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

Wed Apr 15 17:10:39 UTC 2015

For those not familiar with California law, it might also be helpful to know that the California corporations code has especially clear language providing liability protection for members/associates of a nonprofit unincorporated association.   Such protection might not be as clear or as clearly spelled out in other jurisdictions.  We could use the California nonprofit unincorporated association form.

Ingrid Mittermaier

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 11:09 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?

Dear Rosemary,

this indeed helps a great deal. I had come away with the wrong impression regarding the need for incorporation which of course always implies questions of liability as well. So thank you for addressing this issue, too. I would however still hold out a bit for feedback from the CCWG list as there might be concerns outside of the “legal realm” fuelling the discussion.

Best regards
Sabine

Von: ccwg-accountability5-bounces at icann.org<mailto:ccwg-accountability5-bounces at icann.org> [mailto:ccwg-accountability5-bounces at icann.org] Im Auftrag von List for the work of CCWG-Accountability Legal SubTeam
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Betreff: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?

Sabine:

In either the member or designator structure, our recommendation is that the members or designators be formed as unincorporated nonprofit associations, rather than incorporated.  (Members must exist as legal persons; we strongly advise it for designators.)  The paperwork required is minimal, and similarly minimal changes to ICANN’s bylaws and the descriptions of the newly-associated entities would be required to recognize that the members/designators are unincorporated associations.  That said, they would be legally separate persons, with the rights to enter into contracts, to sue, and to be sued (although they would, by design, have no assets whatsoever, making them less attractive targets for suit).  Unincorporated associations are recognized in many if not all jurisdictions in the U.S., although I’m not sure about outside the U.S.  In general, the individuals who associate in an unincorporated association are not liable for the association’s activities or debts merely on the basis of their status as associates.

I’m not sure if that’s what you’re asking about, so I hope this helps.

Rosemary

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 10:51 PM
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Subject: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?

Dear Léon, dear subteam, dear counsel,

I just posted to the general CCWG list my concerns about diving head-first into a comparison between the membership and designator models. I do feel like this is a discussion that we need to have and soon, but I was quite worried by a remark about the apparent incorporation requirement for the SO’s made during yesterday’s CCWG call. I feel like we should not lose sight of the prerequisites for each model – if they cannot be fulfilled, any discussion about the “how” will be in vain. That’s why I asked for input from the CCWG list in hopes of someone speaking up. I’ll also go through the transcript of yesterday’s call as soon as it is available to confirm whether my recollection of the call actually checks out.

Best regards,
Sabine

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

Dear Holly and Rosemary,

Please do review Robin’s table. I apologize for the delay on assignment and don’t expect you to have elaborated for our call tomorrow but rather give an initial review so we can further discuss in our call tomorrow.

Best regards,

León

El 14/04/2015, a las 16:42, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>> escribió:

Happy to review with direction from Legal Subteam.  Please provide direction ASAP. Holly

Sent with Good (www.good.com<http://www.good.com>)

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Subject: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?
Fantastic work Robin and much appreciated!

I echo Greg's comments concerning  the role of litigation in both models. I do like the format and I think it would be a great idea to have it reviewed and improved upon, if necessary, by counsel, for distribution to the general list.

Best,

Ed

On Tue, Apr 14, 2015 at 8:19 PM, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>> wrote:
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<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spreadsheets_d_1kkkRBpMUkTpD5-5FRP-5FOgo1PTGzGt2kC6f1xooHfJXRBc_edit-3Fusp-3Dsharing&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=nyDQdlri5xYHMimBihFhuPRDmv90jS4gFWrucTjoxrM&s=nn6UHsMF-YpzD09pBcaHOa5b41fXAi_G4BJGOV2NU4A&e=>

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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