[CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review

Chartier, Mike S mike.s.chartier at intel.com
Wed Jan 27 06:13:35 UTC 2016


Yes.
Got it.
Thanks.

From: Rosemary E. Fei [mailto:rfei at adlercolvin.com]
Sent: Wednesday, January 27, 2016 1:09 AM
To: Holly Gregory <holly.gregory at sidley.com>; Chartier, Mike S <mike.s.chartier at intel.com>
Cc: CCWG Accountability <accountability-cross-community at icann.org>; Mathieu Weill <mathieu.weill at afnic.fr>; thomas at rickert.net; León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>; Bernard Turcotte <turcotte.bernard at gmail.com>; Sidley ICANN CCWG <sidleyicannccwg at sidley.com>; ICANN-Adler <ICANN at adlercolvin.com>
Subject: RE: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review

Dear Mike and all:

Inspection is a statutory right that attaches to a person with the status of a member, but would be “merely” a right given in the Bylaws to the Empowered Community.  But either way, the enforcement mechanism would be the same.  Whether it’s a right granted by statute, or a right validly granted in the Bylaws, we understand that, should enforcement be needed, the CCWG proposes that Empowered Community must go through an Empowered Community IRP, and then eventually to court or Board recall, if necessary.  (In the remote event going to court were necessary, the argument before the court would be framed somewhat differently depending on whether one is in the statutory/member context, versus the bylaws-granted third-party-right context, but the Empowered Community should have a winning argument in either case.)

If the right to inspect is given to the Empowered Community rather than to the individual Decisional Participants, it’s not clear to us (AdlerColvin) whether the CCWG intends that an individual Decisional Participant acting alone would have the right to direct Empowered Community action (similar to the mechanism for the Empowered Community designating SO and AC directors), or whether the CCWG intends that there would a some sort of group decision process, with thresholds for decisions, etc. (as with other Empowered Community powers).  If the right to inspect is given to the individual Decisional Participants directly, then the Empowered Community is only engaged for enforcement of that right, and the question of how the Empowered Community would be authorized to invoke the inspection right would not arise.

Hope that’s helpful.

Rosemary

Rosemary E. Fei
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
415/421-7555 (phone)
415/421-0712 (fax)
rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>
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From: Holly Gregory
Sent: Tuesday, January 26, 2016 2:25 PM
To: Chartier, Mike S; Rosemary E. Fei
Cc: CCWG Accountability; Mathieu Weill; thomas at rickert.net<mailto:thomas at rickert.net>; León Felipe Sánchez Ambía; Bernard Turcotte; Sidley ICANN CCWG; ICANN-Adler
Subject: RE: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review

It seems to me, Mike, that there is a trade-off. The SOs and ACs will have the right to seek inspection without undertaking the escalation process of getting the Sole Designator -- or as we like to call it the Empowered Community --to act to make the request and that is significant. If the right was given to the Sole Designator/Empowered Community directly, the ACs /SOs would need to petition the Sole Designator at the outset to request the information. But either way, enforcement is available through the IRP process, such that any abuses by the Board can be redressed.

HOLLY J. GREGORY
Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice

Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>
www.sidley.com<http://www.sidley.com>
 SIDLEY AUSTIN LLP



-----Original Message-----
From: Gregory, Holly
Sent: Tuesday, January 26, 2016 5:18 PM
To: 'Chartier, Mike S'; Rosemary E. Fei (rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>)
Cc: CCWG Accountability; Mathieu Weill; thomas at rickert.net<mailto:thomas at rickert.net>; León Felipe Sánchez Ambía; Bernard Turcotte
Subject: RE: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review

I should have copied Rosemary on my original email to you; apologies.

HOLLY J. GREGORY
Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice

Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>
www.sidley.com<http://www.sidley.com>
 SIDLEY AUSTIN LLP



-----Original Message-----
From: Chartier, Mike S [mailto:mike.s.chartier at intel.com]
Sent: Tuesday, January 26, 2016 5:12 PM
To: Gregory, Holly
Cc: CCWG Accountability; Mathieu Weill; thomas at rickert.net<mailto:thomas at rickert.net>; León Felipe Sánchez Ambía; Bernard Turcotte
Subject: Re: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review

Thanks,
But if the right was given to the sole designator, could they go directly to court to force inspection?
And in the new case, would inspection be possible in court after escalation, or is the only recourse to remove board members.

On Jan 27, 2016, at 5:49 AM, Gregory, Holly <holly.gregory at sidley.com<mailto:holly.gregory at sidley.com<mailto:holly.gregory at sidley.com%3cmailto:holly.gregory at sidley.com>>> wrote:

Great question Mike,

Individual ACs and SOs will be able to enforce their inspection rights through the IRP. And if the Board abuses the process by denying appropriate requests, the ACs and SOs can also petition the Empowered Community to use its escalation capabilities up to an IRP based on that abuse and potentially escalate further to enforcement and/or Board removal. Language could be added to clarify this if the CCWG-ACCT thinks helpful.

Holly and Rosemary


HOLLY J. GREGORY
Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice

Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com<mailto:holly.gregory at sidley.com%3cmailto:holly.gregory at sidley.com>>
www.sidley.com<http://www.sidley.com><http://www.sidley.com/>
[http://www.sidley.com/files/upload/signatures/SA-autosig.png]<http://www.sidley.com/> SIDLEY AUSTIN LLP


From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org%3cmailto:accountability-cross-community-bounces at icann.org>> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Chartier, Mike S
Sent: Tuesday, January 26, 2016 4:08 PM
To: Bernard Turcotte
Cc: ACCT-Staff (acct-staff at icann.org<mailto:acct-staff at icann.org<mailto:acct-staff at icann.org%3cmailto:acct-staff at icann.org>>); Accountability Community
Subject: Re: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review

Thanks.
I must have been wrong (Holly could set me straight).
I thought a difference was the Sole Designator would be able to enforce the inspection right directly in court.

From: Bernard Turcotte [mailto:turcotte.bernard at gmail.com]
Sent: Tuesday, January 26, 2016 8:20 AM
To: Chartier, Mike S <mike.s.chartier at intel.com<mailto:mike.s.chartier at intel.com<mailto:mike.s.chartier at intel.com%3cmailto:mike.s.chartier at intel.com>>>
Cc: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org%3cmailto:accountability-cross-community at icann.org>>>; ACCT-Staff (acct-staff at icann.org<mailto:acct-staff at icann.org<mailto:acct-staff at icann.org%3cmailto:acct-staff at icann.org>>) <acct-staff at icann.org<mailto:acct-staff at icann.org<mailto:acct-staff at icann.org%3cmailto:acct-staff at icann.org>>>
Subject: Re: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review

Mike,

Given what is proposed, individual decisional participants in the Empowered Community being able to make inspection requests (as per their own inter processes) directly to the Board, actually goes well beyond what the CCWG was originally requesting, escalation process for inspection (petition, support, community forum etc.), it was felt it was no longer necessary to provide inspection rights to the Sole Designator.

Hope the answers your question.

Cheers.

B.

On Mon, Jan 25, 2016 at 9:23 PM, Chartier, Mike S <mike.s.chartier at intel.com<mailto:mike.s.chartier at intel.com<mailto:mike.s.chartier at intel.com%3cmailto:mike.s.chartier at intel.com>>> wrote:
I must have missed in the minutes (or the meeting itself), but just for process sake, could you point me where the conclusion was reached to remove the right of inspection from the sole designator?

From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org%3cmailto:accountability-cross-community-bounces at icann.org>> [mailto:accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org><mailto:accountability-cross-community-bounces at icann.org%3cmailto:accountability-cross-community-bounces at icann.org%3e>] On Behalf Of Bernard Turcotte
Sent: Monday, January 25, 2016 11:12 AM
To: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org%3cmailto:accountability-cross-community at icann.org>>>; ACCT-Staff (acct-staff at icann.org<mailto:acct-staff at icann.org<mailto:acct-staff at icann.org%3cmailto:acct-staff at icann.org>>) <acct-staff at icann.org<mailto:acct-staff at icann.org<mailto:acct-staff at icann.org%3cmailto:acct-staff at icann.org>>>
Subject: [CCWG-ACCT] CCWG - Recommendation 1 - Final version for legal review

​
All,

​Per the request of the co-chairs we are publishing the final draft version of Annex 1 for legal review.

This version has been generated from the conclusion of the second reading document with minor edits by staff.

As such you will find attached 2 versions, Word and PDF of the marked up text.

Once this legal review is completed (48 hours - 16:00UTC Wednesday), results of the review will be published on this list, a final version will be generated and posted for final CCWG comments.​

​Thank You.

B​ernard Turcotte
ICANN Staff Support for CCWG





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