[CCWG-ACCT] [CCWG-Accountability] On legal advice concerning California non-profits
Eric Brunner-Williams
ebw at abenaki.wabanaki.net
Tue Jan 20 16:52:03 UTC 2015
Paul,
Lets assume you, Robin, Keith, ... are correct -- just to see where this
goes. The hope is to obtain definitive legal advice on one or more
permutations of "membership" forms of California non-profits on the
question of corporate oversight, and soon, and, because it is important
and time is short, for free.
I'm not optimistic that this hope will be realized.
Eric Brunner-Williams
Eugene, Oregon
On 1/20/15 6:34 AM, Paul Rosenzweig wrote:
>
> Dear Eric
>
> You may be right that the lengthy Gunnarson memo does not cite
> California case law. But at least it has the virtue of actually
> dealing with the text of the statute in a non-summary fashion. Though
> I have not researched the matter beyond a quick scan of the California
> case law, I would not be surprised if there were no cases on the topic
> – such internal corporate structural issues are rarely litigated to a
> definitive adversarial resolution.
>
> More to the point, the ICANN staff legal memo to which it responds (a
> copy of which is attached) really is nothing more than a conclusory
> assertion of Board supremacy which lacks the analytical rigor of the
> Gunnarson memo. All this seems to me to reemphasize the need for a
> detailed outside examination so that we have a definitive, up-to-date
> answer.
>
> Regards
>
> Paul
>
> ***NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
>
> 509 C St. NE
>
> Washington, DC 20002
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> Skype: +1 (202) 738-1739 or paul.rosenzweig1066
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>
> *From:*Eric Brunner-Williams [mailto:ebw at abenaki.wabanaki.net]
> *Sent:* Monday, January 19, 2015 7:20 PM
> *To:* McAuley, David; Paul Rosenzweig;
> accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-Accountability] On legal advise concerning
> California non-profits
>
> David,
>
> The process that was initiated at the most recent Singapore meeting
> arises from the Corporation's response to the NTIA's expression of
> intent to " transition its stewardship". This Working Group is
> chartered by the Bylaws entities of the Corporation, and we, as
> chartering organization-appointed members and individual participants,
> are the volunteers who responded to a Call for Volunteers.
>
> Were we acting through some distinct organization, say the EFF or the
> ACM or some other organization, then the position you offer would be
> closer to being self-evident.
>
> An awkwardness -- at least for me -- in deciding which of the claims
> made in 2010 is the better one simply upon the reading of the
> Gunnarson memo (which is nice persuasive writing btw, thanks for
> including the URL in your response) is the absence of cites to cases
> where the question was decided by a California court. The mere
> existence of a memo articulating the contrary can not, of it self,
> lead to the conclusion that the Corporation legal staff's position on
> a question is in error.
>
> Perhaps a case will turn up that is on point.
>
> Eric Brunner-Williams
> Eugene, Oregon
>
> On 1/19/15 2:11 PM, McAuley, David wrote:
>
> Eric, with respect, I disagree.
>
>
>
> The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice. It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN.
>
>
>
> No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission.
>
>
>
> But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable.
>
>
>
> In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken.http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_Law_RSG.pdf
>
>
>
> Both opinions cannot be correct, and it would be good to sort this out.
>
>
>
> ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point.
>
>
>
> David McAuley
>
>
>
> -----Original Message-----
>
> From:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Paul Rosenzweig
>
> Sent: Monday, January 19, 2015 3:08 PM
>
> To: 'Eric Brunner-Williams';accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>
>
> Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits
>
>
>
> I had understood, perhaps mistakenly, that ICANN legal staff did not have
>
> expertise in California non-profit law. That they are lawyers and members
>
> of the California bar would not, in my view, be sufficient -- any more than
>
> going to a heart surgeon would help cure cancer. Both are doctors .... It
>
> is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better .....
>
>
>
> Paul
>
>
>
> **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***
>
> 509 C St. NE
>
> Washington, DC 20002
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> Skype: +1 (202) 738-1739 or paul.rosenzweig1066
>
>
>
> -----Original Message-----
>
> From: Eric Brunner-Williams [mailto:ebw at abenaki.wabanaki.net]
>
> Sent: Monday, January 19, 2015 1:28 PM
>
> To: 'accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org>'
>
> Subject: [CCWG-Accountability] On legal advise concerning California non-profits
>
>
>
> Colleagues,
>
>
>
> During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed.
>
>
>
> I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee.
>
>
>
> What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff.
>
>
>
> The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association.
>
>
>
> If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all?
>
>
>
> It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present.
>
>
>
> The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years.
>
> Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration.
>
>
>
> Eric Brunner-Williams
>
> Eugene, Oregon
>
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