[Acct-Legal] Some questions

Wed Apr 1 14:35:01 UTC 2015

Thanks Holly,

Seems fair to me. I have no personal objection to handling this in the CWG process.

David

From: Gregory, Holly [mailto:holly.gregory at sidley.com]
Sent: Wednesday, April 01, 2015 10:28 AM
To: McAuley, David; ccwg-accountability5 at icann.org; León Felipe Sánchez Ambía (leonfelipe at sanchez.mx)
Subject: RE: Some questions

Thanks David for these very thoughtful questions, many of which we have thought about with our CWG hat on.  That said we will defer to Adler on them with one possible suggestion for adjustment.  The following questions seems to directly relate to the CWG work stream:

If a hybrid structure is used (combination of corporate and contract law) would the contract be of indefinite duration? Who would the parties be? Would third-party beneficiaries feature in that arrangement? Could termination protections be sufficiently robust to protect the community? Are the remedies of specific performance or mandamus practically speaking remedies that would take years?

HOLLY GREGORY
Partner

Sidley Austin LLP
+1.212.839.5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: ccwg-accountability5-bounces at icann.org<mailto:ccwg-accountability5-bounces at icann.org> [mailto:ccwg-accountability5-bounces at icann.org] On Behalf Of McAuley, David
Sent: Wednesday, April 01, 2015 9:49 AM
To: ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>; León Felipe Sánchez Ambía (leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>)
Subject: [Acct-Legal] Some questions

Hi Leon and legal sub-team colleagues,

We have one hour today and loads of questions already. So I will list questions below but understand we will likely not get to these today.

I agree with sentiments expressed in the overnight message traffic that we should spend a bit of time today on organizational issues and I like the idea of creating a central questions repository that might make things a bit easier to follow for ourselves as well as the full CCWG.

Here are the questions I have:

For Adler/Colvin:

What is ICANN presently, member or designator or blended or none of these?

If it is one, can it change to another without a new IRS review of tax status?

What specifically would it mean to structure an SO or AC as an unincorporated association? Does it implicate liability on their part? Is there a chance they are already such status?

Two-tiered board: Can the full board step in and overturn an executive committee decision at any time, say even five years later?

Can a California board be required to keep detailed meeting minutes including vote tallies by member, or can meetings be recorded and open to inspection?

If so, could certain subjects be “walled off” to comply with applicable privacy laws? By “walled off” I mean recorded in some manner but unavailable for inspection absent some threshold showing consistent with applicable privacy law.

Would a board committee be an appropriate tool to keep check on mission creep?

If a hybrid structure is used (combination of corporate and contract law) would the contract be of indefinite duration? Who would the parties be? Would third-party beneficiaries feature in that arrangement? Could termination protections be sufficiently robust to protect the community? Are the remedies of specific performance or mandamus practically speaking remedies that would take years?

While I understand that a board member can be selected for the board by a designator, is it also true that that particular board member may not be removed over the objection of the particular designator who appointed him/her?

Would the community’s present apparent desire for an open records policy of some additional heft over the existing one (currently referred to in ICANN as the Documentary Information Disclosure Policy (DIDP) https://www.icann.org/resources/pages/didp-2012-02-25-en<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_didp-2D2012-2D02-2D25-2Den&d=AwMGaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=yvJswtagqdJJggtRzBzF-rPlXKnocjXGflRDeZteozc&s=Yzyvt7PsmOIvNUa-PZj-rVkq89fZBaMGx_XrWwGkWVo&e=>) be something that should be handled in a bylaw? Does California have any law respecting access to non-profit organization records that would restrict access or enlarge it?

For Sidley:

Your advice of March 27 says (at page 5) that the member review and approval right over a board decision not to accept the recommendation of a specified group (I am particularly interested in IRP)  is a potential mechanism “to require the Board to take a second look.” Isn’t it more than that, though, if it involves approval – can’t it be a mechanism to require the board to accept the recommendation?

Thank you all,

David McAuley
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