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More on the Front Running Class Action Suit

John Levine

Several people pointed out that although the suit still hasn't appeared in PACER, copies of the complaint are available online, including this one [PDF] at Lextext. Having read it, I'm rather underwhelmed.

After the usual lengthy enumeration of alleged misdeeds, the complaint charges Network Solutions (NSI) with fraudulent concealment, and unjust enrichment, while charging ICANN with aiding and abetting fraudulent concealment.

I do not purport to be a lawyer (nor do I usually play one on the net), but it's hard to see how the facts, which are not in serious dispute, would support any of these charges. Fraudulent concealment generally involves hiding important information when entering into a contract, e.g., not mentioning your three prior heart attacks when you get life insurance. But at the time the front running happens, when you search for a domain on NSI's web site, there's no contract, and you are entirely free not to buy the domain you searched for if you don't like the price. Also, NSI now discloses on their home page that they may reserve the domains people search for, which means that even if they used to conceal something, they don't do it any more.

The unjust enrichment is slightly more plausible but still doesn't fit the facts very well, since unjust enrichment typically occurs when the defendant was overpaid by accident, and the only remedy is restitution, returning the overpayment. If I were looking for a charge to fit these facts, I'd claim fraud or tortious interference with the registrant's ability to buy from other registrars, but since I'm not a lawyer, what do I know?

Another interesting aspect of this the lead plaintiff, Chris McElroy. He is a colorful character from Miami, a long term ICANN participant, who calls himself Namecritic, runs a blog for hire service and has attracted a certain amount of criticism of his own. But his long involvement with ICANN and Internet domains makes him an unusually poor lead defendant — how can a guy who's been doing this for a decade turn around and claim he has no idea how registrars work?

This suit is unlikely to go anywhere, but assuming it survives the certain defense motion for summary judgment, the discovery will be interesting.

By John Levine, Author, Consultant & Speaker
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Re: More on the Front Running Class Action Suit Chris McElroy  –  Feb 29, 2008 12:00 PM PDT

Nice of you to link to an article and blog that one disgruntled employee wrote. Of course the negative information helps you forward the points you are trying to make in the article.

Since I have been doing business on the web since 1995 and have one person who did this, I'd say that is not a bad track record.

Your pointing out of that negative information is a pretty cheap way to try to make your point.

I notice you didn't bother linking to archives that show my participation in the ICANN process over the years or the fact that I run a real missing children's organization where I have personally helped to find more than 80 missing children.

No mention of the fact that I am not doing this to make money. Those who know me already know this. Perhaps you've never done something to get policy changed rather than just to make money. I don't know.

I've been an activist for a long time. ICANN does not listen to anything said in public forums or mailing lists. Other action needs to be taken.

In addition to that I do a little more than just run a blog for hire service, which you phrased that way in another attempt at making me appear as a fringe element of some sort.

You say you aren't a lawyer, then go on to try and discredit the legal merits of the lawsuit as if you were.

Since the law firm in question has won a lot of cases involving consumer protection in the past, I'll let them give me legal advice rather than you. I'm sure you will understand as soon as you look past your own ego.

You did actually miss the point of the lawsuit and ICANN's inclusion in it altogether, but since your goal was misinformation and to discredit, then it really doesn't matter.

Do you consider self-importance a flaw in your character or an attribute?

I cannot comment directly about the details or merits of the case. I wish I could so that I could try get you to do a more than just writea narrow opinion based on one point of view.

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