[Gnso-newgtld-wg] Auction of last resort and Private Resolutions

Kathy Kleiman kathy at kathykleiman.com
Mon Jun 29 13:59:05 UTC 2020


+1 Elaine.  When we speak discussed this at length, I thought we had
arrived at the conclusion that the Vickrey auctions and the sealed bid
at application were the fairest process for moving forward. That this
would encourage applicants to submit the bid closest to the value of
the gTLD to them, and encourage the widest diversity of applicants to
apply for - and achieve - new gTLDs.
Best, Kathy
  

----- Original Message -----
From: "Pruis Elaine" 
To:"Aikman-Scalese Anne" 
Cc:"gnso-newgtld-wg at icann.org" 
Sent:Sun, 28 Jun 2020 18:47:34 +0000
Subject:Re: [Gnso-newgtld-wg] Auction of last resort and Private
Resolutions

 Hi,  The “auction of last resort” in 2012 was aptly named.
Private resolution was encouraged ICANN auctions were the very last
possible remedy for contention sets. So it’s not surprising that 90%
of contention sets were resolved privately. That was intentional. 
Keeping the option for private resolutions is reasonable- it’s the
gaming and buyouts we’ve been asked by the board to try to
prevent.  If we want to avoid any of it, let’s do the Vickrey
auction - put in a sealed bid with your application. Parties can try
to make whatever deals they want after the TLD is delegated.  This
eliminates horse trading or gaming or disadvantaging single applicants
by paying portfolio applicants to lose.  Elaine  

On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne  wrote:

     

	Dear WG Members,

	Re: private resolution of contention sets, I just wanted to mention
again (as I did in chat on the last call) that apparently 90% of
string contention sets were resolved before auction of last resort in
the 2012 round.  (My source for this is the CCWG Auction Proceeds
group so let me know if you disagree on this statistic.)  This means
private resolution is by far “the rule” in resolving string
contention.

	 

	It seems to me that promoting “joint ventures” of 2 or more
applicants for the string will very easily result in “buy-outs”
and “horse trading”.  An applicant who really wants to win will
need only to structure a revised “change request” application in
which (a) the other party becomes a “silent partner” or (b) is
named a “key person” whose expertise is desirable  and who serves
on the Board or the Advisory Board at a certain consulting fee.  The
“silent partner” and/or Advisory Board member agrees in exchange
to withdraw the competing application.  We should be thinking of ways
to address this.  I had suggested the possibility of the “losing”
applicant being required to pay a fee into an Applicant Support fund
upon withdrawal of its application if it (or one of its principals)
participates in the so-called “joint venture” revised application.

	 

	Separately, loose references to the organizational structure known as
Joint Venture are probably ill-advised.  That form of corporate
structure is rarely pursued in this day owing to the high degree of
risk of liability taken on by each joint venturer for the acts or
omissions of the other joint venturer(s).  Whatever we recommend as a
matter of policy, it might be better to adopt some sort of neutral
terminology such as “ revised business combination applicant”
terminology   

	Anne

	 

	ANNE E. AIKMAN-SCALESE

	Of Counsel

	520.629.4428 office

	520.879.4725 fax

	AAikman at lrrc.com [1]

	_____________________________

	Lewis Roca Rothgerber Christie LLP

	One South Church Avenue, Suite 2000

	Tucson, Arizona 85701-1611

	lrrc.com [2]

	Because what matters

	to you, matters to us.™

	 

	 

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