[CCWG-ACCT] MEM and enforceability

[Samantha Eisner]

Jordan & Thomas,

My understanding of the SMM is that the SMM has, in certain areas, the ultimate right to direct Board action.  These areas are dictated by California law and cannot be limited via the Bylaws.  As a result, once the member makes a determination, while it may invite the Board to express a view, the member's determination is final unless the member changes its mind. Further, particularly in the exercise of statutory rights, there is nothing in the CCWG work to date that suggests that the SMM vote would be subject to Board ratification, and on certain enumerated powers, Board ratification would be legally irrelevant in all events.  It is not clear to me what decisions are being referred to that would "still be made by the Board."

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: Thursday, September 24, 2015 at 5:48 PM
To: Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] MEM and enforceability

Chris asks...

On 25 September 2015 at 12:34, Chris Disspain <ceo at auda.org.au<mailto:ceo at auda.org.au>> wrote:
Thanks Thomas.

But, let's not forget that decisions will not be made by the Community or the Single Member, but by the Board. The community powers are limited to asking the Board to redo decisions (with the exception of changes of Fundamental Bylaws that need approval). The new decision is still to be made by the Board. If Board members are of the opinion that the Community asks them to do illegal things or things that might expose them to liability or just things that are fundamentally wrong, I am sure the Board member would not be available for that.

And then what?


Well, presumably, that's that. The community would find that any other director it tried to appoint would find the same constraints, right? And if the issue isn't a clear cut one which, I suppose, often they aren't, they could appoint directors with a different view.

And then life goes on....

J

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