Summary

  • ICANN's 27 February 2011 notice alleged that Employ Media's .JOBS policies and uses breached the Registry Agreement. It allowed 30 days to cure and warned that ICANN could begin termination. The notice proved the allegation and threat, not the breach.
  • Section 6.3 gave the operator a specific procedural lever: when arbitration concerned termination, a simultaneous stay request itself stayed termination until a decision or a panel order lifting it. Employ Media invoked that provision on 3 May 2011.
  • The ICC Terms of Reference listed breach, notice validity, termination, damages and costs as questions that might need decision. The parties later settled without admitting wrongdoing or liability and requested dismissal with prejudice. No merits award has been located.

The first stay request came from outside the contract dispute

The control chain began before the breach notice. On 9 June 2010, Employ Media submitted a Registry Services Evaluation Process request for a phased allocation programme in .JOBS. ICANN opened public comment on 15 June and said its preliminary RSEP review had found no significant security, stability or competition issue.

That statement had a defined scope. It was not an advance finding that every non-company name, registrant or use would comply with the .JOBS Charter. The proposed amendment changed the allocation machinery. It allowed non-company names to be distributed through requests for proposals, auction and a first-come, first-served release. The agreement and Charter still bounded what the registry could do with that machinery.

On 5 August, the ICANN Board approved the amendment through Resolution 2010.08.05.20. The preliminary report records eleven votes in favour, one against and two abstentions. The Board authorised the President and General Counsel to implement the amendment.

Opponents organised as the .JOBS Charter Compliance Coalition and filed Reconsideration Request 10-2 on 20 August. They also asked ICANN to stay the programme while reconsideration proceeded. That request did not become the later contractual stay. The Board Governance Committee treated it differently: its 9 December recommendation said the requested stay was moot because the amendment had been executed before the Coalition filed.

The BGC recommended denial. It regarded predicted implementation violations as a contractual-compliance question, not a ground for undoing the Board's approval, and said the Board had not failed to consider material information. It nevertheless recommended close monitoring of Employ Media's Charter compliance. The Board adopted that recommendation on 10 December.

The sequence matters. Approval was not immunity. Reconsideration did not decide how every later allocation would comply. The matter moved from Board process into contractual compliance.

The notice opened a 30-day termination path

On 27 February 2011, ICANN issued a four-page Notice of Breach. It alleged that Employ Media and the sponsor, the Society for Human Resource Management, had failed to establish policies conforming to the defined purpose and Charter. It called for restrictive registration policies and warned that ICANN could commence termination if the breach was not cured within 30 calendar days.

The document must remain inside its evidentiary boundary. ICANN had contractual power to give notice and pursue termination for an uncured fundamental and material breach. Its letter did not itself establish that a breach had occurred. Employ Media disputed the scope of the Charter, the meaning of the amendment and the authority ICANN staff claimed when they issued the notice.

The formal path came from the 2005 Registry Agreement. Section 6.1 permitted termination after specified notice and an uncured material breach. Section 5.1 required cooperative engagement before binding ICC arbitration. Section 6.3 linked the cure period to a more unusual protection.

If the operator initiated arbitration over the appropriateness of termination, it could request a stay at the same time. The contract said the request would have the effect of staying termination until the arbitral decision, unless the panel granted ICANN's request to lift it.

This was not judicial grace. It was an agreed allocation of interim power.

Filing changed continuity before it changed the merits

Employ Media filed its Request for Arbitration on 3 May 2011. Near the end, the request quoted the stay clause and expressly asked that ICANN's termination be stayed for the duration of the proceeding.

The filing proved two things. Employ Media commenced the agreed process. It also made the contract's continuity mechanism operative. No located source shows that the tribunal later lifted the stay.

The filing did not prove the rest of Employ Media's case. It accused ICANN of contradicting Board approval, exceeding a limited mission, treating the operator unequally and violating the agreement and corporate documents. It sought declarations, damages, fees and other relief. Those were allegations and requests. The contract could keep the operator in place without converting them into findings.

That separation is the central mechanism in this file. The party controlling registry operation was also the party able to trigger a stay. ICANN controlled notice and the attempted termination path. The tribunal controlled any later merits decision or lifting of the stay. None of those powers came from the phrase “the .JOBS community.” They came from identified instruments and party consent.

The Terms recorded a dispute, not a result

The executed Terms of Reference identify ICC case 17917/VRO. They record the failed cooperative-engagement process, the 3 May request and ICANN's 22 July answer. They then preserve each side's position without making either bind the other.

Employ Media said the amendment and delegated sponsor-policy process permitted the challenged expansion. ICANN said the Charter restricted registrants and use and that third-party job-board activity breached the agreement. Both sought costs. The amount in dispute had not been quantified.

Page 19 is the cleanest guard against overstatement. It lists eight issues the tribunal might have to consider: whether Employ Media materially breached; whether the notice was valid; whether ICANN could terminate; whether ICANN itself breached; damages; fees; and other relief. These were questions to be determined. They were not findings hidden inside an institutional document.

The distinction also fixes the authority boundary. The ICC panel's mandate came from Section 5.1 and the parties' agreement. The Coalition, SHRM, employers, competing job boards and public commenters could provide positions and evidence. They did not acquire the panel's power or the registry operator's contractual rights merely by being affected.

The settlement turned liability questions into assurances

By December 2012, the case had produced a request, answer, Terms, procedural orders and a statement of claim. The public index contains no merits award. The Settlement Agreement explains the different ending.

Its recitals say the parties chose an amicable resolution because of the uncertainty and cost of further litigation. No party admitted wrongdoing or liability. That clause bars the convenient conclusion that settlement vindicated either side's original story.

The operative terms did change the parties' future position. ICANN confirmed that the issues raised in the notice and arbitration had been resolved to its satisfaction and that, as of execution, Employ Media was in full compliance and good standing. ICANN would not object to continued allocation under the phased programme so long as it complied with the Registry Agreement, Charter and SHRM-approved policies. Renewal and related gTLD applications would receive neither special favour nor prejudice because of the dispute.

The settlement preserved policy authority, but with a boundary. It referred to Employ Media and SHRM as operator, sponsor and policy delegate only to the extent decisions remained consistent with the contract and Charter. That was delegated authority between identified parties. It did not prove that SHRM had received a universal mandate from every employer, registrant, job seeker or competing job board.

ICANN was required to withdraw the notice. The parties were required to dismiss the arbitration with prejudice. Each party agreed to bear its own attorneys' fees, costs and expenses from the matter.

On 14 December, the parties sent a joint withdrawal request. They said the settlement had been fully executed and asked the tribunal to terminate and withdraw the case with prejudice, with arbitration costs borne in equal amounts. That is a closing instrument, not a merits judgment.

Costs followed control, but the totals remain unknown

Employ Media paid to operate the registry and prosecute arbitration. ICANN paid to investigate, enforce and defend. The settlement left each side with its own legal expenses and divided the tribunal costs equally. The public record does not state the totals.

Other costs were distributed without a clean ledger. Registrants and employers faced continuity uncertainty. Competing job boards faced a changed allocation and market environment. Users faced the risk that termination or policy reversal would alter the services available under .JOBS. The filings describe those risks from partisan positions; they do not quantify them.

The immediate beneficiary of the automatic stay was Employ Media's continuity. SHRM retained its sponsor-policy role. Existing registrations avoided an abrupt termination event. ICANN preserved future contractual-compliance authority and obtained assurances without risking an adverse award. Competitors received no adjudicated damages or Charter ruling.

Calling either side the merits winner would erase that allocation. Settlement produced operating conditions and releases. It did not supply a public answer to every question in the Terms.

Sources