[Gnso-newgtld-wg] proposed Language for those Getting Applicant Support

Mike Rodenbaugh mike at rodenbaugh.com
Tue Jun 9 20:50:56 UTC 2020


I like Marc's proposal.

[image: Logo]

Mike Rodenbaugh

address:

548 Market Street, Box 55819

San Francisco, CA 94104

email:

mike at rodenbaugh.com

phone:

+1 (415) 738-8087


On Tue, Jun 9, 2020 at 10:22 AM <trachtenbergm at gtlaw.com> wrote:

> I still think what you have is over-engineered and that this is not really
> such a problem that needs solving.  I also think that restricting the
> applicant from transferring based on indefinite standards like “legitimate”
> or “in the ordinary course” can only cause problems as undoubtedly there
> will be some non-gaming reason that an applicant who received support will
> want to assign and that the restrictions will cause dispute and confusion
> especially as new gTLDs are supposedly so innovative and different than
> anything before.  I think the better and more effective approach here and
> with most things in the application process is to just remove the incentive
> for “gaming”.  It should hopefully be apparent to all by now that if f you
> don’t remove the  incentives for bad or disfavored behavior and just try to
> prohibit it using indefinite standards that the very smart people in this
> industry will find a way to get around the prohibition, which is further
> exacerbated by a practically non-existent ICANN compliance function.
>
>
>
> Accordingly, I would propose the following.
>
>
>
> To disincentivize “gaming” of the applicant support program by applicants
> who are applying on behalf of third parties, or with the intent to
> immediately transfer ownership to third parties, applicants who receive
> financial support through the ASP Program will not be permitted to assign
> the relevant Registry Agreement within the first five (5) years of
> execution of the Registry Agreement unless they repay the repay the full
> amount of financial support received through the ASP Program plus an
> additional ten percent (10%).
>
>
>
> Best regards,
>
>
>
> *Marc H. Trachtenberg*
> Shareholder
> Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL
> 60601
> Tel 312.456.1020
>
> Mobile 773.677.3305
>
> trac at gtlaw.com | www.gtlaw.com
>
>
>
> [image: Greenberg Traurig]
>
>
>
> *From:* Jeff Neuman [mailto:jeff.neuman at comlaude.com]
> *Sent:* Tuesday, June 9, 2020 9:54 AM
> *To:* Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm at gtlaw.com>;
> AAikman at lrrc.com; mike at rodenbaugh.com
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* RE: [Gnso-newgtld-wg] proposed Language for those Getting
> Applicant Support
>
>
>
> Thanks Marc.   I have tried to work your language in.
>
>
>
> Re:  Highlighted language: How do we word allowing assignments/change of
> control through the normal course of business (changing corporate entities,
> death or retirement of owners, etc.).  If we just use the standard, you can
> assign to parents or subs, then that will allow reverse triangular mergers
> which gets around the whole no assignment/change of control rules.
>
>
>
> *“If the Applicant getting Applicant Support prevails in an auction, there
> should be restrictions placed on the Applicant from assigning the Registry
> Agreement, and/or from any Change of Control for a period of no less than
> three (3) years.  This restriction is in place to prevent gaming of the
> applicant support program whereby an applicant immediately transfers its
> ownership of a registry to a third party in exchange for any form of
> financial gain.  However, legitimate assignments (e.g., changing of
> ownership due to death or retirement, etc., assignments to subsidiaries,
> etc.) shall be permitted.  All assignments after such time shall be
> governed under the then-current Registry Agreement standard provisions;
> provided that any Assignment or Change of Control after the third year, but
> prior to the seventh (7th) year, shall require the applicant to repay the
> full amount of financial support received through the ASP Program plus an
> additional ten percent (10%).  *
>
>
>
>
>
> *Jeff Neuman*
>
> Senior Vice President
>
> *Com Laude | Valideus*
>
> D: +1.703.635.7514
>
> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>
>
>
> *From:* trachtenbergm at gtlaw.com <trachtenbergm at gtlaw.com>
> *Sent:* Tuesday, June 9, 2020 10:18 AM
> *To:* Jeff Neuman <jeff.neuman at comlaude.com>; AAikman at lrrc.com;
> mike at rodenbaugh.com
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* RE: [Gnso-newgtld-wg] proposed Language for those Getting
> Applicant Support
>
>
>
> Personally I think that this is a bit of “tilting at windmills” and that
> if people want to “game” in this way then they will find a way.  Instead of
> trying to prevent this gaming via indefinite standards that are subject to
> various reasonable interpretations and will almost certainly result in
> disputes, I think it would be better to reduce the prohibition on
> assignments to a shorter period like 2 or 3 years and then just make the
> applicant pay back the money as a condition of assignment which mitigates
> any benefit that the applicant and/or assignee would get.  You could even
> make the condition payment of the benefit received plus x% as a
> disincentive for such behavior that would not prohibit all assignments.
>
>
>
> *Marc H. Trachtenberg*
> Shareholder
> Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL
> 60601
> Tel 312.456.1020
>
> Mobile 773.677.3305
>
> trac at gtlaw.com | www.gtlaw.com
>
>
>
> [image: Greenberg Traurig]
>
>
>
> *From:* Jeff Neuman [mailto:jeff.neuman at comlaude.com
> <jeff.neuman at comlaude.com>]
> *Sent:* Tuesday, June 9, 2020 8:51 AM
> *To:* Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm at gtlaw.com>;
> AAikman at lrrc.com; mike at rodenbaugh.com
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* RE: [Gnso-newgtld-wg] proposed Language for those Getting
> Applicant Support
>
>
>
> Thanks Marc for the comments.  This was designed to set forth the
> principles as opposed to being the contract language, but your points are
> well made.
>
>
> The context of this discussion is that some are worried that an applicant
> who gets applicant support (which may include a bid credit or multiplier in
> an auction) get the registry and flip it for financial gain to game the
> system.  That is why the group wanted to prohibit assignment for a period
> of time.  In the scheme of things, 5 years after a registry signs an
> agreement is not that long of a period, especially if you assume that most
> registries will likely not launch until 6 months to a year after they
> sign.  However, as you note, there are some assignments/change of control
> that may be necessary and not intended to “game the system” (hence the term
> legitimate, but understand you concerns about that term).
>
>
>
> Do you have some alternative language that would work in this case that
> achieves what we are trying to achieve?
>
> Thanks.
>
>
>
> *Jeff Neuman*
>
> Senior Vice President
>
> *Com Laude | Valideus*
>
> D: +1.703.635.7514
>
> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>
>
>
> *From:* trachtenbergm at gtlaw.com <trachtenbergm at gtlaw.com>
> *Sent:* Tuesday, June 9, 2020 8:53 AM
> *To:* Jeff Neuman <jeff.neuman at comlaude.com>; AAikman at lrrc.com;
> mike at rodenbaugh.com
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* RE: [Gnso-newgtld-wg] proposed Language for those Getting
> Applicant Support
>
>
>
> Sorry to be late to the party on this one.  I echo Mike’s concerns that 5
> years is a long time. Additionally, I am concerned with the use of
> “legitimate”.  I understand the intent and the examples are helpful, but
> words like “legitimate” are almost certain to be disputed later.  Also,
> there is no exchange that would involve financial gain (another term open
> to interpretation) which could be “legitimate”?  And what about situations
> where the registry will otherwise fail if the RO does not sell?  The RO
> should instead fail and the TLD should go through the ICANN process – this
> is a better outcome?  I am also concerned with giving ICANN the ability to
> “reasonably” withhold its consent to an assignment.  ICANN does not always
> act reasonably and when ICANN even arguably has discretion to make
> decisions things don’t always turn out so well…
>
>
>
> *Marc H. Trachtenberg*
> Shareholder
> Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL
> 60601
> Tel 312.456.1020
>
> Mobile 773.677.3305
>
> trac at gtlaw.com | www.gtlaw.com
>
>
>
> [image: Greenberg Traurig]
>
>
>
> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org
> <gnso-newgtld-wg-bounces at icann.org>] *On Behalf Of *Jeff Neuman
> *Sent:* Tuesday, June 9, 2020 7:40 AM
> *To:* Aikman-Scalese, Anne <AAikman at lrrc.com>; Mike Rodenbaugh <
> mike at rodenbaugh.com>
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] proposed Language for those Getting
> Applicant Support
>
>
>
> **EXTERNAL TO GT**
>
> Thanks Anne, you are correct that the However, sentence is not complete.
> So, please find the rest of the sentence:
>
>
>
> *“If the Applicant getting Applicant Support prevails in an auction, there
> should be restrictions placed on the Applicant from assigning the Registry
> Agreement, and/or from any Change of Control for a period of no less than
> five (5) years.  This restriction is in place to prevent gaming of the
> applicant support program whereby an applicant immediately transfers its
> ownership of a registry to a third party in exchange for any form of
> financial gain.  However, legitimate assignments (e.g., changing of
> ownership due to death or retirement, etc., assignments to subsidiaries,
> etc.) shall be permitted.  All assignments must have ICANN's consent, which
> consent may be reasonably withheld. In the event of a change of control
> after the first five (5) years but during the remaining first term of the
> registry agreement, the applicant should be required to repay the financial
> support that they received.”*
>
>
>
>
>
> *Jeff Neuman*
>
> Senior Vice President
>
> *Com Laude | Valideus*
>
> D: +1.703.635.7514
>
> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>
>
>
> *From:* Aikman-Scalese, Anne <AAikman at lrrc.com>
> *Sent:* Monday, June 8, 2020 3:17 PM
> *To:* Mike Rodenbaugh <mike at rodenbaugh.com>; Jeff Neuman <
> jeff.neuman at comlaude.com>
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* RE: [Gnso-newgtld-wg] proposed Language for those Getting
> Applicant Support
>
>
>
> I like the five years.
>
> The sentence that begins with “However” does not appear to be a complete
> sentence.
>
>
>
> Why are we limiting the reimbursement provision to the second half of the
> contract?
>
> Thanks,
>
> Anne
>
>
>
> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On Behalf Of
> *Mike Rodenbaugh
> *Sent:* Monday, June 8, 2020 12:10 PM
> *To:* Jeff Neuman <jeff.neuman at comlaude.com>
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] proposed Language for those Getting
> Applicant Support
>
>
>
> *[EXTERNAL]*
> ------------------------------
>
> Five years seems like an eternity.  How about two or three, instead?
>
>
>
> [image: Logo]
>
> *Mike Rodenbaugh*
>
> *address:*
>
> 548 Market Street, Box 55819
>
> San Francisco, CA 94104
>
> *email:*
>
> mike at rodenbaugh.com
>
> *phone:*
>
> +1 (415) 738-8087
>
>
>
>
>
> On Mon, Jun 8, 2020 at 11:43 AM Jeff Neuman <jeff.neuman at comlaude.com>
> wrote:
>
> All,
>
>
>
> On the call today, Susan raised a good point about applicants that get
> Applicant Support trying to “game the system” by immediately flipping their
> registries to a third party to make a profit.  Although we would hope that
> those that take the time to go through the Applicant Support Program (ASP)
> and get approved would alone demonstrate that this is unlikely to happen.
> The process to get support is supposed to be vigorous and try to root out
> potential gaming.  That said, I worked with Susan to draft the following
> language.  Would this be acceptable as a Recommendation?
>
>
>
> *“If the Applicant getting Applicant Support prevails in an auction, there
> should be restrictions placed on the Applicant from assigning the Registry
> Agreement, and/or from any Change of Control for a period of no less than
> five (5) years.  This restriction is in place to prevent gaming of the
> applicant support program whereby an applicant immediately transfers its
> ownership of a registry to a third party in exchange for any form of
> financial gain.  However, legitimate assignments (e.g., changing of
> ownership due to death or retirement, etc., assignments to subsidiaries,
> etc.).  All assignments must have ICANN's consent, which consent may be
> reasonably withheld. In the event of a change of control after the first
> five (5) years but during the remaining first term of the registry
> agreement, the applicant should be required to repay the financial support
> that they received.”*
>
>
>
> *Note:  We would add this to Agreements for all that get Applicant
> Support, not just those that prevail at an auction (with the multiplier or
> other form of bid credit).*
>
>
>
> Discuss………..
>
>
>
> *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 <jeff.neuman at comlaude.com>*
> www.comlaude.com
> <https://urldefense.com/v3/__http:/www.comlaude.com/__;!!DUT_TFPxUQ!SL6RjS2ZZQgSKP5CBIHb-Koy3uavV1chqVtK6BauzhF6crrCnpgAVRdf1__vheYRBxI$>
>
>
>
> ------------------------------
>
> The contents of this email and any attachments are confidential to the
> intended recipient. They may not be disclosed, used by or copied in any way
> by anyone other than the intended recipient. If you have received this
> message in error, please return it to the sender (deleting the body of the
> email and attachments in your reply) and immediately and permanently delete
> it. Please note that the Com Laude Group does not accept any responsibility
> for viruses and it is your responsibility to scan or otherwise check this
> email and any attachments. The Com Laude Group does not accept liability
> for statements which are clearly the sender's own and not made on behalf of
> the group or one of its member entities. The Com Laude Group includes
> Nom-IQ Limited t/a Com Laude, a company registered in England and Wales
> with company number 5047655 and registered office at 28-30 Little Russell
> Street, London, WC1A 2HN England; Valideus Limited, a company registered in
> England and Wales with company number 06181291 and registered office at
> 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a
> company registered in Scotland with company number SC197176, having its
> registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF
> Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered
> at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan)
> Corporation, a company registered in Japan having its registered office at
> Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further
> information see www.comlaude.com
> <https://urldefense.com/v3/__https:/comlaude.com__;!!DUT_TFPxUQ!SL6RjS2ZZQgSKP5CBIHb-Koy3uavV1chqVtK6BauzhF6crrCnpgAVRdf1__vzlbq_8Y$>
>
> _______________________________________________
> Gnso-newgtld-wg mailing list
> Gnso-newgtld-wg at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg
> <https://urldefense.com/v3/__https:/mm.icann.org/mailman/listinfo/gnso-newgtld-wg__;!!DUT_TFPxUQ!SL6RjS2ZZQgSKP5CBIHb-Koy3uavV1chqVtK6BauzhF6crrCnpgAVRdf1__vUQlxGvY$>
> _______________________________________________
> By submitting your personal data, you consent to the processing of your
> personal data for purposes of subscribing to this mailing list accordance
> with the ICANN Privacy Policy (https://www.icann.org/privacy/policy
> <https://urldefense.com/v3/__https:/www.icann.org/privacy/policy__;!!DUT_TFPxUQ!SL6RjS2ZZQgSKP5CBIHb-Koy3uavV1chqVtK6BauzhF6crrCnpgAVRdf1__vsTeIYGE$>)
> and the website Terms of Service (https://www.icann.org/privacy/tos
> <https://urldefense.com/v3/__https:/www.icann.org/privacy/tos__;!!DUT_TFPxUQ!SL6RjS2ZZQgSKP5CBIHb-Koy3uavV1chqVtK6BauzhF6crrCnpgAVRdf1__vRMRR2jE$>).
> You can visit the Mailman link above to change your membership status or
> configuration, including unsubscribing, setting digest-style delivery or
> disabling delivery altogether (e.g., for a vacation), and so on.
>
>
> ------------------------------
>
>
> This message and any attachments are intended only for the use of the
> individual or entity to which they are addressed. If the reader of this
> message or an attachment is not the intended recipient or the employee or
> agent responsible for delivering the message or attachment to the intended
> recipient you are hereby notified that any dissemination, distribution or
> copying of this message or any attachment is strictly prohibited. If you
> have received this communication in error, please notify us immediately by
> replying to the sender. The information transmitted in this message and any
> attachments may be privileged, is intended only for the personal and
> confidential use of the intended recipients, and is covered by the
> Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
> ------------------------------
>
> The contents of this email and any attachments are confidential to the
> intended recipient. They may not be disclosed, used by or copied in any way
> by anyone other than the intended recipient. If you have received this
> message in error, please return it to the sender (deleting the body of the
> email and attachments in your reply) and immediately and permanently delete
> it. Please note that the Com Laude Group does not accept any responsibility
> for viruses and it is your responsibility to scan or otherwise check this
> email and any attachments. The Com Laude Group does not accept liability
> for statements which are clearly the sender's own and not made on behalf of
> the group or one of its member entities. The Com Laude Group includes
> Nom-IQ Limited t/a Com Laude, a company registered in England and Wales
> with company number 5047655 and registered office at 28-30 Little Russell
> Street, London, WC1A 2HN England; Valideus Limited, a company registered in
> England and Wales with company number 06181291 and registered office at
> 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a
> company registered in Scotland with company number SC197176, having its
> registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF
> Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered
> at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan)
> Corporation, a company registered in Japan having its registered office at
> Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further
> information see www.comlaude.com
> <https://urldefense.com/v3/__https:/comlaude.com__;!!DUT_TFPxUQ!SL6RjS2ZZQgSKP5CBIHb-Koy3uavV1chqVtK6BauzhF6crrCnpgAVRdf1__vzlbq_8Y$>
> ------------------------------
>
> If you are not an intended recipient of confidential and privileged
> information in this email, please delete it, notify us immediately at
> postmaster at gtlaw.com, and do not use or disseminate the information.
> ------------------------------
>
> The contents of this email and any attachments are confidential to the
> intended recipient. They may not be disclosed, used by or copied in any way
> by anyone other than the intended recipient. If you have received this
> message in error, please return it to the sender (deleting the body of the
> email and attachments in your reply) and immediately and permanently delete
> it. Please note that the Com Laude Group does not accept any responsibility
> for viruses and it is your responsibility to scan or otherwise check this
> email and any attachments. The Com Laude Group does not accept liability
> for statements which are clearly the sender's own and not made on behalf of
> the group or one of its member entities. The Com Laude Group includes
> Nom-IQ Limited t/a Com Laude, a company registered in England and Wales
> with company number 5047655 and registered office at 28-30 Little Russell
> Street, London, WC1A 2HN England; Valideus Limited, a company registered in
> England and Wales with company number 06181291 and registered office at
> 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a
> company registered in Scotland with company number SC197176, having its
> registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF
> Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered
> at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan)
> Corporation, a company registered in Japan having its registered office at
> Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further
> information see www.comlaude.com
> <https://urldefense.com/v3/__https:/comlaude.com__;!!DUT_TFPxUQ!W-pOWe0A3pBqdLFcZlgL4ApYY7GcwRvU_3BaQv_i-8Q6NUJmAPUMnsydqYFuJ37w5EI$>
> ------------------------------
>
> The contents of this email and any attachments are confidential to the
> intended recipient. They may not be disclosed, used by or copied in any way
> by anyone other than the intended recipient. If you have received this
> message in error, please return it to the sender (deleting the body of the
> email and attachments in your reply) and immediately and permanently delete
> it. Please note that the Com Laude Group does not accept any responsibility
> for viruses and it is your responsibility to scan or otherwise check this
> email and any attachments. The Com Laude Group does not accept liability
> for statements which are clearly the sender's own and not made on behalf of
> the group or one of its member entities. The Com Laude Group includes
> Nom-IQ Limited t/a Com Laude, a company registered in England and Wales
> with company number 5047655 and registered office at 28-30 Little Russell
> Street, London, WC1A 2HN England; Valideus Limited, a company registered in
> England and Wales with company number 06181291 and registered office at
> 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a
> company registered in Scotland with company number SC197176, having its
> registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF
> Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered
> at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan)
> Corporation, a company registered in Japan having its registered office at
> Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further
> information see www.comlaude.com
> <https://urldefense.com/v3/__https:/comlaude.com__;!!DUT_TFPxUQ!RGLf6UlEDciFy0o4FqiRDs-YcX7XZZWhnfVLeqpDBfRuKhYIt1mSsS_BwcbJXmW3isc$>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20200609/a763ed99/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 6399 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20200609/a763ed99/image001-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.jpg
Type: image/jpeg
Size: 2741 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/gnso-newgtld-wg/attachments/20200609/a763ed99/image002-0001.jpg>


More information about the Gnso-newgtld-wg mailing list