May 2018 - GNSO-RPM-WG - lists.icann.org

Procedures for RPM Working Group Co-Chair Selection
by Julie Hedlund May 8, 2018

May 8, 2018

Dear Working Group members, On behalf of the Co-Chairs of this PDP Working Group, it might be helpful to reiterate the procedures in the Working Group Guidelines (see also below) for selecting a Co-Chair. Given those procedures and the fact that there is no requirement to hold an election if one is not deemed necessary, here is the suggestion to the Working Group for proceeding with the Co-Chair selection process: 1. Until end of day 08 May Working Group members should send either their objections to Brian Beckham’s becoming a co-chair and/or specific questions for Brian to the list; 2. If no objections or questions are received, or Brian chooses to answer any specific questions that come in before or during the 09 May meeting, the Working Group will have the opportunity to confirm Brian’s appointment during the 09 May meeting. In fairness to Brian, we strongly urge that any questions for him be submitted in writing by COB on May 8. 3. If objections are received or questions submitted that warrant a discussion/response on a call, these be addressed at the 9 May meeting at which next steps can also be decided (including an election if need be). Best regards, Mary, Ariel, Berry, and Julie GNSO Working Group Guidelines: https://gnso.icann.org/en/council/annex-1-gnso-wg-guidelines-30jan18-en.pdf… “2.1.4.2 Election of the WG Leaders Unless a Chair has already been named by the Chartering Organization, normally a Chair will be selected at the first meeting of the WG. Until that time, the Chartering Organization’s liaison may fulfill the role of interim Chair. A Working Group may elect to have Co-Chairs and Vice-Chairs. Under extraordinary circumstances, ICANN staff may be requested to perform administrative co- ordination of the WG until such time a Chair can be appointed. Once selected, a Working Group Chair will need to be confirmed by the Chartering Organization (CO). The newly elected Chair will act on a provisional basis until the Chartering Organization has confirmed the appointment. If there are any objections to the selected Chair, the CO will conduct a vote to establish whether there is sufficient support for the selected Chair according to the voting procedures of the CO. If not, the Working Group will be requested to reconsider their choice for Chair and return to the CO with a new proposal. In the unlikely event that the selected Chair is rejected by the CO, the CO must articulate its reason for the rejection and the WG must be able to ask for reconsideration of the decision. (Emphasis added) Section 2.2: A suggested procedure to conduct elections may be: Nominations or self-nominations; Statements of qualifications from candidates, which sets forth the qualifications, qualities and experience that they possess that will serve the particular WG; Vote by simple majority; Notification of and subsequent confirmation by the Chartering Organization of results of actions”

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Re: [gnso-rpm-wg] [Gnso-rpm-practitioner] Final Draft Questions for Practitioners -- Final due
by Jason Schaeffer May 7, 2018

May 7, 2018

Hi Kathy and Phil, As requested, I am pleased to report that we were able to successfully take the discussion off line and return to the WG with an updated Final Draft of Questions for Practitioners. Attached for final review and approval is a revised redline that incorporates all questions that were previously accepted and the new edits (on Page 8) that amend the questions from Paul Keating regarding handling of potential conflicts of interests. The edits are the work of those on copy here, and reflect over 1.5 hours of collaboration on our Friday conference call on the topic. I understand from Staff and the co-chairs that these surveys need to be finalized. Thus the rapid turnaround for the WG. Thanks, Jason From: Kathy Kleiman [mailto:kathy@kathykleiman.com] Sent: Thursday, May 03, 2018 10:48 AM To: Corwin, Philip; Jason Schaeffer Cc: Scott Austin; Georges Nahitchevansky; Petter Rindforth; paul(a)law.es; Greg Shatan; gnso-rpm-practitioner(a)icann.org Subject: Re: Conference to Address Issue [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April Hi Jason and All, I've cc'd the full Practitioners Subteam. Per Jason's request, I think we have a forum here for discussion. So let's take this off the main list and resolve it here in the subteam - with Paul Keating now added. I've talked with Phil, and because the issue may take a day or two to discuss, our deadline is now cob Sunday. Best, Kathy On 5/3/2018 10:05 AM, Corwin, Philip wrote: Please do take it off list because it has introduced a divisiveness that was absent until now. This is the problem when questions are submitted after sub team and WG review deadlines have passed. Try to reach a solution, but the questions must be final by cob Friday. Sent from my iPhone On May 3, 2018, at 9:23 AM, Jason Schaeffer <jason(a)esqwire.com<mailto:jason@esqwire.com>> wrote: Hi All: I'm writing to our sub-group volunteers to invite Paul into this group to take the discussion "off line" from the WG and see if we can work together to find a suitable solution to allow us to move forward with our survey. We worked for many weeks to bring this forward to the Sub Team and WG. I'd like to see if we can use the same collaborative effort to see if we can find a manner to improve upon the questions added by Paul and see if there is a path forward that does not raise such extreme objections. Can we discuss over the next two days and see if we can move this forward and present to the WG? Thanks, Jason On May 2, 2018, at 12:42 AM, Scott Austin <SAustin(a)vlplawgroup.com<mailto:SAustin@vlplawgroup.com>> wrote: Greg: Thank you Greg, I agree as a member of the sub team who worked long and hard on the survey questions to encourage practitioners to respond, this 11th hour add on will have exactly the opposite effect, by insinuation it reads like a malpractice interrogatory, addressed to examiners not practitioners, at a minimum chilling candid response and possibly skewing the results entirely. Should be deleted from a survey of practitioners. Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call<http://calendly.com/saustin-2/15min> a 30-minute call<http://calendly.com/saustin-2/30min> a 60-minute call<http://calendly.com/saustin-2/60min> <image001.png><image002.jpg> <image003.jpg><http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin(a)VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: Gnso-rpm-practitioner <gnso-rpm-practitioner-bounces(a)icann.org<mailto:gnso-rpm-practitioner-bounces@icann.org>> On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 12:24 AM To: Corwin, Philip <pcorwin(a)verisign.com<mailto:pcorwin@verisign.com>> Cc: gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org> Subject: Re: [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April I have an issue, which I guess I will have to bring up to the RPM group as a whole. I had not really focused on the questions tacked on to the very end. I don't believe we ever discussed these in the sub-team or the sub-sub-team. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Mon, Apr 30, 2018 at 4:06 PM, Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Jason, Thank you for guiding us through this process. I think this turned out to be a very successful and collaborative sub-team - due in no small part to your approach in working with this group. We had good contributions from across the subteam (and the sub-sub-team) as well. I believe we ended up with fair, well-formed questions that will maximize the amount of useful information that results from this process - both in terms of the raw data and in terms of analysis and results that will arise from working with the data. Thanks again! Greg On Mon, Apr 30, 2018 at 3:09 PM Corwin, Philip via Gnso-rpm-practitioner <gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org>> wrote: Well done, and thanks and congratulations to the sub-team members and to all other who helped shape the final questions. Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: Gnso-rpm-practitioner [mailto:gnso-rpm-practitioner-bounces@icann.org<mailto:gnso-rpm-practitioner-bounces@icann.org>] On Behalf Of Jason Schaeffer Sent: Monday, April 30, 2018 2:44 PM To: Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>>; gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org> Subject: [EXTERNAL] Re: [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April Hi Julie, Thank you and staff for your ongoing assistance. Having heard no objection and considering the thoughtful debate and input from members to help finalize these questions, I would be comfortable using your latest edit as the final document from our sub-team. Thanks, Jason From: Gnso-rpm-practitioner [mailto:gnso-rpm-practitioner-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Monday, April 30, 2018 9:05 AM To: gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org> Subject: [Gnso-rpm-practitioner] REMINDER FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April Importance: High Dear Jason and Practitioner Sub Team members, Per the message below, please note that any comments from your review of the attached questions are due COB today, 30 April. Best regards, Mary, Ariel, Berry, and Julie From: Gnso-rpm-practitioner <gnso-rpm-practitioner-bounces(a)icann.org<mailto:gnso-rpm-practitioner-bounces@icann.org>> on behalf of Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Date: Wednesday, April 25, 2018 at 1:56 PM To: "gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org>" <gnso-rpm-practitioner(a)icann.org<mailto:gnso-rpm-practitioner@icann.org>> Subject: [Gnso-rpm-practitioner] FOR REVIEW: Final Draft Questions for Practitioners -- Final due Monday, 30 April Dear Jason and Practitioner Sub Team members, Per the notes below from today's RPM WG meeting, the Practitioners Sub Team is requested to review the attached final draft of the questions for practitioners. This redlined version includes the changes received since last week's RPM WG call from Scott Austin, Brian Beckham, George Kirikos, Greg Shatan, and David McAuley as of 24 April, which was the deadline for comments. Also included for your review are new questions received from Paul Keating on 25 April. These new questions are included at the end of the "Other" section on page 8. In your review of the revised questions, please indicate whether there are revisions with which you do not agree, and whether you have comments or edits to suggest. As noted above, the Sub Team is tasked with agreeing to a final version of the questions by COB on Monday, 30 April, that staff will then turn into a survey to be provided to the list of practitioners previously agreed to by the Sub Team. Please let staff know if you have any questions or need assistance. Best, Mary, Ariel, Berry, and Julie From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Date: Wednesday, April 25, 2018 at 1:08 PM To: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: [gnso-rpm-wg] Actions & Notes: RPM PDP WG 25 April 2018 Dear All, Please see below the action items and brief notes captured by staff from the Working Group call held on 25 April 2018 (1200 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the transcript or recording. The recording, transcript, Adobe Connect chat, and attendance records are posted on the wiki. The referenced document is attached. Best Regards, Julie Julie Hedlund, Policy Director Action Items: 1. Questions for URS Practitioners: * The Sub Team will finalize the questions by Monday, 30 April. * Staff will create a survey and send to the Practitioners. 1. Questions for Providers: * Staff will close the document for review by Friday, 27 April and send it to the Sub Team for a final review. * The Sub Team will complete a review of the questions by COB Monday, 30 April. * Staff will send the questions to the Providers. Notes: 1. Questions for URS Practitioners: -- Question 3: Edit from George re: Question three - Reword as two separate questions - filing and response fees. -- The Sub Team will finalize the questions by Monday, 30 April. 2. Questions for URS Providers: -- Responses from most Providers that they can respond in 30 days for most questions, and 45-60 days for questions that require a review of decisions. -- Close the document for review by this Friday, 27 April and then send to the Providers. Review of the Questions: Communications: Question 2 - changes accepted. Question 5 - new question b captures the concern from Brian Beckham, and c addresses George's concern. Question 6 - changes accepted. Question 7 - changes accepted. Complaints: Question 4 - Correct the grammar; providers may need to consult with examiners. Question stays as amended. It can stay in and that we understand the limitations around it. Notice of Complaint and Locking of Domain Question 5: This has been moved to another section, question 2 in Communications: Rule 4(c): "The electronic copy of the Notice of Complaint may be provided via email or an emailed link to an online platform requiring users to create an account." It can be deleted here. George and Brian have accepted the edits. The Response: Question 1: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 4: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 11: Change to: "Have you received feedback that the Response period is inadequate?" Question 14: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. Question 15: DELETE. Concerned about the definition of "domain investors". It will be quite difficult if not impossible to get this information from providers. Doesn't seem much utility in the answers. Also may be able to get some of this information from determination data being gathered by Rebecca. Examiner: Question 12b: No case of an abusive complaint - no entry in the abuse case database - so is this question still necessary? Leave it in because we want to know if they have a policy. Revise to include the URDP concept of RDNH. Rewrite to ask whether the provider has a policy of allowing someone to be an examiner if they also represent complainants. Question 12c: is suggesting that part c of the question isn't needed since we already have responses from the providers. But there is a difference between how many examiners are on the roster and how many are actually deciding decisions. Edit to make this a more targeted question regarding the size of the examiner pool, whether random assignment is used, etc. by COB 25 April. Question 13: Providers would not know the status of their examiners. Examiners may not be willing or able to say either. Also seems to be suggesting that you can't represent both respondents and complainants. Not sure what is the point of the question. ACTION: Rephrase to focus on panel selection policy to encourage diversity in trademark practice. Suggestion: "What steps, if any, do you take to ensure that your Examiners have a diversity of relevant experience, e.g. have experience representing respondents as well as complainants?" Language: Question 4: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in. In Person Hearings: DELETE. Question doesn't make sense. Default: Question 1: Seems to ask providers how they do something for a procedure over which they have no control. ACTION: Take it back to the Sub Team to consider deleting. Question 2: DELETE. We already have this information from the case review for both within 6 months and after 6 months. Question 3: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in Examiner Determination: Question 3: Providers plan to look at decisions and consult with their examiners and get back to us in 60 days. Leave the question in, but include Brian's reformulation: "Noting URS Rules 13(a) that Examiners may 'make a Determination ...in accordance with ...any rules and principles of law that it deems applicable.' Are you aware whether any case that the Examiner has invoked this rule?" Question 8: Possibly duplicative. ACTION: Take it back to the Sub Team to consider deleting, or rephrase it. Question 10: DELETE. Provider can't know what the examiner assigns to others in their office. But could rephrase if they are aware or provide any suggested language or clerical help to examiners. George will send revised language. Remedies: Question 4: This is seeking an opinion; keep it in. Question 5: DELETE. Keep it for the WG. Question 6: Leave it in, but add: "If yes, what action did you take on receiving the notice or to resolve the query?" Effect of Court Proceeding. Question 1: Ask David McAuley to send revised language. Done: "To your knowledge, have there been instances of legal proceedings relating to URS proceedings and, if so, what effect did such instance(s) have?" Others: Question 3: Leave it in, and ask, "If so can you provide the type of information or data requested.." Also, combine with Question 4. Question 4: See above. Combine with question 3. Question 6: Policy question. Unless others have suggestions for rewriting it, the question will be deleted. Question 7: DELETE. Determined to be out of scope. Or, we could ask if Providers support sanctions against abusers of the process whether Complainant or Respondent. Also, could ask all Providers if they clearly disclose potential conflicts? Or could ask FORUM specifically. Hold off decision on this call and discuss further, although leave it out of the list of questions for now. _______________________________________________ Gnso-rpm-practitioner mailing list Gnso-rpm-practitioner(a)icann.org<mailto:Gnso-rpm-practitioner@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-practitioner This message contains information which may be confidential and legally privileged. Unless you are the addressee, you may not use, copy or disclose to anyone this message or any information contained in the message. If you have received this message in error, please send me an email and delete this message. Any tax advice provided by VLP is for your use only and cannot be used to avoid tax penalties or for promotional or marketing purposes. _______________________________________________ Gnso-rpm-practitioner mailing list Gnso-rpm-practitioner(a)icann.org<mailto:Gnso-rpm-practitioner@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-practitioner

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Final Consolidated List of URS Provider Questions
by Ariel Liang May 5, 2018

May 5, 2018

Dear All, Staff are happy to report that the Final Consolidated List of Provider Questions have been sent to all three URS Providers on Friday, 4 May, meeting the set deadline. Please find the clean copy attached. After careful consideration of all input and feedback received during the meeting last week and on the mailing lists, the Providers Sub Team vetted and reached agreement on the final questions contained on the consolidated list. We greatly appreciate the time and hard work from the Providers Sub Team, and also thank you all for your very timely and thoughtful comments. Staff will follow up with the Providers and keep the WG updated with the progress. Thank you all, and have a great weekend! Best Regards, Mary, Julie, Ariel, and Berry

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Proposed agenda for RPM Working Group call on 09 May 2018 at 1200 UTC
by Julie Hedlund May 4, 2018

May 4, 2018

Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 09 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Staff notes that the GDD Summit and RightsCon conflict with the WG meeting on the 16th, and the INTA meeting conflicts with the WG meeting the 23rd, so it will be very helpful if WG members could indicate their availability for those dates. Draft Agenda: Roll call and updates to Statements of Interest (1 minute) Co-Chair Nomination: Q&A with Brian Beckham Discussion Decision on Co-Chair Nomination (20-29 minutes total) Continued discussion of URS Phase II proposal (tentative-if necessary/30 minutes) Presentation of Research from Rebecca Tushnet (30 minutes) Status of meetings for 16 and 23 May (1 minute) Best regards, Mary, Julie, Ariel and Berry

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Letter to GNSO Council re: RPM-WHOIS Related URS & UDRP Provisions
by Julie Hedlund May 4, 2018

May 4, 2018

Dear Working Group members, Please see the message below from the RPM PDP Working Group Co-Chairs and the attached referenced documents. Best regards, Mary, Ariel, Berry, and Julie ------ Message from Kathy Kleiman and Phil Corwin -------- Dear WG Members: Attached you will find a final version of a letter to be sent to GNSO Council and select entities to be copied (RYSG; RrSG; ICANN; ECO; BC/IPC) regarding the importance of access to certain registrant data to the fair and efficient administration of the UDRP and URS. This final version is based upon Brian Beckham’s revision of the co-chairs’ original draft, and further revisions agreed to by the co-chairs and Brian. All three are now agreed on this final version. This draft will remain open to further comment by WG members through 1600 UTC on Monday, May 7th. After that time it will be locked down and sent out. Thanks you and best regards, Philip and Kathy Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey

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REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
by Julie Hedlund May 3, 2018

May 3, 2018

Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) Discussion on URS Phase II proposal (59 minutes) See John McElwaine’s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb… Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry

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Re: [gnso-rpm-wg] Practitioners Questions Resolution REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
by Jason Schaeffer May 3, 2018

May 3, 2018

All, Please be advised that we are taking this topic offline and back to our Practitioners' subgroup volunteers, with Paul joining us to find a pathway forward. We worked for many weeks to bring a suitable survey forward to the Sub Team and WG. I'm confident that we will be able to use same collaborative effort to improve upon the questions raised that does not raise such extreme objections. We will return to the WG shortly. Thanks, Jason From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Nahitchevansky, Georges Sent: Thursday, May 03, 2018 10:39 AM To: Paul Keating; Michael Karanicolas; Corwin, Philip via gnso-rpm-wg Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Paul: What you are doing is simply not productive or constructive. I stand by my objections to your questions as drafted and want to make it clear that it is rather untoward of you to try to inject questions after the fact - and well after many hours were spent by many people to obtain a consensus on a group of questions - and to then cast stones at folks for objecting to your questions. Perhaps this is a litigation strategy that you typically use, but this is not the way we should be proceeding. We obviously disagree on this point, so further missives on our positions are simply pointless. We should take this off line and spare the working group the barrage of emails. I suggest we proceed as Jason has suggested and set up a time with the practitioner subgroup to get this resolved so that a survey can be sent out to move things along. Just let Jason know some times that might work and I and others will let him know as well. Georges From: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 10:21 AM To: Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC You continue to respond by adding still further "objections". You never seem to be wiling to deal with the ones you have made and I have countered. I can only presume that you have consented on the old objections and are now focusing on those set out below. As to focus, the questions are directed entirely at the issue of impartiality. We have an obligation to investigate and the questions only seek to understand the extent to which panelists check for conflicts. Conflicts checks are SOP for any practicing attorney and are simple to conduct. It would take all of 2 seconds to respond "yes/no" and if yes simply write a short sentence on the nature of the process (which is not a trade secret). As for turning people off from responding, I cannot imagine it doing so given the simplicity of the questions. There are a limited number of practitioners who would be receiving these surveys and they are all identified in the relevant UDRP/URS decisions that are publicly available. Relying on the Providers does not investigate the extent to which impartiality and the absence of conflicts exist. That is like asking a judge if any of the attorneys had a conflict and the judge informing you "well I asked them and they said no"... I will not reply further to your emails since they just seem to be an attempt to obstruct rather than constructively engage to address the issue. Paul From: Georges Nahitchevansky <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 3:04 PM To: Paul Keating <paul(a)law.es<mailto:paul@law.es>>, Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Paul: You obviously misunderstand the whole point that is being made. We have questions that are ready to go and you and couple of others suddenly pop up with last minute additions that have built in biases. The point that is being made is really quite simple. The issue is whether the URS panelists appointed are impartial. That is what the inquiry should be focused on. My comments are meant to show that anyone could come up with loaded questions - and I provided a couple of examples that you might be able to understand. As I said, these types of questions are not productive and will likely turn people off to the survey. So in my view these type of questions should be avoided and should not be included in the practitioner or provider surveys. Questions regarding impartiality and how providers assure such should be in the provider section - and has been discussed by folks already. rom: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 8:45 AM To: Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Your true colors are showing. You are simply repeating a mantra that is based upon subjectively flawed and illogical presumptions. I believe you have an ulterior motive of simply delaying things. If you have some suggested questions please present them. Otherwise I will simply ignore your comments. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 4:23 AM To: Michael Karanicolas <mkaranicolas(a)gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point. From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Incredible. This looks like the exact same kabuki we just went through on the providers doc. Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much. I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information. And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with. Or we can keep going in circles... Best, Michael On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Paul: Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment. The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists. One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed. Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions. From:Paul@law.es<mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To:ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>; gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>; julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org> Cc:gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Sorry but I do not see what you see. The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue. Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys. Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients - the least of which are the regulations concerning money laundering. Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me - as long as it applies to both sides. As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate. To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Cc: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear All: Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don't screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers - and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don't think these are going to be productive in moving the ball forward. In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case - and nothing more, . These questions should not be here and should be deleted in their entirety 4. Do you serve as a URS panelist? A. Yes B. No 5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? A. Yes B. No If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________' If yes, do you retain records of your search? A. Yes B. No 6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? A. Yes B. No If yes, please briefly explain the nature of such communications:_________________________ From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Cc: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC All, I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory. The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions on conflict checks. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> wrote: Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine's original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb… 5. Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. 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Please contact us immediately by return e-mail or at 404 815 6500<tel:4048156500>, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

3 3

Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
by Nahitchevansky, Georges May 3, 2018

May 3, 2018

Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point. From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Incredible. This looks like the exact same kabuki we just went through on the providers doc. Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much. I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information. And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with. Or we can keep going in circles... Best, Michael On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Paul: Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment. The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists. One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed. Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions. From: Paul(a)law.es<mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To: ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>; gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>; julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org> Cc: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Sorry but I do not see what you see. The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue. Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys. Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients – the least of which are the regulations concerning money laundering. Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me – as long as it applies to both sides. As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate. To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces(a)icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn(a)kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc(a)gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Cc: "gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear All: Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don’t screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers – and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don’t think these are going to be productive in moving the ball forward. In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case – and nothing more, . These questions should not be here and should be deleted in their entirety 4. Do you serve as a URS panelist? A. Yes B. No 5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? A. Yes B. No If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________’ If yes, do you retain records of your search? A. Yes B. No 6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? A. Yes B. No If yes, please briefly explain the nature of such communications:_________________________ From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> Cc: gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC All, I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory. The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions on conflict checks. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund(a)icann.org<mailto:julie.hedlund@icann.org>> wrote: Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine’s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb… 5. Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500<tel:4048156500>, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg(a)icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

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Recording, Attendance, & WebEx Chat for Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call on Wednesday, 02 May 2018
by Julie Bisland May 2, 2018

May 2, 2018

Dear all, Please find the attendance and Webex Chat attached to this email, and the MP3 recording below for the Review of all Rights Protection Mechanisms (RPMs) PDP Working Group call held Wednesday, 02 May 2018 at 17:00 UTC. Attendance and recording of the call is posted on agenda wiki page: https://community.icann.org/x/xg4FBQ MP3: https://audio.icann.org/gnso/gnso-rpm-review-02may18-en.mp3 The recordings and transcriptions of the calls are posted on the GNSO Master Calendar page: https://gnso.icann.org/en/group-activities/calendar ** Please let me know if your name has been left off the list ** Mailing list archives: http://mm.icann.org/pipermail/gnso-rpm-wg/ Main wiki page for the working group: https://community.icann.org/x/wCWAAw Kind Regards, Julie

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Actions & Notes: RPM PDP WG 02 May 2018
by Julie Hedlund May 2, 2018

May 2, 2018

Dear All, Please see below the action items and brief notes captured by staff from the Working Group call held on 02 May 2018 (1700 UTC). Staff have posted to the wiki space the action items and notes. Please note that these will be high-level notes and are not meant as a substitute for the transcript or recording. The recording, transcript, Adobe Connect chat, and attendance records are posted on the wiki. The referenced document is attached. Best Regards, Julie Julie Hedlund, Policy Director Action Items: WG members are encouraged to review the transcript from the meeting on 02 May, particularly if they could not attend the call. Staff will determine what if any flexibility the charter allows for how URS is addressed, without requiring a change to the charter. Notes: 1. Updates to Statements of Interest (1 minute): None. 2. Final Status of Questions for Practitioners and Providers (9 minutes) -- Providers: Will be done tomorrow. The aim is to send them out to all three providers by Friday at the latest. -- Practitioners: Questions provided very late in the process and there is a spirited discussion on the list. Let the Practitioners Sub Team work this out. Need to get these out this week. Will take the providers 30-45 days to answer, but some may take longer. 3. Report from the Documents Sub Team (20 minutes) -- There were two questions that we had discussed during the previous two WG calls that would be useful to refer to the providers Sub Team. -- We looked at an excel sheet on the 14 appeal decisions. There was one or two cases where there were questions about the web sites and we referred that to the Providers Sub Team. -- Overall the URS was functioning as intended. Wanted to ask the WG whether further work is needed. There are the 250 cases as well as Rebecca’s Tushnet’s research. Two of the recommendations from the Sub Team to the full WG: 1) Useful to recommend that providers provide to examiners some kind of a guide that captured a bare minimum of elements in a decision. Sometimes it was difficult to understand how the examiner made a determination. 2) there were different communications that were sent by providers whether going to a registry or a registrar – whether these should be coordinated more holistically, or largely the same except for some custom elements. -- Don’t think we made qualitative conclusions about the functioning of the process. -- Distribution of the findings: yoyo respondent – seems to get angry and responses become shorter over time. -- 250+ cases where the respondent filed a response but there were no appeals – question: whether based on the exercise undertaken so far whether the WG thinks it would be useful to go into those cases. -- The 58 cases where the Respondent prevailed, is to understand on what basis they prevailed (per what’s outlined in the rules or procedures or by some other basis). -- Rebecca should present on her research before the document Sub Team goes further. -- Could look at a random sampling of other subsets of cases. Even that would take a significant amount of time. For consideration: Determine whether there is further case review. 3 buckets – 14 cases, 58 cases, 250 cases – to the extent that there is going to be further case review, from the staff perspective you would need a small group to share the work and use the same template. For the 58 and the 250 – the Sub Team indicated they would be willing to take that on with additional volunteers. It does take time. 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine’s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb… -- GNSO Council discussion in San Juan on improving the PDP really resonated. -- Suggestions on what might make for a better way to make policy. Discussion: -- Moving the URS to Phase II: In favor as Co-Chair on the New gTLD Subsequent Procedures PDP WG – Things like the TMCH, Sunrise, Claims can have a significant impact on an applicant’s business model. Implementing URS or UDRP there is very little impact on the Registry. -- Seems that as a new RPM the URS should be treated up front as it was designed in the charter. GDPR is going to have an impact May 25 and it seems good to come to grips with it as soon as we can. -- Thought the GNSO Council discussion in San Juan focused on future PDPs, not current ones. Cannot say that this idea (moving URS to Phase II) came from the GNSO Council discussion. -- Bifurcate it: 1) Just consider whether this RPM should be put into Phase II. 2) Don’t see any reason for keeping URS in this phase unless it affects the Applicant Guidebook or the decisions to apply for TLDs. -- Would need to have all constituencies to agree to request the charter change. -- The Subsequent Procedures working group delegated their work to this group to address RPM issues for the next round. I believe it is our obligation to deliver that input in a timely manner. Now that our work has taken longer than anticipated, we should act in a responsible way and arrange our priorities to meet our obligations. -- Some think the URS and UDRP should be considered separately, some together. I think this is irrelevant to the decision to postpone the URS discussion to Phase 2. Even if moved to Phase 2, the topics could still be considered separately. -- There is no mechanism or procedure where the WG has to have a consensus on changes to the charter. -- GNSO Council discussion in San Juan doesn’t suggest current PDPs and charters can’t be improved. -- URS is moving along very well, so not sure why we would delay. It also has an impact on the Applicant Guidebook. -- There are synergies between the URS and UDRP. Run the risk of burnout if we take too long. Address issue concurrently instead of consecutively. Reviewing concurringly would be more efficient. -- Procedurally there is not requirement or prescribed threshold for recommending a charter change to the Council, but this is not something commonly done and in the two instances when it was done there was no substantial opposition. Also, if the recommendation is to move the URS to Phase II that will require a charter change. But, within Phase I the WG could choose to issue different Initial Reports – so you could make changes in Phase I without needing charter changes. The discussion as to whether to do this in Phases, this was based on community input at the time. In 2011 there had been an Initial Report on UDRP, but we decided not to continue the review since the 2012 round was just starting. Also around that time there was discussion as whether RPM should be done as part of the Subsequent Procedures PDP or as a separate PDP. -- On the question of charter change because of a specificity in the language a move to Phase II would require a change; when the transcript comes out anyone who is not on this call should review it before next week’s call. -- There is a lot of work going on now and surveys going out for URS so we would hate to see that lost or delayed. 5. Notice of agenda for 09 May meeting at 1700 UTC.

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