[arin-discuss] Status of Investigations]

[Dean Anderson]

On Fri, 28 Dec 2007, Jay Hennigan wrote:

> Dean Anderson wrote:
> 
> [Bobbitt...]

????  What does "Bobbitt" mean?

> > Issue VI. Character of Board Members
> > 
> > Facts have been posted which raise questions about the character of
> > Board member Paul Vixie, particularly the issues raised in Exactis v.  
> > MAPS, which cited charges of Tortious Interference with Contract,
> > Tortious Interference with Prospective Business Relations, violation of
> > the Colorado Consumer Protection Act, Intentional and Negligent
> > Misrepresentation and Extortion, violation of the Colorado
> > Communications Privacy Act, violation of the Colorado Organized Crime
> > Control Act, violation of the Sherman Antitrust Act, violation of the
> > Colorado Antitrust act. A Temporary Restraining Order (TRO) was
> > obtained.  Vixie and MAPS attempts to have the case dismissed failed,
> > and MAPS settled. MAPS no longer blocks Exactis.
> 
> Facts?  ITYM allegations in a seven-year-old civil suit perhaps?

A TRO is a fact. A TRO is citable in subsequent litigation.  A previous
TRO helps establish that similar facts are sufficient to establish
similar claims.

A TRO is a decision that the facts cited, if true, are sufficient to
establish the claims made and that the plaintiff can prevail absent
false facts or some defense. MAPS and Vixie tried vigorously to have the
case dismissed, using defenses they also cited in their response. Those
efforts to have the case dismiss failed. Those are facts, too.

I cite the case because the activities brought to light in the case have
bearing on the character of the persons involved.

> > Update: More information may be found regarding activities relating to
> > the suit Exactis v. MAPS in the "Motion and Memorandum in Support of
> > Temporary Restraining Order and Preliminary Injunction" at
> > http://www.dotcomeon.com/exactis1.html
> > 
> > Question: When did Board members first learn of these facts about other 
> > Board members?
> 
> Well, if those board members were at all actively involved in Internet 
> operations way back in 2000, they probably learned of them about seven 
> years ago when the Exactis vs. MAPS lawsuit was active.  

The above is speculation and speculation is of no value. If you are a
Board member, previous Board member, or you have evidence of when Board
members knew (e.g. email messages from Board member discussing the
case), please let me know.  Members of the Advisory Council and ARIN
employees may also have knowledge of this.

> It was very well known at the time by just about anyone who knew how
> to spell "SMTP".  MAPS was generally regarded as the good guy.

I am aware that MAPS was, in 2000, generally regarded as the "good guy".  
But in 2000, many things about MAPS weren't generally known: it wasn't
known that MAPS was a for-profit operation. (announced in 2002). It
generally wasn't known that Vixie and others were on the Board of
directors of a spammer (a commercial bulk emailer) that was competing
with Exactis in 2000. It also wasn't generally known in 2000 that MAPS
employees were employeed assisting spammers (e.g. Scott Richter,
Opt-in-real-big) with list-washing (discovered 2003). The full facts
show less "good guy".

> Again, your use of the term "facts" is IMHO pushing the envelope.

I think perhaps you just don't like the full facts. That doesn't make
them false or not facts.

> > Question: What actions did management take to ensure that the Board 
> > member qualification questionaire reflected these facts?
> 
> Ditto "facts".  Does the questionnaire ask if any corporation with which
> one was affiliated almost a decade ago has ever been sued by anyone
> else?  Does it have questions along the lines of, "Were you ever 
> disliked by anyone with access to the Internet?" 

It does ask other questions. 

> Is this questionnaire available online?  

Yes.  Its on ARIN's website, in the section on elections. I can send you
a URL if you can't find it.

> I personally don't see the relevance of a seven-year-old civil filing,
> long since settled, primarily directed against a corporation that also
> names the principals regarding one's suitability as an ARIN board
> member.

Well, RICO claims have a ten year statute of limitations; the case is
potentially still relevant to future civil and criminal claims.  
However, I bring this case up as a question of character.  The past
activities of a person are relevant to their present character, even if
they were 7 years ago. Seven years is not a long time for changes in
character.  I am aware of no significant changes in Mr. Vixie's behavior
or character in that time; Just the contrary, in fact, as previously
posted.

> Have
> you done any research whatsoever into the history of MAPS, that they
> deliberately took a bullet in the early skirmishes of the spam wars?  

I have done quite a bit of research on MAPS. I don't know what you mean
by "deliberately took a bullet".

> Are you aware that the document you reference was written by the
> opposing lawyers, so is likely to be somewhat one-sided?  

I am aware of that. However, lawyers are bound by Model Rules of
Professional Conduct. A corporate counsel have to abide by Model
Professional Rules of Conduct rule 1.6 and 1.13, which in some cases,
cause them to disclose information about their corporate clients. The
Model Rules 1.6 and 1.13 can be found at
http://www.abanet.org/cpr/mrpc/mrpc_toc.html

Corporate counsel is counsel to the corporation, not the employee. The
rules of conduct of lawyers were changed in response to Enron and
Worldcom, etc.  For those of you who are interested, there is a very
interesting discussion in "Enron, WorldCom, and the Sarbanes-Oxley Act
of 2002.  Corporate Governance, Financial Disclosure, Auditing and Other
Issues"  ALI-ABA course of study materials.  I also found interesting
Section III, "Recomendations Regarding the Conduct of Lawyers", page
107:

 "The ABA has long advised that lawyers providing transactional opinions
  that may be relied on by third parties cannot blindly accept facts 
  posited by a client; they must question and investigate the factual 
  predicate for their advice,[...]"

Note 33 on the same page states: "The lawyer who accepts as true the
facts which the promoter tells him, when the lawyer should know that a
further inquiry would disclose that these facts are untrue, also gives a
false opinion."

Are you asserting Exactis' attorney committed some violation of
professional conduct?  Exactis' attorney went on to become a U.S.
Attorney. And, as I recall, either Vixie's or MAPS attorney was
chastised for misconduct in the case.

> Have you beheaded the URL you cite to just http://www.dotcomeon.com/
> to determine with what degree of seriousness its material should be
> taken and whether the site owner just might have an axe to grind?

Yes, I have seen the site. Dr. Halmu has long tracked Mr. Vixie and MAPS
history.  I am aware of no factual errors on the site.  However, that is
of no consequence to the copies of legal documents posted there.


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