Agree that Donuts' appeal will supercede all of the rulings to date on this issue. But likely will not be any opinion from the Ninth Circuit for at least a year.
I do not recall any community support or input about the covenant not to sue, instead I recall it being added very late by ICANN Legal.
I think it is a really important broader issue about ICANN's accountability mechanisms, which have no judicial backstop as to the New TLD Program if the covenant not to sue is valid, as it appears the courts are willing to hold. But it is also a really important issue for this group to consider. Should we recommend that ICANN not include any such covenant in future rounds? I lean that way pretty strongly, but we should have a thorough discussion on this because ICANN Legal and Board almost certainly would push back to the extent they can do so.
Best,
Mike