[Acct-Legal] Draft answers to Apr 17 memo

Tue Apr 21 01:16:54 UTC 2015

It was not a hypothesizing on #5, but rather information straight from our lawyers' memo.  P. 7 of Sidley memo of 18 March:
"The benefits of an unincorporated association are that there are fewer statutory requirements and they can be more informally operated.  However, there are a number of disadvantages to structuring Contract Co. as an unincorporated association, including the following: ... a number of non-US jurisdictions do not recognize the existence of an unincorporated association.  As a result, these jurisdictions may look through the association and hold individual members of such association liable."

So I'm simply raising this as a reason why some are concerned about forming as an unincorporated association, whether or not it is a realistic fear is another question.

I'm ok with the language you proposed for #1.  (our emails on this subject crossed in the mail).

But I don't agree on #4 that a membership model would be preferable given the number of other criteria at issue and other ways or achieving the same goals.  

Thanks,
Robin

On Apr 20, 2015, at 4:15 PM, List for the work of CCWG-Accountability Legal SubTeam wrote:

> Robin,
> 
> I had real problems with the second sentence of 1.  Voluntary compliance is not a form of enforceability, and the question asks about voluntary compliance as opposed to enforceability.  In any case, if you're not suggesting a further change, no need to discuss further.
> 
> How would you change the answer to question #4?  I'm not sure I understand your comment.  I don't think we are seeking to change which budgets and plans go before the Board; we're just seeking to change the community's role in dealing with a budget or plan the community doesn't like.  As for the contractual option for approving, counsel did not sound very hopeful ("might be enforceable," "might be very complex").  In any case, I don't think that changes the answer to question 4, which requires an answer to a postulate.
> 
> Also, is there are a change you would amke to #5?  Before hypothesizing that unincorporated associations would be disregarded in other jurisdictions, I think we would need a credibility check with our counsel.  I am no cross-border litigator, but I would think that principles of comity (legal reciprocity among nations), among other things, would prevent or at least deter such a result.  Of course, even if unincorporated associations are disregarded, that is probably no worse than the current situation where SOACs have no legal status whatsoever (unless one believes that ICANN is protecting all of us from litigation).  Does the Legal Sub Team want to assign these questions to counsel?  
> 
> Greg
> 
> 
> 
> On Mon, Apr 20, 2015 at 6:11 PM, List for the work of CCWG-Accountability Legal SubTeam <ccwg-accountability5 at icann.org> wrote:
> I liked the second sentence answer to 1a as originally drafted.   My only quibble is with the answer supplied to question 4.  It seems we have options about what budgets or plans can get *before* the board for the ultimate vote and we have options about contractual enforcement under the designator model that need further exploration.
> 
> As for the answer to 5, I think anytime a new entity is created that people are participating in and that make decisions for which money is on the table, there is always going to be the concern for lawsuits.  If another country does not recognize unincorporated associations, for example, the individuals participating in those associations might instead be the target for whatever lawsuit gets filed about their decision/action (possibly in another jurisdiction).  While California law is a main concern, we need to recognize that other parts of the world may not share the protections in their legal code and so would try to reach right through the California association.
> 
> Thanks,
> Robin
> 
> On Apr 20, 2015, at 1:33 PM, List for the work of CCWG-Accountability Legal SubTeam wrote:
> 
>> Hi Leon,
>>  
>> I offer the following comments:
>>  
>> I suggest that the answers have a general lead-in sentence along these lines: We are submitting answers as requested but expect that further discussions in CCWG calls as well as work party and legal sub-team calls may further develop community concerns along these lines.
>>  
>> With respect to the answer to 1.a) – I would stop after you’re the first sentence. I am concerned in the second sentence with the phrase “Whether this enforceability is voluntary compliance …” and think it best just to stop after first sentence. Voluntary compliance would not be an acceptable norm, in my opinion.
>>  
>> With respect to the answer to 3.a) – I agree with the items listed in a) through d) – but there may be more, e.g. inaction by the board in certain circumstances, IRP decision as noted in the example in the question.
>>  
>> With respect to the answer to 5) – I would suggest something along these lines: Most participants in the ICANN community are from countries other than the United States, and they (as well as many participants in the United States) are concerned with the reputation of the Unites States for unduly high levels of litigation. Our interest is in assuring participants that they will have the best protection from exposure to litigation in this regard, and nothing less than the community members have had to date.  
>>  
>> David McAuley
>>  
>> 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: Monday, April 20, 2015 12:33 PM
>> To: ccwg-accountability5 at icann.org
>> Subject: [Acct-Legal] Draft answers to Apr 17 memo
>>  
>> Dear all,
>>  
>> I am attaching a very brief draft reply to the questions raised to us by the lawyers in their April 17 memo regarding the comparison chart on corporate models.
>>  
>> I kindly ask you to review the draft and add any information you might consider relevant so we can have a final version by the end of today to submit to the lawyers.
>>  
>> Please pay special attention to question 5 which has no answer in the draft.
>>  
>>  
>> Thanks in advance,
>>  
>>  
>> León Felipe Sánchez Ambía
>> Fulton & Fulton SC
>> http://www.fulton.mx
>>  
>> **AVISO DE CONFIDENCIALIDAD: Este correo electrónico, incluyendo, en su caso, los archivos adjuntos al mismo, pueden contener información de carácter confidencial y privilegiado por lo que se envían en atención únicamente de la persona o entidad a la que van dirigidos. La copia, revisión, uso, revelación o distribución de dicha información sin la debida autorización por escrito, está prohibida. Si usted NO es el destinatario a quien se dirige el presente correo, favor de contactar de inmediato al remitente respondiendo al presente correo y eliminarlo, incluyendo los archivos adjuntos, así como cualquier copia del mismo.
>>  
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>>  
>>  
>> 
>> Best regards,
>>  
>>  
>> León
>>  
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