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. 


--
This message was passed to you via the wg-review@dnso.org list.
Send mail to majordomo@dnso.org to unsubscribe
("unsubscribe wg-review" in the body of the message).
Archives at http://www.dnso.org/archives.html