 2019 4:39 pm
To: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>, "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>"
<gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Jeff – on you recommendation - .  ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given.

Do we know what the screening process was last go around?  For example – how was the Economist Intelligence Unit selected?  Was there an RFP issued?  If so what were those terms?

CPE was a particularly painful exercise for more than a few applicants so yes – I’m sort of picking on that one but it would be illustrative to the others.  I do know there was a tender process for the Independent Objector.

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Jeff Neuman
Sent: Tuesday, October 15, 2019 9:25 AM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Appeals Standard of Review

All,

One of the remaining topics for Appeals is to determine what the standard of review should be.  The choices discussed are “De Novo” or “Clearly Erroneous.”


  1.  Under a “De Novo” standard of review, the appeals panel is essentially deciding the issues without reference to any of the conclusions or assumptions made by the evaluator/dispute panel.  It can refer to the evaluator/dispute panel to determine the facts, but it need not defer to any of the findings or conclusions.  It would be as if the appeals panel is hearing the facts for the first time.


  1.  Under a “Clearly Erroneous” standard of review, the appeals panel must accept the evaluator’s or dispute panel’s findings of fact unless the appeals panel is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appeals panel may have weighed the evidence and reached a different conclusion; the evaluator’s/dispute panel’s decision will only be reversed if it is implausible in light of all the evidence.

In theory it could be possible to have different standards of review depending on what is the issue being appealed.  For example, for Conflicts of Interest determinations, we could state that such an appeal would be on a De Novo standard, but for all other appeals, Clearly Erroneous.  As a reminder, here are the different types of appeals:


  1.  Evaluations

     *   Background Screening
     *   String Similarity
     *   DNS Stability
     *   Geographic Names
     *   Technical / Operational Evaluation
     *   Financial Evaluation
     *   Registry Services
     *   Applicant Support
     *   Community Priority Evaluation


  1.  Objections

     *   String Confusion
     *   Legal Rights Objection
     *   Limited Public Interest
     *   Community Objection
     *   Conflict of Interest of Panelists.

My personal recommendation is that all appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard.   Conflict of Interests should be reviewed under a De Novo Standard.  To review anything else De Novo would be incredibly time consuming, costly, and could substantially delay applications.  ICANN should have a thorough screening process to pick its evaluators/panelists and deference to their determinations should be given.  But determinations of Conflict of Interest seem to me to be appropriate for a De Novo standard because the original determination could be made by the party against whom the assertion of a conflict is made.

Thoughts?




Jeff Neuman
Senior Vice President

Com Laude | Valideus
1751 Pinnacle Drive
Suite 600, McLean
VA 22102, USA

M: +1.202.549.5079
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
www.comlaude.com<http://www.comlaude.com/>

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