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

On 12 Jun 2015, at 17:15 , Mathieu Weill <mathieu.weill@afnic.fr> wrote:

Hi Chris,

I confess I do not understand what kind of "other powers" you refer to ? Can I ask you to elaborate a bit ? Or other colleagues might help me out ?

Best

Mathieu Weill --------------- Depuis mon mobile, désolé pour le style

Le 12 juin 2015 à 02:45, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au>> a écrit :

...

Mathieu,

Thanks to the legal team for this. It’s very useful.

What would also be extremely useful is a note of what other powers will become vested in the ‘member’ or ‘designator' both in groups (i.e. by agreement of 50% or in special cases higher) and as individual members or designators.

Cheers,

Chris

...

On 12 Jun 2015, at 00:09 , Mathieu Weill <Mathieu.Weill@afnic.fr <mailto:Mathieu.Weill@afnic.fr>> wrote:

Dear colleagues,

Please find enclosed an update of the legal memo including a summary chart of the various powers under the Membership, designator and voluntary model.

Best regards, Mathieu

-------- Message transféré -------- Sujet : [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model Date : Thu, 11 Jun 2015 04:09:30 +0000 De : Hofheimer, Joshua T. <jhofheimer@sidley.com> <mailto:jhofheimer@sidley.com> Pour : ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> <ccwg-accountability5@icann.org> <mailto:ccwg-accountability5@icann.org> Copie à : Sidley ICANN CCWG <sidleyicannccwg@sidley.com> <mailto:sidleyicannccwg@sidley.com>, ICANN-Adler <ICANN@adlercolvin.com> <mailto:ICANN@adlercolvin.com>

Dear Legal Sub-Team,

Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.

Cheers, Josh JOSHUA HOFHEIMER Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <http://www.sidley.com/> <http://www.sidley.com/> SIDLEY AUSTIN LLP

From: ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org>] On Behalf Of Hilton, Tyler Sent: Monday, June 08, 2015 8:29 PM To: ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> Subject: [Acct-Legal] Memo - Responses to CCWG GAC Questions

Dear Legal Sub-team,

Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.

Best,

TYLER HILTON Associate Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <http://www.sidley.com/> <http://www.sidley.com/> SIDLEY AUSTIN LLP

**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.

****************************************************************************************************

<Legal Assessment - Revised Summary Chart and Governance Chart.DOCX><Portion de message joint.txt>_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>

Organization means organization of goverments (or nation states). el -- Sent from Dr Lisse's iPhone 6

On Jun 12, 2015, at 09:16, Dr Eberhard W Lisse <el@lisse.na> wrote:

Can't find the right email quickly on the iPhone, but I doubt that the GAC or any other organization can become a "member" (by their own rules) unless there was a formal treaty established between them.

If they even wanted to.

el

-- Sent from Dr Lisse's iPhone 6

...

On Jun 12, 2015, at 08:26, Chris Disspain <ceo@auda.org.au> wrote:

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

...

On 12 Jun 2015, at 17:15 , Mathieu Weill <mathieu.weill@afnic.fr> wrote:

Hi Chris,

I confess I do not understand what kind of "other powers" you refer to ? Can I ask you to elaborate a bit ? Or other colleagues might help me out ?

Best

Mathieu Weill ---------------

[...]

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: 1. What does a breach of charitable trust encompass – i.e., how broad or narrow does it apply? 2. 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<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Date: Sunday, June 14, 2015 at 1:22 AM To: Accountability Community <accountability-cross-community@icann.org<mailto: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<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.insightcced.org_uploads_publications_legal_ch3-2Dsummary-5Fof-5Fmember-5Frights.pdf&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Hf-X3CAkeccbdYdNQtm-L81XveOR3ltDRHfUg8Q7O3E&s=JlCuCkLCaFZLvX-yMyWf96Vxm9chS6UDsuaVitLqR48&e=> 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> [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<mailto: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

Agreed! Thanks to Becky for helping to advance this discussion in a fact-based and constructive manner. Best, Keith On Jun 14, 2015, at 5:52 PM, Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> wrote: Thank you Becky! Couldn’t agree more. Cheers, Chris On 15 Jun 2015, at 07:22 , Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: 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: 1. What does a breach of charitable trust encompass – i.e., how broad or narrow does it apply? 2. 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<mailto:becky.burr@neustar.biz> / http://www.neustar.biz<http://www.neustar.biz/> From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Date: Sunday, June 14, 2015 at 1:22 AM To: Accountability Community <accountability-cross-community@icann.org<mailto: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<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.insightcced.org_uploads_publications_legal_ch3-2Dsummary-5Fof-5Fmember-5Frights.pdf&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=Hf-X3CAkeccbdYdNQtm-L81XveOR3ltDRHfUg8Q7O3E&s=JlCuCkLCaFZLvX-yMyWf96Vxm9chS6UDsuaVitLqR48&e=> 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> [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<mailto: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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

On 2015-06-14 22:22, Burr, Becky wrote:

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.

Well put. I would like to ask whether the first view is really well founded. American public companies are exposed to shareholder lawsuits in this fashion, and it hasn't noticeably impaired the success of American industry. Moreover, anybody can become a shareholder in a publicly listed company if they wish to bring such a suit. Giving ICANN a membership simply exposes it to some part of the same discipline - and without the complaint "When you did X it made the share price go down" that is the basis of most such lawsuits. That doesn't sound so fearful to me. So what is the reason for thinking ICANN needs to be immune to a procedure that others can weather? Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA