Re: [antitrust-policy] Update on legal advice re: antitrust

[Jorge Contreras <[e-mail]>]

"having lawyers argue with each other about it" -- one could also say that
is the best route to ultimate truth (or not)...

On Wed, Feb 16, 2022 at 1:49 PM Joel M. Halpern <[e-mail]> wrote:

> With regard to the quesiton of "educational material", I think it is
> very important that the note well call attention to the issue of
> antitrust.  I like the way we proposed in the last draft.  I think I can
> live with what Jay is proposing to do instead.  (And having lawyers
> argue with each other about it seems a bad idea.)
>
> Doing nothing seems a bad idea to me.
>
> Yours,
> Joel
>
> On 2/16/2022 3:39 PM, Russ Housley wrote:
> >
> >
> >>> On 17/02/2022, at 6:54 AM, Russ Housley <[e-mail]> wrote:
> >>>
> >>> Jay:
> >>>
> >>> This advice contradicts the results of the anti-trust BoF that was
> held many years ago.  The minutes are here:
> >>>
> >>>
> https://www.ietf.org/proceedings/83/minutes/minutes-83-antitrust.txt
> >>>
> >>> The IETF lawyer at the time strongly encouraged a written policy, but
> the community conclusion was that educational material was sufficient, but
> that BCPs were not needed.
> >>>
> >>> I do not think a change to this conclusion should be made without
> another BoF on the topic.
> >>
> >> To be clear, this advice is not recommending a BCP. It is recommending
> a document that explains how are existing processes and procedures are
> strong mitigation against antitrust risks, which is then included in the
> Note Well to ensure that this subject is highlighted.  That sounds entirely
> informational to me.
> >
> > I understand the suggestion.  Please review the recording if you want to
> get to all of the details.  In my opinion, NOTE WELL should not include
> educational material.
> >
> > Russ
> >
> >
> >>>
> >>>
> >>>> On Feb 15, 2022, at 9:06 PM, Jay Daley <[e-mail]>
> wrote:
> >>>>
> >>>> Hi All
> >>>>
> >>>> As per the call from the gendispatch chairs [1] I’m moving the
> substantive discussion on antitrust to this list and in particular I’m
> picking up on the issue of legal advice.  The reason I’m sending this and
> not our lead lawyer Brad Biddle is because he’s on a long planned
> sabbatical.
> >>>>
> >>>> Brad had previously sent a lengthy message to gendispatch outlining
> his opinion [2], which is that our current processes and procedures, as set
> out in the LLC Statement on Competition Law Issues [3], are strong
> mitigation against antitrust risks though we could strengthen those
> further.  From Brad’s email:
> >>>>
> >>>>    "I recommend that that we develop an explicit statement that
> addresses antitrust compliance, and that we reference that statement in the
> Note Well text that is routinely shown to participants.  The substance of
> our explicit statement can be straightforward, essentially just
> highlighting how our existing processes and procedures are designed to
> mitigate antitrust risks and setting our expectation that all participants
> will abide by applicable antitrust laws"
> >>>>
> >>>> Following that we received private feedback from other lawyers that,
> from the perspective of antitrust litigators, our current processes and
> procedures would not provide strong mitigation of antitrust risk and that
> could only be achieved with a detailed compliance policy.  As Brad is not a
> litigator, he and I agreed that we would get advice from specialist
> antitrust litigators, which we have now done and what follows is a summary
> of their advice:
> >>>>
> >>>> 1.  We started with their assessment of the current position as set
> out in the LLC Statement on Competition Law Issues [3].  The advice was
> that this position is very strong for exactly the reasons set out in the
> LLC Statement, that our structure and processes, as set out in the third
> paragraph, manage the antitrust risk well.
> >>>>
> >>>> 2.  It was their view that a compliance policy would make no
> difference in a civil case, which is by far the most likely litigation
> risk.  In a criminal case, which they assessed as very low risk for us, it
> would be a nice to have but unlikely to make much of a difference. They
> noted that the set of structure and processes pointed to in the LLC
> Statement are pretty much an antitrust policy in themselves.
> >>>>
> >>>> As you can see, this advice is clear and aligns closely with Brad’s
> opinion.  In particular that the substantive text of any antitrust policy
> would be setting out how our processes and procedures mitigate antitrust
> risk as per the LLC Statement.
> >>>>
> >>>> We further asked about two specific risks that had been raised in
> private feedback:
> >>>>
> >>>> 3.  On the specific issue of abuse of a dominant position they
> advised that there is a very low risk that we would be liable for people
> abusing our systems, structures and processes for this, in the same way
> that a hotel is not liable if people use one of its meeting rooms to plan a
> crime.  They advised that nothing needs to be done to address this risk.
> >>>>
> >>>> 4.  On the specific issue of WG chairs abusing their positions they
> advised that the current process, particularly the strong appeals process,
> was sufficient to mitigate the risk.  When asked if the dearth of upheld
> appeals called that appeals process into question, they advised that it did
> the opposite as it demonstrated the robustness of our processes before the
> appeals stage.  They suggested that we could consider specific training for
> WG chairs and could consider asking WG chairs to sign some form of
> declaration if we wanted to mitigate further.
> >>>>
> >>>> (The last point of asking WG chairs to sign something is a big change
> in the way the IETF works and not something we need to explore further.)
> >>>>
> >>>> Based on this advice, my plan is to work with my co-authors (which
> may require waiting for Brad to return in two months time) on a version of
> the draft that more closely fits with the clear advice above.
> >>>>
> >>>> Please let me know if you have any questions.
> >>>>
> >>>> Jay
> >>>>
> >>>>
> >>>> [1]
> https://mailarchive.ietf.org/arch/msg/gendispatch/x49eleWF0ehs9_virkxJRf3t3Bw/
> >>>> [2]
> https://mailarchive.ietf.org/arch/msg/gendispatch/tQxkkDKiiswLUlG7kzqIgzmMmrQ/
> >>>> [3]
> https://www.ietf.org/blog/ietf-llc-statement-competition-law-issues/
> >>>>
> >>>>
> >>>> --
> >>>> Jay Daley
> >>>> IETF Executive Director
> >>>> [e-mail]
> >>>
> >>> _______________________________________________
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> >>
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