IOT Meeting #98 | 6 December 2022
- Brenda Brewer
Members: Flip Petillion, Kavouss Arasteh, Kristina Rosette, Malcolm Hutty, Mike Rodenbaugh, Scott Austin, Susan Payne
Guests/Observers: Becky Burr, Kate Wallace
ICANN Org: Bernard Turcotte, Brenda Brewer
Apologies: David McAuley, Liz Le, Sam Eisner
** If your name is missing from attendance or apology, please send note to mssi-secretariat@icann.org **
Agenda:
- Review agenda and updates to SOIs
- Review action items:
- Sam to provide information on costs awards from pre-Transition (2016) IRPs, which may assist with this discussion
- Continuing discussion on responsibility for costs, including filing fee
- Next steps on outstanding items
- Next call - to be confirmed
Transcript: PDF
Recording:
Documents:
Zoom Chat Transcript:
12:01:40 From Malcolm Hutty to Everyone:
In transit, unreliable cell connection. Will try to keep up
12:06:49 From Brenda Brewer - ICANN Org to Everyone:
Bernie will soon join us
12:19:52 From Malcolm Hutty to Everyone:
I must say, I’m shocked that the panel *ever* found ICANN to have acted in a way that was “frivolous or abusive”. I always saw this as a protection for ICANN that simply would never arise in the other direction
12:26:05 From Mike Rodenbaugh to Everyone:
In subsequent cases, ICANN has agreed to pay the IRP panel fees. Future claimants should not have to pay almost $500k just for panel costs and fees to get a decision.
12:33:05 From Malcolm Hutty to Everyone:
I now have proper connectivity
12:36:45 From SusanPayne to Everyone:
thanks Malcolm, I am doing much better. Hopefully by the next call...
12:38:18 From Mike Rodenbaugh to Everyone:
$479k was only the Claimant’s portion. ICANN paid an equal amount to ICDR.
12:38:34 From SusanPayne to Everyone:
that's correct Mike
12:49:38 From Mike Rodenbaugh to Everyone:
Our whole group is already a really small group…
12:50:33 From Mike Rodenbaugh to Everyone:
We have a whopping 10 people today
12:51:46 From Mike Rodenbaugh to Everyone:
Agree w. Susan. We should finish our scope of work first, and then think about recommending future changes to the Bylaws.
12:52:44 From Scott Austin to Everyone:
Agree with Flip. But you have done a great job.
12:55:25 From Mike Rodenbaugh to Everyone:
So now we have spent 1/3 of our call talking about process rather than substance… I thought we had a clear agenda stating what the substance of the call would be today. And that Susan provided excellent predatory material although at the last minute, which is understandable
13:15:11 From Bernard Turcotte to Everyone:
Time check - 15 min left in call
13:16:06 From Scott Austin to Everyone:
I agree with Malcolm. But do we have any actual examples of people being turned away due to the filing fee. Isn't the proposition of counsel fees much more imposing in the calculation of overall cost to file. And isn't it really a cashflow question of when fees are required i.e. contingency fees by counsel are they used? Also does ICANN weigh in at all of the Arbitration panel on bearing the costs of the proceeding.
13:16:36 From Scott Austin to Everyone:
or the arbitration panel.
13:17:23 From SusanPayne to Everyone:
https://docs.google.com/document/d/1AUMSllaxG_9SicIEVoq4eHwzHn95D8rNPqjwIECNLvI/edit
13:18:20 From Malcolm Hutty to Everyone:
Good questions Scott. For "are people turned away by the filing fee?", my question is, how would we know? I do agree that the prospect of paying counsel is much more intimidating, but conversely, there is the possibility of representing yourself pro se. Under the old rules, the kinds of disputes (and claimants) were such that I doubt this ever occurred, but do you think it might be more likely under the new rules?
13:20:16 From Malcolm Hutty to Everyone:
There are a range of different kinds of disputes we can imagine. For a case like .web, with a great deal of process involved (and so facts about how the process was operated), I would think it was always going to be expensive to litigate.
13:20:23 From Malcolm Hutty to Everyone:
But that's not the only kind of case
13:22:36 From Malcolm Hutty to Everyone:
Some ICANN accountability cases, for example a claim that a programme is ultra vires, would not need much of a factual background, certainly not a disputed one. Instead, it would be a question on a facial issue: is this programme within or without the scope of the mission? The claimant might write their statement of claim, and rest their case on it, with no further support.
13:23:07 From Malcolm Hutty to Everyone:
That might not need more than minimal counsels' costs, maybe none.
13:23:19 From Scott Austin to Everyone:
Malcolm, I would suppose if they were sufficiently upset about being turned away they would complain or participate in a forum that would give voice to their views whether through ICANN or other stakeholder group organizations (ALAC, BC, IPC.)
13:23:55 From Malcolm Hutty to Everyone:
Fair comment
13:25:35 From Bernard Turcotte to Everyone:
Time check - 5 min left on call
13:26:03 From Flip Petillion to Everyone:
Thx Susan - Good approach
13:26:20 From Flip Petillion to Everyone:
Thx all
13:26:36 From Bernard Turcotte to Everyone:
ciao - happy holidays if we do not meet prior to the new year
13:26:40 From Malcolm Hutty to Everyone:
Thank you all