Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D64BAD.734CB280] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [cid:image002.jpg@01D64BAD.734CB280] Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> <image002.jpg> Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://secure-web.cisco.com/1PLoeviMseeYNBh9XxgE9I659c_9al5K4QT0JSeI1GFEIoN... _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://secure-web.cisco.com/16wBjzudNDVS8MGemaPxIAYGAgxFlPbZx6Ukv68iHHYoDIT...) and the website Terms of Service (https://secure-web.cisco.com/17kdC1aiME966HuVyAwyy_Sj_c2T5hq_YAAh4caVFUATx2l...). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application" These are good ideas but from an applicant perspective it complexifies greatly the application procedure. I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain. The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs The next AGB should be more simple, not more complex. Jean Guillon Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg < gnso-newgtld-wg@icann.org> a écrit :
Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine
On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
Dear WG Members,
Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention.
It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application.
Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology.
Anne
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
_____________________________
<image001.png>
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
lrrc.com
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After all is said and done - the Vickery auction is the most elegant solution. It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed. It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs. Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants. It’s clean, fast and in almost every case, can be settled in weeks, not years. Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works. Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program. Fair and transparent distribution of critical internet infrastructure is. We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jean Guillon Sent: Sunday, June 28, 2020 4:30 PM To: Pruis, Elaine <epruis@verisign.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application" These are good ideas but from an applicant perspective it complexifies greatly the application procedure. I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain. The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs The next AGB should be more simple, not more complex. Jean Guillon Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> a écrit : Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> <image002.jpg> Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://secure-web.cisco.com/1PLoeviMseeYNBh9XxgE9I659c_9al5K4QT0JSeI1GFEIoN... _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://secure-web.cisco.com/16wBjzudNDVS8MGemaPxIAYGAgxFlPbZx6Ukv68iHHYoDIT...) and the website Terms of Service (https://secure-web.cisco.com/17kdC1aiME966HuVyAwyy_Sj_c2T5hq_YAAh4caVFUATx2l...). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
There is no, and never has been, any consensus for banning private auctions. As the last call made clear, there can be some guardrails around applications to make sure that they are not for the sole purpose of participating in private auctions and that the applicants have a bona fide interest in running the registry. As for tweaking the auction of last resort (via Vickery or otherwise) that really is a separate topic. Happy to discuss on the call. Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jim Prendergast Sent: Monday, June 29, 2020 9:01 AM To: Jean Guillon <jean@guillon.com>; Pruis, Elaine <epruis@verisign.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions After all is said and done - the Vickery auction is the most elegant solution. It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed. It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs. Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants. It’s clean, fast and in almost every case, can be settled in weeks, not years. Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works. Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program. Fair and transparent distribution of critical internet infrastructure is. We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jean Guillon Sent: Sunday, June 28, 2020 4:30 PM To: Pruis, Elaine <epruis@verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application" These are good ideas but from an applicant perspective it complexifies greatly the application procedure. I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain. The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs The next AGB should be more simple, not more complex. Jean Guillon Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> a écrit : Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> <image002.jpg> Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://secure-web.cisco.com/1PLoeviMseeYNBh9XxgE9I659c_9al5K4QT0JSeI1GFEIoN... _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://secure-web.cisco.com/16wBjzudNDVS8MGemaPxIAYGAgxFlPbZx6Ukv68iHHYoDIT...) and the website Terms of Service (https://secure-web.cisco.com/17kdC1aiME966HuVyAwyy_Sj_c2T5hq_YAAh4caVFUATx2l...). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
I agree with Paul's assessment on consensus level. Which I believe it's unfortunate, and I would personally prefer stronger limitations on private resolutions, such as only allowing two brand TLDs to form a joint-venture (or other legal mechanism). Rubens
On 29 Jun 2020, at 12:03, McGrady, Paul D. <PMcGrady@taftlaw.com> wrote:
There is no, and never has been, any consensus for banning private auctions. As the last call made clear, there can be some guardrails around applications to make sure that they are not for the sole purpose of participating in private auctions and that the applicants have a bona fide interest in running the registry.
As for tweaking the auction of last resort (via Vickery or otherwise) that really is a separate topic. Happy to discuss on the call.
Best, Paul
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This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jim Prendergast Sent: Monday, June 29, 2020 9:01 AM To: Jean Guillon <jean@guillon.com>; Pruis, Elaine <epruis@verisign.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
After all is said and done - the Vickery auction is the most elegant solution.
It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed. It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs. Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants. It’s clean, fast and in almost every case, can be settled in weeks, not years.
Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works.
Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program.
Fair and transparent distribution of critical internet infrastructure is.
We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again.
Jim Prendergast The Galway Strategy Group +1 202-285-3699
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jean Guillon Sent: Sunday, June 28, 2020 4:30 PM To: Pruis, Elaine <epruis@verisign.com <mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application"
These are good ideas but from an applicant perspective it complexifies greatly the application procedure.
I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain.
The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs
The next AGB should be more simple, not more complex.
Jean Guillon
Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org>> a écrit : Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine
On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> wrote:
Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention.
It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application.
Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne
<>Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com <mailto:AAikman@lrrc.com> _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com <http://lrrc.com/> <image002.jpg> Because what matters to you, matters to us.™
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Also dissenting Elaine, as were many on the calls we have had. Susan Payne Head of Legal Policy Valideus D: +44 (0) 20 7421 8255 E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Rubens Kuhl Sent: 29 June 2020 16:22 To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I agree with Paul's assessment on consensus level. Which I believe it's unfortunate, and I would personally prefer stronger limitations on private resolutions, such as only allowing two brand TLDs to form a joint-venture (or other legal mechanism). Rubens On 29 Jun 2020, at 12:03, McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> wrote: There is no, and never has been, any consensus for banning private auctions. As the last call made clear, there can be some guardrails around applications to make sure that they are not for the sole purpose of participating in private auctions and that the applicants have a bona fide interest in running the registry. As for tweaking the auction of last resort (via Vickery or otherwise) that really is a separate topic. Happy to discuss on the call. Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jim Prendergast Sent: Monday, June 29, 2020 9:01 AM To: Jean Guillon <jean@guillon.com<mailto:jean@guillon.com>>; Pruis, Elaine <epruis@verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions After all is said and done - the Vickery auction is the most elegant solution. It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed. It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs. Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants. It’s clean, fast and in almost every case, can be settled in weeks, not years. Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works. Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program. Fair and transparent distribution of critical internet infrastructure is. We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jean Guillon Sent: Sunday, June 28, 2020 4:30 PM To: Pruis, Elaine <epruis@verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application" These are good ideas but from an applicant perspective it complexifies greatly the application procedure. I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain. The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs The next AGB should be more simple, not more complex. Jean Guillon Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> a écrit : Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> <image002.jpg> Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://secure-web.cisco.com/1PLoeviMseeYNBh9XxgE9I659c_9al5K4QT0JSeI1GFEIoN... _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://secure-web.cisco.com/16wBjzudNDVS8MGemaPxIAYGAgxFlPbZx6Ukv68iHHYoDIT...) and the website Terms of Service (https://secure-web.cisco.com/17kdC1aiME966HuVyAwyy_Sj_c2T5hq_YAAh4caVFUATx2l...). 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I am in favor of more or less the status quo. I don't think any real problem was proved in the last round, to support changing the rules this time. It is better (more efficient, fast and fair) for everyone to play by the same rules we are accustomed to, rather than change them to benefit a few, very vocal members of this WG. [image: Logo] Mike Rodenbaugh address: 548 Market Street, Box 55819 San Francisco, CA 94104 email: mike@rodenbaugh.com phone: +1 (415) 738-8087 On Mon, Jun 29, 2020 at 9:07 AM Susan Payne <susan.payne@valideus.com> wrote:
Also dissenting Elaine, as were many on the calls we have had.
*Susan Payne *Head of Legal Policy *Valideus* D: +44 (0) 20 7421 8255 E: susan.payne@valideus.com
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Rubens Kuhl *Sent:* 29 June 2020 16:22 *To:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
I agree with Paul's assessment on consensus level.
Which I believe it's unfortunate, and I would personally prefer stronger limitations on private resolutions, such as only allowing two brand TLDs to form a joint-venture (or other legal mechanism).
Rubens
On 29 Jun 2020, at 12:03, McGrady, Paul D. <PMcGrady@taftlaw.com> wrote:
There is no, and never has been, any consensus for banning private auctions. As the last call made clear, there can be some guardrails around applications to make sure that they are not for the sole purpose of participating in private auctions and that the applicants have a bona fide interest in running the registry.
As for tweaking the auction of last resort (via Vickery or otherwise) that really is a separate topic. Happy to discuss on the call.
Best,
Paul
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This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Jim Prendergast *Sent:* Monday, June 29, 2020 9:01 AM *To:* Jean Guillon <jean@guillon.com>; Pruis, Elaine <epruis@verisign.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
After all is said and done - the Vickery auction is the most elegant solution.
It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed.
It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs.
Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants.
It’s clean, fast and in almost every case, can be settled in weeks, not years.
Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works.
Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program.
Fair and transparent distribution of critical internet infrastructure is.
We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again.
Jim Prendergast
The Galway Strategy Group
+1 202-285-3699
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Jean Guillon *Sent:* Sunday, June 28, 2020 4:30 PM *To:* Pruis, Elaine <epruis@verisign.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and
"the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application"
These are good ideas but from an applicant perspective it complexifies greatly the application procedure.
I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain.
The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs
The next AGB should be more simple, not more complex.
Jean Guillon
Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg < gnso-newgtld-wg@icann.org> a écrit :
Hi,
The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional.
Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent.
If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose.
Elaine
On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
Dear WG Members,
Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention.
It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application.
Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology.
Anne
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
_____________________________
<image001.png>
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
lrrc.com
<image002.jpg>
Because what matters
to you, matters to us.™
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Mike, Respectfully, I don’t agree that trying to prevent flooding of the next round with applications for TLDs that are never intended to be operated and are solely for the purpose of getting a payout in a private auction only benefits a few very vocal members of the WG. That objective seems beneficial to the community generally from my perspective. That said, I don’t agree with Ruben’s proposal and think that we need to be careful of creating limitations that might have unintended consequences including limiting innovation. I think simpler mechanisms like a Vikrey auction will have better outcomes. 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 trac@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Mike Rodenbaugh Sent: Monday, June 29, 2020 11:26 AM To: Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions *EXTERNAL TO GT* I am in favor of more or less the status quo. I don't think any real problem was proved in the last round, to support changing the rules this time. It is better (more efficient, fast and fair) for everyone to play by the same rules we are accustomed to, rather than change them to benefit a few, very vocal members of this WG. [Logo] Mike Rodenbaugh address: 548 Market Street, Box 55819 San Francisco, CA 94104 email: mike@rodenbaugh.com<mailto:mike@rodenbaugh.com> phone: +1 (415) 738-8087 On Mon, Jun 29, 2020 at 9:07 AM Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Also dissenting Elaine, as were many on the calls we have had. Susan Payne Head of Legal Policy Valideus D: +44 (0) 20 7421 8255 E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Rubens Kuhl Sent: 29 June 2020 16:22 To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I agree with Paul's assessment on consensus level. Which I believe it's unfortunate, and I would personally prefer stronger limitations on private resolutions, such as only allowing two brand TLDs to form a joint-venture (or other legal mechanism). Rubens On 29 Jun 2020, at 12:03, McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> wrote: There is no, and never has been, any consensus for banning private auctions. As the last call made clear, there can be some guardrails around applications to make sure that they are not for the sole purpose of participating in private auctions and that the applicants have a bona fide interest in running the registry. As for tweaking the auction of last resort (via Vickery or otherwise) that really is a separate topic. Happy to discuss on the call. Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DUT...>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://urldefense.com/v3/__https:/www.taftlaw.com/general/coronavirus-covid...>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jim Prendergast Sent: Monday, June 29, 2020 9:01 AM To: Jean Guillon <jean@guillon.com<mailto:jean@guillon.com>>; Pruis, Elaine <epruis@verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions After all is said and done - the Vickery auction is the most elegant solution. It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed. It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs. Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants. It’s clean, fast and in almost every case, can be settled in weeks, not years. Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works. Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program. Fair and transparent distribution of critical internet infrastructure is. We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jean Guillon Sent: Sunday, June 28, 2020 4:30 PM To: Pruis, Elaine <epruis@verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application" These are good ideas but from an applicant perspective it complexifies greatly the application procedure. I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain. The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs The next AGB should be more simple, not more complex. Jean Guillon Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> a écrit : Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. 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Marc, I think you are just speculating that might happen. Indeed many are speculating that is what happened last time, without proof. $185,000 application fee adequately prevents that kind of 'gaming' imho. Nice to disagree with you for once ;) Best, Mike [image: Logo] Mike Rodenbaugh address: 548 Market Street, Box 55819 San Francisco, CA 94104 email: mike@rodenbaugh.com phone: +1 (415) 738-8087 On Mon, Jun 29, 2020 at 9:37 AM <trachtenbergm@gtlaw.com> wrote:
Mike,
Respectfully, I don’t agree that trying to prevent flooding of the next round with applications for TLDs that are never intended to be operated and are solely for the purpose of getting a payout in a private auction only benefits a few very vocal members of the WG. That objective seems beneficial to the community generally from my perspective.
That said, I don’t agree with Ruben’s proposal and think that we need to be careful of creating limitations that might have unintended consequences including limiting innovation. I think simpler mechanisms like a Vikrey auction will have better outcomes.
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
trac@gtlaw.com | www.gtlaw.com
[image: Greenberg Traurig]
*From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] *On Behalf Of *Mike Rodenbaugh *Sent:* Monday, June 29, 2020 11:26 AM *To:* Susan Payne <susan.payne@valideus.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
**EXTERNAL TO GT**
I am in favor of more or less the status quo. I don't think any real problem was proved in the last round, to support changing the rules this time. It is better (more efficient, fast and fair) for everyone to play by the same rules we are accustomed to, rather than change them to benefit a few, very vocal members of this WG.
[image: Logo]
*Mike Rodenbaugh*
*address:*
548 Market Street, Box 55819
San Francisco, CA 94104
*email:*
mike@rodenbaugh.com
*phone:*
+1 (415) 738-8087
On Mon, Jun 29, 2020 at 9:07 AM Susan Payne <susan.payne@valideus.com> wrote:
Also dissenting Elaine, as were many on the calls we have had.
*Susan Payne *Head of Legal Policy *Valideus* D: +44 (0) 20 7421 8255 E: susan.payne@valideus.com
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Rubens Kuhl *Sent:* 29 June 2020 16:22 *To:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
I agree with Paul's assessment on consensus level.
Which I believe it's unfortunate, and I would personally prefer stronger limitations on private resolutions, such as only allowing two brand TLDs to form a joint-venture (or other legal mechanism).
Rubens
On 29 Jun 2020, at 12:03, McGrady, Paul D. <PMcGrady@taftlaw.com> wrote:
There is no, and never has been, any consensus for banning private auctions. As the last call made clear, there can be some guardrails around applications to make sure that they are not for the sole purpose of participating in private auctions and that the applicants have a bona fide interest in running the registry.
As for tweaking the auction of last resort (via Vickery or otherwise) that really is a separate topic. Happy to discuss on the call.
Best,
Paul
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*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Jim Prendergast *Sent:* Monday, June 29, 2020 9:01 AM *To:* Jean Guillon <jean@guillon.com>; Pruis, Elaine <epruis@verisign.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
After all is said and done - the Vickery auction is the most elegant solution.
It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed.
It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs.
Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants.
It’s clean, fast and in almost every case, can be settled in weeks, not years.
Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works.
Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program.
Fair and transparent distribution of critical internet infrastructure is.
We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again.
Jim Prendergast
The Galway Strategy Group
+1 202-285-3699
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Jean Guillon *Sent:* Sunday, June 28, 2020 4:30 PM *To:* Pruis, Elaine <epruis@verisign.com> *Cc:* gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and
"the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application"
These are good ideas but from an applicant perspective it complexifies greatly the application procedure.
I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain.
The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs
The next AGB should be more simple, not more complex.
Jean Guillon
Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg < gnso-newgtld-wg@icann.org> a écrit :
Hi,
The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional.
Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent.
If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose.
Elaine
On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
Dear WG Members,
Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention.
It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application.
Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology.
Anne
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
_____________________________
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Mike, To be clear I don’t think that this was the original intent of most or even any applicants that went to private auction in the first round and that what ultimately played out was a creature of circumstance and opportunity. As for the next round, I have had numerous people tell me that this is exactly their intent and that they are creating funding mechanisms for exactly this purpose – i.e., to apply for as many likely desirable TLDs as possible for the sole purpose of getting paid out in private auction. Clearly that is just empirical or anecdotal evidence but I don’t know what kind of other evidence would be available in this situation other than documents with confidential business plans, so I guess you just have to take me at my word for it. People may say a lot of things about me but I have never heard anyone say that I am not honest (usually that is the complaint) and I have no horse in this race or anything to gain here other than wanting to have the optimal process for the next round. And also we have also disagreed many times before….. 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 trac@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Mike Rodenbaugh [mailto:mike@rodenbaugh.com] Sent: Monday, June 29, 2020 11:54 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com> Cc: Susan Payne <susan.payne@valideus.com>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions Marc, I think you are just speculating that might happen. Indeed many are speculating that is what happened last time, without proof. $185,000 application fee adequately prevents that kind of 'gaming' imho. Nice to disagree with you for once ;) Best, Mike [Logo] Mike Rodenbaugh address: 548 Market Street, Box 55819 San Francisco, CA 94104 email: mike@rodenbaugh.com<mailto:mike@rodenbaugh.com> phone: +1 (415) 738-8087 On Mon, Jun 29, 2020 at 9:37 AM <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> wrote: Mike, Respectfully, I don’t agree that trying to prevent flooding of the next round with applications for TLDs that are never intended to be operated and are solely for the purpose of getting a payout in a private auction only benefits a few very vocal members of the WG. That objective seems beneficial to the community generally from my perspective. That said, I don’t agree with Ruben’s proposal and think that we need to be careful of creating limitations that might have unintended consequences including limiting innovation. I think simpler mechanisms like a Vikrey auction will have better outcomes. 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 trac@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Mike Rodenbaugh Sent: Monday, June 29, 2020 11:26 AM To: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions *EXTERNAL TO GT* I am in favor of more or less the status quo. I don't think any real problem was proved in the last round, to support changing the rules this time. It is better (more efficient, fast and fair) for everyone to play by the same rules we are accustomed to, rather than change them to benefit a few, very vocal members of this WG. [Logo] Mike Rodenbaugh address: 548 Market Street, Box 55819 San Francisco, CA 94104 email: mike@rodenbaugh.com<mailto:mike@rodenbaugh.com> phone: +1 (415) 738-8087 On Mon, Jun 29, 2020 at 9:07 AM Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote: Also dissenting Elaine, as were many on the calls we have had. Susan Payne Head of Legal Policy Valideus D: +44 (0) 20 7421 8255 E: susan.payne@valideus.com<mailto:susan.payne@valideus.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Rubens Kuhl Sent: 29 June 2020 16:22 To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I agree with Paul's assessment on consensus level. Which I believe it's unfortunate, and I would personally prefer stronger limitations on private resolutions, such as only allowing two brand TLDs to form a joint-venture (or other legal mechanism). Rubens On 29 Jun 2020, at 12:03, McGrady, Paul D. <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> wrote: There is no, and never has been, any consensus for banning private auctions. As the last call made clear, there can be some guardrails around applications to make sure that they are not for the sole purpose of participating in private auctions and that the applicants have a bona fide interest in running the registry. As for tweaking the auction of last resort (via Vickery or otherwise) that really is a separate topic. Happy to discuss on the call. Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DUT...>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://urldefense.com/v3/__https:/www.taftlaw.com/general/coronavirus-covid...>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jim Prendergast Sent: Monday, June 29, 2020 9:01 AM To: Jean Guillon <jean@guillon.com<mailto:jean@guillon.com>>; Pruis, Elaine <epruis@verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions After all is said and done - the Vickery auction is the most elegant solution. It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed. It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs. Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants. It’s clean, fast and in almost every case, can be settled in weeks, not years. Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works. Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program. Fair and transparent distribution of critical internet infrastructure is. We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jean Guillon Sent: Sunday, June 28, 2020 4:30 PM To: Pruis, Elaine <epruis@verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application" These are good ideas but from an applicant perspective it complexifies greatly the application procedure. I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain. The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs The next AGB should be more simple, not more complex. Jean Guillon Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> a écrit : Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. 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On 29 Jun 2020, at 13:26, Mike Rodenbaugh <mike@rodenbaugh.com> wrote:
I am in favor of more or less the status quo. I don't think any real problem was proved in the last round, to support changing the rules this time. It is better (more efficient, fast and fair) for everyone to play by the same rules we are accustomed to, rather than change them to benefit a few, very vocal members of this WG.
Mike, It's more than a few vocal members connected to a single incumbent registry. As for the last round, what happened after application speaks for itself in the possibility of fostering a nefarious business model in subsequent procedures. People might have not figured that out during 2012 application phase, but they learned quickly and now can use that knowledge prior to the next round. The possible detrimental effect to the program's image as a whole just can't be ignored; that's the angle that worries me, not specific effects on specific applicants. In a way, the collection of money thru private auctions to focus on specific string(s) could be seen as a consortium of uncooperative applicants to raise money to fight the incumbents.Kinda a raffle. The problem is that the outside perception won't be as forgiving as calling it a raffle; harsher words will be used, and we might see ourselves with a new issue of interest to California Attorney General or other regulators. Which brings me to a new idea: moving forward with the transparency idea, could ICANN preemptively provide the private resolution details to a willing regulator, like CAG or FTC ? This would bring the risk to gamers to a whole new level. Rubens
Hi Jim all For clarity. I did provide a tweak to the Vickery model, but I also said that private resolution, including private auctions, should still be on the table. I’ve included the relevant email. Thanks Donna From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jim Prendergast Sent: Monday, June 29, 2020 7:01 AM To: Jean Guillon <jean@guillon.com>; Pruis, Elaine <epruis@verisign.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions After all is said and done - the Vickery auction is the most elegant solution. It results in far fewer required evaluations, allowing greater refunds to more applicants. If you are the 3rd or lower bidder for a string, you don’t have to pay of a useless evaluation of an application that will not proceed. It eliminates possibility of collusion between applicants in contention sets and eliminates the concerns about what may or may not happen with JVs. Treats every TLD as its own asset and doesn’t provide any advantage to large portfolio applicants over single string applicants. It’s clean, fast and in almost every case, can be settled in weeks, not years. Are there corner cases that will require an adjustment for community and other one off scenarios with objections? Yes – but for 95+% of applicants in a contention set, it just works. Unless of course you are in this process to make $$$ from losing auctions, whether to walk away or roll it into other auctions. But making life easier or more efficient for those applicants is not the purpose of this program. Fair and transparent distribution of critical internet infrastructure is. We had really good discussions about this months ago, including a tweak from Donna on Vickery that seemed to have broad support, including from me. I’m not sure how we are back at this again. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jean Guillon Sent: Sunday, June 28, 2020 4:30 PM To: Pruis, Elaine <epruis@verisign.com<mailto:epruis@verisign.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions I read things such as :"a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee" and "the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application" These are good ideas but from an applicant perspective it complexifies greatly the application procedure. I don't think that applicants should have to deal with more complex (and costly) procedures that only Icann insiders are able to explain. The only thing missing in the next guidebook is a clear and simplified procedure for .BRANDs The next AGB should be more simple, not more complex. Jean Guillon Le dim. 28 juin 2020 à 20:47, Pruis, Elaine via Gnso-newgtld-wg <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> a écrit : Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged. ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology. Anne Anne E. 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+1 Elaine. When we speak discussed this at length, I thought we had arrived at the conclusion that the Vickrey auctions and the sealed bid at application were the fairest process for moving forward. That this would encourage applicants to submit the bid closest to the value of the gTLD to them, and encourage the widest diversity of applicants to apply for - and achieve - new gTLDs. Best, Kathy ----- Original Message ----- From: "Pruis Elaine" To:"Aikman-Scalese Anne" Cc:"gnso-newgtld-wg@icann.org" Sent:Sun, 28 Jun 2020 18:47:34 +0000 Subject:Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions Hi, The “auction of last resort” in 2012 was aptly named. Private resolution was encouraged ICANN auctions were the very last possible remedy for contention sets. So it’s not surprising that 90% of contention sets were resolved privately. That was intentional. Keeping the option for private resolutions is reasonable- it’s the gaming and buyouts we’ve been asked by the board to try to prevent. If we want to avoid any of it, let’s do the Vickrey auction - put in a sealed bid with your application. Parties can try to make whatever deals they want after the TLD is delegated. This eliminates horse trading or gaming or disadvantaging single applicants by paying portfolio applicants to lose. Elaine On Jun 26, 2020, at 11:32 AM, Aikman-Scalese, Anne wrote: Dear WG Members, Re: private resolution of contention sets, I just wanted to mention again (as I did in chat on the last call) that apparently 90% of string contention sets were resolved before auction of last resort in the 2012 round. (My source for this is the CCWG Auction Proceeds group so let me know if you disagree on this statistic.) This means private resolution is by far “the rule” in resolving string contention. It seems to me that promoting “joint ventures” of 2 or more applicants for the string will very easily result in “buy-outs” and “horse trading”. An applicant who really wants to win will need only to structure a revised “change request” application in which (a) the other party becomes a “silent partner” or (b) is named a “key person” whose expertise is desirable and who serves on the Board or the Advisory Board at a certain consulting fee. The “silent partner” and/or Advisory Board member agrees in exchange to withdraw the competing application. We should be thinking of ways to address this. I had suggested the possibility of the “losing” applicant being required to pay a fee into an Applicant Support fund upon withdrawal of its application if it (or one of its principals) participates in the so-called “joint venture” revised application. Separately, loose references to the organizational structure known as Joint Venture are probably ill-advised. That form of corporate structure is rarely pursued in this day owing to the high degree of risk of liability taken on by each joint venturer for the acts or omissions of the other joint venturer(s). Whatever we recommend as a matter of policy, it might be better to adopt some sort of neutral terminology such as “ revised business combination applicant” terminology Anne ANNE E. AIKMAN-SCALESE Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com [1] _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com [2] Because what matters to you, matters to us.™ ------------------------- This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://secure-webcisco.com/1PLoeviMseeYNBh9XxgE9I659c_9al5K4QT0JSeI1GFEIoNo... _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://secure-web.cisco.com/16wBjzudNDVS8MGemaPxIAYGAgxFlPbZx6Ukv68iHHYoDIT...) and the website Terms of Service (https://secure-web.cisco.com/17kdC1aiME966HuVyAwyy_Sj_c2T5hq_YAAh4caVFUATx2l...). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. Links: ------ [1] mailto:AAikman@lrrc.com [2] http://lrrc.com/
participants (11)
-
Aikman-Scalese, Anne -
Austin, Donna -
Jean Guillon -
Jim Prendergast -
Kathy Kleiman -
McGrady, Paul D. -
Mike Rodenbaugh -
Pruis, Elaine -
Rubens Kuhl -
Susan Payne -
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