<html>
<body>
"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."<br><br>
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.<br><br>
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.<br><br>
Alan<br><br>
<br>
At 01/10/2015 09:05 PM, Chris Disspain wrote:<br>
<blockquote type=cite class=cite cite="">Hi Jordan,<br><br>
<blockquote type=cite class=cite cite="">"<font size=2>whether or
not the decisions to exercise powers on the part of a member can be
constrained</font>”</blockquote><br>
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.<br><br>
<blockquote type=cite class=cite cite="">We have had very clear advice
from our counsel that this can be done.</blockquote><br>
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. <br><br>
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.<br><br>
<br>
Cheers,<br><br>
<br>
Chris<br><br>
<blockquote type=cite class=cite cite="">On 1 Oct 2015, at 22:55 , Jordan
Carter
<<a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a>
> wrote:<br><br>
Seun, all<br><br>
I stand by my comment - the error is very narrow but very
important:<br><br>
"<font size=2>whether or not the decisions to exercise powers on the
part of a member can be constrained</font>"<br><br>
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.<br><br>
If there was advice from their Lawyers I want us all to see it.<br><br>
If there was not, I want to know that too.<br><br>
Both are very reasonable questions.<br><br>
Cheers<br>
Jordan <br><br>
<br>
On Thursday, 1 October 2015, Seun Ojedeji
<<a href="mailto:seun.ojedeji@gmail.com">seun.ojedeji@gmail.com</a>
> wrote:<br>
<dl><br>
<dd>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).<br><br>
<dd>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<br><br>
<dd>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.<br><br>
<dd>Regards<br>
<dd>Sent from my Asus Zenfone2<br>
<dd>Kindly excuse brevity and typos.<br>
<dd>On 1 Oct 2015 10:24, "Jordan Carter"
<jordan@internetnz.net.nz> wrote:<br>
<dl>
<dd>Hi Bruce<br><br>
<dd>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?<br><br>
<dd>Such erroneous conclusions were evident from the comments of some
board members in Los Angeles.<br><br>
<dd>Can that advise or a summary of it be shared with the CCWG?<br><br>
<dd>Thanks<br>
<dd>Jordan <br><br>
<br>
<dd>On Thursday, 1 October 2015, Bruce Tonkin
<Bruce.Tonkin@melbourneit.com.au> wrote:<br>
<dl>
<dd>Hello Farzaneh,<br><br>
<br>
<dd>>> 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.<br><br>
<dd>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.<br><br>
<dd>We received verbal briefings form the Advisors to the CCWG
(<a href="https://community.icann.org/display/acctcrosscomm/Advisors">
https://community.icann.org/display/acctcrosscomm/Advisors</a>) , 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.<br><br>
<br>
<dd>Regards,<br>
<dd>Bruce Tonkin<br><br>
<dd>_______________________________________________<br>
<dd>Accountability-Cross-Community mailing list<br>
<dd><a href="??">Accountability-Cross-Community@icann.org</a><br>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
<br><br>
</dl><font color="#888888"><br><br>
<dd>-- <br>
<dd>Jordan Carter<br>
<dd>Chief Executive, InternetNZ<br><br>
<dd><a href="tel:%2B64-21-442-649">+64-21-442-649</a> |
jordan@internetnz.net.nz<br><br>
<dd>Sent on the run, apologies for brevity<br><br>
</font><br>
<dd>_______________________________________________<br>
<dd>Accountability-Cross-Community mailing list<br>
<dd>Accountability-Cross-Community@icann.org<br>
<dd>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
<br><br>
</dl>
</dl><br><br>
-- <br>
Jordan Carter<br>
Chief Executive, InternetNZ<br><br>
+64-21-442-649 |
<a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a><br>
<br>
Sent on the run, apologies for brevity<br><br>
_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
<a href="mailto:Accountability-Cross-Community@icann.org">
Accountability-Cross-Community@icann.org</a><br>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</blockquote><br>
_______________________________________________<br>
Accountability-Cross-Community mailing list<br>
Accountability-Cross-Community@icann.org<br>
<a href="https://mm.icann.org/mailman/listinfo/accountability-cross-community" eudora="autourl">
https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</blockquote></body>
</html>