Thanks for posting the Auerbach transcript.
What I got out of it is the utter incompetence of ICANN's counsel. For that
they paid $350 per hour?
I could have argued better! Even for that hopeless case.
I mean, really, how can a professional lawyer stand up and say: "INSTEAD,
WHAT ICANN TRIED TO DO, THUS FAR MAYBE NOT DOING SO WELL, ICANN TRIED TO
SAY, 'WE WANT TO BE REASONABLE. WE WANT TO GIVE YOU THE RIGHT OF
Without knowing anything about the case you'd rule against them on the basis
of that statement.
I'd slaughter my [***] Moot students for a stunt like that.
And this gem: "WELL, UNDER OUR UNDERSTANDING OF THE CORPORATIONS CODE,
BECAUSE THE CHIEF EXECUTIVE OFFICER IS DELEGATED SPECIFIC RESPONSIBILITIES
TO RUN THE DAY-TO-DAY MANAGEMENT OF THE CORPORATION, OUR VIEW WAS THAT THE
CHIEF EXECUTIVE OFFICER ACTUALLY COULD HAVE SET FORTH WHAT AGAIN WHAT WE
VIEW AS PROCEDURES" (meaning the restrictive rules not approved by the Board
that Karl was bitching about).
Are these guys lawyers or stand-up comedians?
Here's another gem: "ICANN POSTS ON ITS WEBSITE, I'M GOING TO GUESS NOW, IN
EXCESS OF 90 PERCENT OF THE LETTERS IT RECEIVES." This is certainly not
true. In [a jurisdiction] making a misleading statement to the court would subject
you to a fine.
A real howler: "DETAILED INVOICES FROM THE LAW FIRM SINCE THE INCEPTION OF
THE CORPORATION. OF COURSE THOSE DOCUMENTS ARE PRIVILEGED." To which the
judge made the obvious reply: "INVOICES? WHY WOULD INVOICES BE NECESSARILY
Well, at least he knew he was digging himself in deeper and deeper: "I SEE
THAT I'M SWIMMING UPSTREAM HERE SO I'M NOT GOING TO SWIM TOO MUCH HARDER FOR
TOO MUCH LONGER,"
How about this one, regarding ICANN's ability to move faster than
governments and act at Internet speed: ICANN: "A VERY BRIEF PERIOD OF TIME
WHERE - SEVEN DAYS - WHERE WE CAN --" Judge: "THAT'S NOT VERY BRIEF,
ACTUALLY, GIVEN THE CIRCUMSTANCES." ICANN: "WELL, FOR THIS CORPORATION TO
ACT, IT IS."
Cohn does a great job pleading, but then also pulls a freshman error, by
trying to introduce a list at the hearing. The judge said:" THIS IS
SOMETHING YOU ARE JUST GOING TO HAND TO US RIGHT NOW?" To which she replied:
"I WAS PLANNING ON IT." And got promptly slammed by the judge. Why didn't
she think to send it in beforehand?