Members have the right to bring a “derivative action” (an action on behalf of the corporation) for breach of the charitable trust. A breach of charitable trust is essentially the equivalent of the a breach of “fiduciary duty” in the non-profit setting.

I believe Chris and others have two questions:

What does a breach of charitable trust encompass – i.e., how broad or narrow does it apply?
To what extent can the community control the manner in which claims for breach of charitable trust is pursued, i.e., can you require a majority of members to support such an action, can you/under what circumstances can you require a member to pursue such claims in a particular forum such as the IRP?

Some people are concerned that if the cause of action is very broad and/or if there are no constraints on the circumstances under which a member can bring such a claim or the venue in which a member can bring a claim, this cause of action in particular creates an incentive to litigate/delay/block consensus.

Others believe that these concerns can be effectively addressed and that because the ICANN Board will comply with its legal requirements, enforceability reduced the likelihood of litigation.

Still others seem concerned about any attempts to limit access to a court of competent jurisdiction, wherever that may be.

We need to agree on the facts first, make sure that all stakeholders have access to those facts, and then determine what the multistakeholder community wants based on those facts.

There is a lot of posturing and rhetoric going on – indeed I have been guilty of it. Let’s try to step back and get agreement on the answers to the two questions.

Becky

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 / becky.burr@neustar.biz / www.neustar.biz

From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au>
Date: Sunday, June 14, 2015 at 1:22 AM
To: Accountability Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

From: http://www.insightcced.org/uploads/publications/legal/ch3-summary_of_member_rights.pdf

Examples of member rights under law include:

- The right to an annual report

- The right to inspect a record of all member names, addresses, and voting rights

- The right to inspect the articles and bylaws at the principal office in California

- The right to inspect the accounting books and records and minutes of proceedings of the members, the board and the committees of the Board

Depending on the number of members there are also certain rights with respect to appoint directors etc. For example in a membership organization it would usually be the members that would elect and appoint directors, rather than the elaborate structures that we have to appoint directors.

There may be others – but these are the sort of things that are established by law rather than by any bylaws. I believe that Chris is simply wanting to make sure we all understand what they are.

Regards,

Bruce Tonkin

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Chris Disspain
Sent: Friday, 12 June 2015 5:27 PM
To: Mathieu Weill
Cc: accountability-cross-community@icann.org
Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

Hi Mathieu,

There will be a number of statutory powers that ‘members’ or ‘designators' have under Californian law and possibly US law. We need to know what they are, make sure we’re OK with them and if we are not find out if we can change them. Hope that’s clearer.

Cheers,

Chris