Re: [wg-review] Clarifications requested from BoD, Staff, NC, TC,Chairprior to co-Chair elections

[Karl Auerbach <karl@CaveBear.com>]

On Tue, 9 Jan 2001, Kent Crispin wrote:

> Fine.  So you bring a suit against the board for not following its
> bylaws.  You get an injunction against the board not following the
> bylaws.  The board amends the bylaws and proceeds with what it was
> going to do.
>
> So what is the remedy?

The remedy is injunctive relief.

Can the board amend the articles/bylaws?  Sometimes, but not when doing so
contravenes parts of those documents that have been placed beyond the
power of the board (even ICANN has some sections like that) or goes
against California law (like disenfranchising those who vote for board
seats), or when the change is subject to approval of the membership, or
when the change is contrary to the purposes of the corporation.

If ICANN were to actually follow California law look at all the things
that the Board could not readily do by itself.  Particularly note items 2,
4, 6, 7, 9, 11, and 13

1. A meeting of members must be held in each year in which directors are
to be elected. (5510). Members may apply to the Attorney General to order
such meeting if not timely held.  (5510)

2. Special meetings of members may be called by 5% of the members. (5510)

3. Members are entitled to written notice of member meetings. (5511)

4. Members may act by written ballot except to cumulatively vote for
directors. (5513)

5. Proxies are allowed unless withdrawn by bylaws or articles. Proxies may
be limited by articles or bylaws. Proxies are revocable. (5613)

6. Members may bring derivative actions, subject to the usual conditions.
(5710) No bond shall be required if enough members bring the action.
(5710)

7. Most amendments to articles must be approved by Board and members (and
any other persons specified in articles).  (e.g. SOs). (5812)

8. Board must send annual report (as defined in 6321) to members within
120 days after the end of the fiscal year. (6321)

9. Membership lists and accounting books and records and minutes must be
made available to members for proper purposes.  (6330, 6333 and 6338)

10. Members may amend the bylaws; however, the bylaws may provide that the
amendment may occur only with the approval of a specified person other
than the Board. (e.g. SOs). (5150) Note, however, that the Board may amend
the bylaws without the approval of members unless the action would
materially and adversely affect the right of members as to voting or
transfer.

11. Directors elected by members may be removed by members. (5222)

12. The bylaws must specify a quorum requirement. (5512)

13. Members can bring legal actions to determine the validity of
elections. (5617)

		--karl--



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