[CCWG-ACCT] Continued Counsel Dialogue

Greg Shatan gregshatanipc at gmail.com
Fri Oct 2 23:55:27 UTC 2015


Case dismissed.

On Fri, Oct 2, 2015 at 7:53 PM, Seun Ojedeji <seun.ojedeji at gmail.com> wrote:

> Greg, I think we bring so much legal stuff into this that makes us forget
> the element of nature called "choice".
>
> Can you tell me the outcome of a scenario where the community by "choice"
> decides to ask/mandate board to implement certain things and then if board
> by choice decides not to implement such request. Does the community go into
> the implementation without paying recognition to the board or what?
>
> My point was that it is ultimately the judge's verdict that enforce and
> not necessarily the membership nor MEM. All through the escalation process
> before courts, the community and/or the board has a choice to make and
> because there is membership should not be perceived as final except the
> court says so.
>
> Membership however provides the standing to get to enforce in courts (and
> such standing is what we are/should also be checking if it exist within
> MEM). So membership is not itself the end but just the means to the end.
>
> Again focusing on the means(model) and not the end(goals) is what has been
> prolonging this process for so long. Earlier in this process, I mentioned
> that some of us have limited resources and cannot continue this aggressive
> process for so long. Perhaps this process will exhaust some of us and
> others well motivated can then have their way.
>
> I rest my case!
>
> Regards
>
> Sent from my Asus Zenfone2
> Kindly excuse brevity and typos.
> On 3 Oct 2015 00:27, "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>
>> Seun,
>>
>> You are incorrect about how a US membership non-profit corporation works,
>> and how the membership relates to the Board.  In a membership non-profit,
>> the membership has certain superior rights vis a vis the Board.  I believe
>> this is clear from the Sidley/Adler documents.
>>
>> If there is no membership, then the community can only ASK board to do
>> things.  That seems to be your desired outcome, but I don't think that is
>> broadly shared within the CCWG. I think this goes beyond even the Board
>> comments, where they are willing to give the Community things that at least
>> look like powers (though subject ultimately to the Board's discretion and
>> judgment)
>>
>> The only reason I can think that "going to court to enforce would be more
>> closer in the escalation process than we may be thinking" is the tone and
>> approach of this memo.
>>
>> Greg
>>
>> On Fri, Oct 2, 2015 at 7:14 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
>> wrote:
>>
>>> Hi Avri,
>>>
>>> I think it needs to be clear that the community can only ASK board to do
>>> things, whether they would do it is entirely at the discretion of the
>>> board. This is normal for membership setup as the community has no
>>> executive status to implement.
>>>
>>> That said, I am in full agreement with trying to resolve things locally
>>> as much as possible and if you ask me, I don't think membership will
>>> encourage that approach. Going to court to enforce would be more closer in
>>> the escalation process than we may be thinking.
>>>
>>> Regards
>>> Sent from my Asus Zenfone2
>>> Kindly excuse brevity and typos.
>>> On 2 Oct 2015 23:50, "Avri Doria" <avri at acm.org> wrote:
>>>
>>>> Hi,
>>>>
>>>> Ultimately yes, they can all end up in court.
>>>>
>>>> The critical issue in my mind is how many steps we can take inside the
>>>> organizations process to remedy before having to resort to the ultimate
>>>> nastyness - appearing before a judge. I think each trip to court is a
>>>> failure to be avoided.  Our model needs to deal properly with shared
>>>> decision making while allowing for problem resolution in a way that
>>>> avoids such failures.
>>>>
>>>> avri
>>>>
>>>>
>>>> On 02-Oct-15 18:21, Chris Disspain wrote:
>>>> > I don’t disagree with you Avri but isn’t going to court the ultimate
>>>> > enforceability in any of the models/ideas we have been discussing?
>>>> >
>>>> >
>>>> >
>>>> > Cheers,
>>>> >
>>>> >
>>>> > Chris
>>>> >
>>>> >
>>>> >> On 2 Oct 2015, at 21:07 , Avri Doria <avri at acm.org
>>>> >> <mailto:avri at acm.org>> wrote:
>>>> >>
>>>> >> Hi,
>>>> >>
>>>> >> Within ICANN, it rests with the Board.
>>>> >>
>>>> >> I resist the idea of including going to court as a normal part of our
>>>> >> process.  I have argued all the way through this process, that going
>>>> to
>>>> >> court is something to be avoided and something we should not
>>>> consider to
>>>> >> be part of the process.  Yes at the end of the day it needs to be
>>>> >> possible, but it is a failure indication.
>>>> >>
>>>> >> avri
>>>> >>
>>>> >>
>>>> >> On 02-Oct-15 06:57, Chris Disspain wrote:
>>>> >>> No Avri. At the end of the day it rests with the court as I believe
>>>> is
>>>> >>> clear from the note from JD.
>>>> >>>
>>>> >>> After a finding by an arbitration panel that a bylaw has been
>>>> >>> breached, it is a matter for the Board about how they remedy (as I
>>>> >>> believe is the case with the member model also) and that remedy is
>>>> >>> itself subject to a claim that it breaches a bylaw (if the community
>>>> >>> has consensus). If the Board refuses to abide by the ruling then a
>>>> >>> court can order them to do so.
>>>> >>>
>>>> >>> Have I misunderstood the way the member model works. I believe Becky
>>>> >>> has said numerous times that the only finding could be that the
>>>> >>> relevant bylaw has been breached, NOT that the Board must take a
>>>> >>> specific action. Is that wrong?
>>>> >>>
>>>> >>>
>>>> >>>
>>>> >>> Cheers,
>>>> >>>
>>>> >>>
>>>> >>> Chris
>>>> >>>
>>>> >>>
>>>> >>>> On 2 Oct 2015, at 20:46 , Avri Doria <avri at acm.org
>>>> >>>> <mailto:avri at acm.org>
>>>> >>>> <mailto:avri at acm.org>> wrote:
>>>> >>>>
>>>> >>>> Hi,
>>>> >>>>
>>>> >>>> That was one of my favorite lines as well.
>>>> >>>>
>>>> >>>> And is a key point.  In the current model, and as far as I can
>>>> tell in
>>>> >>>> the MEM, at the end of the day, all always rests "within the
>>>> Board's
>>>> >>>> discretion."
>>>> >>>>
>>>> >>>> avri
>>>> >>>>
>>>> >>>>
>>>> >>>> On 02-Oct-15 05:29, Dr Eberhard W Lisse wrote:
>>>> >>>>> I really LOVE this one:
>>>> >>>>>
>>>> >>>>> [...]
>>>> >>>>> "the Board is required to remedy that violation, within the
>>>> >>>>> Board’s discretion."
>>>> >>>>> [...]
>>>> >>>>>
>>>> >>>>> (last line on Page 1)
>>>> >>>>
>>>> >>>>
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