[CCWG-ACCT] [Acct-Legal] FW: certification of legal issues requested

Tue Oct 6 05:18:25 UTC 2015

I do too, but would ask to at least include the specific questions I suggested i.e. whether there are means to subject the scope and exercise of fiduciary duties to objective standards/controls.

For ease of reference:

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Is there any means under Californian Law that would allow to subject the exercise of fiduciary duties to objective and controllable standards? For example, could the following or similar means be acceptable and usable under Californian law:

·         concretizing these fiduciary duties in the Bylaws;

·         subjecting their correct interpretation to arbitration;

·         imposing special requirements on the rationale needed to be provided if they are used to override community decisions;

·         imposing extra-supermajorities in the Board in order to being able to invoke such duties?

The underlying idea is IMHO very relevant to our present discussions on the Model, especially for those of us who are not experts in Californian Corporate Law: i.e. is there a legal means to subject those fiduciary duties to specific and objective standards and/or third-party control? If there are, could we use those means (if they exist) to develop our model? If they do not exist, or are too limited, this might speak for a membership structure.

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Thanks

Jorge

Von meinem iPhone gesendet

Am 06.10.2015 um 06:43 schrieb Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>:

I support certifying these matters to our counsel for advice.

Greg

On Tue, Oct 6, 2015 at 12:36 AM, Gregory, Holly <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>> wrote:

To: mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>; thomas at rickert.net<mailto:thomas at rickert.net>; leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>; ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>
Cc: Rosemary E. Fei (rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>); Sidley ICANN CCWG; ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>
Subject: RE: certification of legal issues requested

Dear Co-Chairs,
Consider whether to certify to us the question of whether under ICANN's current structure
SOs and ACs have legal rights to select directors in line with designator rights under the California statute. Holly and Rosemary.

Sent with Good (www.good.com<http://www.good.com>)

________________________________
From: Gregory, Holly
Sent: Monday, October 05, 2015 09:38:10 PM
To: mathieu.weill at afnic.fr<mailto:mathieu.weill at afnic.fr>; thomas at rickert.net<mailto:thomas at rickert.net>; leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>; ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>
Cc: Rosemary E. Fei (rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>); Sidley ICANN CCWG; ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com>
Subject: certification of legal issues requested
Dear Co-Chairs

Based on much discussion and a fair degree of confusion evident in the email exchange, we request that you consider certifying the following question to us

•         What are a director’s fiduciary duties to a California nonprofit public benefit corporation?  What is the relationship between these duties and the mission of the corporation?

In addition,  we note that Sam Eisner recently provided a note on the email regarding the availability of default judgments should the Board refuse to participate in an IRP.  We have a different view and would like you to certify that question to us.

We note as a general matter that we are not able to provide answers to legal questions unless certified but ICANN Legal of course has no such limits. It does put us in a difficult position when we don’t agree, since some may take our silence as an indication of agreement.

Kind regards,
 Holly and Rosemary

HOLLY J. GREGORY
Partner and Co-Chair
Corporate Governance & Executive Compensation Practice Group
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5853<tel:%2B1%20212%20839%205853>
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>
www.sidley.com<http://www.sidley.com/>
[http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP

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