Hi Seth, 1. The creation or deletion of bylaws relating to ICANN's corporate activities is a corporate activity in itself. I'd be surprised if a court finds otherwise, especially if on precedent the board has been doing this all the while. 2. Section 5151 is clear - I'm not disputing the member's power to restrain the board from changing bylaws. However, this provision does not grant members the right to do it either. And as Jordan highlighted, this does not seem to the intention of the proposal - however, the board would still have a veto on the process of changing bylaws. If it says no, where would the community draw its right from to go ahead anyway? Does the draft proposal address this? arun On Sun, Jun 21, 2015 at 3:18 AM, Seth Johnson <seth.p.johnson@gmail.com> wrote:

Hi, I'm not getting this document in Arun's message, apparently now forwarded to NCUC. Could someone forward it?

I want to see whether I can see how or whether it argues that "corporate activities" do include fundamental bylaws changes.

I'm not sure what I think about the matter in the area of corporate bylaws, but it's certainly viable to distinguish the regular processes of a government from its founding acts. Amendment processes to fundamental acts are regarded the same way.

Arun, and perhaps the article he sent, seems to be referring to background California law as a basis for a view that everything happens, including fundamental bylaws acts, through the Board -- which strikes me as implausible. I think that "corporate activities" means the acts of the corporate entity created by the bylaws -- not activities such as those establishing that entity.

And I would say the passage Jordan posted reads very clearly this way:

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as provided in subdivision (c), and Sections 5151, 5220, 5224, 5512, 5613, and 5616, bylaws may be adopted, amended or repealed by the board unless the action would materially and adversely affect the rights of members as to voting or transfer. (b) Bylaws may be adopted, amended or repealed by approval of members (Section 5034); provided, however, that such adoption, amendment or repeal also requires approval by the members of a class if that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.

It says the board can do it, then it says the members can do it. It continues to say these acts by either path can restrict the power of the board to do these acts.

All of this is consistent with setting up a foundation which serves to limit the regular activities of the corporate entity, a basic function of fundamental bylaws.

Seth

On Sat, Jun 20, 2015 at 4:20 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 Senior Fellow, Centre for Communication Governance National Law University, New Delhi Ph: +91-9871943272

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-- - @arunmsukumar <http://www.twitter.com/arunmsukumar> Senior Fellow, Centre for Communication Governance <http://www.ccgdelhi.org> National Law University, New Delhi Ph: +91-9871943272