Fwd: [ NNSquad ] Full Text of Manwin Lawsuit Against ICANN / ICM re .XXX

[Nuno Garcia]

I can find a couple of points where I think their argument doesn't hold. If
I was an ICANN attorney, I would enjoy preparing this case :)

On 18 November 2011 19:55, Nicolas Adam <nickolas.adam at gmail.com> wrote:

>  I have some choice quote below. Any comment on the merit of Manwin's case?
>
> Nicolas
>
> -------- Original Message --------  Subject: [ NNSquad ] Full Text of
> Manwin Lawsuit Against ICANN / ICM re .XXX  Date: Wed, 16 Nov 2011
> 23:42:20 -0800  From: Lauren Weinstein <lauren at vortex.com><lauren at vortex.com>  To:
> nnsquad at nnsquad.org
>
> Full Text of Manwin Lawsuit Against ICANN / ICM re .XXX
> http://j.mp/vl0InX
>   (Xbiz [PDF])
>
> Interesting Reading!
>
> --Lauren--
>
> ######################
>
>  51.  Not only did the selection of ICM lack any market restraints, the
> ICM/ICANN contract contains no substitute for such restraints (e.g., price caps)
> such as those imposed by ICANN in other TLD registry contracts. In fact, the
> terms of the ICM/ICANN contract bolster ICM's ability to engage in anti-
> competitive and monopolistic practices in the sale of .XXX TLD registry services.
>
> "In particular and without limitation:
>
> (a)  The ICM/ICANN contract contains no price caps or other restrictions
> of any kind on what ICM can charge for .XXX registry services. ICM has
> complete price discretion and no fetters on its ability to charge monopolistic prices
> considerably higher than those which would exist in a competitive market. Such
> higher prices raise costs for registrants and harm consumers through higher prices
> and/or fewer choices.
>
> (b) The ICM/ICANN contract leaves ICM with broad discretion to
> fashion and limit in a non-competitive, unreasonable manner the nature, quality
> and scope of .XXX registry services it offers registrars and registrants. Such
> restrictions raise costs and limit innovation, thus harming registrants and
> consumers.
>
> (c)  Under the terms of the ICM/ICANN contract, ICM may cancel the
> contract at any time, and for any reason, on 120 days notice. By contrast, ICANN
> may not terminate the contract unless ICM fails to cure adjudicated, material
> breaches of its limited contractual obligations. Moreover, the ICM/ICANN
> contract lasts for a minimum 10-year term, but "shall" be renewed perpetually
> subject only to an ambiguous obligation to negotiate in good faith certain new
> terms, none of which appear necessarily to provide registrant or consumer
> protections. The unlimited term of the ICM/ICANN agreement permits ICM to
> continue insulating itself from market restraints and from any threat of competition
> in .XXX registry services.
>
> (d) The ICM/ICANN contract contains a provision which ICM contends
> will preclude ICANN from approving any arguably competing TLD designated for
> adult content, such as ".sex" or ".porn." This restriction limits future competition,
> enabling ICM to bar the threatened entry of new market competitors.
>
> 52. ICANN failed to take any reasonable contractual or other steps to
> restrain ICM from engaging in monopolistic and anti-competitive conduct, not
> only because ICANN was intimidated by ICM's previous pressure tactics and strategies but also because ICM agreed to pay ICANN very significant
> compensation for the right to act as the .XXX registry, as more particularly averred
> above.
>
>
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