FYI below. Phil has threatened to resign from the Co-Chair role before, which would be unfortunate and a little disruptive. This time he indicates that there may also be an “indeterminate suspension of the working group’s activities.” I’m not sure Co-chairs are allowed to suspend PDPs without Council’s OK. Obviously, this situation has now reached a critical point and threatens the timeline of this PDP which, if you believe in the existence of dependencies between this PDP and the Sub Pro PDP, could result in a delay of Round 2, ultimately affecting ICANN’s revenue stream. So, I think we should take this up as a matter of urgency. I don’t know if this is properly under Item 2 (Liaisons) of our agenda for later this evening or item 9 (dysfunctional PDPs). If neither, can we please add it?
Best,
Paul
From: Corwin, Philip <pcorwin(a)verisign.com>
Sent: Thursday, October 25, 2018 9:15 AM
To: peg.rettino(a)icann.org
Cc: Samantha.Eisner(a)icann.org; john.jeffrey(a)icann.org; kathy(a)kathykleiman.com; brian.beckham(a)wipo.int; McGrady, Paul D. <PMcGrady(a)winston.com>
Subject: RE: Re: [Ext] RPM PDP Complaint referral
Importance: High
Thank you, Peg.
I certainly understand that John has a busy schedule during the meeting. However, it is very unfortunate that at least a preliminary discussion was unable to take place here in Barcelona.
The current situation involves an alleged violation of the Expected Standards of Behavior (ESB), which is a Board-adopted accountability measure. Agreement to comply with the ESB is a threshold requirement for participation by any individual in any ICANN activity. The individual alleged to have violated the ESB has taken the position that it is unenforceable against him under the current GNSO Guidelines, which raises the question of whether his consent to abide by it was sincere and valid. He has introduced private counsel into the enforcement procedure, when my prior experience with ESB enforcement actions in the context of GNSO working groups is that it is meant to be an informal procedure, with appeal of any adverse decision to GNSO Council available under section 3.7 of the Guidelines.
These actions have rendered the co-chairs unable to perform their ESB enforcement role, and the individual claiming to be harmed by the alleged ESB violation has stated that the introduction of private counsel into the procedure is fundamentally unfair to him. There is also the claim by the accused individual that two of the three co-chairs are biased against him and must recuse themselves due to his own prior actions, a claim with which I disagree. Finally, the accused individual maintains a Twitter account with 1822 followers (as of today) to which he has in the past reposted his communications made on working group email lists; creating the possibility that statements made regarding this situation will be distributed to a large audience of unknown individuals and harm the public reputation of the co-chairs.
Under these circumstances, it was justified and welcome for Council to take the matter out of the hands of the co-chairs at the conclusion of the GNSO discussion of it that took place on Sunday the 21st, with the co-chairs being told that the matter would be dealt with further by Council in consultation with ICANN Legal.
Since Sunday an additional communication from the accused individual’s attorneys makes clear that their involvement now extends beyond the original allegation, and that any statement or action of any of the co-chairs to or in regard to their client in the context of working group meetings may trigger further communications by them to ICANN Legal. This escalation of their involvement means that the co-chairs not only have no present ability to decide ESB complaints, but that any direct engagement by the co-chairs with their client may be the subject of further action by private counsel, including the implicit threat of litigation brought against the co-chairs individually. This situation will have a substantial chilling effect on the ability of the co-chairs to administer the working group in an effective and orderly manner, especially since the communication received to date from ICANN Legal on the subject of indemnification under Section 20.1 of the Bylaws provides no firm assurance that the co-chairs will be regarded as “agents” eligible for indemnification if they are the targets of private litigation, and the co-chairs are also now aware that there are no ICANN-adopted Guidelines for “good faith” conduct in such situations.
The next scheduled meeting of the Working group is scheduled for 1700 UTC on Wednesday, November 7th. In my view it is imperative that some satisfactory response to this situation occur before that date, as failure to do so may result in an indeterminate suspension of the working group’s activities and/or the resignation of one or more of the co-chairs.
It is my understanding that the Legal staff may wish to interview the co-chairs individually as a preliminary step. If that is correct then I will be available for such a discussion next week at the following times (all US Eastern time):
* Monday – late afternoon
* Tuesday – afternoon
* Wednesday – unavailable
* Thursday -afternoon
* Friday – afternoon (noting that the next planning call of the co-chairs generally takes place at 1500 UTC on Friday, and that the November 2nd call would involve planning for the meeting scheduled for November 7th)
I look forward to further discussion with ICANN Legal staff on this matter.
Sincerely,
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
"Luck is the residue of design" -- Branch Rickey
From: Peg Rettino [mailto:peg.rettino@icann.org]
Sent: Thursday, October 25, 2018 6:41 AM
To: Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>>
Cc: Samantha Eisner <Samantha.Eisner(a)icann.org<mailto:Samantha.Eisner@icann.org>>
Subject: [EXTERNAL] Re: Re: [Ext] RPM PDP Complaint referral
Hi Phil,
Unfortunately John’s schedule simply can’t work.
This discussion will need to be a phone call either later next week or the week that follows.
I’ll be in touch late next week to coordinate schedules.
Wishing you a safe return!
Best,
Peg
--
Peg Rettino
Project Specialist & Executive Assistant to John Jeffrey
General Counsel and Secretary
ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094
peg.rettino(a)icann.org<mailto:peg.rettino@icann.org>
Skype: peg.rettino
Direct: 310-301-3868
From: "Corwin, Philip" <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>>
Date: Thursday, October 25, 2018 at 10:15 AM
To: Peg Rettino <peg.rettino(a)icann.org<mailto:peg.rettino@icann.org>>
Cc: Sam Eisner <Samantha.Eisner(a)icann.org<mailto:Samantha.Eisner@icann.org>>, Kathy Kleiman <kathy(a)kathykleiman.com<mailto:kathy@kathykleiman.com>>, "brian.beckham(a)wipo.int<mailto:brian.beckham@wipo.int>" <brian.beckham(a)wipo.int<mailto:brian.beckham@wipo.int>>
Subject: Re: Re: [Ext] RPM PDP Complaint referral
I do hope we can meet today, as I believe that timely resolution of this matter is critical to the success of this PDP.
I am available from to 12 to 5 today.
Sent from my iPhone
On Oct 24, 2018, at 4:02 PM, Peg Rettino <peg.rettino(a)icann.org<mailto:peg.rettino@icann.org>> wrote:
Hi Phil,
Apologies, it’s been a very hectic afternoon.
Will need to look at tomorrow. Appreciate your flexibility.
Stay tuned,
Peg
From: "Corwin, Philip" <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>>
Date: Wednesday, October 24, 2018 at 4:00 PM
To: Peg Rettino <peg.rettino(a)icann.org<mailto:peg.rettino@icann.org>>
Cc: Sam Eisner <Samantha.Eisner(a)icann.org<mailto:Samantha.Eisner@icann.org>>
Subject: RE: Re: [Ext] RPM PDP Complaint referral
As I haven’t yet heard back, I could be available up to 6 tonight.
If that doesn’t work then tomorrow I could meet between 9 and 9:50 (receiving award for Council service at 10) or, preferably, any time between 12 noon and 5 pm.
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
"Luck is the residue of design" -- Branch Rickey
From: Peg Rettino [mailto:peg.rettino@icann.org]
Sent: Wednesday, October 24, 2018 6:14 AM
To: Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>>
Cc: Samantha Eisner <Samantha.Eisner(a)icann.org<mailto:Samantha.Eisner@icann.org>>
Subject: [EXTERNAL] Re: Re: [Ext] RPM PDP Complaint referral
Thank you Phil, I appreciate it.
Hope to send you something soon.
Best,
Peg
From: "Corwin, Philip" <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>>
Date: Wednesday, October 24, 2018 at 11:58 AM
To: Peg Rettino <peg.rettino(a)icann.org<mailto:peg.rettino@icann.org>>
Cc: Sam Eisner <Samantha.Eisner(a)icann.org<mailto:Samantha.Eisner@icann.org>>
Subject: Re: Re: [Ext] RPM PDP Complaint referral
Today I am generally free to step out of meetings and come by anytime between 12 and 5.
If that doesn’t work I can look at tomorrow.
Sent from my iPhone
On Oct 24, 2018, at 11:54 AM, Peg Rettino <peg.rettino(a)icann.org<mailto:peg.rettino@icann.org>> wrote:
Hi Phil,
It would be helpful to know your availability (today & tomorrow) firstly given I’m working with two fluctuating calendars.
Thank you in advance!
Best,
Peg
--
Peg Rettino
Project Specialist & Executive Assistant to John Jeffrey
General Counsel and Secretary
ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, CA 90094
peg.rettino(a)icann.org<mailto:peg.rettino@icann.org>
Skype: peg.rettino
Direct: 310-301-3868
From: "Corwin, Philip" <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>>
Date: Wednesday, October 24, 2018 at 11:39 AM
To: Sam Eisner <Samantha.Eisner(a)icann.org<mailto:Samantha.Eisner@icann.org>>
Cc: Peg Rettino <peg.rettino(a)icann.org<mailto:peg.rettino@icann.org>>
Subject: Re: [Ext] RPM PDP Complaint referral
I would be pleased to meet with you. Let me know your availability.
Sent from my iPhone
On Oct 24, 2018, at 11:37 AM, Samantha Eisner <Samantha.Eisner(a)icann.org<mailto:Samantha.Eisner@icann.org>> wrote:
Hi Phil -
John and I are trying to connect with people who are on the ground here in Barcelona to help gain a better understanding of the situation. Please let us know if you have a few minutes to talk before you leave. Peg Rettino, cc'd here, can schedule us from our side.
Best,
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631
________________________________
From: Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>>
Sent: Monday, October 22, 2018 7:58 AM
To: Samantha Eisner
Subject: RE: [Ext] RPM PDP Complaint referral
Greg is here in Barcelona.
George is not here. So far as I am aware George has never attended an ICANN meeting. But Robin Gross is here, and she filed the attached on his behalf.
Best regards
Philip S. Corwin
Policy Counsel
VeriSign, Inc.
12061 Bluemont Way
Reston, VA 20190
703-948-4648/Direct
571-342-7489/Cell
"Luck is the residue of design" -- Branch Rickey
From: Samantha Eisner [mailto:Samantha.Eisner@icann.org]
Sent: Monday, October 22, 2018 10:28 AM
To: Heather Forrest <haforrestesq(a)gmail.com<mailto:haforrestesq@gmail.com>>; Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>; George Kirikos <icann(a)leap.com<mailto:icann@leap.com>>
Cc: Austin, Donna <Donna.Austin(a)team.neustar<mailto:Donna.Austin@team.neustar>>; rafik.dammak(a)gmail.com<mailto:rafik.dammak@gmail.com>; Kathy Kleiman <kathy(a)kathykleiman.com<mailto:kathy@kathykleiman.com>>; Beckham, James Brian <brian.beckham(a)wipo.int<mailto:brian.beckham@wipo.int>>; Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>>
Subject: [EXTERNAL] Re: [Ext] RPM PDP Complaint referral
Dear Greg & George,
If either of you are here in Barcelona at ICANN63, I'm here if you'd like to meet in person to provide information or discuss.
Thanks,
Sam
____
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631
________________________________
From: Heather Forrest <haforrestesq(a)gmail.com<mailto:haforrestesq@gmail.com>>
Sent: Sunday, October 21, 2018 9:31 AM
To: Greg Shatan; George Kirikos
Cc: Samantha Eisner; Austin, Donna; Rafik Dammak; Kathy Kleiman; Beckham, James Brian; Corwin, Philip
Subject: [Ext] RPM PDP Complaint referral
Dear Greg, George,
Following the update today provided by the RPM PDP WG Co-Chairs to the GNSO Council on the status of the unresolved complaint between you, GNSO Council leadership (myself, Donna Austin, Rafik Dammak) have discussed the matter with ICANN Legal.
We have been advised to refer the matter of the involvement of legal counsel in your PDP-related complaint to ICANN Legal.
All correspondence in relation to this matter from this point should be sent to Samantha Eisner, Deputy General Counsel, who is copied in this message.
Kind regards,
Heather Forrest, GNSO Chair
Donna Austin, GNSO Council Vice Chair
Rafik Damma, GNSO Council Vice Chair
________________________________
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