Memo on Fundamental Bylaws & Legal Liability of Members
Hello all, Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability. Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms. Best, Arun -- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
Can this please be circulated in an open format, such as PDF? el -- Sent from Dr Lisse's iPad mini
On Jun 20, 2015, at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar Senior Fellow, Centre for Communication Governance National Law University, New Delhi Ph: +91-9871943272 <Note from CCG National Law Uni.docx> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
here it is On Sat, Jun 20, 2015 at 5:10 PM, Dr Eberhard W Lisse <el@lisse.na> wrote:
Can this please be circulated in an open format, such as PDF?
el
-- Sent from Dr Lisse's iPad mini
On Jun 20, 2015, at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
<Note from CCG National Law Uni.docx>
_______________________________________________ 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
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
thanks, el -- Sent from Dr Lisse's iPad mini
On Jun 20, 2015, at 17:13, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
here it is
On Sat, Jun 20, 2015 at 5:10 PM, Dr Eberhard W Lisse <el@lisse.na> wrote: Can this please be circulated in an open format, such as PDF?
el
-- Sent from Dr Lisse's iPad mini
On Jun 20, 2015, at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar Senior Fellow, Centre for Communication Governance National Law University, New Delhi Ph: +91-9871943272 <Note from CCG National Law Uni.docx> _______________________________________________ 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
-- - @arunmsukumar Senior Fellow, Centre for Communication Governance National Law University, New Delhi Ph: +91-9871943272 <Note from CCG National Law Uni.pdf>
hi Arun Thanks for this thoughtful contribution. I was interested in the difference between this memo's conclusions regarding the power to approve fundamental bylaws, and those of the legal firms retained by the CCWG. Their view is clearly that in a member structure, members can have approval rights for bylaws changes. The memo you have circulated seems on first glance to conclude that they cannot. Am I reading this right or is it just a matter of the way it is expressed? best Jordan On 20 June 2015 at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *A better world through a better Internet *
Hi Jordan, the California Corporate Code seems pretty clear on this: all "corporate activities", which presumably include changes in bylaws, shall be exercised under the "ultimate authority of the board". I'm frankly a little confused by the legal counsel that says changes to bylaws can be made without board approval. Where's this being drawn from? A statutory provision? If so, I'vent seen it. I suppose what the law firms could be referring to is the board passing a resolution saying, "here, we authorise you to change bylaws without approval". But that can easily be changed through another board resolution. On Sat, Jun 20, 2015 at 5:20 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
hi Arun
Thanks for this thoughtful contribution.
I was interested in the difference between this memo's conclusions regarding the power to approve fundamental bylaws, and those of the legal firms retained by the CCWG. Their view is clearly that in a member structure, members can have approval rights for bylaws changes. The memo you have circulated seems on first glance to conclude that they cannot.
Am I reading this right or is it just a matter of the way it is expressed?
best Jordan
On 20 June 2015 at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
hi Arun s5150 of the Code is where I draw it from, copied below. best, Jordan 5150. (a) Except as provided in subdivision (c), and Sections 5151, 5220, 5224, 5512, 5613, and 5616, bylaws may be adopted, amended or repealed by the board unless the action would materially and adversely affect the rights of members as to voting or transfer. (b) Bylaws may be adopted, amended or repealed by approval of members (Section 5034); provided, however, that such adoption, amendment or repeal also requires approval by the members of a class if that action would materially and adversely affect the rights of that class as to voting or transfer in a manner different than that action affects another class. (c) The articles or bylaws may restrict or eliminate the power of the board to adopt, amend or repeal any or all bylaws, subject to subdivision (e) of Section 5151. (d) Bylaws may also provide that repeal or amendment of those bylaws, or the repeal or amendment of specified portions of those bylaws, may occur only with the approval in writing of a specified person or persons other than the board or members. However, this approval requirement, unless the bylaws specify otherwise, shall not apply if any of the following circumstances exist: (1) The specified person or persons have died or ceased to exist. (2) If the right of the specified person or persons to approve is in the capacity of an officer, trustee, or other status and the office, trust, or status has ceased to exist. (3) If the corporation has a specific proposal for amendment or repeal, and the corporation has provided written notice of that proposal, including a copy of the proposal, to the specified person or persons at the most recent address for each of them, based on the corporation's records, and the corporation has not received written approval or nonapproval within the period specified in the notice, which shall not be less than 10 nor more than 30 days commencing at least 20 days after the notice has been provided. On 20 June 2015 at 17:39, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hi Jordan, the California Corporate Code seems pretty clear on this: all "corporate activities", which presumably include changes in bylaws, shall be exercised under the "ultimate authority of the board".
I'm frankly a little confused by the legal counsel that says changes to bylaws can be made without board approval. Where's this being drawn from? A statutory provision? If so, I'vent seen it. I suppose what the law firms could be referring to is the board passing a resolution saying, "here, we authorise you to change bylaws without approval". But that can easily be changed through another board resolution.
On Sat, Jun 20, 2015 at 5:20 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
hi Arun
Thanks for this thoughtful contribution.
I was interested in the difference between this memo's conclusions regarding the power to approve fundamental bylaws, and those of the legal firms retained by the CCWG. Their view is clearly that in a member structure, members can have approval rights for bylaws changes. The memo you have circulated seems on first glance to conclude that they cannot.
Am I reading this right or is it just a matter of the way it is expressed?
best Jordan
On 20 June 2015 at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *A better world through a better Internet *
Hi Jordan, this provision allows the community to restrict the powers of the board, yes. But to your reading, does it grant the community the right to create/approve bylaws without Board approval? Is limiting the Board's right to change bylaws = empowering the community to make them without approval? Forgive me for lawyering here, but one conclusion does not seem necessarily to lead to the other! On Sat, Jun 20, 2015 at 5:43 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
hi Arun
s5150 of the Code is where I draw it from, copied below.
best, Jordan
5150. (a) Except as provided in subdivision (c), and Sections 5151, 5220, 5224, 5512, 5613, and 5616, bylaws may be adopted, amended or repealed by the board unless the action would materially and adversely affect the rights of members as to voting or transfer. (b) Bylaws may be adopted, amended or repealed by approval of members (Section 5034); provided, however, that such adoption, amendment or repeal also requires approval by the members of a class if that action would materially and adversely affect the rights of that class as to voting or transfer in a manner different than that action affects another class. (c) The articles or bylaws may restrict or eliminate the power of the board to adopt, amend or repeal any or all bylaws, subject to subdivision (e) of Section 5151. (d) Bylaws may also provide that repeal or amendment of those bylaws, or the repeal or amendment of specified portions of those bylaws, may occur only with the approval in writing of a specified person or persons other than the board or members. However, this approval requirement, unless the bylaws specify otherwise, shall not apply if any of the following circumstances exist: (1) The specified person or persons have died or ceased to exist. (2) If the right of the specified person or persons to approve is in the capacity of an officer, trustee, or other status and the office, trust, or status has ceased to exist. (3) If the corporation has a specific proposal for amendment or repeal, and the corporation has provided written notice of that proposal, including a copy of the proposal, to the specified person or persons at the most recent address for each of them, based on the corporation's records, and the corporation has not received written approval or nonapproval within the period specified in the notice, which shall not be less than 10 nor more than 30 days commencing at least 20 days after the notice has been provided.
On 20 June 2015 at 17:39, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hi Jordan, the California Corporate Code seems pretty clear on this: all "corporate activities", which presumably include changes in bylaws, shall be exercised under the "ultimate authority of the board".
I'm frankly a little confused by the legal counsel that says changes to bylaws can be made without board approval. Where's this being drawn from? A statutory provision? If so, I'vent seen it. I suppose what the law firms could be referring to is the board passing a resolution saying, "here, we authorise you to change bylaws without approval". But that can easily be changed through another board resolution.
On Sat, Jun 20, 2015 at 5:20 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
hi Arun
Thanks for this thoughtful contribution.
I was interested in the difference between this memo's conclusions regarding the power to approve fundamental bylaws, and those of the legal firms retained by the CCWG. Their view is clearly that in a member structure, members can have approval rights for bylaws changes. The memo you have circulated seems on first glance to conclude that they cannot.
Am I reading this right or is it just a matter of the way it is expressed?
best Jordan
On 20 June 2015 at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
Arun: the CCWG proposal wasn't to create this power, so it may be that the analysis you offer is correct, but not directed at what was in the proposal. In the fundamental bylaws part of the proposal, what is contemplated is a co-decision process, with the Board and the community (however constituted) having to agree to fundamental bylaws changes. Para 124 sets this out. The CCWG has not proposed giving the power to any entity other than the staff/Board being the formal initiator of a Fundamental bylaws change/addition. As such, my reading of our proposal is that it represents a restriction of the powers of the Board consistent with the section I pasted. If the proposal was that the community mechanism be formally able to propose bylaws changes, that would seem to fall into the problem your memo sets out? best On 20 June 2015 at 18:09, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hi Jordan, this provision allows the community to restrict the powers of the board, yes. But to your reading, does it grant the community the right to create/approve bylaws without Board approval?
Is limiting the Board's right to change bylaws = empowering the community to make them without approval? Forgive me for lawyering here, but one conclusion does not seem necessarily to lead to the other!
On Sat, Jun 20, 2015 at 5:43 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
hi Arun
s5150 of the Code is where I draw it from, copied below.
best, Jordan
5150. (a) Except as provided in subdivision (c), and Sections 5151, 5220, 5224, 5512, 5613, and 5616, bylaws may be adopted, amended or repealed by the board unless the action would materially and adversely affect the rights of members as to voting or transfer. (b) Bylaws may be adopted, amended or repealed by approval of members (Section 5034); provided, however, that such adoption, amendment or repeal also requires approval by the members of a class if that action would materially and adversely affect the rights of that class as to voting or transfer in a manner different than that action affects another class. (c) The articles or bylaws may restrict or eliminate the power of the board to adopt, amend or repeal any or all bylaws, subject to subdivision (e) of Section 5151. (d) Bylaws may also provide that repeal or amendment of those bylaws, or the repeal or amendment of specified portions of those bylaws, may occur only with the approval in writing of a specified person or persons other than the board or members. However, this approval requirement, unless the bylaws specify otherwise, shall not apply if any of the following circumstances exist: (1) The specified person or persons have died or ceased to exist. (2) If the right of the specified person or persons to approve is in the capacity of an officer, trustee, or other status and the office, trust, or status has ceased to exist. (3) If the corporation has a specific proposal for amendment or repeal, and the corporation has provided written notice of that proposal, including a copy of the proposal, to the specified person or persons at the most recent address for each of them, based on the corporation's records, and the corporation has not received written approval or nonapproval within the period specified in the notice, which shall not be less than 10 nor more than 30 days commencing at least 20 days after the notice has been provided.
On 20 June 2015 at 17:39, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hi Jordan, the California Corporate Code seems pretty clear on this: all "corporate activities", which presumably include changes in bylaws, shall be exercised under the "ultimate authority of the board".
I'm frankly a little confused by the legal counsel that says changes to bylaws can be made without board approval. Where's this being drawn from? A statutory provision? If so, I'vent seen it. I suppose what the law firms could be referring to is the board passing a resolution saying, "here, we authorise you to change bylaws without approval". But that can easily be changed through another board resolution.
On Sat, Jun 20, 2015 at 5:20 PM, Jordan Carter <jordan@internetnz.net.nz
wrote:
hi Arun
Thanks for this thoughtful contribution.
I was interested in the difference between this memo's conclusions regarding the power to approve fundamental bylaws, and those of the legal firms retained by the CCWG. Their view is clearly that in a member structure, members can have approval rights for bylaws changes. The memo you have circulated seems on first glance to conclude that they cannot.
Am I reading this right or is it just a matter of the way it is expressed?
best Jordan
On 20 June 2015 at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *A better world through a better Internet *
Is it possible that you are looking at the wrong code provisions Arun. The provisions relating to membership corporations create specific exceptions to the general rule Sent from my iPad On Jun 20, 2015, at 5:41 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in<mailto:arun.sukumar@nludelhi.ac.in>> wrote: Hi Jordan, the California Corporate Code seems pretty clear on this: all "corporate activities", which presumably include changes in bylaws, shall be exercised under the "ultimate authority of the board". I'm frankly a little confused by the legal counsel that says changes to bylaws can be made without board approval. Where's this being drawn from? A statutory provision? If so, I'vent seen it. I suppose what the law firms could be referring to is the board passing a resolution saying, "here, we authorise you to change bylaws without approval". But that can easily be changed through another board resolution. On Sat, Jun 20, 2015 at 5:20 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: hi Arun Thanks for this thoughtful contribution. I was interested in the difference between this memo's conclusions regarding the power to approve fundamental bylaws, and those of the legal firms retained by the CCWG. Their view is clearly that in a member structure, members can have approval rights for bylaws changes. The memo you have circulated seems on first glance to conclude that they cannot. Am I reading this right or is it just a matter of the way it is expressed? best Jordan On 20 June 2015 at 16:32, Arun Sukumar <arun.sukumar@nludelhi.ac.in<mailto:arun.sukumar@nludelhi.ac.in>> wrote: Hello all, Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability. Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms. Best, Arun -- - @arunmsukumar<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.twitter.com_arunmsuk...> Senior Fellow, Centre for Communication Governance<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.ccgdelhi.org&d=AwMFa...> National Law University, New Delhi Ph: +91-9871943272<tel:%2B91-9871943272> _______________________________________________ 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=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=AANkfg8cMRm7M8eM-MeAGX7YolTPq885_zE4l1lNhk0&s=FyUo6im59nGGr7hrp_lMw_MDEUpFy5K6E_mwOV8czSU&e=> -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet -- - @arunmsukumar<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.twitter.com_arunmsuk...> Senior Fellow, Centre for Communication Governance<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.ccgdelhi.org&d=AwMFa...> National Law University, New Delhi Ph: +91-9871943272 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...
I've now read and analyzed this memo carefully. Regrettably, its conclusions are fundamentally incorrect. Please see the annotated copy attached. Specifically, there is no potential that "exposes members [of ICANN] to legal liability" based on the "corporate veil" analysis cited in the memo. Further, and as noted in the attached, I would reject the "fundamental bylaw" analysis as well. This may be irrelevant given our shift in direction, but having considered the memo, I did not want it floating around as a potentially legitimate source of analysis. I would have liked to praise the memo, but unfortunately I have to suggest we bury it. Finally, with regard to the power of members to approve bylaws, this is clearly set forth in Section 5150(b): "Bylaws may be adopted, amended or repealed by approval of members." Any confusion otherwise was based on the misbegotten idea that the "ultimate authority of the board" applies even to members. Greg *Gregory S. Shatan **ï* *Abelman Frayne & Schwab* *Partner* *| IP | Technology | Media | Internet* *666 Third Avenue | New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com>* *www.lawabel.com <http://www.lawabel.com/>* On Sat, Jun 20, 2015 at 4:32 PM, Arun Sukumar <arun.sukumar@nludelhi.ac.in> wrote:
Hello all,
Please find attached a memo/primer from the National Law University, New Delhi explaining the idea of Fundamental Bylaws and examining its basis in California law. The document also has some research on what's known in some jurisdictions as courts "lifting the corporate veil", an action that potentially exposes members to legal liability.
Hope this is useful to those who are following the CCWG's work. This is simply to supplement the legal advice CCWG is getting from both law firms.
Best, Arun
-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272
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participants (6)
-
Arun Sukumar -
Burr, Becky -
Dr Eberhard W Lisse -
Dr Eberhard W Lisse -
Greg Shatan -
Jordan Carter