[CCWG-ACCT] Lawyers' Meeting on Friday

Alan Greenberg alan.greenberg at mcgill.ca
Fri Oct 2 05:28:51 UTC 2015


"That is not my understanding. I think the advice 
has been that the lawyers believe it can be done 
but that there is no precedent to which they can 
point and therefore no guarantee that such a 
constraint would be upheld in court."

In the past, our legal counsel has been very good 
at identifying things that were in theory 
possible, but for which there was no know 
precedent or legal decisions which had "tested" the idea.

I would appreciate confirmation that this concept 
of restricting use of statutory power (for 
instance by enshrining in the Bylaws that the 
power could only be used with the unanimous 
agreement of all AC/SOs) has in fact been tested in California courts.

Alan


At 01/10/2015 09:05 PM, Chris Disspain wrote:
>Hi Jordan,
>
>>"whether or not the decisions to exercise 
>>powers on the part of a member can be constrained”
>
>This as you say is very narrow but important. It 
>is clear that the statutory rights cannot be 
>abrogated. So they will always be available. The 
>question is how far they can be constrained. 
>Constrained, to me, simply means how difficult can you make their exercise.
>
>>We have had very clear advice from our counsel that this can be done.
>
>That is not my understanding. I think the advice 
>has been that the lawyers believe it can be done 
>but that there is no precedent to which they can 
>point and therefore no guarantee that such a 
>constraint would be upheld in court.
>
>In any event, it appears that some members of 
>the CCWG believe that there should be access to 
>some, if not all of the statutory rights that a member would have.
>
>
>Cheers,
>
>
>Chris
>
>>On 1 Oct 2015, at 22:55 , Jordan Carter 
>><<mailto:jordan at internetnz.net.nz>jordan at internetnz.net.nz> wrote:
>>
>>Seun, all
>>
>>I stand by my comment - the error is very narrow but very important:
>>
>>"whether or not the decisions to exercise 
>>powers on the part of a member can be constrained"
>>
>>We have had very clear advice from our counsel 
>>that this can be done. The board members in LA 
>>both in the meeting and in the corridors argued 
>>it can't, and they seemed to be arguing based on advice.
>>
>>If there was advice from their Lawyers I want us all to see it.
>>
>>If there was not, I want to know that too.
>>
>>Both are very reasonable questions.
>>
>>Cheers
>>Jordan
>>
>>
>>On Thursday, 1 October 2015, Seun Ojedeji 
>><<mailto:seun.ojedeji at gmail.com>seun.ojedeji at gmail.com> wrote:
>>
>>While I wish Bruce wisdom in answering your 
>>question. I don't understand how you conclude 
>>that it's erroneous. From my "very" little 
>>understanding of law, there are more than one 
>>way to achieve a goal and none of them lacks consequences (disadvantage).
>>
>>We have requested CCWG legal to provide their 
>>view about board proposal, I don't know what is 
>>more useful than that document produced(unless 
>>we don't trust CCWG legal as well). I mean, how 
>>differently would we have responded by seeing 
>>the notes other than the way we have to board's proposal
>>
>>That said, this does not mean I am discouraging 
>>transparency but just to indicate that our 
>>answer/solution to settle the current 
>>disagreement is most likely not in those notes.
>>
>>Regards
>>Sent from my Asus Zenfone2
>>Kindly excuse brevity and typos.
>>On 1 Oct 2015 10:24, "Jordan Carter" <jordan at internetnz.net.nz> wrote:
>>Hi Bruce
>>
>>What advice has Jones Day or ICANN's in house 
>>legal team given to the Board - either directly 
>>or through management - or directly to 
>>management - that has led to erroneous 
>>conclusions regarding whether or not the 
>>decisions to exercise powers on the part of a member can be constrained or not?
>>
>>Such erroneous conclusions were evident from 
>>the comments of some board members in Los Angeles.
>>
>>Can that advise or a summary of it be shared with the CCWG?
>>
>>Thanks
>>Jordan
>>
>>
>>On Thursday, 1 October 2015, Bruce Tonkin 
>><Bruce.Tonkin at melbourneit.com.au> wrote:
>>Hello Farzaneh,
>>
>>
>> >>   I understand that the Board has made the 
>> Jones Day impact assessment available. But in 
>> a note it states that it has had discussions 
>> with advisors and staff. I would also like to 
>> request for any document that the Board has 
>> received in its discussion with the advisors 
>> and staff and notes of the  deliberation of their meetings.
>>
>>Yes our intent is to make all documents 
>>available.   So far the only one that I am 
>>aware of is the Jones Day analysis that was published.
>>
>>We received verbal briefings form the Advisors 
>>to the CCWG 
>>(<https://community.icann.org/display/acctcrosscomm/Advisors>https://community.icann.org/display/acctcrosscomm/Advisors) 
>>, and I understand these advisors also gave 
>>verbal briefings to the CCWG, as well as any 
>>written comments they have posted to the public comments forum.
>>
>>
>>Regards,
>>Bruce Tonkin
>>
>>_______________________________________________
>>Accountability-Cross-Community mailing list
>>Accountability-Cross-Community at icann.org
>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>>
>>--
>>Jordan Carter
>>Chief Executive, InternetNZ
>>
>><tel:%2B64-21-442-649>+64-21-442-649 | jordan at internetnz.net.nz
>>
>>Sent on the run, apologies for brevity
>>
>>
>>_______________________________________________
>>Accountability-Cross-Community mailing list
>>Accountability-Cross-Community at icann.org
>><https://mm.icann.org/mailman/listinfo/accountability-cross-community>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>>
>>--
>>Jordan Carter
>>Chief Executive, InternetNZ
>>
>>+64-21-442-649 | <mailto:jordan at internetnz.net.nz>jordan at internetnz.net.nz
>>
>>Sent on the run, apologies for brevity
>>
>>_______________________________________________
>>Accountability-Cross-Community mailing list
>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>_______________________________________________
>Accountability-Cross-Community mailing list
>Accountability-Cross-Community at icann.org
>https://mm.icann.org/mailman/listinfo/accountability-cross-community
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151002/40963924/attachment.html>


More information about the Accountability-Cross-Community mailing list