[IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

Tue Jan 19 15:58:54 UTC 2021

Hello all:
I unfortunately had to drop off the call last week for the last half hour, so I missed the discussion that generated Helen’s comment. The history snippet below suggests Applicants Amici should be “broadly accorded.”  Is that because they are less than a full party claimant intervenor but should be allowed to be heard to provide perspective to the panel in making its decision? If so my read on Helen’s comment is there is a need for greater credibility to be given to such intervenors, and if so is there a need to identify a standard of materiality for an “Interested Entity” intervenor (where does that leave individuals or groups without juridical formation status anticipated below). Has a former Applicant Amici complained that is was not taken seriously or its position deemed irrelevant by a panel? If revising the defined term from Amicus to Interested Entity or Interested Representative would provide more quasi party status then perhaps a standard to qualify for this new status would need be developed as well.

Best regards,
Scott

Please click on a link below to calendar a 15, 30, or 60 minute call with me:
  a 15-minute call<calendly.com/saustin2/15min>    a 30-minute call<calendly.com/saustin2/30min>    a 60-minute call<calendly.com/saustin2/60min>

[cid:image003.png at 01D6EE50.4B13C6F0][IntellectualPropertyLaw 100]    [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html>
Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP
101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301
Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin at VLPLawGroup.com<mailto:SAustin at VLPLawGroup.com>

From: IOT <iot-bounces at icann.org> On Behalf Of Lee, Helen via IOT
Sent: Tuesday, January 19, 2021 8:56 AM
To: iot at icann.org
Subject: Re: [IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

Dear all,

During the consolidation subgroup meeting last week, I raised a point regarding amicus participation in IRPs, which some of us agreed would greatly benefit from discussion with the larger group. Accordingly, I have outlined my points below for discussion:

In the minds of most, including international arbitrators and at least US based lawyers, “amicus” suggests a limited role that may be inconsistent with what is fair in a particular dispute, or may be inconsistent with due process. Indeed, the term “amicus” has specific meaning in the law; traditionally, amici are given very limited participation, whether in court or arbitration. While I am unclear regarding the limitations of the ICANN process associated with changing the term “amicus” itself, assume for purposes of illustration that we call “amicus” instead “Interested Entity.” Interested Entity should be allowed a level of participation appropriate to how its interests may be affected by the outcome -- without the built in bias standard plainly suggested by the term amicus. Indeed, a set of rules that allows a serious impact on legal rights based on little participation may, as a system, be a violation of due process and subject to being stricken down.

Rule 7 of the Interim Procedures define amicus as below:

“Any person, group, or entity that has a material interest relevant to the DISPUTE but does not satisfy the standing requirements for a CLAIMANT set forth in the Bylaws may participate as an amicus curiae before an IRP PANEL, subject to the limitations set forth below. Without limitation to the persons, groups, or entities that may have such a material interest, the following persons, groups, or entities shall be deemed to have a material interest relevant to the DISPUTE and, upon request of person, group, or entity seeking to so participate, shall be permitted to participate as an amicus before the IRP PANEL…” https://www.icann.org/en/system/files/files/irp-interim-supplementary-procedures-25oct18-en.pdf<https://www.icann.org/en/system/files/files/irp-interim-supplementary-procedures-25oct18-en.pdf>

The drafting history of Rule 7 (and others who participated in that process can speak to it with far more authority than I may be able to) indicates it is designed to accommodate broader third party involvement than the expression “amicus curiae” is traditionally understood to include. The Panel’s decision in Phase I of Afilias matter concluded “nature and breadth of the amicus participation that should be afforded to the Applicant Amici in this
case – whether it be under the provisions of Rule 7, properly interpreted, as an exercise of the Panel’s discretion under Section 4.3(o)(v) of the Bylaws, or under relevant principles of international law” should be “broadly accorded.” https://www.icann.org/en/system/files/files/irp-afilias-panel-decision-phase-1-redacted-12feb20-en.pdf<https://www.icann.org/en/system/files/files/irp-afilias-panel-decision-phase-1-redacted-12feb20-en.pdf>

While my argument is not that claims of amici should routinely equal those of full intervenors, I may start the conversation by suggesting that we devise a truly flexible standard for participation by the Interested Entity. Would it be possible to build into these rules a concept that the degree of participation should be flexible and encompass that participation necessary fully to protect the rights and interests of the amici, including, where appropriate to that end, the right fully to participate in all proceedings as a party?  We could develop a standard for involvement by an amicus that avoids the definition likely to be given the term absent an express definition or standard. It would also be helpful to add a statement that the category of participation is unique to the IRP process, given its specific limitations, and therefore to be defined by the rules themselves and not by reference to other forms of participation in courts or arbitrations such as “amici.”

Helen

Helen J. Lee
Director and Senior Corporate Counsel
hjlee at Verisign.com<mailto:hjlee at Verisign.com>

t: 703-948-4242
12061 Bluemont Way, Reston, VA 20190

Verisign.com<http://www.verisigninc.com/>
[Verisign™]
This e-mail (and any attachments) may contain confidential and/or proprietary information and/or a privileged and confidential attorney-client communication and/or attorney work product intended solely for the recipient and, therefore, may not be retransmitted or otherwise disseminated to any other person without the prior written consent of the sender. If you have received this e-mail in error, please notify the sender immediately by telephone or reply e-mail and destroy the original message without making a copy or otherwise using, disseminating, or distributing the contents herein.

From: IOT <iot-bounces at icann.org<mailto:iot-bounces at icann.org>> On Behalf Of Bernard Turcotte
Sent: Monday, January 18, 2021 2:52 PM
To: iot at icann.org<mailto:iot at icann.org>
Subject: [EXTERNAL] [IOT] IOT - Regular meeting Tuesday January 19th, 2021 17:00 UTC

Caution: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe.
Proposed agenda;

1.Review agenda and updates to SOIs
2. Action items from the last meeting:

  *   All - review the public comment input from both public comment periods on the topic of the repose
  *   Staff – Prepare a scorecard to track progress vs major items.
3. Brief update on consolidation sub-group meeting.
4. Continue discussions on the time for filing issue:

  *   Review and discuss public comment input on the repose (prong 2) – IOT members should attend the meeting prepared to identify, for discussion, those comments that they consider to be meaningful n this topic
  *   Time permitting, begin discussion and review public comment input on time for filing from the date Claimant knew/ought reasonably to have known (prong 1)
5. AOB
6. Next Meeting  - Tuesday 2 February 1900 UTC

Bernard Turcotte
ICANN Support to the IOT

For
Susan Payne
Chair IOT

This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/iot/attachments/20210119/5c8496c3/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 11048 bytes
Desc: image003.png
URL: <http://mm.icann.org/pipermail/iot/attachments/20210119/5c8496c3/image003-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.jpg
Type: image/jpeg
Size: 1121 bytes
Desc: image004.jpg
URL: <http://mm.icann.org/pipermail/iot/attachments/20210119/5c8496c3/image004-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image005.jpg
Type: image/jpeg
Size: 1901 bytes
Desc: image005.jpg
URL: <http://mm.icann.org/pipermail/iot/attachments/20210119/5c8496c3/image005-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.jpg
Type: image/jpeg
Size: 1589 bytes
Desc: image006.jpg
URL: <http://mm.icann.org/pipermail/iot/attachments/20210119/5c8496c3/image006-0001.jpg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image007.gif
Type: image/gif
Size: 3105 bytes
Desc: image007.gif
URL: <http://mm.icann.org/pipermail/iot/attachments/20210119/5c8496c3/image007-0001.gif>