The Batching Games: ICANN’s Plan to Process New gTLD Applications

The National Law Review recently published an article by Jamison B. Arterton of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding ICANN’s gTLD Applications process:

On March 29, 2012, the user registration window closed for anyone planning to apply for a new generic top level domain (gTLD).   Applicants who registered prior to March 29, 2012, however, still have until April 12, 2012 to complete their application.  As of March 25th, ICANN had 839 registered users in the system.  Given the number of registered users, ICANN has announced that if it receives significantly more than 500 applications, it will begin processing those applications in batches.  Under this “batching process,” applications will be divided into groups of 500 applications to be evaluated at a time.

If batching is required, applicants will need to obtain a time-stamp through the designation process that will begin after the April 12th close of the application submission period.   Applications will be batched and reviewed according to this time-stamp and not based on when the application was actually received.(gTLD).   Applicants who registered prior to March 29, 2012, however, still have until April 12, 2012 to complete their application.  As of March 25th, ICANN had 839 registered users in the system.  Given the number of registered users, ICANN has announced that if it receives significantly more than 500 applications, it will begin processing those applications in batches.  Under this “batching process,” applications will be divided into groups of 500 applications to be evaluated at a time.

Now for the fun part.  If the batching process is activated, applicants will be notified that they are required to select a future time target for the processing of their application.  On the date and time selected, the applicant must return to the online system and click “submit” as close as possible to the selected time as possible.  How close the applicant comes to the their target time will determine the applicant’s batch placement.  ICANN refers to this as “a game of digital archery.”  What fun!  All this for $185,000 filing fee.  Applicants who do not have a preference for when their application is processed can affirmatively opt-out of the process.

In the event that more than one applicant applies for a similar top-level domain, all applications for the contending strings will be placed into the earliest batch designated.  If batching is necessary, ICANN has indicated that it will post a video demonstration of the batching process after the close of the application process.  For now, additional information about the batching process can be found at ICANN’s website under “Batching Basics” (click here).

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

Reasons why you should Attend This Year’s Event:

  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

Reasons why you should Attend This Year’s Event:

  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

Reasons why you should Attend This Year’s Event:


  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:
    Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

Reasons why you should Attend This Year’s Event:


  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:
    Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

The National Law Review  is pleased to bring you information about the upcoming 12th Annual Super Conference in Chicago sponsored by Inside Counsel.

 

Reasons why you should Attend This Year’s Event:


  1. Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:
    Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.
  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

National Law Review is pleased to bring you information about the upcoming 12th Annual Super Conference sponsored by Inside Counsel .

Reasons why you should Attend This Year’s Event:

  1. Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.

Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:

  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

Inside Counsel presents the 12th Annual Super Conference in Chicago

National Law Review is pleased to bring you information about the upcoming 12th Annual Super Conference sponsored by Inside Counsel .

Reasons why you should Attend This Year’s Event:

  1. Meet with Decision Makers: You’ll meet face-to-face with senior-level in-house counsel
  2. Networking Opportunities: SuperConference offers several networking opportunities, including a cocktail reception, refreshment breaks, and a networking lunch.
  3. Gain Industry Knowledge: You will hear the latest issues facing the industry today with your complimentary full-conference passes.

Who Should Attend – General Counsel and Other Senior Legal Executives from Top Companies Attend SuperConference:

  • Chief Legal Officers
  • General Counsel
  • Corporate Counsel
  • Associate General Counsel
  • CEOs
  • Senior Counsel
  • Corporate Compliance Officers

The 12th Annual IC SuperConference will be held at the NEW Radisson Blu Chicago.
Radisson Blu Aqua Hotel

221 N. Columbus Drive

Chicago, IL 60601

Don’t forget – The early discount deadline using the NLR discount code is February 24th!

The Inside Job: Can Employees Walk Out The Door With Your Company's IP?

Recently in The National Law Review was an article by Katie L. ClarkRohan Massey, and Hiroshi Sheraton of McDermott Will & Emery regarding IP Security:

With the economic downturn forcing redundancies, most employers are aware that the Q1 period brings an increase in employee movement. But have employers considered how much value could be walking out the door when an employee leaves? In today’s “knowledge economy”, businesses increasingly understand the value of intangible assets in the form of information.  Yet few businesses give thought to how and where those assets reside, or consider how much can be lost or passed to a competitor when employees move on.

The ease with which knowledge can be taken by employees has increased exponentially in recent times.  USB drives are now large enough to store literally millions of documents and cloud computing can provide limitless secure storage.  The increase in remote working also allows employees to download your documents and information in the privacy of their own homes.

There is also a growing international market for transferable knowledge, making the temptation even greater for employees to maximise their value to their new employer.  Emerging economies, with different laws, regulations, and cultural values, provide a ready market into which intellectual capital can be dispersed.

This issue affects every industry.  A number of high profile cases in the United States and China have seen former employees jailed for theft of trade secrets relating to consumer electronics and financial trading software, but every business has a wealth of internal knowledge that is used to give it a competitive advantage over its rivals.  Business plans, presentations, strategies, customer lists, market positioning, and protocols and procedures are all valuable assets that can find their way to new employers.

Most worryingly, this movement of information is not confined to “rogue” employees.  Many salespeople will claim that their address books of contacts belong to them, not to their employer.  Each type and level of employee and each type of business is likely to have a different understanding of what belongs to the company.  In addition, international cultural differences play an enormous role in determining where employees perceive the boundary to be between legitimate and illicit use of information.

So, how do you distinguish between what an employee is free to take away and what should remain with the business before it’s too late?  What procedures should be in place to maximise the intangible value retained by the business when employees move?  To what extent do data protection and privacy laws permit monitoring of employees’ activities?  What procedures are available when employees are suspected of taking valuable information and/or passing it to competitors?

In 2012, McDermott will be running a number of IP- and employment-focused seminars to provide an overview of how intellectual property and employment laws can help your company to protect it, and the policies and procedures that can be used to mitigate value walking out the door.

© 2012 McDermott Will & Emery

Electronically Stored Information, Social Media and the Rules of Professional Conduct: Are you compliant with your duties of competence and diligence?

Recently published in The National Law Review was an article about Compliance and Diligence and Electronic Media by  Charles H. Gardner of  Much Shelist, P.C.:

Electronically Stored Information and its increasingly complex progeny, social media evidence (collectively, “ESI”) are quickly being woven into the fabric of discovery and the practice of law.  As the cases and rules of professional conduct discussed below demonstrate, lawyers who fail to thoughtfully investigate and use social media evidence (both that of their own client and that of the opposing party(ies)) are not engaged in best practices.

The American Bar Association (“ABA”) Model Rule of Professional Conduct 1.1 (Competence) states that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” (The Model Rules have been adopted in all of the fifty states, except California, and in the District of Columbia and the U.S. Virgin Islands). Comment 5 to Rule 1.1 provides, in part, that “[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation (emphasis added).” Further, the ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion No. 98-411(1998) states, “[w]e believe the ethical issues are the same whether [involving] substantial legal or procedural aspects of a client’s matter or [a lawyer’s] ethical duties in furtherance of the client’s matter.”

Much has changed since the ABA adopted the Model Rules of Professional Conduct and its predecessor guidelines. Electronic data and communication and social media communities such as Facebook, MySpace, and Twitter have become linchpins of society and discourse. As of December 2011, Facebook alone reported that it had 845 million monthly users and more than 483 million average daily users (http://newsroom.fb.com/content/default.aspx?NewsAreaId=22, last visited Feb. 12, 2012).

In the recent case of Griffin v. Maryland, 192 Md. App. 518, 535 (2010), the court opined, “[i]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites (emphasis added).” In addition, a 2010 study by the American Association of Matrimonial Attorneys found that an overwhelming eighty-one percent of the nation’s top divorce attorneys said that they have seen an increase in the number of cases in which social media evidence plays a role. Sixty-six percent of those attorneys cite Facebook as the primary source of such evidence. Accepting as an imminent practical reality that an attorney has or will soon have an affirmative duty to investigate social media evidence, what might the cost be to the attorney, the client, or both for failing to do so or, worse, failing to preserve such evidence?

Consider hypothetically the evidentiary value of photographs posted on a disability claimant’s social media page showing her rock climbing, for example. One can see just how persuasive ESI can be.  However, ESI can also be a minefield of professional liability. Consider the case of Lester v. Allied Concrete Company, Nos. CL08-150, CL09-223 (Va. Cir. Ct. Oct. 21, 2011) in which a Virginia attorney was found to have instructed his assistant to tell his client to remove a photograph from a social media website. Finding that the lawyer had violated Virginia’s equivalent of Model Rules 3.3 (Candor toward the tribunal), 3.4 (Fairness to opposing parties and counsel), 5.3 (Responsibilities regarding non-lawyer assistants), 8.4 (Misconduct) and rules of court regarding conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, the court sanctioned the attorney with a fine of $540,000. In addition, the court fined the client $180,000 for spoliation of evidence. For the twenty-first century practitioner, a well thought-out ESI discovery plan could mean not only the difference between success and failure in the matter at hand, but may also mean the difference between a grateful client and a client that brings a malpractice claim, a disciplinary complaint or both for ineffectiveness in investigation and preparation. However, case investigation and preparation are not the only source of risk for attorneys and judicial officers.

The case of In re: B. Carlton Terry, Jr., No. 08234 (N.C. Judicial Standards Commission, April 1, 2009) demonstrates how critical it is for attorneys to be savvy in social media and ESI discovery in general. In that family law case, the judge, plaintiff’s counsel and defense counsel were discussing Facebook in a meeting in chambers. Plaintiff’s attorney commented that she did not know what Facebook was and did not have time for it. Following the meeting in chambers, Judge Terry and defense counsel became friends on Facebook and discussed the case in some detail. Judge Terry also conducted independent investigation into plaintiff’s social media pages and quoted from them at the hearing. The judge did not inform plaintiff’s counsel of his actions until after he had entered an oral order. Plaintiff’s counsel immediately sought to and did have the judge’s order vacated. Judge Terry voluntarily disqualified himself and the case was remanded for a new hearing, costing the taxpayers a considerable amount. Ultimately Judge Terry was publicly reprimanded by consent in formal proceedings before the Judicial Standards Committee.

Had plaintiff’s counsel conducted a thorough, or even a rudimentary, ESI investigation, the wrongdoing on the part of defense counsel and the bench could have been addressed promptly which would have spared both Plaintiff and the taxpayers significant costs in having to try the same matter twice.

Furthermore, it is worth noting that the rules of professional conduct apply equally to in-house counsel and transactional attorneys as to litigators. In the more casual in-house and transactional business environments, the line between clients and business colleagues can become easily blurred. These attorneys should be especially mindful of their professional responsibilities and the implications that their actions may have on their organization in the event that litigation ensues.

Following are six simple and practical suggested steps towards developing a strong ESI discovery plan and investigation process:

  1. Educate yourself about social media and ESI in general. If you do not know where to look, you could be lost in a search engine “black hole”. Not only can you place yourself ahead of the pack in the legal community, you will also be able to communicate with your children and grandchildren!
  2. Draft a written ESI discovery plan that includes an immediate request for a discovery hold on ESI.  Be systematic and judicious in your requests. And be mindful of Model Rule 1.3 (diligence).
  3. Draft and circulate acknowledgement forms to all personnel in your organization and obtain their signatures.  These documents should educate your personnel about sound social media practices and emphasize ethical concerns as well as the legal liability to the organization, to you and to the employee, who could also face appropriate discipline for violating company policy.  Be mindful of Model Rule 5.3 (responsibilities regarding non-lawyer assistants). And, with respect to employees, be mindful of the limitations imposed by the National Labor Relations Act when drafting your policies and acknowledgement forms.
  4. Instruct your client that ESI is evidence and that the client should not tamper with or destroy such evidence until the case is completely resolved, including during the time allowed for appeals and in appellate proceedings, if any.
  5. Check your client’s social media pages.  Know what you are up against.
  6. Conduct a thorough review of any and all available ESI of the other party.  Be careful to abide by the “no contact” rules.  For example, do not send a surreptitious friend request to gain access to another party’s ESI, but rather, look only at what is publicly available to you and obtain proper warrants for any additional information.  And be prepared to argue to the court why the evidence is relevant and why it should be produced and admitted.

If you are not making diligent and competent use of ESI, you place yourself and your client at a severe disadvantage and you are arguably breaching your ethical obligations. The immediate future is a rare opportunity to be on the cutting edge of developing law.  With a little knowledge and a reasonable amount of follow-through, you can set yourself apart in the new media frontier by making sound use of the bountiful resources that new media technologies have brought to the practice of law.


Charles H. Gardner is Special Counsel to the Intellectual Property & Technology group at Much Shelist, P.C. and head of its social media practice.  Mr. Gardner is a frequent writer and lecturer on the topic of social media and new media technologies. He has been featured in Crain’s Chicago Business and The Chicago Daily Law Bulletin and will be leading a CLE seminar on the “Laws of Social Media” (tailored for house counsel and business executives) on February 21, 2012.* Before joining Much Shelist, Mr. Gardner served as Director of Legal and Business Affairs for Harpo Studios, Inc. Mr. Gardner has a juris doctorate from Loyola Law School, Los Angeles (Entertainment Law Review) and a bachelor’s degree from the University of California, Berkeley.  He is admitted to practice law in California, New York, Illinois, the District of Columbia and before the United States Supreme Court.

*For more information and/or for complimentary registration, please call or e-mail Mr. Rodney Abstone at CLS Executive Search at (312) 251-2564 or email rabstone@clsexecutivesearch.com. 

© 2012 Much Shelist, P.C.