Documents for Posting for CCWG-ACCT
Thomas, Mathieu and Leon and CCWG,, In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model. Kind regards, Holly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. ****************************************************************************************************
Hello Gregory, This is quite helpful memo, I particularly like the text below: "...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.." Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question) Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Thomas, Mathieu and Leon and CCWG,,
In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model.
Kind regards, Holly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
**************************************************************************************************** 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.
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Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. Th*e goal of such an approach would be to assure shared as opposed to unilateral governance of specificallyidentified critical decisions* On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello Gregory,
This is quite helpful memo, I particularly like the text below:
"...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.."
Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question)
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Thomas, Mathieu and Leon and CCWG,,
In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model.
Kind regards, Holly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
**************************************************************************************************** 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.
****************************************************************************************************
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-- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272
Hit send too early. This paragraph is most interesting. Shared governance is of course a political concept, but would involving the Board on specific decisions not violate the SoP principle that Kavouss and others have rightly highlighted? Would it hold water in California courts?
Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. *The goal of such an approach would be to assure shared as opposed to unilateral governance of specifically identified critical decisions*
On Sat, Oct 3, 2015 at 3:25 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. Th*e goal of such an approach would be to assure shared as opposed to unilateral governance of specificallyidentified critical decisions*
On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello Gregory,
This is quite helpful memo, I particularly like the text below:
"...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.."
Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question)
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Thomas, Mathieu and Leon and CCWG,,
In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model.
Kind regards, Holly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
**************************************************************************************************** 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.
****************************************************************************************************
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-- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272
-- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272
Arun, This is a well intentioned nonstarter. Take for example derivative rights, that is the right to sue the corporation on behalf of the corporation for gross malfeasance. To include the Board in the decision would be to ask the Board whether it wishes to sue itself on behalf of itself. If we get to that point we need to find a corporate psychologist. One ideally should not sue oneself. Or document rights. Dear Board, you refused to allow us to inspect documents whose contents would help us in an IRP action we have against you. Would you please join us in ruling against yourself? For the record, I like the statutory rights. They are the most potent accountability mechanisms available to us, would probably rarely if ever be used but their existence would help ensure compliance with 'lesser' mechanisms and are a normal part of nonprofit corporate governance. The further away we get from tried and true governance principles enshrined in statutory law, full of legal precedence and authority, the riskier the proposal. Best, Ed Morris Sent from my iPhone
On Oct 3, 2015, at 10:58 AM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hit send too early. This paragraph is most interesting. Shared governance is of course a political concept, but would involving the Board on specific decisions not violate the SoP principle that Kavouss and others have rightly highlighted? Would it hold water in California courts?
Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specifically identified critical decisions
On Sat, Oct 3, 2015 at 3:25 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote: Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specificallyidentified critical decisions
On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote: Hello Gregory,
This is quite helpful memo, I particularly like the text below:
"...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.."
Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question)
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com> wrote: Thomas, Mathieu and Leon and CCWG,,
In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model.
Kind regards, Holly and Rosemary
HOLLY GREGORY Partner
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com
**************************************************************************************************** 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.
****************************************************************************************************
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-- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272
-- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
With a heavy heart, I hereby rule against myself. Yours in compromise, Arun Sent from my iPhone -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com Ph:+91-9871943272
On 03-Oct-2015, at 3:52 PM, Edward Morris <egmorris1@toast.net> wrote:
Arun,
This is a well intentioned nonstarter. Take for example derivative rights, that is the right to sue the corporation on behalf of the corporation for gross malfeasance. To include the Board in the decision would be to ask the Board whether it wishes to sue itself on behalf of itself. If we get to that point we need to find a corporate psychologist. One ideally should not sue oneself. Or document rights. Dear Board, you refused to allow us to inspect documents whose contents would help us in an IRP action we have against you. Would you please join us in ruling against yourself?
For the record, I like the statutory rights. They are the most potent accountability mechanisms available to us, would probably rarely if ever be used but their existence would help ensure compliance with 'lesser' mechanisms and are a normal part of nonprofit corporate governance. The further away we get from tried and true governance principles enshrined in statutory law, full of legal precedence and authority, the riskier the proposal.
Best,
Ed Morris
Sent from my iPhone
On Oct 3, 2015, at 10:58 AM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hit send too early. This paragraph is most interesting. Shared governance is of course a political concept, but would involving the Board on specific decisions not violate the SoP principle that Kavouss and others have rightly highlighted? Would it hold water in California courts?
Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specifically identified critical decisions
On Sat, Oct 3, 2015 at 3:25 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote: Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specificallyidentified critical decisions
On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote: Hello Gregory,
This is quite helpful memo, I particularly like the text below:
"...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.."
Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question)
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com> wrote: Thomas, Mathieu and Leon and CCWG,,
In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model.
Kind regards, Holly and Rosemary
HOLLY GREGORY Partner
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com
**************************************************************************************************** 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.
****************************************************************************************************
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272
-- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Ed, not all statutory rights need be addressed the same way. Sent with Good (www.good.com) ________________________________ From: Edward Morris Sent: Saturday, October 03, 2015 05:22:50 AM To: Arun Sukumar Cc: Seun Ojedeji; ICANN@adlercolvin.com; thomas@rickert.net; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG Subject: Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT Arun, This is a well intentioned nonstarter. Take for example derivative rights, that is the right to sue the corporation on behalf of the corporation for gross malfeasance. To include the Board in the decision would be to ask the Board whether it wishes to sue itself on behalf of itself. If we get to that point we need to find a corporate psychologist. One ideally should not sue oneself. Or document rights. Dear Board, you refused to allow us to inspect documents whose contents would help us in an IRP action we have against you. Would you please join us in ruling against yourself? For the record, I like the statutory rights. They are the most potent accountability mechanisms available to us, would probably rarely if ever be used but their existence would help ensure compliance with 'lesser' mechanisms and are a normal part of nonprofit corporate governance. The further away we get from tried and true governance principles enshrined in statutory law, full of legal precedence and authority, the riskier the proposal. Best, Ed Morris Sent from my iPhone On Oct 3, 2015, at 10:58 AM, Arun Sukumar <arun.sukumar@nludelhi.ac.in<mailto:arun.sukumar@nludelhi.ac.in>> wrote: Hit send too early. This paragraph is most interesting. Shared governance is of course a political concept, but would involving the Board on specific decisions not violate the SoP principle that Kavouss and others have rightly highlighted? Would it hold water in California courts? Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specifically identified critical decisions On Sat, Oct 3, 2015 at 3:25 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in<mailto:arun.sukumar@nludelhi.ac.in>> wrote: Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specificallyidentified critical decisions On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hello Gregory, This is quite helpful memo, I particularly like the text below: "...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.." Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question) Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Thomas, Mathieu and Leon and CCWG,, In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model. Kind regards, Holly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. **************************************************************************************************** _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMGaQ&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=-D-wdOlE0nAaQtsKk75gjjKF9BKeUBc0IXeCh5Z-jgo&s=qTmaooTQOlEk7aVG_OBQ-BdK2HmVIIM-XBfQd_dRADA&e=> _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMGaQ&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=-D-wdOlE0nAaQtsKk75gjjKF9BKeUBc0IXeCh5Z-jgo&s=qTmaooTQOlEk7aVG_OBQ-BdK2HmVIIM-XBfQd_dRADA&e=> -- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__amsukumar.tumblr.com_&d=CQMGaQ&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=-D-wdOlE0nAaQtsKk75gjjKF9BKeUBc0IXeCh5Z-jgo&s=J3Q7IpkoOLBXWIxPzKPS_wzea8CW1MOx5RtCv5WW79w&e=> +91-9871943272 -- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__amsukumar.tumblr.com_&d=CQMGaQ&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=-D-wdOlE0nAaQtsKk75gjjKF9BKeUBc0IXeCh5Z-jgo&s=J3Q7IpkoOLBXWIxPzKPS_wzea8CW1MOx5RtCv5WW79w&e=> +91-9871943272 _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMGaQ&c=Od00qP2XTg0tXf_H69-T2w&r=AKn_gzAS4ANpCEqx2GjPwjUkqYPHaN7m0NQNyfQXAgk&m=-D-wdOlE0nAaQtsKk75gjjKF9BKeUBc0IXeCh5Z-jgo&s=qTmaooTQOlEk7aVG_OBQ-BdK2HmVIIM-XBfQd_dRADA&e=>
Ed I fully agree with the analysis that You have described. Once again separation of powers was the first and foremost / fundamental issue that we agreed and should stick to that. Board can not therefore be a member if the group . Kavouss Sent from my iPhone
On 3 Oct 2015, at 14:54, Gregory, Holly <holly.gregory@sidley.com> wrote:
Ed, not all statutory rights need be addressed the same way.
Sent with Good (www.good.com)
From: Edward Morris Sent: Saturday, October 03, 2015 05:22:50 AM To: Arun Sukumar Cc: Seun Ojedeji; ICANN@adlercolvin.com; thomas@rickert.net; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG Subject: Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT
Arun,
This is a well intentioned nonstarter. Take for example derivative rights, that is the right to sue the corporation on behalf of the corporation for gross malfeasance. To include the Board in the decision would be to ask the Board whether it wishes to sue itself on behalf of itself. If we get to that point we need to find a corporate psychologist. One ideally should not sue oneself. Or document rights. Dear Board, you refused to allow us to inspect documents whose contents would help us in an IRP action we have against you. Would you please join us in ruling against yourself?
For the record, I like the statutory rights. They are the most potent accountability mechanisms available to us, would probably rarely if ever be used but their existence would help ensure compliance with 'lesser' mechanisms and are a normal part of nonprofit corporate governance. The further away we get from tried and true governance principles enshrined in statutory law, full of legal precedence and authority, the riskier the proposal.
Best,
Ed Morris
Sent from my iPhone
On Oct 3, 2015, at 10:58 AM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hit send too early. This paragraph is most interesting. Shared governance is of course a political concept, but would involving the Board on specific decisions not violate the SoP principle that Kavouss and others have rightly highlighted? Would it hold water in California courts?
Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specifically identified critical decisions
On Sat, Oct 3, 2015 at 3:25 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote: Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specificallyidentified critical decisions
On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote: Hello Gregory,
This is quite helpful memo, I particularly like the text below:
"...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.."
Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question)
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com> wrote:
Thomas, Mathieu and Leon and CCWG,,
In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model.
Kind regards, Holly and Rosemary
HOLLY GREGORY Partner
Sidley Austin LLP +1 212 839 5853 holly.gregory@sidley.com
**************************************************************************************************** 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.
****************************************************************************************************
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-- -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272
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Hi, As I mentioned in an earlier note, I was looking at that suggestion as well. And while my initial thought was that it might work, I take the comments made as a serious argument against that position. I think you guys are right, when seen in the context of checks and balances, it defeats the purpose. Though, as with the CCWG at present, the Board members should be able to contribute to the discussion. I think it is also less required than I thought given the ability, as the Sidley/Adler memo reminds us, to use the bylaws under the current CMSM model to restrict the powers to situations, as appropriate, where there are Board triggers or agreement requirements. avri On 04-Oct-15 11:46, Kavouss Arasteh wrote:
Ed I fully agree with the analysis that You have described. Once again separation of powers was the first and foremost / fundamental issue that we agreed and should stick to that. Board can not therefore be a member if the group . Kavouss
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On 3 Oct 2015, at 14:54, Gregory, Holly <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> wrote:
Ed, not all statutory rights need be addressed the same way.
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* ------------------------------------------------------------------------ *From:* Edward Morris *Sent:* Saturday, October 03, 2015 05:22:50 AM *To:* Arun Sukumar *Cc:* Seun Ojedeji; ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>; thomas@rickert.net <mailto:thomas@rickert.net>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>; ACCT-Staff; Sidley ICANN CCWG *Subject:* Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT
Arun,
This is a well intentioned nonstarter. Take for example derivative rights, that is the right to sue the corporation on behalf of the corporation for gross malfeasance. To include the Board in the decision would be to ask the Board whether it wishes to sue itself on behalf of itself. If we get to that point we need to find a corporate psychologist. One ideally should not sue oneself. Or document rights. Dear Board, you refused to allow us to inspect documents whose contents would help us in an IRP action we have against you. Would you please join us in ruling against yourself?
For the record, I like the statutory rights. They are the most potent accountability mechanisms available to us, would probably rarely if ever be used but their existence would help ensure compliance with 'lesser' mechanisms and are a normal part of nonprofit corporate governance. The further away we get from tried and true governance principles enshrined in statutory law, full of legal precedence and authority, the riskier the proposal.
Best,
Ed Morris
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On Oct 3, 2015, at 10:58 AM, Arun Sukumar <arun.sukumar@nludelhi.ac.in <mailto:arun.sukumar@nludelhi.ac.in>> wrote:
Hit send too early. This paragraph is most interesting. Shared governance is of course a political concept, but would involving the Board on specific decisions not violate the SoP principle that Kavouss and others have rightly highlighted? Would it hold water in California courts?
Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. *The goal of such an approach would be to assure shared as opposed to unilateral governance of specifically identified critical decisions*
On Sat, Oct 3, 2015 at 3:25 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in <mailto:arun.sukumar@nludelhi.ac.in>> wrote:
Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. Th*/e goal of such an approach would be to assure shared as opposed to unilateral governance of specificallyidentified critical decisions/*
On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Hello Gregory,
This is quite helpful memo, I particularly like the text below:
"...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.."
Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question)
Regards
Sent from my Asus Zenfone2 Kindly excuse brevity and typos.
On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>> wrote:
Thomas, Mathieu and Leon and CCWG,,
In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model.
Kind regards, Holly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP** *+1 212 839 5853 <tel:%2B1%20212%20839%205853> holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
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It would hold water in California courts. Sent with Good (www.good.com) ________________________________ From: Arun Sukumar Sent: Saturday, October 03, 2015 04:57:12 AM To: Seun Ojedeji Cc: Gregory, Holly; ICANN@adlercolvin.com; thomas@rickert.net; accountability-cross-community@icann.org; ACCT-Staff; Sidley ICANN CCWG Subject: Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT Hit send too early. This paragraph is most interesting. Shared governance is of course a political concept, but would involving the Board on specific decisions not violate the SoP principle that Kavouss and others have rightly highlighted? Would it hold water in California courts? Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specifically identified critical decisions On Sat, Oct 3, 2015 at 3:25 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in<mailto:arun.sukumar@nludelhi.ac.in>> wrote: Just as an example, the Bylaws could provide that all SOs and ACs must approve specific decisions in order for the community to direct the Sole Member with respect to the unwanted statutory right. This could even include involving the Board of Directors (for example with a trigger right, or an approval or veto right) with respect to dissolution and other statutory rights of concern. The goal of such an approach would be to assure shared as opposed to unilateral governance of specificallyidentified critical decisions On Sat, Oct 3, 2015 at 12:54 PM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hello Gregory, This is quite helpful memo, I particularly like the text below: "...Level 2: A consensus among all participating SOs and ACs (based on the Level 1 decisions of each participant) is then required to meet whatever decision threshold for a particular matter has been set in the Bylaws; it is at this level, Level 2, where it is entirely lawful to impose severe limits on the ability to direct the Sole Member with respect to any statutory rights that are of concern.." Will be good to know how this will work with ACs especially if votes is used to gauge consensus (this ofcourse is not a legal question) Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 2 Oct 2015 20:39, "Gregory, Holly" <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Thomas, Mathieu and Leon and CCWG,, In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model. Kind regards, Holly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. 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Thanks Holly and Rosemary for this excellent memo. It proposes a far better way of dealing with problematic "Member Powers" than my suggestion of incorporating the Board a decision-maker. Triggering co-decision for any of the "unwanted" powers with the Board is consistent with the approach we already proposed for fundamental Bylaw changes, and avoids the contamination of the separation of powers my suggestion would have made. I therefore withdraw my suggestion, and note with a smile that I wish I'd read *all* my email before replying to any of it! Finally: I would ask Board members to share their thoughts about how this memo conflicts with the apparent JD advice. best Jordan On 3 October 2015 at 08:38, Gregory, Holly <holly.gregory@sidley.com> wrote:
Thomas, Mathieu and Leon and CCWG,,
In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model.
Kind regards, Holly and Rosemary
*HOLLY* *GREGORY* Partner
*Sidley Austin LLP* +1 212 839 5853 holly.gregory@sidley.com
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Thanks for your very kind note Jordan. Your independent counsel appreciate it! 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@sidley.com<mailto:holly.gregory@sidley.com> 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@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Sunday, October 04, 2015 4:23 PM Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Documents for Posting for CCWG-ACCT Thanks Holly and Rosemary for this excellent memo. It proposes a far better way of dealing with problematic "Member Powers" than my suggestion of incorporating the Board a decision-maker. Triggering co-decision for any of the "unwanted" powers with the Board is consistent with the approach we already proposed for fundamental Bylaw changes, and avoids the contamination of the separation of powers my suggestion would have made. I therefore withdraw my suggestion, and note with a smile that I wish I'd read *all* my email before replying to any of it! Finally: I would ask Board members to share their thoughts about how this memo conflicts with the apparent JD advice. best Jordan On 3 October 2015 at 08:38, Gregory, Holly <holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>> wrote: Thomas, Mathieu and Leon and CCWG,, In addition to slides comparing the Sole Member, Sole Designator and Board Proposal from last week (which we understand did not get posted yet) , we are providing a memo as requested in LA that discusses how the statutory rights of a member can be constrained in the Sole Member model. Kind regards, Holly and Rosemary HOLLY GREGORY Partner Sidley Austin LLP +1 212 839 5853<tel:%2B1%20212%20839%205853> holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> **************************************************************************************************** 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. **************************************************************************************************** _______________________________________________ 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://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CQMFaQ&c=Od00qP2XTg0tXf_H69-T2w&r=1-1w8mU_eFprE2Nn9QnYf01XIV88MOwkXwHYEbF2Y_8&m=1teaGrei2hfhgGBOYGpTOPmdMV-BFFPreEUFjimILRc&s=oYEyvD-KvpfrBrXKD8GoBusRD2jxIWoWqsGKTZ641ig&e=> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.internetnz.nz&d=CQMF...> A better world through a better Internet
participants (7)
-
Arun Sukumar -
Avri Doria -
Edward Morris -
Gregory, Holly -
Jordan Carter -
Kavouss Arasteh -
Seun Ojedeji