Robin might have some inputs too, as a fellow member of the California bar.

The length of time that suits take can vary – it depends on a lot of factors. Of the recent California cases that ICANN has been involved in, those tend NOT to go to trial, but rather are dismissed on summary grounds, such as failure to state a case from the outset (possibly reached within a 3 month window), or a judge’s determination that on specific issues, and after discovery, the facts do not support a cause of action (longer, at least 9 months). Without researching this, my sense is to agree with Edward on his assessment that the types of issues here could be amenable to a judge’s determination of facts, as opposed to needing to go all the way to trial in front of a judge or a jury (but I could be wrong). Generally, the clearer the case is, the quicker it will be disposed of. If it requires more interpretation or seems novel (which we could imagine some challenges within the membership model to be), the longer it will take.

It’s hard to use cases as old as Karl’s as a test of the duration of cases, though I tend to agree it’s the best we have on limited information. The California courts are perpetually hit by budget issues and we’ve seen some judges with very heavy case burdens, which would often mean a case would take longer. There are also some “fast track” court rooms that are generally concluded within 1-2 years at max. The California Court System has a goal to have cases disposed of within 5 years, but it would be a very extraordinary suit – and probably not one that would arise out of ICANN on a discrete issue – that would take that long.

Without commissioning more research at this time, it may be worth asking our Sidley/Adler Colvin folks if they’ve been involved in these types of derivative suits (regardless of jurisdiction) to see if they can provide us with some anecdotal information on the general duration.

Looking forward to seeing many of you in B.A.

From: Edward Morris <egmorris1@toast.net>
Date: Monday, June 15, 2015 at 5:04 PM
To: Avri Doria <avri@acm.org>
Cc: Accountability Cross Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

Hi Avri,

You raise a number of good questions for which I'm not sure the data exists. Perhaps Sam would be able to provide some information here that isn't readily available to non-specialists like ourselves.

Out of curiosity: Of the times that ICANN has been involved in court
cases, how long have they lasted?

If the litigation pages are correct ICANN has rarely been sued in the Superior Court of California, Los Angeles County. Presumably that would be the location of any action arising under the Bylaws and thus is the relevant jurisdictional measure. Of the four cases listed on the ICANN litigation web page as being situated at that court the average duration from the filing of the first document in the matter to the last document is exactly 9 months. The range was 3 months to 15 months. Auerbach v ICANN, which concerned issues similar to that which might be raised by members, lasted 138 days between Karl's filing of his petition and Judge Janavs' ruling.

And are there any general CA statistics for the duration of cases of the
type of issues we are discussing?

I haven't been able to find any. That itself is telling. Derivative lawsuits are extraordinarily rare and, frankly, involve the types of issues the California AG might interest herself in if there were no members. Likewise, member lawsuits against PBC boards are also extremely rare. I welcome statistical information of this sort if it can be found. Quick searches on Lexis and Westlaw have come up empty.

I would note that a lawsuit by a member against a corporation or board thereof would not normally lead itself to lengthy duration. These cases would generally not involve a jury, the parties and issues would likely be clearly delineated, facts would generally be agreed and not in significant contention and the question largely would be one of law. These are not usually time consuming.

Then we can determine whether the expletive was deserved. I admit it
may just be my sense of the anecdotal evidence that leads me to such
assumptions. Seeing some statistical information on the frequency and
duraction of such cases might help resolve this wide difference of opinion.

I agree. I hope somebody can find some. These cases are not common. Lacking other benchmarks I'd suggest the Auerbach matter needs to be considered as typical in some regards.

Yes, the main branch of the court is in the same building where the O.J. Simpson trial occurred. That took a long time. There is no other similarity between that case and those that can be expected to be raised by members. Again, a membership corporate structure does not do anything one way or the other to increase or decrease ICANN's susceptibility to third party lawsuits. These are still going to take place regardless of anything the CCWG does. Any increased exposure to litigation would be that filed by members after exhausting all internal processes. Are we that afraid of the litigious nature of ourselves that we need to be restrained?