[NCUC-DISCUSS] [CCWG-ACCT] Memo on Fundamental Bylaws & Legal Liability of Members

[Arun Sukumar]

Greg, thanks for the annotations.

On the second part, i must claim mea culpa - the section which talked about
the PTI/ICANN relationship is what has been discussed here, which got mixed
up with our response to the CWG. (it's still useful for this group!) Let me
send the doc on membership liability separately.

On Mon, Jun 22, 2015 at 1:52 AM, Edward Morris <egmorris1 at toast.net> wrote:

> Thanks for doing this Greg. Amongst other things I believe this
> illustrates the difficulty many lawyers and lawyers-to- be have in
> analysing law and offering advice outside their areas and jurisdictions of
> expertise. It is something we need to keep in mind as we plot ways forward
> in the CCWG relying upon the advice of our fine American counsel. Every now
> and then we might want to stop and do a reality check to ensure we really
> are taking into consideration the legal needs of our non-American
> volunteers and the international internet community. Despite best efforts
> this well intentioned report illustrates the difficulty of "practicing" law
> outside of one's own country.
>
> Best,
>
> Ed
>
>
> On Mon, Jun 22, 2015 at 5:26 AM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
>> I've now read and analyzed this memo carefully. Regrettably, its
>> conclusions are fundamentally incorrect.  Please see the annotated copy
>> attached.  Specifically, there is no potential that "exposes members [of
>> ICANN] to legal liability" based on the "corporate veil" analysis cited in
>> the memo.  Further, and as noted in the attached, I would reject the
>> "fundamental bylaw" analysis as well.  This may be irrelevant given our
>> shift in direction, but having considered the memo, I did not want it
>> floating around as a potentially legitimate source of analysis.
>>
>> I would have liked to praise the memo, but unfortunately I have to
>> suggest we bury it.
>>
>> Finally, with regard to the power of members to approve bylaws, this is
>> clearly set forth in Section 5150(b): "Bylaws may be adopted, amended or
>> repealed by approval of members."  Any confusion otherwise was based on
>> the misbegotten idea that the "ultimate authority of the board" applies
>> even to members.
>>
>> Greg
>>
>> *Gregory S. Shatan **ï* *Abelman Frayne & Schwab*
>>
>> *Partner* *| IP | Technology | Media | Internet*
>>
>> *666 Third Avenue | New York, NY 10017-5621*
>>
>> *Direct*  212-885-9253 *| **Main* 212-949-9022
>>
>> *Fax*  212-949-9190 *|* *Cell *917-816-6428
>>
>> *gsshatan at lawabel.com <gsshatan at lawabel.com>*
>>
>> *ICANN-related: gregshatanipc at gmail.com <gregshatanipc at gmail.com>*
>>
>> *www.lawabel.com <http://www.lawabel.com/>*
>>
>> On Sat, Jun 20, 2015 at 4:32 PM, Arun Sukumar <
>> arun.sukumar at 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 <http://www.twitter.com/arunmsukumar>
>>> Senior Fellow, Centre for Communication Governance
>>> <http://www.ccgdelhi.org>
>>> National Law University, New Delhi
>>> Ph: +91-9871943272
>>>
>>> _______________________________________________
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>>> Accountability-Cross-Community at icann.org
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>>>
>>>
>>
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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
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