[CCWG-ACCT] MEM and enforceability

[Chris Disspain]

Avri,

But under the MEM and under the sole member model the ultimate arbiter of that would be the courts in California. No?


Cheers,

Chris

> On 22 Sep 2015, at 22:51 , Avri Doria <avri at acm.org> wrote:
> 
> Hi,
> 
> I think that the fiduciary responsibility does not change.  What changes
> is whether the Board has unilateral and final control of the meaning and
> implications of its fiduciary responsibility  or of the decisions based
> upon that vision.
> 
> avri
> 
> On 22-Sep-15 08:43, Samantha Eisner wrote:
>> Jordan, can you please elaborate more on the “different fiduciary
>> duty” situation that you refer?  As I understand it, the fiduciary
>> duties of the Board do not change whether a member is present or not.  
>> 
>> Thanks, 
>> 
>> Sam
>> 
>> From: <accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>> on behalf
>> of Jordan Carter <jordan at internetnz.net.nz
>> <mailto:jordan at internetnz.net.nz>>
>> Date: Tuesday, September 22, 2015 at 5:15 AM
>> To: Chris Disspain <ceo at auda.org.au <mailto:ceo at auda.org.au>>
>> Cc: "Accountability Cross Community
>> (accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>)"
>> <accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>>
>> Subject: Re: [CCWG-ACCT] MEM and enforceability
>> 
>> Hi Chris, all:
>> 
>> The second is not the same with the single member model. As has been
>> outlined on list before, the different fiduciary duties situation that
>> exists with membership solves that problem.
>> 
>> On the first, the plan of the CCWG has been binding not advisory IRP
>> so I don't think that it is the same, no. 
>> 
>> On the third, that does seem a sensible time frame constraint...
>> 
>> best
>> Jordan
>> 
>> 
>> On 23 September 2015 at 00:06, Chris Disspain <ceo at auda.org.au
>> <mailto:ceo at auda.org.au>> wrote:
>> 
>>    Hello David,
>> 
>>    I appreciate the constructive criticism 😀.
>> 
>>    Are these points not the same as with the IRP in the sole member
>>    model? They would need to be addressed in either case wouldn't they?
>> 
>>    Cheers,
>> 
>>    Chris 
>> 
>>    On 22 Sep 2015, at 21:59, McAuley, David <dmcauley at verisign.com
>>    <mailto:dmcauley at verisign.com>> wrote:
>> 
>>>    I appreciate the board’s input and take it as a good faith effort
>>>    to enhance and evolve the CCWG proposal.
>>> 
>>>    However, I have, with respect, three critiques of it.
>>> 
>>> 
>>> 
>>>    First, the ability to create a remedy if the MEM panel finds
>>>    against the board is completely within the board’s discretion.
>>>    Even a slight (even inconsequential) “remedy” would be a remedy
>>>    and would, effectively, bar any viable avenue to court enforcement.
>>> 
>>> 
>>> 
>>>    Second, (and this applies to any panel ruling) any decision by
>>>    the board to state that a ruling against it falls into the area
>>>    of the board’s fiduciary obligations (thus frustrating
>>>    implementation of the ruling) should itself be appealable to
>>>    ensure that this is, in fact, an objectively justified conclusion. 
>>> 
>>> 
>>> 
>>>    And, third, if we went down this path, the board’s ability to
>>>    create a remedy (subject, I would urge, to some test for
>>>    reasonableness) should be time-limited so that a claimant need
>>>    not wait and wonder if it can ever appeal to court.  
>>> 
>>> 
>>> 
>>>    David McAuley
>>> 
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>> 
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>> 
>> 
>> 
>> -- 
>> Jordan Carter
>> 
>> Chief Executive 
>> *InternetNZ*
>> 
>> +64-4-495-2118 (office) | +64-21-442-649 (mob)
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