[CCWG-ACCT] MEM and enforceability

[Samantha Eisner]

Jordan, can you please elaborate more on the “different fiduciary duty” situation that you refer?  As I understand it, the fiduciary duties of the Board do not change whether a member is present or not.

Thanks,

Sam

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Date: Tuesday, September 22, 2015 at 5:15 AM
To: Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>>
Cc: "Accountability Cross Community (accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>)" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] MEM and enforceability

Hi Chris, all:

The second is not the same with the single member model. As has been outlined on list before, the different fiduciary duties situation that exists with membership solves that problem.

On the first, the plan of the CCWG has been binding not advisory IRP so I don't think that it is the same, no.

On the third, that does seem a sensible time frame constraint...

best
Jordan


On 23 September 2015 at 00:06, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
Hello David,

I appreciate the constructive criticism 😀.

Are these points not the same as with the IRP in the sole member model? They would need to be addressed in either case wouldn't they?

Cheers,

Chris

On 22 Sep 2015, at 21:59, McAuley, David <dmcauley at verisign.com<mailto:dmcauley at verisign.com>> wrote:

I appreciate the board’s input and take it as a good faith effort to enhance and evolve the CCWG proposal.
However, I have, with respect, three critiques of it.

First, the ability to create a remedy if the MEM panel finds against the board is completely within the board’s discretion. Even a slight (even inconsequential) “remedy” would be a remedy and would, effectively, bar any viable avenue to court enforcement.

Second, (and this applies to any panel ruling) any decision by the board to state that a ruling against it falls into the area of the board’s fiduciary obligations (thus frustrating implementation of the ruling) should itself be appealable to ensure that this is, in fact, an objectively justified conclusion.

And, third, if we went down this path, the board’s ability to create a remedy (subject, I would urge, to some test for reasonableness) should be time-limited so that a claimant need not wait and wonder if it can ever appeal to court.

David McAuley
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