This statement quoted below, in which it is alleged that Karl Auerbach got
only what he'd previously been offered, is flatly contradicted by the text
of the judicial decision. It is, quite simply, utterly false. In fact,
almost the reverse is true: what ICANN got is almost exactly what Karl
offered them months ago (the only differences being he has to give 10 days
notice to disclose instead of 7, and some documents must be inspected on
the premises). The judge stated that in several material respects, what
ICANN sought violated California law.
See the text of the decision for yourself at
http://cryptome.org/auerbach-icann.htm
See also http://www.icannwatch.org/article.php?sid=883 for a subsequent
development.
One does not have to be a lawyer to understand what the following means:
the court said ICANN's position "violates both section 6334 and Bylaws
Article V, Section 21 because it deprives Auerbach of the inspection
rights he has under law and imposes such unreasonable requirements as
having to sign a confidentiality agreement and having to pursue burdensome
review in any effort to enforce his inspection rights".
A few choice quotes from the court decision (note, Respondent == ICANN and
the "Inspection Procedures" were ICANN's attempt to restrict a director's
access to info):
[A]
"Respondent contends that inspection rights of directors may be restricted
by corporate inspection procedures and cites Chantiles v. Lake Forest II
Master Homeowners Ass'n (1995) 37 Cal.Ap.4th and Havlicek v.
Coast-to-Coast Analytical Services, Inc. (1995) 39 Cal.App.4th 1844 in
support of its position.
Neither section 6334 nor section 6336(a) provide for or permit a
corporation to impose restrictive conditions on directors' inspection
rights and burdensome review when such rights are denied."
[B]
"Having considered the applicable law and the undisputed facts presented
herein, the court concludes that paragraphs 3, 5, and 6 of the Inspection
Procedures conflict with section 6334 and Art. V, §21 of the Bylaws by
unreasonably restricting directors' access to corporate records and
depriving directors of inspection rights afforded them by law.
Furthermore, Lynn's 10/5/01 letter violates both section 6334 and Bylaws
Article V, Section 21 because it deprives Auerbach of the inspection
rights he has under law and imposes such unreasonable requirements as
having to sign a confidentiality agreement and having to pursue burdensome
review in any effort to enforce his inspection rights.
Additionally, the Inspection Procedures here apparently have not even been
adopted by the ICANN Board of Directors, but were promulgated by an ad hoc
group of functionaries consisting of the Audit Committee, Louis Touton,
Diane Schroeder, and Lynn (Auerbach Dec. Ex. 17, 18, 21).
Based on the undisputed facts, there is no triable issue as to any
material fact and Petitioner Auerbach is entitled to judgment as a matter
of law granting his Petition for Writ of Mandate. "
On Thu, 1 Aug 2002, Dave Crocker wrote:
[...]
2. Note that Karl won the suit, but lost the war. He is now subject to
the conditions that ICANN had originally wanted to apply for his
access. The only difference is that now Karl is under a court order to
conform to those rules.
--
Please visit http://www.icannwatch.org
A. Michael Froomkin | Professor of Law | froomkin(_at_)law(_dot_)tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm
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