[registrars] California Litigation Update

["Michael D. Palage" <michael@palage.com>]

There have been some posts to the list recently regarding the California
action and I believe there is some potential for confusion that I would like
to help straighten out.

First when Patricio Valdes made his first post yesterday, he stated here is
a copy of the "Preliminary Injunction." Patricio forgot an important word
"Motion". What was posted to the list was a copy of the motion that the
plaintiff's attorneys filed.

Since the original filing of this "motion" the parties have moved the date
of the preliminary injunction back to Sept 26. The following synopsis
available on the ICANN Blog at http://www.lextext.com/icann/ appears in my
opinion to be an accurate summary of the events surrounding this litigation
to date.

"Smiley Hearing Moved to Sept. 26th. The preliminary injunction hearing in
the Smiley case has been moved to September 26th, and the Court has promised
to issue a ruling before September 28th. Opposition briefs from the
Defendants are now due on September 14th. Neulevel secured the extension by
promising the Court that it would not pick winners in the lottery until
October 2nd, ensuring that no actions would take place before the Court had
an opportunity to rule. (The October 2nd selection date suggests that
Neulevel has made a modest extension of the October 1st live date promised
on its web site)."

Now according to some of the California attorneys that I have spoken with,
here is what we can expect to happen on a procedural basis. In motions like
this, the court will generally make available a preliminary or tentative
order prior to the hearing to give both sides a view of its current
analysis. This allows counsel for each side to focus its time and effort
during the motion hearing on the issues the court has identified as
critical. So if a document is circulated prior to the 26th, this does not
absolutely mean that this was the decision of the court. One the other hand,
the court may issue no preliminary/tentative order and wait to hear the
entire oral arguments before issuing its order. Legal process is not an easy
process to follow :-)

Regarding Bob's subsequent email about registrars not traveling to
California. The service of process rules for California are very extensive.
Some legal types have argued that based on registrars contracts with a
certain non-profit California company, registrars would be subject to
service of process through other means set forth in the California state
statutes. Therefore staying our of California will do you no good. As Bob
indicated he is very sensitive to this issue because in the past he was
served personally during an ICANN meeting a couple of years ago. For a bit
of history, this was an action filed by a company providing registry
services in an alternate root against CORE. The short story was that the
defendants prevailed on a summary judgment motion.

For those new registrars that would like to learn more about the colorful
past of our industry see me in Montevideo, where I am attempting to set up a
cross-constituency Karaoke night out. This is based upon the success last
year when we had the cross-constituency tour of the pyramids in Egypt.

As always I will follow these matters closely and will update the
Constituency in a timely manner. I apologize for the delay but I was
off-line all yesterday while tied up in meetings :-)

Best regards,

Mike