Lies, Lawsuits, and Procedural Posturing - DNForum - Domain Sales, Domain Forum, Domain Appraisals, Domain Registrars

**jberryhill** · 12-01-2005, 03:38 AM

It is very important for anyone concerned about the ICANN/Verisign screwjob settlement to understand the significance of what ICANN is claiming as a "victory" over domain registrars and registrants.

First, ponder the last few words of that sentence in relation to what ICANN should be.

Now, crack open a cold one and bear with me for a minute.

There are lots of things you can ask a court to do during the course of a lawsuit. Lawsuits take time, and sometimes the threat of imminent harm, or an ongoing harm, is such that you can't wait for a suit to run its course in order to obain a just result. In those circumstances, one of the things you can ask a court to to is to issue what is called a temporary restraining order, or TRO.

A TRO is a form of "extraordinary relief" which a court may issue at the very beginning of a lawsuit in order to preserve the status quo or to stop something that can be readily shown to be harmful to the parties. Later on, depending on how things play out in the suit, a court may withdraw or modify the TRO.

In order to issue a TRO, you have to show the court that there is a severe harm at work, and that there is a substantial likelihood you will win after all the facts are considered at trial. A hearing on a TRO is just a very quick presentation of the essential facts and law relevant to the dispute. If a court decides that harm is not imminent, or that the plaintiff's position does not have strong and apparent merit, then the court will refuse to issue the requested TRO.

So, what the world knew until this week was that ICANN and Verisign had worked out a settlement agreement, and that ICANN may very well have been planning to approve the settlement upon the conclusion of festivities here in Vancouver (where I am this week).

Now, let's say that I was threatening to demolish your house, and you went to court to obtain a TRO to prevent me from demolishing your house. I show up and court and say, "Judge, I'm not going to to demolish his house, and I promise I am not going to demolish his house before we can get this thing resolved." The judge is not going to grant a TRO, because on those facts there is no need for the judge to issue one. You have gotten, from me, a pledge that amounts to what you wanted in the first place. The "imminent harm" does not exist.

That is what ICANN did here. They represented to the court that they are NOT going to approve the proposed settlement any time soon. That is how they "won" on this prelimary ruling.

This is not a "win" for ICANN. In truth, ICANN should not be fighting domain registrars and domain registrants in order to "win" against them.

So long as ICANN continues to "win" this way, I will be happy to keep on losing.

**biggedon** · 12-01-2005, 09:17 AM

Thanks John for pointing that out.

I'm pulling for you and those you are representing.

**Duke** · 12-01-2005, 09:47 AM

Quote:

Originally Posted by jberryhill

That is what ICANN did here. They represented to the court that they are NOT going to approve the proposed settlement any time soon. That is how they "won" on this prelimary ruling.

This is not a "win" for ICANN. In truth, ICANN should not be fighting domain registrars and domain registrants in order to "win" against them.

You hit the nail on the head John. Thanks for taking the time to analyze what really happened and the mindset domain registrants have to deal with.

**Rarethings** · 12-01-2005, 10:44 AM

excellent insight, well done.

**Duke** · 12-01-2005, 03:42 PM

The very point John made is now being picked up in news coverage of the TRO decision: http://www.cbr-online.com/article_ne...E-A84E31145E31

The TRO became a moot point when ICANN said the .com agreement was off the table this year - thus no longer a basis for a TRO.

I like the logo on the CFIT bags people are carrying around at the ICANN meeting in Vancouver: "CFIT: Keep .COMpetitive".

P.S. Just came across this article from Canada - they blast Verisign & ICANN with both barrels: http://www.itbusiness.ca/it/client/e...s.asp?id=37675

**DNQuest.com** · 12-01-2005, 08:26 PM

Thanx John, this should ease many people around here.... for now. Ding Ding.. round 2 lol

**jberryhill** · 12-02-2005, 04:51 AM

Ron, are you up here? Give me and MJ a shout, there was more news & fireworks today than I have time to post.

**actnow** · 12-02-2005, 11:46 AM

So, they committed that they will not approve it this year. Big deal.
There is only 30 days left in this year.

Does the board have to approve it at a public meeting like Vancouver or New Zealand?

Or, can they call a special meeting in Calif in January to approve it?

Or, on Feb. 15th after the hearing?

**jberryhill** · 12-02-2005, 01:26 PM

Quote:

Or, can they call a special meeting in Calif in January to approve it?

Yes they can. Sometimes you have to gain ground one yard at a time.