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

[Kent Crispin <kent@songbird.com>]

On Wed, Jan 31, 2001 at 01:53:12PM -0800, Karl Auerbach wrote:
> On Wed, 31 Jan 2001, Kent Crispin wrote:
> 
> > Now I just want to get this straight: you as an attorney before the
> > California Bar, and as an ICANN board member with a fiduciary
> > responsibility to protect the interests of corporation, are stating that
> > the ICANN atlarge members are members of the corporation in the full
> > legal sense of section 5056 of the California Nonprofit Public Benefit
> > Corporation Law, Article II, Section 1 of the ICANN bylaws
> > notwithstanding; and that therefore any or all of these atlarge members
> > should engage in all appropriate legal action to secure their "rights"?
> > Have I correctly stated your position?
> 
> (Did you have one of those "top notch" attorneys help you write that?)

Nope.  Interesting that you would think so.

> As for your question, you got much of my position right, but not all:  In
> no way am I saying that the at-large members "should"  engage in legal
> action - such a decision rests with each individual member.  I personally
> don't want to see such action,

Nonetheless, you are clearly encouraging it by making the public
statements that you are making -- it is pretty clear from some of the
mail on this list that some parties are encouraged :-)

Moreover, no reasonable person could doubt that you are aware of the
possibility that your very public statements could encourage others to
seek legal remedies, since you have explicitly mentioned such legal
remedies in public.  Legal actions that could cost ICANN hundreds of
thousands of dollars.  That is, legal actions that could cause serious
monetary damage to the corporation.  

As far as your actions are concerned it really doesn't make any
difference at all whether your interpretation of the bylaws is correct. 
The intent of the corporation in approving the membership provisions was
absolutely clear, and you know what it is: the corporation is not have
corporate members.  If you think there is a problem with those
provisions, then your appropriate action as a director would be to take
that up with corporate counsel and fix the provisions, and not to
deliberately broadcast a corporate legal vulnerability to the world. 
Your argument that ICANN could avoid that liability by accepting
corporate members is specious -- the directors have already decided,
with good reason, that having corporate members is not in the best
interests of the corporation. 


-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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