[comments-review] Re: [wg-review] Re: [wrg-review] Constituencies, 1 governance and legality

[Sotiropoulos <sotiris@hermesnetwork.com>]

1/31/01 12:49:52 AM, Kent Crispin <kent@songbird.com> wrote:

>On Wed, Jan 31, 2001 at 12:43:11AM -0500, Sotiropoulos wrote:

>> 5056.  (a) "Member" means any person who, pursuant to a specific
>> provision of a corporation's articles or bylaws, has the right to
>> vote for the election of a director or directors or on a disposition
>> of all or substantially all of the assets of a corporation or on a
>> merger or on a dissolution unless the provision granting such right
>> to vote is only effective as a result of paragraph (2) of subdivision
>> (a) of Section 7132.  "Member" also means any person who is
>> designated in the articles or bylaws as a member and, pursuant to a
>> specific provision of a corporation's articles or bylaws, has the
>> right to vote on changes to the articles or bylaws.
>>    (b) The articles or bylaws may confer some or all of the rights of
>> a member, set forth in this part and in Parts 2 through 5 of this
>> division, upon any person or persons who do not have any of the
>> voting rights referred to in subdivision (a).
>>    (c) Where a member of a corporation is not a natural person, such
>> member may authorize in writing one or more natural persons to vote
>> on its behalf on any or all matters which may require a vote of the
>> members.
>>    (d) A person is not a member by virtue of any of the following:
>>    (1) Any rights such person has as a delegate.
>>    (2) Any rights such person has to designate or select a director
>> or directors.
>>    (3) Any rights such person has as a director.
>> 
>> Now, granted that California Code Law does not enjoin any corporation to *have* members, it does allow 
>> Corporations to set up their own "membership" mandates.  I think it is quite clearly apparent that *some kind of 
>> membership* is involved in the fact that "the Corporation (ICANN) shall allow individuals (described in these 
bylaws 
>> as "Members") to participate in the activities of the Corporation as described in this Article II and in a selection 
plan 
>> adopted by Board resolution, and only to the extent set forth in this Article II and in a selection plan adopted by 
>> Board resolution."  Since, however, the @Large is able to vote in Directors of the Board, does it not follow that 
>> such members are actually acting according to the CNPBCL definition of "members" (i.e. "5056.  (a) "Member" 
>> means any person who, pursuant to a specific provision of a corporation's articles or bylaws, has the right to
>> vote for the election of a director or directors...) ???
>> 
>> I'd appreciate a response.
>
>Section (d)(2), above states "a person is not a member by virtue
>of...Any rights such a person has to designate or select a director or
>directors." T

Yes Kent, it does say that, but section (b) says: "(b) The articles or bylaws may confer some or all of the rights of
a member, set forth in this part and in Parts 2 through 5 of this division, upon any person or persons who do not 
have any of the voting rights referred to in subdivision (a)."  The FACTS show that the @Large Members qualify to
voting rights referred to in subdivision (a).  This is the real problem Kent.  The @Large Directors are REAL and 
bona fide Directors. 

hat is, being part of a selection process does not in
>itself confer being a "member" in the sense of the code; the bylaws
>carefully define the atlarge elections as a "selection process"; the
>very first part of the "membership" section makes it quite plain that
>they are carefully avoiding the definition of "members" in the law.
>
>Moreover, if you step back from the "ICANN is a government" mindset for
>just a moment, the whole idea becomes ludicrous wishful thinking.  Think
>of some other non-profit corporation -- think of the American Red Cross,
>for example.  Directors would be *criminally negligent* if they opened
>up the corporation to the liability risks of including a random
>self-selected population as members.  Do you really think that allowing
>any arbitrary person in the world standing to bring legal action against
>the corporation would be in the best interests of the corporation? Do
>you really think that any lawyer who didn't want to be disbarred would
>suggest such a stupid thing?

What's it going to be Kent?  Is ICANN a corporation or a non-profit organization?  Say Kent, do you think anybody
would ever consider Anti-Trust action against the Red Cross?

>I don't know how to put this any more plainly: from a simple common
>sense point of view it would be pathologically stupid to create the kind
>of membership that you are thinking about.  The world is full of crazy
>people on missions.  An open membership within the meaning of the
>California Code would be corporate suicide for a corporation as emeshed
>in controversy as ICANN. 

There is an easy way and a hard way to clear up the controversy.  Only time will tell which ICANN will choose.

Amiably,



Sotiris Sotiropoulos
          Hermes Network, Inc. 




Sotiris Sotiropoulos
          Hermes Network, Inc. 




Sotiris Sotiropoulos
          Hermes Network, Inc. 




Sotiris Sotiropoulos
          Hermes Network, Inc.