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

Thu Apr 16 05:08:57 UTC 2015

Jordan, we are not letting you off the hook in communicating with us. (Smile). We are impressed by how much you and other leaders on this project are managing.  As you well know, we are playing catch up and this respite in schedule will allow us to provide a more thoughtful response to the chart. Holly

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From: Jordan Carter
Sent: Thursday, April 16, 2015 12:02:08 AM
To: Gregory, Holly; Rosemary E. Fei
Cc: ccwg-accountability5 at icann.org; ACCT-Staff
Subject: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?

I apologise again for the confusion here to the extent I created it. I have removed the whole CCWG from this dialogue.

There is no call for Working Party 1 on Friday. (It's on Friday in NZ, in about fourteen hours - my mistake.) That's fine, because the best WP1 could have done was read, hear about and think about the draft of it.

There is no call for the CCWG on Friday.

As far as I know, the next call for the CCWG is next Tuesday. That is when the table would be being discussed with the group and with Counsel in a call situation (excluding whatever the legal sub-group might do).

Online discussion and review of the table will be available and will be helpful whenever it is delivered.

I am starting to think the best thing I could do in respect of this legal procurement process is send emails to Greg or Leon only, and otherwise stay silent! *wry smile/groan*.

J

On 16 April 2015 at 16:56, Gregory, Holly <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>> wrote:
Dear CCWG, We will not be on the call.  We bleed time to comment on the chart which was only received this afternoon. We will plan to have the chart to you on Friday morning. Thank you,  Holly

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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: Wednesday, April 15, 2015 11:45:07 PM

To: Jordan Carter
Cc: ACCT-Staff; ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>; Accountability Cross Community
Subject: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?

4 hours before the call is 8 am on the West Coast (where it is now 9:45 PM) and 11 am on the East Coast (where it is now 12:45 AM). I tend to doubt that 4 hours prior to the call is likely to happen, since most of the difference between 12 hours and 4 hours is overnight for us.

I also realized as I looked at this that we had a day-conversion misunderstanding as well, since we were responding to your email "I know this is bold, but is there any chance a reviewed copy might be available for discussion in WP1 on Friday?" Unfortunately, you were referring to your Friday, but our Thursday.   Not realizing that on the legal sub team call, we discussed having the lawyers ready the document in anticipation of a Friday call (our Friday). Even that would be a short turn-around, but not short enough for a call that's really happening on Thursday.

In any event, I am going to circulate to the main list a copy of the second draft that counsel is reviewing, so people know what is happening, and know not to refer to the first draft.

Greg

On Thu, Apr 16, 2015 at 12:31 AM, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> wrote:
Hi there - if it's four or so hours that is still OK. But aside from that, too late, and we won't ask people to read it as a late paper.

I'd like to emphasise that that's OK - the input is primarily for a debate that the CCWG as a whole is having, and so this work will be a very useful tool for that.

thanks,
Jordan

On 16 April 2015 at 16:27, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>> wrote:
Thank you Rosemary,

Here’s a link to a tool that might prove to be useful while converting into UTC http://www.timeanddate.com/worldclock/converted.html?iso=20150416T07&p1=0&p2=155<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.timeanddate.com_worldclock_converted.html-3Fiso-3D20150416T07-26p1-3D0-26p2-3D155&d=AwMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=LvO8B-D1Rxm5xCTy895DeqdagJLVvKnf7ToKpETqGwQ&s=AY_zWcVLvbTbKWBJhgG0gaKY8Y5EtRPuJZV66Zf6xGs&e=>

And yes, that is in less than three hours.

Jordan, can you confirme Counsel won’t be required in the call?

Best regards,

León

El 15/04/2015, a las 23:20, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>> escribió:

León and Jordan:

I’m new to converting from UTC, but I believe the deadline (0700 UTC) is in less than three hours.  If that’s correct, then no, legal counsel cannot have our comments to Robin’s chart ready by then.

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: Wednesday, April 15, 2015 9:04 PM
To: Jordan Carter
Cc: ACCT-Staff; ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>; Accountability Cross Community
Subject: Re: [Acct-Legal] [CCWG-ACCT] community powers comparison: designator & membership model - what powers can we create and how to enforce them?

Thanks for the quick return Jordan.

Counsel, is Jordan’s message clear?

Your attendance would be needed on WP1 call only if the document is ready under the stated times.

Would this timeline be able to be met?

Best regards,

León

El 15/04/2015, a las 22:10, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> escribió:

Hi folks

If the lawyers are on track to finish adding their material / views to the table that Robin proposed and are ready to circulate that to me and everyone else by 0700 UTC on Thursday, then yes, I would like to invite them to be the first item on the call, from 1900 to 1920 on the call on Thursday (UTC).

Otherwise, no counsel are required.

We won't deal with any material that can't reach the 12h deadline, unless it's like 11h or 10h.

So - please advise ASAP the timeline.

IN terms of what we have to do on that call, introducing this material will be helpful, but we don't need to make decisions on it. That's why it is a 20 mins slot at the start of the call - we do have to finish the rest.

thanks,
Jordan

On 16 April 2015 at 13:08, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>> wrote:
Dear Jordan,

Could you please confirm whether you will be needing the lawyers to attend your call on Friday?

Staff, if Jordan does confirm the need to invite the lawyers, could you please make sure they get the invitations with the call details?

Best regards,

León

El 15/04/2015, a las 19:56, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>> escribió:

Dear Leon and Jordan,

Could you please let us know if outside counsel is being asked to join the WP1 call on Friday referenced below, and if so, could you let us know the time of the call and arrange for an invitation to be sent to us?

Thanks,

TYLER HILTON
Associate

Sidley Austin LLP
+1.213.896.6130<tel:%2B1.213.896.6130>

thilton at sidley.com<mailto:thilton 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 List for the work of CCWG-Accountability Legal SubTeam
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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 Leon and Jordan,  We should be able to have this ready within the next day or so and definitely prior to Friday's call.  Kind regards, Holly.

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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: Wednesday, April 15, 2015 12:32:18 AM
To: Jordan Carter
Cc: ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>; Accountability Cross Community
Subject: 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,

Would Jordan’s request be possible?

Best regards,

León

El 15/04/2015, a las 0:26, Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> escribió:

I know this is bold, but is there any chance a reviewed copy might be available for discussion in WP1 on Friday?
Many thanks
Jordan

On 15 April 2015 at 17:00, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>> wrote:
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

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Cc: Accountability Cross Community
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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