Monday, September 16, 2013

Who Decides "Default" NAF UDRP Cases?

By Zak Muscovitch.

I took a look at NAF decisions so far, for this month of September, 2013, and have made some interesting, but not surprising, observations. When a Respondent defaults by failing to file a Response, the NAF nearly always appoints one of a very select group of panelists. That means that there is group of very experienced NAF panelists, nearly always gets the usually easy and lucrative cases.

NAF has 134 panelists on its roster, but has apparently focused its "active" roster to only a select few. With very few exceptions, it is these select panelists which get nearly every default case. So, if you are a complainant, you could nearly "count on" one of the following panelists hearing your case.

Sandra Franklin is the NAF's "go to" panelist these days, according to the September statistics. She decided a total of about 9 cases that were released so far in September. Terry F. Peppard (8 cases), John J. Upchurch (7 cases), and Paul M. DeCicco (6 cases) came in a very close second and third place, respectively.

After that however, the group's cases got a lot thinner, with James A. Carmody (4 cases), Carolyn Marks Johnson (4 cases), Debrett G. Lyons (4 cases), Tyrus Atkinson, Jr. (3 cases), Karl V. Fink (3 cases), David A. Einhorn 2 cases), Bruce Myerson (2 cases), Charles McCotter, Jr. (2 cases), Neil Anthony Brown (2 cases), and Darryl C. Wilson, Houston Putnam Lowry, and Bruce Myerson (each with 1 single case).

Accordingly, out of the 134 Panelists, it certainly appears that (at least currently based upon September, 2013 stats alone), about a dozen UDRP panelists do the lion's share of work for the NAF.

There is a good argument for using a handful of the most "experienced" panelists to decide cases, as ostensibly the most experienced panelists are the most "able" and "reliable". On the other hand, one cannot but wonder why having a roster of 134 panelists is then necessary at all, considering that most of these panelists are not usually selected at all, except when a case is defended and panelists are nominated by the parties.

Interestingly, two recent default decisions that have attracted some criticism recently, namely the uniprotein.com case and the gongshow.com case, were of course decided by two of the above-mentioned select panelists, i.e. Terry F. Peppard and Carolyn Marks Johnson, respectively. Nat Cohen wrote an interesting piece, about the uniprotein.com case, and Michael Berkins covered the gongshow.com case on TheDomains.com.

Under the UDRP, when a domain name registrant fails to defend the proceeding by filing a Response, the panelists are not supposed to give the complainant an automatic "win" or "default judgment", as is the case in many court proceedings. Nevertheless, when a party does not defend, certainly a panel is entitled to make adverse inferences and to rely upon only one side of the story.

"Default cases" are the most common type of UDRP case, and the panelists who hear these cases serve a very important function. I am always impressed by panelists who write thoughtful and comprehensive decisions in default cases, as it shows that they take their work seriously, and that they have avoided the obvious temptation to disregard a party since they have shown disinterest in the proceeding by failing to respond.

Below is a simple chart of the default case distribution so far this month of September, 2013.

Panelist
# of Cases
Domains



Sandra Franklin
9
jjshousebridal.com
diners.com.co
christrianmingle.com
advanceautpparts.com etc.
lululemonaustralia.com etc.
bhomedepot.com
abcliquor.com
foxsports1.tv etc.
accuridewheels.net
Terry F. Peppard

8
disneyxd.biz
littlesteviewonder.com
homeedepot.com
bedbathandbeypnd.com
musiciansfreind.com
homedpot.com
epsonclinic.com
uniprotein.com
John J. Upchurch

7

freshlooksites.com
regions-banking.com
redbuttegardens.com
aimstrongceiling.com
mbbank.net
benefifocus.com
homedepiot.com etc.
Paul M. DeCicco

6
skypeplus.org
socialyahoo.com
enterprise.tv
agrainger.com
adbanceautoparts.com etc.
alienware-store.com

Carolyn Marks Johnson

4
marlborosucksballs.com
winkellychevrolet.com
gongshow.com
freeetaxusa.com
James A. Carmody
4
twcsportnet.com
disneyapps.com
chanluujewelry.org
boeingtotalaccess.com
Debrett G. Lyons 

4
statefarmcenter.com
newport-cigarette.com
jomedepot.com>
chanluustoreonline.com etc.

David A. Einhorn

2
newportcigarettecoupons.com
universalnutrition.net

Bruce E. Meyerson

2
newportcigarette.com2
marlborovape.com

Charles K. McCotter, Jr.

2
bestchanluu.com
osandroid.com

Neil Anthony Brown QC

2
bedbatheandbeyond.com
shopswwe.com etc.
Hon. Karl V. Fink

3
redbuttegardens.org
golfsgalaxy.com
fuddruckkers.com

Darryl C. Wilson

1

alaksaairlines.com etc.

Houston Putnam Lowry

1
skype2ip.org

Bruce Myerson

1
jbrandtr.net





1 comment:

Nat Cohen said...

Zak,

Valuable analysis you've provided here.

It certainly raises the question about why cases are not distributed more uniformly.

It also raises the more troublesome question of what method NAF uses for assigning cases to panelists.

The pro-complainant decisions under dubious circumstances, especially in cases of Respondent default, suggests the inference that NAF is making assignments in order to deliver what their paying customers want - the transfer of valuable generic domains.

Nat