[Acct-Legal] Notes and chat transcript Legal sub-team/legal counsel call to discuss Unincorporated Associations (UA)

[List for the work of CCWG-Accountability Legal SubTeam]

Legal sub-team/legal counsel call to discuss Unincorporated Associations
(UA)

1 May 2015, 00:00 UTC

UA can be a simple process to form, and simple to operate

take the existing SO AC and make them into the UA.  But concern heard that
all SO AC might not want to do that.

But can be simple, all just become UA and all make decisions as they do
now.

Other option.  A shell notion, to create UA simply to carry out the
powers.  

Decisions are made at the direction of the underlying SO AC, or at the
direction of people appointed by the SO AC, or as Jordan suggested in an
recent email.

May be an issue in some SO AC than others.  Not trying to change the
accountability within a SO AC

If concerned with a takeover of the SO AC / capture, then legal counsel
could look at that if requested and useful.

Doesn't have to be a significant change of how ICANN SO AC etc currently
operate

Q. "you the unincorporated assoc will vote as the SO tells you to", is
that legally binding?  Answer, the suit would have to come from one of the
individuals appointed to the US by the SO AC.

if the UA acted outside of its article of incorporation, ICANN would be
able to claim that the act was not valid.  Need to study if the
individuals have that right.

Assuming UA created, have not addressed how people become members and how
they join.  But if want to say to become an official associate of the UA,
then can do that.  Can impose requirements on associateship.

Jordan:  example, 15 ccNSO council as the members of the UA.  That way
there is no danger of the UA doing anything that the SO didn't want it to
do.  They are the same.  If the members of the UA are a sub-set of the
ccNSO council, e.g. 5.  Question, can the ccNSO as an unincorporated body,
not legal entity,  can the bylaws of the ccNSL be written so that the
ccNSO council can appoint and remove the UA members. Legally plausible?
And chain of accountability, enforcement is unclear.  But stronger that
today.

Possible for the UA to say who its own associates will be.  And who
participates in the ICANN SO AC to decide as a measure.

Today the GNSO has no way of enforcing the way representatives on council
act.  And we live in that world now.  If there is no legal chain of
enforceability, it is no worse than the position we have today.

Clear that there is a level of trust being given by the SO AC to the UA to
act on its behalf.  And while its is as today, except SO AC have no legal
standing - but the UA will be able to sue and be sued and act with
bindingness. 

suggested that the switch is actually a narrowly focused UA with a tightly
written set of bylaws being added to the mix, with narrow powers.  But
believes that the UA cannot act outside of its powers.

The people who can be members of the UA are chosen by the SO AC.  And
assuming that the council would be the UA. Tis is one in the same.

What if the council member were a part of govt and could not vote?  Having
the shadow entities is to say that the only member obligation is the
member powers [?]   Or, say that a decisions of the UA must be resolutions
of the ccNSO Council.

Can write a bylaw that ccNSO appoints member of the UA and that they can
be forced to step down, but that is not enforceable.

Request that legal counsel is asked to respond to what they are hearing.
Thought we were sure of a right to remove our officers/appointees, How
tightly should the bylaws be written.

If there was a group with no legal personhood, and the appointed a UA, and
believed that is was in appropriately formed, then it could say that it
created an wrongly formed body and could go to court.

The UA with it properly appointed members under the bylaws could force the
UA to got to court to confirm that the old rogue members were nota acting
for the UA.  

Action: to ask counsel to address the concerns mentioned during the call.


END

Adam Peake: Hi everyone - Leon, has the dial-out worked?

Cheryl Langdon-Orr: Good to see you hear hris

Chris Disspain: Hello All

Rosemary Fei: Hello everyone.  Just got kicked off audio, though.

Greg Shatan: I just lost audio

Holly J. Gregory (Sidley): just lost audio

Chris Disspain: very very bad line

Chris Disspain: huge amounts of buzzing

Rosemary Fei: Back on audio

Jordan Carter: hi all

Jordan Carter: made it on the call

David McAuley: just lost audio, sorry CLO willdial in

Cheryl Langdon-Orr: Leon  is asking you to co Chair  David  we assume yoiu
are going to say Yes

David McAuley: cant hear anything

David McAuley: on phone now

Cheryl Langdon-Orr: excellent David,  Greg is assisting ATM  with the que
etc., 

Cheryl Langdon-Orr: so I *hope*  gremlins permitting were all good...

David McAuley: thanks Cheryl, sorry bout that

Cheryl Langdon-Orr: NP  David

Cheryl Langdon-Orr: Scrll control please Adam

Cheryl Langdon-Orr: Hi Steve

Steve DelBianco   [GNSO - CSG]: Sorta like the Electoral College in
American presidential elections?

Rosemary Fei: Hopefully not, @Steve

Rosemary Fei: I hope none of the SO/ACs are that large, for starters

Adam Peake: I hope I have just given you scroll  control on the document,
But it is also in the legal sub-team wiki archive

Holly J. Gregory (Sidley): Agreed Greg.   Invalid actions will not be
recognized in the membership body or ICANN board or other ICANN related
body

Cheryl Langdon-Orr ALAC - APRegional Member: yes thanks adam

Steve DelBianco   [GNSO - CSG]: Can the articles and bylaws of the UC
specify that the SO/AC has complete control over the UC?

Holly J. Gregory (Sidley): we believe yes

Cheryl Langdon-Orr ALAC - APRegional Member: I guess it can Steve  but
Chris's question is how can that be enforced...

Holly J. Gregory (Sidley): the articles of the UA and the ICANN bylaws can

Jordan Carter: can the SO or AC choose who those members are and change
them?

Jordan Carter: even tho the SO / AC isn't a legal person?

David McAuley: thats the question

Holly J. Gregory (Sidley): I'd like to answer that question Chris

Jordan Carter: That is such a wrong basis, Chris.

Cheryl Langdon-Orr ALAC - APRegional Member: Very interested in YOUR
answer @Holly

Steve DelBianco   [GNSO - CSG]: Does the GNSO have a legal right to force
its representative on a working group to follow voting instructions of the
GNSO?

Steve DelBianco   [GNSO - CSG]: Chris -- if that's all youre saying, then
our proposal poses no more risk than our present situation.

Rosemary Fei: @Chris, agree that at some point, it will come down to trust

Chris Disspain: thank you Holly and Rosemary

Chris Disspain: Greg, with respect, that is irrelevant if you can't
enforce it

Holly J. Gregory (Sidley):  We believe that with UAs you will be better
off than now.  

Rosemary Fei: ICANN is entitled, in its bylaws, to set standards for what
evidence is needed from a member to prove that it has taken an act.

Chris Disspain: better off in what way Holly?

Holly J. Gregory (Sidley): enforceable rights, Chris

Chris Disspain: against ICANN - I agree

Chris Disspain: but 'you' in youj will be better off is bot necessarily to
SO and AC

Holly J. Gregory (Sidley): Right -- and that is what we have been focused
on:  how to give the community enforceable rights vto hold ICANN
accountable

Holly J. Gregory (Sidley): Jordan, Agreed.  A+

Chris Disspain: Jordan - you may well be right - but, once agaion, to be
cystal clear, that is not my point - youi are talking practical solutions
- I am talking legal enforeability

Rosemary Fei: Yes, @Jordan, each UA's articles can say who the members are.

Chris Disspain: not legally enforceable in my understanding

Chris Disspain: Rosemary - really?

Chris Disspain: rules can be written but they would not be enforceable

Holly J. Gregory (Sidley): I believe they would be enforceable by the UA

Chris Disspain: Enforceabel by ccNSO not UA

Farzaneh Badii: so Chris you are basically saying that we need to come up
with another accountability mechanism for UA ! :)

Chris Disspain: :-)

Holly J. Gregory (Sidley): I think Chris is saying that at a certain point
trust matters -- and you are all relying on trust now.

Samantha Eisner: I think that there has to be some sort of acknowledgment
of the level of unenforceability at the UA level, and just go to trust

Jordan Carter: my question is whether the ccNSO can choose the members of
the UA

Chris Disspain: thanks Holly.. Jordan says the ccNSO can control the
members of UA by the UA bylaws - I say no

Samantha Eisner: That's what I'm taking from this conversation. Or we
build in new enforceability mechanisms

Greg Shatan: Chris, they are legally enforceable, i.e., they are valid and
would be recognized in court.  The question you are getting at is  who can
enforce them.  Not whether they are rights that can be enforced.  Legal
enforceability goes to the question of whether, once in court, will the
court find those rights to be enforceable.

Chris Disspain: the bylaws can say ccNSO chooses members of UA but ccNSO
cannot enforce thise bylaws

David McAuley: I don;t think that has been established yet @Sam, there
seem to be ways to do this

Holly J. Gregory (Sidley): Members in an unincorporated association who
are legal persons can seek enforcement of association rules.

Jordan Carter: if the ccNSO can choose the members or define the people
who are eligible to be the members of the UA

Rosemary Fei: @Chris, any association gets to decide who its members are,
and how they are chosen and terminated.  Limited only by things like
discrimination rules, or contract breach, or things like antitrust.

Greg Shatan: By your token, Chris, the bylaws of ICANN are not "legally
enforceable."

Jordan Carter: can the UA's rules say "The members of this association are
those persons nominated for membership by the CCNSO"?

Holly J. Gregory (Sidley): Yes Jordan

Chris Disspain: Greg - cannot be enforced by the ccNSO

Jordan Carter: then there is an unbroken chain of enforceablility Holly.

Jordan Carter: Because the CCNSO defines the members of the UA, and the
members of the UA can enforce their rights over the UA as members.

Holly J. Gregory (Sidley): But if the UA does not act under its articles
another entity -- like ICANN membership or board -- could assert that any
action by that UA is invalid

Jordan Carter: and Holly says yes.

David McAuley: +1 @Steve, that exists today, and what is unknown is ICANN
unbounded by NTIA

Jordan Carter: the ccNSO can't legally enforce anything

Jordan Carter: because it isn't a legal entity

Jordan Carter: but the ccNSO can totally choose who the members are, who
CAN do that

Cheryl Langdon-Orr: That is my understanding  @Jordan

Jordan Carter: Chris: why is being clear on this of such importance to you?

Cheryl Langdon-Orr:  Agree @Steve  noting that it is close to the Status
Quo

Holly J. Gregory (Sidley): But if the UA artciles say that the ccNSO
determines membership of UA and the UA does not abide by that, then the
actions of that UA are invalid

David McAuley: And with ICANN itself once NTIA leaves

Samantha Eisner: The question is "where are we comfortable with the reps
appointed at the community level having a possibility of not following the
will of the appointing member group in the exercise of the community-based
powers, and is there any issue of accountability to the broader ICANN
community that is posed through that exercise of power"

Cheryl Langdon-Orr: OK  @Holly  that is the type of advice I was looking
for to assist my comfort with all this discussion

Jordan Carter: No, we aren't doing what you suggest, Chris.

Jordan Carter: We are saying, "do what you're told, or you won't be the
members any more."

David McAuley: @Sam but I thought I heard lawyers say we can control this

Samantha Eisner: While I agree that it's similar to the issue of a
representative to a Working Group not following the will of the group that
put them there, the collective action that will be impacted here are very
key, important powers

Jordan Carter: its actions would be invalid and the rest of the ICANN
community and ICANN corporate would ignore what they were trying to do.

Jordan Carter: No it's not an opinion

Steve DelBianco   [GNSO - CSG]: Today, the recommendations of AoC Review
Teams have significant impact on ICANN.  And GNSO policy has impact on
ICANN. 

Steve DelBianco   [GNSO - CSG]: Is Chris proposing we create this powers
EVEN IF we don't create UAs?

Jordan Carter: my hand is up

David McAuley: among ACs/SOs there is accountability also through
threshold vote requirments,

Samantha Eisner: @David, part of the concern that is arising out of this
conversation for me is what if the threshold is tipped in one way or the
other by people voting in a way not anticipated by teh group from which
they came?

Holly J. Gregory (Sidley):  Chri, do you have a solution that you would
like the group to consider?  From a legal perspective we think the answer
is that action outside the UA articles are void, but certainly open to
considering  another work around.

Chris Disspain: Holly, action outside the UA is void but the SO cannot
control the action of the UA

David McAuley: Thanks @Sam, I guess I don't see the real risk here, and
while ICANN as presently constituted is not the issue a future ICANN
without these kinds of checks could be a huge risk

Chris Disspain: so I just don't see how the shadow UA can work from an
enforceability pov

Chris Disspain: Jordan - the ccNSO cannot enofce the removal of the
members 

Jordan Carter: but it doesn't need it, if under their rules the members
are defined by the CCNSO

Jordan Carter: trhere's no question of legal standing

Jordan Carter: they just wouldn't be the members anymore

Jordan Carter: they would have no decision rights

David McAuley: Might be good time to bring Holly/Rosemary back into the
discussion

Jordan Carter: they could PRETEND they were still members, but they would
not be

Jordan Carter: everyone would only pay attention to the validly appointed
member

Jordan Carter: s

David McAuley: sorry, Cheryl first

Adam Peake: Very hard to hear when people talk over - the audio doesn't
accommodate well. Thanks

Holly J. Gregory (Sidley):  correct Jordan, and the UA as appropriately
composed would go to court if necessary and assert its rights

Jordan Carter: Thanks, Holly.

Chris Disspain: Understood Holly - let me put it down in an email to the
lsit and see if I have it right

Jordan Carter: I think the Memo needs to flesh these things out

Greg Shatan: Holly, good point.  The UA with the valid members could go to
court to get the invalid deposed members to shut up.

David McAuley: Chris, would you be willing to take it one step further and
address then what, assuming you are correct?

Holly J. Gregory (Sidley): We will go back and revise the memo.

David McAuley: in your email

Jordan Carter: so : can the SO/AC control the membership of the UAs
despite their non-personhood

Rosemary Fei: members of UA have standing to challenge failure to follow
UA articles-mandated procedures

Jordan Carter: and if the old members are replaced, can the new members
legally enforce their rights?

Jordan Carter: laughing into your mouth - that's a new one

Jordan Carter: :)

Jordan Carter: in the end, this is a concern about controllability, and it
is very important

David McAuley: It is important, but I worry that we are wrapping ourselves
around the axle over a far-out possible issue of community accountability
where the front and center issue is crafting mechanisms to make ICANN the
corporation accountable

Jordan Carter: I worry of this, too.

Holly J. Gregory (Sidley): I hear you David

Greg Shatan: Jordan, they absolutely can as per the bylaws..

Jordan Carter: but crystal clarity on the chain of accountability is vital

Jordan Carter: and this discussion is helping us achieve it

Jordan Carter: [this is basically a stress-test!]

David McAuley: agreed @Jordan

Holly J. Gregory (Sidley): I know I'm stressed!

Cheryl Langdon-Orr: in myview we have spent most of our time and debate
entrenched with the extreme and hopefully unlikey

Chris Disspain: correct Greg - that is what I was looking for

Jordan Carter: I feel much clearer

Chris Disspain: I look forward to seeing the response from the lawyers in
the document

David McAuley: Holly's hand up

Holly J. Gregory (Sidley): Agreed, Greg.  It was helpful to have Chris
force the issue and help us improve our explanation.

David McAuley: paws and penguins today

Jordan Carter: no TVs in sight

Jordan Carter: have a great weekend everyone...

David McAuley: yes, thank you lawyers!

Farzaneh Badii: Thanks bye

Rosemary Fei: Bye

Holly J. Gregory (Sidley): Thanks everyone.  Enjoy the weekend

Greg Shatan: Diamonds are created under pressure.

Steve DelBianco   [GNSO - CSG]: Have a great weekend.  Only 2 more working
days till Monday!

END
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