[CCWG-ACCT] [CCWG-Accountability] On legal advice concerning California non-profits

Tue Jan 20 17:45:01 UTC 2015

On the contrary, I personally know of at least three attorneys who would
gladly do the work and have the capability - it isn't my role to choose
though, but I am happy to share a referral if the Chair's request.  In any
event I am 100% confident that if CCWG authorized the effort that the Chairs
could find legal advice on a pro bono basis that would be useful, definitive
and timely ...

Paul

**NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***

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Washington, DC 20002

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com 

O: +1 (202) 547-0660

M: +1 (202) 329-9650

Skype: +1 (202) 738-1739 or paul.rosenzweig1066

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e&id=19&Itemid=9> Link to my PGP Key

From: Eric Brunner-Williams [mailto:ebw at abenaki.wabanaki.net] 
Sent: Tuesday, January 20, 2015 11:52 AM
To: Paul Rosenzweig; 'McAuley, David';
accountability-cross-community at icann.org
Subject: Re: [CCWG-Accountability] On legal advice concerning California
non-profits

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

 <mailto:paul.rosenzweigesq at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com 

O: +1 (202) 547-0660

M: +1 (202) 329-9650

Skype: +1 (202) 738-1739 or paul.rosenzweig1066

<http://www.redbranchconsulting.com/index.php?option=com_content&view=articl
e&id=19&Itemid=9> Link to my PGP Key

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
<mailto: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_La
w_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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