[CCWG-ACCT] Fwd: [Acct-Legal] Preliminary Responses to Legal Sub-team Questions

Tue Mar 31 21:12:27 UTC 2015

Dear CCWG and the Legal Sub-team -

Thanks for the opportunity to provide questions and comments on the initial Adler & Colvin document for the sub-team’s consideration in passing along to the firm.  Some of these might be better considered within the CCWG, but came to mind as I read the document.

These are some of the initial questions that I had when reviewing the Adler & Colvin document:

  1.  If ICANN were to be converted to a membership based structure (or required some restructuring to incorporate delegates or designators), what impact would that have on ICANN’s not-for-profit public benefit designation under California law, or its 501c3 public charity status as recognized by the U.S. Internal Revenue Service?  Would ICANN have to re-apply for any status or designation upon a change?
  2.  If so, would any of the models under consideration put ICANN’s status/designation at issue, or pose challenges to the likelihood of achieving the same designation?
  3.  For information on the self-perpetuating Board model, that is not something that is currently in practice within ICANN.  ICANN's Board currently only has the power to select a single member - the President and CEO.  A non-board comprised Nominating Committee (comprised by delegates selected throughout the ICANN community) selects 8 directors, and ICANN's SOs and the At-Large Community select the other 7.  Non-voting liaisons are also appointed from entities outside of the ICANN Board. https://www.icann.org/resources/pages/chart-2012-02-11-en.
  4.  Can you provide some clarification on how the designator model described within the document is different from the model currently in place within ICANN?  Understanding that the current Bylaws do not allow for a designator to remove a selected director (and that is something that is likely to be changed through this accountability work) what else is different here?  Some specific questions are – are you anticipating that the current form of ICANN’s SOs and ACs are sufficient to meet the requirement for the unincorporated associations referred to in your responses?  What are the characteristics of the unincorporated associations that would be appropriate for this role?  How is the ICANN Nominating Committee different from the group of entities that is discussed as coming together to be the collective designators acting together/the “constellation” referred to in the memo?
  5.  Page 5 – The ICANN Bylaws currently require indemnification of directors to the extent allowed by law.  What are the implications of such a provision being in place if ICANN were to move to a “super board” with a majority of directors not holding a fiduciary duty to the organization?  What are the governance and accountability implications for this?
  6.  Page 5 – Also relating to the size of the Board - ICANN currently allows its directors to elect to receive compensation.  In considering changes to the structure of ICANN's Board, it's probably necessary to include consideration of whether other items, such as compensation, should be revisited, and how such changes interact with the historical basis for taking decisions (i.e., board compensation was recommended through ATRT1), as well as issues of accountability and governance.  This may not be a legal question for the advisors, but something for the CCWG to consider if it will be recommending a change to the Board size.
  7.  Is payment for membership required?
  8.  Page 7 includes discussion of internal decision-making of the various members of the organization. Where would commitments of accountability to other members/broader ICANN community be housed?  Could there be broad principles developed for members, with the requirement that individual internal operating procedures be drafted in line with those?  How do we assure that the membership concept allows for the introduction of future participants?
  9.  Page 9 – Can you provide some clarity on who the party/parties are with whom ICANN would be contracting?  It’s not quite clear which whom ICANN is suggested to contract with and what consideration is provided as the basis for the contract.  Is this considered a broad solution, or a specific solution for those who are already under contract with ICANN?

Best,

Sam

From: León Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Date: Sunday, March 29, 2015 at 10:24 PM
To: CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: [CCWG-ACCT] Fwd: [Acct-Legal] Preliminary Responses to Legal Sub-team Questions

Dear all,

I am forwarding the preliminary responses provided by Adler & Colvin to the first round of questions submitted to them.

I suggest you review them as input from all will be considered and is important for our steps forward.

Best regards,

León

Inicio del mensaje reenviado:

De: Steven Chiodini <schiodini at adlercolvin.com<mailto:schiodini at adlercolvin.com>>
Para: "ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>" <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>>
Fecha: 27 de marzo de 2015 21:22:43 GMT-6
Cc: "Huston, Peter K." <phuston at sidley.com<mailto:phuston at sidley.com>>, "Schramm, Dorothee" <dschramm at sidley.com<mailto:dschramm at sidley.com>>, Emily Chan <echan at adlercolvin.com<mailto:echan at adlercolvin.com>>
Asunto: [Acct-Legal] Preliminary Responses to Legal Sub-team Questions

We are pleased to attach our preliminary responses to the questions sent to us by the Legal Sub-team earlier this week.  We look forward to discussing them with you.

Have a very nice weekend,

Greg Colvin
Rosemary Fei
Stephanie Petit
Steven Chiodini

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Please be aware that this email is intended to provide a short response to the questions posed, without the benefit of legal research.  If you would like a more thoroughly considered and researched response, please let us know.
=====

Steven Chiodini
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
Tel: 415-421-7555
Fax: 415-421-0712
email: schiodini at adlercolvin.com<mailto:schiodini at adlercolvin.com>
www.adlercolvin.com<http://www.adlercolvin.com/>
The information in this e-mail message and any attachments may be privileged, confidential, and protected from disclosure.  If you are not the intended recipient, any use, dissemination, distribution, or copying of this transmission is strictly prohibited.  If you think that you have received this e-mail message in error, please e-mail the sender at schiodini at adlercolvin.com<mailto:schiodini at adlercolvin.com>, and delete all copies of this message and its attachments, if any.  Thank you.

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