Agree with Marc on this one.
Elaine
From: trachtenbergm--- via SubPro-IRT <subpro-irt@icann.org>
Reply-To: "trachtenbergm@gtlaw.com" <trachtenbergm@gtlaw.com>
Date: Thursday, May 8, 2025 at 12:18 AM
To: "Jeff@jjnsolutions.com" <Jeff@jjnsolutions.com>, "lars.hoffmann@icann.org" <lars.hoffmann@icann.org>, "subpro-irt@icann.org" <subpro-irt@icann.org>
Subject: [EXTERNAL] [SubPro-IRT] Re: Updates and Materials
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Jeff,
I think that your concerns here are speculative and this goes too far into the weeds. ICANN should not be dictating how applicants might organize themselves and/or how they might designate responsibility for different application-related functions.
Best regards,
Marc H. Trachtenberg
Shareholder
Chair, Internet, Domain Name, e-Commerce and Social Media Practice
Greenberg Traurig, LLP
77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
T +1 312.456.1020
M +1 773.677.3305
trac@gtlaw.com | www.gtlaw.com | View GT Biography
From: Jeff Neuman via SubPro-IRT <subpro-irt@icann.org>
Sent: Wednesday, May 7, 2025 11:00 AM
To: Lars Hoffmann <lars.hoffmann@icann.org>; Next Round Policy Implementation via SubPro-IRT <subpro-irt@icann.org>
Subject: [SubPro-IRT] Re: Updates and Materials
*EXTERNAL TO GT*
Thanks Lars. On the terms and conditions, the modification made does not address the comment I had at all.
Now the language states only “Applicant may not resell, assign, or transfer this Application.” In 2012, it stated: “Applicant may not resell, assign, or transfer any of applicant’s rights or obligations in connection with the application.” Remember, the ICANN Board resolution of 30-4-23 stated that we needed to add MORE clarity to this. But we have actually done the opposite.
If we could get legal counsel on the call so we can walk through it, perhaps they will understand the legal point I am raising. Namely,
- Assignment and Change of Control are two different concepts.
- Prohibiting the Assignment of an Application prohibits transferring the application from Party A to Party B. That is good and this is the part that is in there now. So assume Lars, you are Party A and I am party B. This provision rightly says that Lars may not transfer the application in its entirety to Me.
- However, in addition to not being able to assign the application as a whole to a third party, normally the language says, you may not assign the rights or obligations contained within the application to any third party. In fact, this is what the language said in the 2012 Guidebook…not sure why that was replaced with this.
- Why Does this matter? Who cares?
Without the language about assigning the rights or obligations contained within the application, Lars, can essentially enter into an agreement with me, whereby I can control everything in the application. I can do all the bidding at an auction, I can do the negotiating with ICANN. Lars can essentially make me responsible for the entire application, but because the actual application itself was not assigned to me, there will be no background check on me, the public will never know I am the one pulling the strings and therefore there can be no objections filed against me or GAC early warnings, etc….no one has to know anything about me. In other words, in my example, Lars is just the public face, even though I am doing everything. Legally, the agreement Lars and I entered into is NOT an assignment and therefore is expressly allowed.
In addition, an anti-assignment clause alone does NOT forbid any change of control over the application. Assume Lars company that submitted an application is called Lars, Inc. Lars, Inc. is currently owned 100% by Lars, Ltd. which is 100% owned by Lars Hoffmann. Lars discloses all of this in his application. I can enter into a deal to buy 100% of Lars Ltd. such that Lars Ltd. still owns 100% of the Lars Inc application….its just under my control right now. The Ts and Cs would allow this, because there has been no assignment of the application itself. Just a change of control of the parent company. And, more importantly, there would never be a background check on me, no public comment period on me, no ability to file objections, no ability for the government early warnings or GAC Advice.
Bottom line, is that an anti-assignment clause that does not address change of control or assignment of the rights / responsibilities of the application, will lead to the sanctioning of the ultimate gaming. It will lead to shills submitting applications on behalf of third parties that will be able to escape all of the applicant evaluations, comments and objections we have created for the new gTLD round.
Moreover, this is what the Board wanted us to clarify in its April 30, 2023, resolutions. And we have not only not clarified it, but we have made it much easier to game the system. More specifically, we have not addressed this:
“Resolved (2023.04.30.13), the Board hereby notes the questions raised regarding certain conduct by both NDC and Altanovo and directs the Interim President and CEO, or her designee(s), to carefully consider the issues raised by the parties and the Panel in the .WEB IRP with regard to agreements similar to the DAA and communications prior to an ICANN auction when developing the Guidebook and auction rules for the next round of the New gTLD Program in order to provide greater clarity to applicants regarding the transparency and notification requirements throughout the application and auction processes.”
From: Lars Hoffmann via SubPro-IRT <subpro-irt@icann.org>
Sent: Wednesday, May 7, 2025 2:25 AM
To: Next Round Policy Implementation via SubPro-IRT <subpro-irt@icann.org>
Subject: [SubPro-IRT] Updates and Materials
Dear IRT members,
Following recent discussions, we have prepared redline updates to a number of topics – details and links below. Please note, the first to topics in the list: Terms and Conditions and Contention Resolution, will be the subject of tomorrow’s call. During tomorrow’s call we will also go over some of the conditional fee issues, I hope to share materials prior to the call on that, too.
As always, please reach out with any questions/comments etc.
Best. Lars
- Terms and Conditions [https://docs.google.com/document/d/1EfnA02C5lc-PXQUgukerFJ2rkSzLDFCbZ4jiZFOlkEw/edit?tab=t.0]
o Paragraph 1: We modified the language to make more clear which kinds of changes applicants are required to provide notice to ICANN, and this clarity also goes to the question about “material” since the requirement is that applicants must tell ICANN about changes with this Application that could adversely affect impact the results of the evaluation of this Application
- Paragraph 9: in response to questions about the ability to assign an application, we deleted the final section of the last clause because the intent is that an applicant cannot resell/assign/transfer an application.
- Contention Resolution / No Collusion [https://docs.google.com/document/d/1bIu1lRxe4zr-lKRlfoQzd9dayoysItb4-AtvXUzB34M/edit?tab=t.0]
We updated section 2 (Prohibition of Private Resolution) as follows:
o Made clear that applicants are only prohibited from communication on strings they are in contention with. Meaning that applicants can speak to other applicants/consultants etc. whose are not apply for a string they are in contention with.
o Made clear that applicants prevailing in an auction may speak to other applicants they were in contention with, once these applicants have withdrawn from the program.
o Added language that makes clear that ICANN reserves the right to take appropriate action to address false claims of violations of the no-collusion rules.
We did not further elaborate/explain the term ‘other things of value’. While Anne’s point from our previous discussion is well made, we have intentionally left this language broad to cover a variety of situations/things.
- Application Journey [https://docs.google.com/document/d/1lXSaBBAHP1S57nxjHNvpRzrQrOoscCY_vN1QXp0WRO0/edit?tab=t.0]
We made updates to the RSP Selection language, reflecting input from the previous IRT discussion.
We added more information regarding “expected duration” of the different stages of the application process
- Name Collision [https://docs.google.com/document/d/14lo8OPG80PVJnQQs0wlxafC07CC9YNyhzad5yvJ-CcU/edit?tab=t.0]
We made one substantive update following your feedback, adding “However, as permanent delegations take precedence over temporary delegations, this number may vary from month to month.” At the end of the first paragraph in section 4 (top of page 4).
We also added a new footnote 1, referencing section 2.2 of the NCAP Study report.