In fact, in the Supplemental Declaration of Louis Touton dated October 10, 2001, ICANN's general counsel refers to "widespread support for random-selection processes during start-up" and states:
"...to my knowledge, ICANN received no comments during the selection process (the period leading up to and including the November 2000 ICANN meeting) suggesting that fees charged in connection with a random-selection registration process could be viewed as an entry fee for an illegal lottery."
Of course, not only did Claude Rains play Captain Renault in Casablanca, but he also put in a superb performance in The Invisible Man. There was, however, nothing invisible about the November 9, 2000, ICANN staff report on the Affinity .biz TLD application which stated, under the summary of public comments opposed to the application, "concern regarding the dangers of the 'name lottery'" which Affinity had proposed in their application.
The original Neulevel .biz proposal did not include the "lottery" scheme at issue in the Smiley suit, so naturally there were no such objections made to the proposal in the fall of 2000. The "lottery" was not apparent until the Neulevel contracts had been released. Apparently, the ICANN staff and outside experts had somehow forgotten that the "lottery" proposal was seen as a distinct negative aspect of one of the previously rejected applications. As noted by Mr. Touton in the Supplemental Declaration:
Drafts of Appendix J, containing the start-up plan, were posted on March 5 and April 22, 2001. After an extensive opportunity for public comment (and various comments were, indeed, made on the agreements), and based on the general support for these agreements in the Internet community, the ICANN Board approved entry of the ".biz" Registry Agreement on May 7, 2001, and it was formally signed on May 11, 2001. (I am not aware of any suggestions, prior to its approval, that the ".biz" allocation method constituted an unlawful lottery. To my best recollection, I became aware of some assertions that it might constitute a lottery sometime in early May.)
In other words, it was posted on April 22, and Mr. Touton was practically immediately aware of "some assertions" about a lottery, thus being the relation between April 22 and "early May". Indeed, the earliest comments on this issue in the ICANN public forum appear to be one posted on May 17 and one posted on June 23. The timing here might suggest that perhaps a three week comment period was not long enough to obtain meaningful review of the agreement.
The source of at least some of the "some assertions" in early May has now been made of record in the suit. According to the Declaration of Russell Smith filed on October 10, 2001, perennial consumer rights gadfly Russell Smith had sent Mr. Touton an email on May 7, 2001, asking "...if this type of thing is legal or if it can be construed as an illegal lottery?" Comments to the same effect were circulating throughout April on the now-defunct NSI Domain-Policy mailing list.
So, the question remains, just when was this "shocking" discovery of alleged gambling first made at ICANN? The evidence now suggests that it should have been considerably earlier than when the Smiley suit was filed in July.