[CCWG-ACCT] Townhall meeting follow-up

Tue Jun 23 20:41:27 UTC 2015

Interesting question Chris.  How would we/should we deal with collectivized harm – that is harm which is small/negligible and not “material” on an individual basis but which, when aggregated is a material harm to, say, all non-commercial users?  Or for that matter any other group?  

In the US we address this problem through a system of class action, where an entire class of persons can bring an action in the name of a class representative, who proceeds individually.  Would we allow that for the IRP – say a proceeding brought by “Paul Rosenzweig on behalf of himself and similarly situated non-commercial users”?  If we did allow that, it would avoid the need for the NCUG to become an entity  with legal existence, but still allow it to act in its collective interest …. 

Paul

Paul Rosenzweig

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

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

Skype: paul.rosenzweig1066

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

From: Chris Disspain [mailto:ceo at auda.org.au] 
Sent: Tuesday, June 23, 2015 4:30 PM
To: Edward Morris
Cc: Accountability Cross Community (accountability-cross-community at icann.org)
Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Thanks Ed,

FWIW, my opinion is that in the current structure there is no question that whilst the NCSG is not organised as a legal person, the persons comprising the NCSG are legal persons and so they jointly could launch an IRP. Then those persons would need to show they were materially effected but that’s a different discussion.

Cheers,

Chris

On 24 Jun 2015, at 06:18 , Edward Morris <egmorris1 at toast.net <mailto:egmorris1 at toast.net> > wrote:

Hi Chris,

Thanks for your thoughtful response.

As the NCSG is not organized as a legal person there was a question, unresolved, as to whether we could go forward with the IRP. It's important as we construct the specifics of the IRP that we do so in a way that allow SOAC's and other parties access to the mechanism without first becoming a legally recognized person or entity. They would have to do so, of course, in the unlikely event they would have / want to appeal to the judiciary for enforcement of the IRP decision.

Thanks for bringing this up Chris. It certainly is something we need to address in a positive fashion as we go forward constructing the details of the IRP procedure.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 4:12 PM, Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au> > wrote:

Hi Ed,

Ah…understood. On cost, agreed and accepted subject to some parameters on frivolous use etc..

On standing, the current standing is:

"Any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action."

Are we anticipating a change that would enhance that in some way that would help in the example you gave?

On statutory membership rights, that applies to enforcing the decision of the IRP but not to standing. 

Cheers,

Chris

On 24 Jun 2015, at 04:19 , Edward Morris <egmorris1 at toast.net <mailto:egmorris1 at toast.net> > wrote:

Hi Chris,

The revised Independent Review Process (IRP) would be a huge first step in the right direction. We went through the rather odious Cooperative Engagement Process (CEP) where things stalled. I should note that during the CEP we asked for a delay while we pursued an unsuccessful DIDP request, trying to get documentation to assist in the CEP and IRP. Transparency reform such as inspection rights are key to making our accountability efforts work in practice.

We had two problems with the IRP: 1) cost and 2) standing. The revised IRP backed by potential statutory membership rights should address these concerns. I hope.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 2:53 PM, Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au> > wrote:

Hi Edward,

How would the accountability mechanisms we are discussing assist you in this example?

Cheers,

Chris

On 24 Jun 2015, at 03:37 , Edward Morris <egmorris1 at toast.net <mailto:egmorris1 at toast.net> > wrote:

Becky,

I can add a real life example to support your view. When we hit a brick wall on TM50, which involved allegations of multiple Bylaws violations, I informally asked the AG's office whether they would be willing to investigate and litigate on our behalf. Although willing to investigate it was clear that even if our allegations were found to be true they did not rise to the level that would prompt AG involvement. We clearly need something more.

Best,

Ed

Sent from my iPhone

On Jun 23, 2015, at 1:04 PM, Burr, Becky < <mailto:Becky.Burr at neustar.biz> Becky.Burr at neustar.biz> wrote:

The authority of the AG to step in may be broader, but as a practical matter, it is my impression that this authority is usually used to address corruption and other various actions that are – or resemble – criminal behavior. I don’t think it is a meaningful source of enforcement for the issues that we are worried about.

J. Beckwith Burr

Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer

1775 Pennsylvania Avenue NW, Washington, DC 20006

Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  /  <mailto:becky.burr at neustar.biz> becky.burr at neustar.biz /  <http://www.neustar.biz/> www.neustar.biz

From: <Drazek>, Keith Drazek < <mailto:kdrazek at verisign.com> kdrazek at verisign.com>
Date: Tuesday, June 23, 2015 at 10:36 AM
To: Keith Drazek < <mailto:kdrazek at verisign.com> kdrazek at verisign.com>, "Rosemary E. Fei" < <mailto:rfei at adlercolvin.com> rfei at adlercolvin.com>, Accountability Community < <mailto:accountability-cross-community at icann.org> accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

To clarify….when I say “the public,” I include the ICANN community if the ICANN community did not have standing of its own.

From:  <mailto:accountability-cross-community-bounces at icann.org> 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 Drazek, Keith
Sent: Tuesday, June 23, 2015 10:00 AM
To: Rosemary E. Fei; Accountability Cross Community ( <mailto:accountability-cross-community at icann.org> accountability-cross-community at icann.org)
Subject: Re: [CCWG-ACCT] FW: Townhall meeting follow-up

Thanks very much, Rosemary.

A follow-up question:  How and when would the California state attorney general decide to engage? Is there a way for the public to trigger an action or investigation? 

Thanks,

Keith

From: <mailto:accountability-cross-community-bounces at icann.org> 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 Rosemary E. Fei
Sent: Tuesday, June 23, 2015 9:37 AM
To: Accountability Cross Community ( <mailto:accountability-cross-community at icann.org> accountability-cross-community at icann.org)
Subject: [CCWG-ACCT] FW: Townhall meeting follow-up

I would add that state attorneys general are generally empowered to enforce against directors violations of the bylaws that breach their fiduciary duties or cause the corporation to use its assets outside its charitable purposes.  

I would also add that if bylaws violate the corporate law or the corporation’s own Articles of Incorporation, the board’s duty is to follow the statute or the Articles, not the bylaws.

Rosemary

From: <mailto:accountability-cross-community-bounces at icann.org> 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 Holly Gregory
Sent: Tuesday, June 23, 2015 4:19 AM
To: Chris Disspain; Malcolm Hutty
Cc:  <mailto:accountability-cross-community at icann.org> accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Chris, that is an accurate clarification.  

Sent with Good ( <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.good.com&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=5REu8DLqGEuhW1x3ub1_95re1LtPPdA8HkKxkEJVmTc&s=nuIbEWdRk5jCePJy5XTYTm-xrUFT86FwSGSUtPV8YNA&e=> www.good.com)

  _____  

From: <mailto:accountability-cross-community-bounces at icann.org> accountability-cross-community-bounces at icann.org on behalf of Chris Disspain
Sent: Tuesday, June 23, 2015 06:14:45 AM
To: Malcolm Hutty
Cc:  <mailto:accountability-cross-community at icann.org> accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Townhall meeting follow-up

Malcolm,

We have been told that the Board of an
organisation with no members has a fiduciary duty to the company that
takes precedence over the Bylaws: if the Board decides that it is in the
best interests of the corporation to defy the bylaws, then defying them
is their legal duty.

With respect I think that is too simplistic a statement to describe what is a more complicated situation. One of the 3 legs of fiduciary duty of charitable corporation like ICANN is the duty of obedience. The duty of obedience is the duty to remain faithful to and pursue the goals of the organization. In practice, the duty of obedience requires the decision maker to follow the governing documents of the organisation and laws applicable to the organisation. Bylaws are governing documents. 

It would be correct to say that where there are no members or designators there is a challenge in enforcing where the Board does NOT follow but it is incorrect to say that the Board can legally ignore its by-laws.

Cheers,

Chris

On 23 Jun 2015, at 20:01 , Farzanh < <mailto:farzaneh.badii at gmail.com> farzaneh.badii at gmail.com> wrote:

Thanks Malcolm, I can't agree more  ! I have been battling with serious existentialist questions since there has been a shift to a soft approach to accountability. We certainly need to emphasize how the new model can give us effective and  enforceable mechanisms! enforcement mechanisms can also be deterrent mechanism ! The farther we r from enforcement mechanisms the less deterred are the decision makers to make decisions against the community wishes !

On Jun 22, 2015, at 6:43 PM, Malcolm Hutty < <mailto:malcolm at linx.net> malcolm at linx.net> wrote:

On 22/06/2015 17:52, Seun Ojedeji wrote:
- Enforceability solutions other than membership:
Considering the complications relating to the various membership models
that has been suggested, there is obvious need to consider what is
achievable within the current structure and i think everything is
achievable except enforceability. 

I completely agree with David McAuley's reply on this point.

Unfortunately, if you achieve "everything except enforceability", you
achieve nothing more than a clarification of your request. You do not
achieve accountability, only a clear statement of what you would like
ICANN to do. The decision rests elsewhere.

So it seem to me that we will already have some enforceability without
actually requiring membership since an organisation board is required to
obey/comply with its bylaw. So if the bylaw says; before you can do xyz,
it needs to go through abc process, why would the board not follow/obey
those direction as defined in the bylaw?

There are many reasons why things go wrong in this world. But I do not
want to suggest anything you may find fanciful or improbable or, worse,
that could be interpreted as attacking our honourable current Board members.

So for now, let's just say that the Board might believe they were
following the bylaws even if they were not. It is possible to err.

Beyond that though, is the problem Becky identified earlier: it seems
you are mistaken when you say that an organisation's board is required
to obey/comply with its bylaws. We have been told that the Board of an
organisation with no members has a fiduciary duty to the company that
takes precedence over the Bylaws: if the Board decides that it is in the
best interests of the corporation to defy the bylaws, then defying them
is their legal duty. Only by creating a membership (whether through
Empowered SOs, UAs, Open Membership, or some other approach) can we
raise up the bylaws to something the Board must honour in the way you
assume they already must.

Incidentally, I don't blame you at all for not realising this: I didn't
either, and was quite surprised to be told it. But the legal advice
being what it is, we must act accordingly.

-- 
          Malcolm Hutty | tel: +44 20 7645 3523
 Head of Public Affairs | Read the LINX Public Affairs blog
London Internet Exchange |  <https://urldefense.proofpoint.com/v2/url?u=http-3A__publicaffairs.linx.net_&d=AwMFAg&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=FK7b8kVkEMK2_MPHl9hkBB7An6cxn_MT87wTkCBHb7A&s=HKkuAJD_EoWIurwvGKRqFN2KzTLHIgIiahmB-XGCSkE&e=> http://publicaffairs.linx.net/

               London Internet Exchange Ltd
         21-27 St Thomas Street, London SE1 9RY

       Company Registered in England No. 3137929
     Trinity Court, Trinity Street, Peterborough PE1 1DA

_______________________________________________
Accountability-Cross-Community mailing list
 <mailto:Accountability-Cross-Community at icann.org> Accountability-Cross-Community at icann.org
 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=5REu8DLqGEuhW1x3ub1_95re1LtPPdA8HkKxkEJVmTc&s=aPYmAzEKHaNBhBWObiEhd0_6cCTdHlTo2qe1K02_UjU&e=> https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________
Accountability-Cross-Community mailing list
 <mailto:Accountability-Cross-Community at icann.org> Accountability-Cross-Community at icann.org
 <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=5REu8DLqGEuhW1x3ub1_95re1LtPPdA8HkKxkEJVmTc&s=aPYmAzEKHaNBhBWObiEhd0_6cCTdHlTo2qe1K02_UjU&e=> https://mm.icann.org/mailman/listinfo/accountability-cross-community

****************************************************************************************************
This e-mail is sent by a law firm and may contain information that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail and any attachments and notify us
immediately.

****************************************************************************************************

_______________________________________________
Accountability-Cross-Community mailing list
 <mailto:Accountability-Cross-Community at icann.org> Accountability-Cross-Community at icann.org
 <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________
Accountability-Cross-Community mailing list
 <mailto:Accountability-Cross-Community at icann.org> Accountability-Cross-Community at icann.org
 <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150623/6bfeb61b/attachment.html>