Jeff, I don't know how to structure this or if an effective structure is even possible that permits private resolutions and avoids or minimizes gaming and am happy to put it out for comment. However, I am confident that we don't want ICANN making determinations regarding third party private commercial arrangements that it is not involved in and may not be in any way qualified to evaluate. 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 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Tuesday, October 2, 2018 8:22 PM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com>; alexander@schubert.berlin; gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Marc. To be clear, this was not a proposal of something I want or believe should happen, but just another potential path. In the scenario of the two United's in my example, if there was an agreement between the parties to not object to the delegation of the two strings (Assuming that would not put the strings into contention with others), that would be the type of permissible private resolution agreements. If there were other forms of permissible private resolution scenarios, that too can be subject to approval. Of course, the proposal I mentioned in the P.S. is full of holes that would need to be filled. But by the same token, I don't believe it has to be either we allow no private resolutions or we all allow every form of private resolution (including auctions) which is what others were suggesting. So, turning the question back to you, how would you structure this? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com&d=DwMFA...> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Sent: Tuesday, October 2, 2018 7:24 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Jeff, I was with you until the P.S. Do you really want to leave it up to ICANN and trust them to make a determination of what are acceptable forms of private resolution? I don't even mean deciding which forms are acceptable, which you indicate would be determined by the community. But with all the potential variations of private resolution, you would want ICANN to determine if a particular form is close enough to the acceptable ones? I see arbitrary decisions, frustrated applicants, and IRPs if we go down that path. 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 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Tuesday, October 2, 2018 6:03 PM To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Alexander. I AM SENDING THIS E-MAIL AS FOOD FOR THOUGHT AND NOT ADVOCATING A PARTICULAR POSITION. THIS IS NOT A POSITION OF THE LEADERSHIP OF THE WORKING GROUP, BUT RATHER MY OWN THOUGHTS TO KEEP THE CONVERSATION MOVING. Before we engage in whether something will be a pointless exercise or whether whatever we create will be non-enforceable or will lead to gaming, etc., I would like to make sure that this supplemental report from a policy perspective reflects the views of members in the Working Group. Some of these views are expressed below. First, unless I am completely misreading the past few months and the discussions that have taken place, there seems to be a general view from many members of the Working Group that creating a process that allows applicants to generate substantial sums of money from not being selected as the applicant in a contention set does not serve the public interest. Or stated differently, there seems to be a desire to not create incentives for applicants to apply for strings with the intention of losing contention sets to generate money. [Some have used much stronger language, but I am trying to put it in a more objective way]. Second, although many are not in favor of private auctions, some do believe that certain forms of private resolution of contention sets may actually be constructive and in the public interest. We have discussed the notion, for example, of two entities applying for the same string, but then after negotiations either allowing one party to use the string, while the other selects a different string or both choosing different strings (eg., United Airlines and United Van Lines both apply for .united and then agree to change to .unitedair and .unitedvan). Third, some members of the group discussed the notion that if applicants in a contention set could figure out a way for all of them to be involved in the Registry through a joint venture, that may not necessarily be a bad thing either. Perhaps you, Jon and others are right that we may not be able to create the perfect non-gaming solution. Or perhaps after putting this out to the community for comment, someone will have an idea that will be workable. I think it is our obligation to put this out for comment and see rather than just giving this up. ************** P.S. As I could not sleep last night a thought did occur to me that one option may be that any private resolution would need to be approved by ICANN (or its designee) whereby ICANN would need to see the ultimate agreement between the parties to ensure that any private resolution agreement reached did not contain anything that was deemed to be a prohibited form of resolution. And the registry agreement would have to contain representations and warranties (with severe penalties) that the agreement reviewed by ICANN contained all of the terms and conditions between the parties (i.e., no side deals or side letters). So, we could have a policy that stated in short hand: * No Private Resolution of contention sets except as otherwise approved by ICANN * Acceptable forms of Private Resolution that could be approved by ICANN include: [List acceptable forms like the ones mentioned above plus other forms the Working Group believes are beneficial] * If parties are found to have engaged in non acceptable forms of private resolution, that will result in (a) withdrawing of an application - if an agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a contract is signed) Lots of details to work out if the Working Group were comfortable with that, but I believe that putting this stuff out there for public comment would generate some of those necessary details. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com&d=DwMFA...> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Tuesday, October 2, 2018 10:11 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Well, If you would just ban chocolate ice-cream, then that would do the trick for me personally. But Jon is right: For the overwhelming portion of applicants their new gTLD applications represent some sort of "financial asset". If just one entity within a given contention set is driven by commercial aspects (creating profits for example) then they will NOT be willing to give up their "position" without a fair "compensation". Which in our world is usually "cash". That might be different if for example the European and the U.S. board of pharmacies had each applied for a non-profit registry ".pharmacy" - with the aim to make online commerce for pharmaceutical products safer. They might come up with an agreement - and for example join forces to operate the string jointly. So in other words: In the overwhelming majority of cases "private contention resolution" equals: A way to determine the fair value of and then processing a compensation for those who have to withdraw their applications. And obviously the different "private" auction models have proven to be reliable to achieve that. But Jon is right: If not an "auction": it would be always a way to COMPENSATE THE APPLICANTS WHO GIVE UP THEIR APPLICATION. And who pays for that? Nobody has any motivation but the applicant who will remain the only contention set member. Who else would come up with that "compensation"? So in this respect: If we want to foster "private contention set resolution" - then "denying auctions" is pointless. I have always been very outspoken AGAINST auctions - because these invite speculative registrations and "extortion" of other applicants. But this isn't tied to the contention set resolution mechanism "auction" - but rather to the nature of "compensation". And private contention set resolution is usually synonym to just that: fair compensation for those who withdraw; paid for by the prevailing applicant. So I am in agreement with Jon on this: We either scrap the "private contention resolution" - or we leave it in the AGB. If we leave it in the AGB - then any attempts to "regulate it" would create an ad absurdum. In my eyes this is btw another argument why we should keep (or even raise) the entry barrier into new gTLD applications. One entry barrier could be the application cost: Keep it at the 2012 level or raise it even. At least for the next round(s) - until "contention" doesn't anymore play a role. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Tuesday, October 02, 2018 5:06 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC I have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. Jon ________________________________ If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com<mailto:postmaster@gtlaw.com>, and do not use or disseminate such information.
