[Acct-Legal] Memorandum of Request for Legal Advice: Samantha Eisner comments on Adler & Colvin March 27 Memo

Wed Apr 8 21:53:49 UTC 2015

Counsel:

As discussed today on the Legal Sub Team call, this is a formal
authorization to review and respond to the questions set forth below from
Samantha Eisner.

Please let the Legal Sub Team know if you have any questions.

Best regards,

Greg

*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*

*Partner* *| IP | Technology | Media | Internet*

*666 Third Avenue | New York, NY 10017-5621*

*Direct*  212-885-9253 *| **Main* 212-949-9022

*Fax*  212-949-9190 *|* *Cell *917-816-6428

*gsshatan at lawabel.com <gsshatan at lawabel.com>*

*ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com>*

*www.lawabel.com <http://www.lawabel.com/>*

---------- Forwarded message ----------
From: Greg Shatan <gregshatanipc at gmail.com>
Date: Tue, Apr 7, 2015 at 1:09 PM
Subject: Fwd: [CCWG-ACCT] Fwd: [Acct-Legal] Preliminary Responses to Legal
Sub-team Questions
To: "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>

Legal Subteam and Counsel:

I am forwarding to you for consideration comments on the Adler &  Colvin
document sent to the main CCWG email list last week by Samantha Eisner of
ICANN.

Greg
---------- Forwarded message ----------
From: Samantha Eisner <Samantha.Eisner at icann.org>
Date: Tue, Mar 31, 2015 at 5:12 PM
Subject: Re: [CCWG-ACCT] Fwd: [Acct-Legal] Preliminary Responses to Legal
Sub-team Questions
To: León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>, CCWG Accountability <
accountability-cross-community at icann.org>

 Dear CCWG and the Legal Sub-team -

 Thanks for the opportunity to provide questions and comments on the
initial Adler & Colvin document for the sub-team’s consideration in passing
along to the firm.  Some of these might be better considered within the
CCWG, but came to mind as I read the document.

 These are some of the initial questions that I had when reviewing the
Adler & Colvin document:

   1. If ICANN were to be converted to a membership based structure (or
   required some restructuring to incorporate delegates or designators), what
   impact would that have on ICANN’s not-for-profit public benefit designation
   under California law, or its 501c3 public charity status as recognized by
   the U.S. Internal Revenue Service?  Would ICANN have to re-apply for any
   status or designation upon a change?
   2. If so, would any of the models under consideration put ICANN’s
   status/designation at issue, or pose challenges to the likelihood of
   achieving the same designation?
   3. For information on the self-perpetuating Board model, that is not
   something that is currently in practice within ICANN.  ICANN's Board
   currently only has the power to select a single member - the President and
   CEO.  A non-board comprised Nominating Committee (comprised by delegates
   selected throughout the ICANN community) selects 8 directors, and ICANN's
   SOs and the At-Large Community select the other 7.  Non-voting liaisons are
   also appointed from entities outside of the ICANN Board.
   https://www.icann.org/resources/pages/chart-2012-02-11-en.
   4. Can you provide some clarification on how the designator model
   described within the document is different from the model currently in
   place within ICANN?  Understanding that the current Bylaws do not allow for
   a designator to remove a selected director (and that is something that is
   likely to be changed through this accountability work) what else is
   different here?  Some specific questions are – are you anticipating that
   the current form of ICANN’s SOs and ACs are sufficient to meet
   the requirement for the unincorporated associations referred to in your
   responses?  What are the characteristics of the unincorporated associations
   that would be appropriate for this role?  How is the ICANN Nominating
   Committee different from the group of entities that is discussed as coming
   together to be the collective designators acting
   together/the “constellation” referred to in the memo?
   5. Page 5 – The ICANN Bylaws currently require indemnification of
   directors to the extent allowed by law.  What are the implications of such
   a provision being in place if ICANN were to move to a “super board” with a
   majority of directors not holding a fiduciary duty to the organization?
   What are the governance and accountability implications for this?
   6. Page 5 – Also relating to the size of the Board - ICANN currently
   allows its directors to elect to receive compensation.  In considering
   changes to the structure of ICANN's Board, it's probably necessary to
   include consideration of whether other items, such as compensation, should
   be revisited, and how such changes interact with the historical basis for
   taking decisions (i.e., board compensation was recommended through ATRT1),
   as well as issues of accountability and governance.  This may not be a
   legal question for the advisors, but something for the CCWG to consider if
   it will be recommending a change to the Board size.
   7. Is payment for membership required?
   8. Page 7 includes discussion of internal decision-making of the various
   members of the organization. Where would commitments of accountability to
   other members/broader ICANN community be housed?  Could there be broad
   principles developed for members, with the requirement that individual
   internal operating procedures be drafted in line with those?  How do we
   assure that the membership concept allows for the introduction of future
   participants?
   9. Page 9 – Can you provide some clarity on who the party/parties are
   with whom ICANN would be contracting?  It’s not quite clear which whom
   ICANN is suggested to contract with and what consideration is provided as
   the basis for the contract.  Is this considered a broad solution, or a
   specific solution for those who are already under contract with ICANN?

Best,

 Sam

  From: León Sánchez Ambía <leonfelipe at sanchez.mx>
Date: Sunday, March 29, 2015 at 10:24 PM
To: CCWG Accountability <accountability-cross-community at icann.org>
Subject: [CCWG-ACCT] Fwd: [Acct-Legal] Preliminary Responses to Legal
Sub-team Questions

  Dear all,

 I am forwarding the preliminary responses provided by Adler & Colvin to
the first round of questions submitted to them.

 I suggest you review them as input from all will be considered and is
important for our steps forward.

 Best regards,

 León

 Inicio del mensaje reenviado:

 *De: *Steven Chiodini <schiodini at adlercolvin.com>
 *Para: *"ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>
 *Fecha: *27 de marzo de 2015 21:22:43 GMT-6
 *Cc: *"Huston, Peter K." <phuston at sidley.com>, "Schramm, Dorothee" <
dschramm at sidley.com>, Emily Chan <echan at adlercolvin.com>
 *Asunto: **[Acct-Legal] Preliminary Responses to Legal Sub-team Questions*

  We are pleased to attach our preliminary responses to the questions sent
to us by the Legal Sub-team earlier this week.  We look forward to
discussing them with you.

 Have a very nice weekend,

 Greg Colvin
 Rosemary Fei
 Stephanie Petit
 Steven Chiodini

 =====

Please be aware that this email is intended to provide a short response to
the questions posed, without the benefit of legal research.  If you would
like a more thoroughly considered and researched response, please let us
know.
 =====

 Steven Chiodini
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
Tel: 415-421-7555
Fax: 415-421-0712
email: schiodini at adlercolvin.com
www.adlercolvin.com
 The information in this e-mail message and any attachments may be
privileged, confidential, and protected from disclosure.  If you are not
the intended recipient, any use, dissemination, distribution, or copying of
this transmission is strictly prohibited.  If you think that you have
received this e-mail message in error, please e-mail the sender at
schiodini at adlercolvin.com, and delete all copies of this message and its
attachments, if any.  Thank you.

_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community

-- 

*Gregory S. Shatan **ï* *Abelman Frayne & Schwab*

*Partner* *| IP | Technology | Media | Internet*

*666 Third Avenue | New York, NY 10017-5621*

*Direct*  212-885-9253 *| **Main* 212-949-9022

*Fax*  212-949-9190 *|* *Cell *917-816-6428

*gsshatan at lawabel.com <gsshatan at lawabel.com>*

*ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com>*

*www.lawabel.com <http://www.lawabel.com/>*
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ccwg-accountability5/attachments/20150408/aa935167/attachment-0001.html>