[nc-udrp] Rules About Supplemental Rules

["John Berryhill" <john@johnberryhill.com>]

There have been a few instances now where panels have refused to consider
"supplemental" submissions by parties which have adhered to the NAF
Supplemental Rule 7, under which the NAF charges a fee to accept additional
materials beyond the Complaint and the Response which are provided for in
the UDRP.

NAF Supplemental Rule 8 says:

------
8. The Record of the Administrative Proceeding.

The Complaint, Response, and additional written statements and documents
provided in Paragraph 12 of the Rules and Paragraph 7 of these Supplemental
Rules constitute the complete record to be considered by the Panel.
-----

But a three-member panel, including two of the most seasoned and experienced
UDRP panelists stated, quite forcefully:

http://www.arb-forum.com/domains/decisions/105890.htm
The Supplemental Rules were never intended to provide a vehicle for
permitting additional pleadings or for circumventing the discretion vested
in the Panel.  The Panel has an affirmative duty to see that it exercises
its unfettered discretion in calling for additional submissions and to
insure that the matter proceeds expeditiously.  No Supplemental Rule can
override this discretion and obligation.  Accordingly, the Panel will not
accept the Respondent's additional Response, for which no permission was
sought from the Panel.


Now, the NAF is charging a $250 fee for material which their Rule 8 says is
"to be considered by the Panel", and NAF fees are non-refundable (with a two
minor exceptions relating to three-member panel fees).

For the NAF to state or imply that these materials will be considered by the
Panel and to charge a fee, when in fact consideration of these materials is
discretionary with the Panel is, IMHO, deceptive.  NAF Supplemental Rule 8
is either true or it is not true.  But you can't go taking $250 out of
someone's pocket for something that you can't deliver.  That's pretty basic.

While the case above was a correctly-decided no-brainer complainant win, and
whatever the Respondent might have added would have not changed the result,
it would appear the NAF did manage to walk away with an extra $250 for
nothing, unless they have an unwritten rule for refunding the fee where the
Panel doesn't follow the NAF Supplemental Rule 8.

WIPO has more recently adopted a very reasonable approach to 'supplemental'
materials.  The parties may send whatever they would like to the Case
Manager beyond the Complaint and the Response.  When the case is transmitted
to the Panel, the Panel receives the Complaint and the Response, and a
notification of other materials which have been received.  The Panel may
then, at its discretion, choose to request the additional material.

The upshot of WIPO's unwritten policy on additional submissions is a lowered
burden for the Case Manager.  And, whatever one might think about various
panelists, the Case Managers of all of the providers have been very good.
[1] The five-day clock set by the NAF on responsive 'supplemental' material
effectively forces the responding party (which may be the Complainant in
situations where the Respondent fires two salvos) to respond, thus adding
further ballast to the case file.  Under the WIPO approach, there is no need
for the responding party to immediately prepare and file additional argument
to the inevitable new arguments made in the other party's submission.  If
and when the Panel decides to request the additional material, that decision
can be made by the responding party.

Many of the questionnaire responses favorably addressed the question
relating to additional material.  As aptly noted by the Panel above, we all
want to have the last word.  However, based on my limited observations, it
is frequently the case that the Complainant fails to do an adequate
investigation or inquiry, or even to send a cease and desist letter, prior
to filing a Complaint, and is then surprised by evidence submitted by the
Respondent.  There is nothing in the Policy that prevents them from filing a
second Complaint if they lose the first time, or even taking it to another
provider since there is nothing which binds a second provider to respect a
"with prejudice" dismissal from the first provider (or even from a court -
e.g. cello.com).  But there is nothing "fair" in making the Case Manager and
the Panelists have to do additional work when those are the very parties
who, frankly, are being paid the LEAST amount of money in the whole durn'
shootin' match.

In the context of what is intended to be a lightweight administrative
proceeding, and not an adjudication or an arbitration, supplemental rounds
of rejoinders do not make a lot of sense.  But if the UDRP were to amended
to include an express Rule dealing with such materials (since the parties
will do their utmost to ignore UDRP section 12 no matter what anyone does),
then expressly adopting the WIPO approach to supplemental materials would be
a reasonable position.

John Berryhill

[1] ...with the exception of Ms. Hultman and Ms. Schaber of the NAF.  They
are far beyond "very good," and should be nominated for sainthood for the
efficient way they handle these things without going insane.