I have deep reservations about relying on the Circle ID and DI blog posts to support the idea that private resolution is bad. Blogger opinion is no more significant than any other individual’s opinion even though they may have a wider platform. In fact, ICANN and the community established that private resolution was the preferred and default solution in the last round. It was largely successful and it was NOT required. No party HAD to participate. We keep losing sight of the fact that ANY SINGLE PARTY could have removed the resolution to an ICANN Auction of Last Resort. We have no historical basis in this or any other PDP for throwing out largely successful programs (and replacing them with something new and untested) because an extremely small percentage of cases didn’t go as anticipated. We will not fix every problem, or right every alleged wrong. The goal is to clean up things we can all agree were a broad, systemic problem. In short: Jeff asked, “Are Private Auctions (whether done legitimately or not) undesirable for resolving contention sets? Does it harm the reputation of ICANN or the program?“ NO (see above) Thanks, Kristine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Wednesday, January 29, 2020 10:29 AM To: AAikman@lrrc.com; jeff.neuman@comlaude.com; lists@christopherwilkinson.eu; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable? All, I have deep reservations about removing the phrase “collusion” from the subpro goals, and potentially, final recommendations. Jeff stated “I am not sure we can say for a fact that collusion occurred “in order to deceive or cheat someone”” but there is plenty of public information suggesting that is exactly what occurred in the last round, both in private contention resolution as well as objection proceedings. From Circle ID 2016:<http://www.circleid.com/posts/20161107_afilias_cynical_attempt_to_secure_a_w...> “Afilias' motivation could not be more transparent: in a private auction, either tens of millions of dollars will be paid to it for losing the auction or, if NDC is disqualified, Afilias stands to secure the .web new gTLD at a much lower non-competitive price. Indeed, it was just such maneuvering that caused Afilias to commit, in writing, a demonstrable violation of the Blackout Period as it sought agreement among the contention set to substitute a private for a public auction a few days before the public auction took place. Pursuant to the express terms of the Guidebook, this violation in and of itself could disqualify Afilias.” From Domain Incite, 2018<http://domainincite.com/23758-verisign-says-afilias-tried-to-rig-web-auction>: “Afilias and other bidders proposed that a private auction be performed pursuant to collusive and potentially illegal terms about who could win and who would lose the auction, including guarantees of auction proceeds to certain losers of the auction.” The solution to this problem is to not suggest support for, or even allow for, private auctions. ICANN IRP filings<https://www.icann.org/en/system/files/correspondence/omahoney-et-al-to-klitg...> “To make matters worse, it appears that Donuts is acting in collusion with another similarly-situated “group registry” applicant to magnify the adverse impact of these tactics on the Sport Communities. The timing of Donuts’ actions before the Ombudsman and this present IRP filing shows that Donuts and Famous Four Media (“FFM”, the second group registry applicant in the .sport/.sports and .rugby contention sets) collude in their strategy of procedural harassment. Donuts waited for the multiple frivolous proceedings submitted by FFM to be dismissed and then took over. These two portfolio applicants thus managed to maximize the delays suffered by the Sport Communities. IRB Letter at 2-3. As both are funded by venture capital and both are engaged in private and ICANN auctions for many TLDs they have applied for, they have an interest in perpetuating uncertainty as to the status of TLDs that target communities. In this way, they maintain artificial financial valuation for the applications in their portfolio which target communities and were prevailed upon by way of ICANN’s Community-based objections or ICANN’s Community Priority Evaluation.“ Famous Four Media Limited and Donuts Inc. Abusive, Baseless and Harmful Actions Concerning the .Rugby gTLD<applewebdata://ED9A75A6-5E60-4EB2-9E61-0BDFC75BDB27/Famous%20Four%20Media%20Limited%20and%20Donuts%20Inc.%20Abusive,%20Baseless%20and%20Harmful%20Actions%20Concerning%20the%20.Rugby%20gTLD> “The secret, ex parte nature of the actions of Famous Four and Donuts exacerbates their pernicious impact on the IRB.” And, “Now, in a repeat of their earlier strategy, Famous Four has followed the apparent dismissal of the CEP complaint of Donuts with perfectly coordinated timing.” In fact, the classic Vickrey model with bids at application would eliminate contention sets altogether, which could further minimize the tactical use of objection proceedings. For the preservation of ICANN’s reputation and the longevity of the MSM, we as a community need to do everything we can to remove any opportunities for, or even the perception of, misconduct or inappropriate behavior. With the recent .org transaction now widely covered in the mainstream media, there is a lot of focus and attention on ICANN. And many detractors are looking for any excuse to delegitimize the organization. Let’s not give them any more ammunition. Jeff asked, “Are Private Auctions (whether done legitimately or not) undesirable for resolving contention sets? Does it harm the reputation of ICANN or the program?“ YES (see above) Elaine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tuesday, January 21, 2020 at 11:21 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, "lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>" <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable? I have suggested replacing the word “collusion” in the Google doc – see suggested language there. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Monday, January 20, 2020 3:13 PM To: lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable? [EXTERNAL] ________________________________ Thanks Christopher. Collusion is defined<https://dictionary.cambridge.org/us/dictionary/english/collusion> as “agreement between people to act together secretly or illegally in order to deceive or cheat someone.” I am not sure we can say for a FACT that collusion occurred “in order to deceive or cheat someone.” Yes, parties did work in secret and came up with “agreements”, but the second element or deceit or cheat is just as important. In the last round the Applicant Guidebook not only allowed working in private to resolve contention sets, but it encouraged it. The mere act of having private auctions does not equate to there being collusion. That said, we still may want to list collusion as an “undesirable activity”; but collusion would include the “in order to deceive or cheat someone.” The second question, however, is do we believe that private auctions, in and of themselves, for the New gTLD Program, should be considered “undesirable activity.” Although not “collusion”, we could still attempt to disallow them. That is what we are trying to get a sense of from the group. Are Private Auctions (whether done legitimately or not) undesirable for resolving contention sets? Does it harm the reputation of ICANN or the program? Please note, as one of the Co-Chairs, I am not taking a position on this, other than to note that many of the comments (including from the GAC, ICANN Board, NCSG, some registries, BC, Gov’t of India, etc.) stated in their comments that private auctions where funds are distributed back to the losing applicants, may not be desirable. Other groups, including some registries, the RrSG, the IPC, Neustar, BRG, etc. however, did support private auctions where are applicants agree to participate. Thanks. Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> Sent: Monday, January 20, 2020 3:44 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable? Good evening: I strongly 'suggest' that we do not want to replace the word 'Collusion' in this context. 1. Collusion took place in the last round, otherwise there could not have been any private auctions. 2. The fact that we are discussing this at all strongly suggests - to the outside world - that we would prefer to dissimulate that fact. 3. ICANN is the regulator of the conditions of competition in this sector; if we cannot deal with this matter, it severely undermines the original rationale for having ICANN at all. Regards CW On 17 Jan 2020, at 17:30, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: I put some suggested language in the Google doc to replace the word “Collusion”: https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVTj... Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Rubens Kuhl Sent: Friday, January 17, 2020 2:58 AM To: Dorrain, Kristine <dorraink@amazon.com<mailto:dorraink@amazon.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable? Kristine, This is a not a reasonable business adjustment. If the contention set seems "unbeatable", one could withdraw or simply wait the appropriate refund. A similar way to see #2 is a participant in a race that starts extorting other racers when it realises it won't win the race. It doesn't matter that the original intent had good faith; if someone switches to a bad behaviour on the fly, then it's now up for a new assessment of its attitude. Rubens On 16 Jan 2020, at 20:57, Dorrain, Kristine <dorraink@amazon.com<mailto:dorraink@amazon.com>> wrote: Hi Rubens, with respect to #2, you admit good faith intent at the time of application. At what point would an applicant’s reasonable business adjustment reacting to the unforeseen business impact of third party applications and business decisions switch the first applicant’s good faith to bad faith? It seems like the community would get to use the benefit of hindsight to judge the reactionary business decisions made by other applications in their business strategy. Kristine From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Rubens Kuhl Sent: Thursday, January 16, 2020 1:14 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] What behaviors would we consider undesirable? <Leadership Hat Off> I will start with two different although similar bad behaviours: - Apply with no intention to actually run the TLDs, just to get into private auctions and profit from losing them. - Apply with intent to run the TLDs, but after contention sets are revealed, change strategy to profit from losing some TLDs instead of fighting to get them. Rubens On 16 Jan 2020, at 17:17, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> wrote: All, On the call early this morning (for some of us), while we were discussing the goals/objectives to consider when selecting a mechanism of last resort to resolve string contention, a very important question was asked by a participant on the call. The question demonstrated that what one person believes is “Bad Faith” other people may not believe is “bad faith” with respect to mechanisms to resolve contention sets. So, with the e-mail chain, I would like for members of the Working Group to discuss what behaviors they would consider to be of the type that we would like to preclude? And by the same token, what are the types of activities that we know we would like to allow. For example, we believe from most of the comments that have come in as well as in our discussions, that some forms of private resolution have been deemed acceptable. This includes the creation of joint ventures between applicants (assuming public comment, etc.), potentially revising applications to address concerns (eg., trademark owner agrees to withdraw its application if other applicant agrees to mitigate trademark abuse), 2 trademark owners agree to modify strings to enable both to have their own TLDs (eg., .deltafaucets or .deltaair)), etc. We have also heard from the ICANN Board that they may believe that participating in private auctions with the sole purpose of losing and using those to fund other auctions may not be as desirable. Though the next call with not be on this topic, we did want to put this issue out on e-mail. Please discuss. Thanks. 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