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 <[log in to unmask]> 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 <[log in to unmask]><[log in to unmask]> To: > [log in to unmask] > > 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. > >