Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions
Hi Paul, Since we’re still waiting for leadership to define how consensus will be determined, three dissenting voices on the WG calls doesn’t mean the majority of the community hasn’t come to agreement…. It means there could be a dissenting statement included in the recommendations. Elaine Pruis Senior Director Naming Operations and Policy epruis@verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_51725297] From: "McGrady, Paul D." <PMcGrady@taftlaw.com> Date: Monday, June 29, 2020 at 11:03 AM To: Jim Prendergast <jim@GALWAYSG.COM>, Jean Guillon <jean@guillon.com>, "Pruis, Elaine" <epruis@verisign.com> Cc: "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Subject: [EXTERNAL] RE: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions 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. 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Hi Elaine, Respectfully, trying to dismiss the many voices that are supporting the status quo doesn’t really advance the ball. In fact, Jeff informed the GAC that the WG is equally split on this subject and also informed them that the best we are likely to get is a compromise in which a bona fide intention to operate the registry is required (See https://icann.zoom.us/rec/play/7pQudOr5rG03SdGU4QSDU6cqW466K_mshnIa-vUNzRrgV... starting at about minute 15). I don’t think Jeff’s report to the GAC was wrong. There is strong non-consensus to change the status quo to ban private auctions. Let’s focus our efforts instead on hammering out the guardrails around requiring a bona fide intention to operate a registry. I agree with Jeff’s report to the GAC when he says this is probably as far as we are going to get in the WG by way of compromise. Best, Paul From: Pruis, Elaine <epruis@verisign.com> Sent: Monday, June 29, 2020 10:23 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com>; jim@GALWAYSG.COM; jean@guillon.com Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions Hi Paul, Since we’re still waiting for leadership to define how consensus will be determined, three dissenting voices on the WG calls doesn’t mean the majority of the community hasn’t come to agreement…. It means there could be a dissenting statement included in the recommendations. Elaine Pruis Senior Director Naming Operations and Policy epruis@verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_51725297] From: "McGrady, Paul D." <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Date: Monday, June 29, 2020 at 11:03 AM To: Jim Prendergast <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, 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>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] RE: [Gnso-newgtld-wg] Auction of last resort and Private Resolutions 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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Pruis, Elaine