[Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?

Tue Apr 14 19:40:27 UTC 2015

Robin’s memo sound very interesting.  If you decide to have us review it, I look forward to doing so.  I hope the Legal Sub-team’s decision can be made at the earliest opportunity, to give us the maximum possible time for the review.

Rosemary

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From: ccwg-accountability5-bounces at icann.org [mailto:ccwg-accountability5-bounces at icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam
Sent: Tuesday, April 14, 2015 12:30 PM
To: ccwg-accountability5 at icann.org
Subject: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?

Thank you Greg, and thank you Robin for the work.

I (like most of us) am swamped and have not read yet Robin’s summary and table. But I did assume, on reading her cover note, that this is something that we would run past the outside counsel to get their input on as well.

I will wait to see the agenda Leon has for tomorrow’s legal sub-team call to see if this is a part of it – in any event, I will take a look before tomorrow’s call.

David McAuley

From: ccwg-accountability5-bounces at icann.org<mailto:ccwg-accountability5-bounces at icann.org> [mailto:ccwg-accountability5-bounces at icann.org] On Behalf Of List for the work of CCWG-Accountability Legal SubTeam
Sent: Tuesday, April 14, 2015 3:19 PM
To: Robin Gross; Accountability Cross Community
Cc: ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>
Subject: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?

Robin,

Thank you for this.  A great deal of effort clearly went into this and this should develop into a very useful tool.  However, I think we will need to have this reviewed by legal counsel before we rely on it.  Having reviewed this briefly, I am uncertain that at this stage this document accurately captures the legal advice, particularly with regard to how the rights can be enforced.

Specifically, this seems to give the impression that, if the membership model were chosen, the members would be limited to running off to court in most cases should rights need to be enforced.  I'm fairly confident that is not the case.  I believe that the remedies listed for the designator model, particularly changes to the bylaws and the IRP, are equally available in the member model.  With regard to litigation, I think the distinction is that the designators have no ability to litigate on behalf of the corporation, while this is one possibility (but far from the only one) available to members.  In other words, such litigation is an extra power, not the only power, available to members.

The Legal Sub Team (copied here) should discuss how to proceed.

Thank you again for taking the laboring oar in pulling this together!

Best regards,

Greg

On Tue, Apr 14, 2015 at 2:35 PM, Robin Gross <robin at ipjustice.org<mailto:robin at ipjustice.org>> wrote:
Hello Team,

What we need to do is take a hard look at both the membership model and the designator model and understand what rights can be created and how will they be enforced.  Once we understand what we *can* do, we need to look at the pros/cons of the different models and evaluate accordingly.

But first, we need to understand what *can* be done so we can discuss *if* we ought to do it and what is the best means.

So I've taken a first pass of each of the 6 community empowerment goals and created a comparison table to lay-out what rights can be created and how they can be enforced.  I've combed through all the 200+ pages of legal memos, today's CCWG call, and calls of the legal sub-team to compile this info into one table so the models can begin to be evaluated side-by-side.

The doc is attached and also here is a link to the table comparing the 2 models:
  https://docs.google.com/spreadsheets/d/1kkkRBpMUkTpD5_RP_Ogo1PTGzGt2kC6f1xooHfJXRBc/edit?usp=sharing

I am hopeful it can begin to help us to wrap our minds around what our goals are and how they could be accomplished by the two models at play.

Thanks,
Robin

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