[CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

[Edward Morris]

Hi Avri,


You raise a number of  good questions for which I'm not sure the data
exists. Perhaps Sam would be able to provide some information here that
isn't readily available to non-specialists like ourselves.


> Out of curiosity:  Of the times that ICANN has been involved in court
> cases, how long have they lasted?
>


If the litigation pages are correct ICANN has rarely been sued in the
Superior Court of California, Los Angeles County. Presumably that would be
the location of any action arising under the Bylaws and thus is the
relevant jurisdictional measure. Of the four cases listed on the ICANN
litigation web page as being situated at that court the average duration
from the filing of the first document in the matter to the last document is
exactly 9 months. The range was 3 months to 15 months. Auerbach v ICANN,
which concerned issues similar to that which might  be raised by members,
lasted 138 days between Karl's filing of his petition and Judge Janavs'
ruling.


>
> And are there any general CA statistics for the duration of cases of the
> type of issues we are discussing?
>

I haven't been able to find any. That itself is telling. Derivative
lawsuits are extraordinarily rare and, frankly, involve the types of issues
the California AG might interest herself in if there were no members.
Likewise, member lawsuits against PBC boards are also extremely rare. I
welcome statistical information of this sort if it can be found. Quick
searches on Lexis and Westlaw have come up empty.

I would note that a lawsuit by a member against a corporation or board
thereof would not normally lead itself to lengthy duration. These cases
would generally not involve a jury, the parties and issues would likely be
clearly delineated, facts would generally be agreed and not in significant
contention and the question largely would be one of law. These are not
usually time consuming.



> Then we can determine whether the expletive was deserved.  I admit it
> may just be my sense of the anecdotal evidence that leads me to such
> assumptions.  Seeing some statistical information on the frequency and
> duraction of such cases might help resolve this wide difference of opinion.
>
>
I agree. I hope somebody can find some. These cases are not common. Lacking
other benchmarks I'd suggest the Auerbach matter needs to be considered as
typical in some regards.

Yes, the main branch of the court is in the same building where the O.J.
Simpson trial occurred. That took a long time. There is no other similarity
between that case and those that can be expected to be raised by members.
Again, a membership corporate structure does not do anything one way or the
other to increase or decrease ICANN's susceptibility to third party
lawsuits. These are still going to take place regardless of anything the
CCWG does. Any increased exposure to litigation would be that filed by
members after exhausting all internal processes. Are we that afraid of the
litigious nature of ourselves that we need to be restrained?

Ed
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150616/402a9dfd/attachment.html>