On Thu, 1 Aug 2002, vinton g. cerf wrote:
both parties requested summary judgment
Yes. And almost all of ICANN's was denied, and almost all of Karl's
granted. Your point being?
[...]
no, ICANN would have preferred to stick with the procedures that were
established. However it seems appropriate to point out that the principal
difference between the procedures adopted by ICANN's audit committee and
the procedures recommended by the court differed primarily in the manner
in which differences of opinion as to the releasability of material
considered confidential by ICANN would be settled. ICANN recommended an
To the extent this is an accurate identification of the "principle"
difference, it is also one where the differnce between the two views is
substantial, and ICANN had its head handed to it on a plate.
At INET, I tried to warn you this would happen. You clearly had been
advised otherwise. That was very bad advice. You were so bought into it
that you wouldn't even take the time to listen to *why* I thought what I
thought. That was not prudent.
internal procedure that, if not agreed by the director wishing to release
them, would then be settled in court. Your proposal, that was recommended
with one modification by the court, required ICANN to seek judicial remedy
if given a 10 day warning, it disagreed with the director's proposal to
release. In your original proposal you suggested a 7 day period.
This is what we in the legal profession would call a sop for ICANN. If
your lawyers are telling you differently, I submit you are again badly
advised.
Karl, restrictions are still there. If a director wishes to release
information held to be confidential by ICANN, ICANN has a 10 day period in
which to seek judicial review and restraint. At least that is the way I
understand the order.
True. More importantly, a director has --and has at all relevant times
had -- an independent, personal, duty to act in his best understanding of
what's best for the entity. That is one which the law doesn't allow him
to delegate. Or sign away, as ICANN proposed.
Karl, even under the procedures adopted by ICANN to accommodate full review
while protecting confidential information allowed you and any director full
access to corporate records. The court did NOT validate unlimited ability of
any director to unilaterally release confidential information. In no case did
Nor did Karl assert that non-existent unlimited right to release anything.
Rather he asserted his stautory right to exercise independent judgment,
rather than having it illegally constrained by a proceedure adopted in
violation of both law and ICANN's by-laws. Doesn't that finding bother
you? Illegal. Violation of by-laws. Doesn't it make you wonder whether
other things you have been told by the same people who drafted this
illegal document are within the by-laws might not be? Wouldn't it be
prudent to worry about that now? Once bitten, twice shy?
The "unlimited right" you mention was never part of the case. Your
lawyers tried to create this straw man. It was clearly falsified by the
evidence, and the judge didn't waste any time on it. If this is what your
lawyers told you the case is about, as opposed to it merely being a
desperation litigation tactic ("blacken the enemey"), which is what it
looked like, then you have been very badly advised. I suggest you read
Karl's pleadings. Or have an outside lawyer not affiliated with this
proceeding, or with your current advisors' law firm, read them. And also
the trial transcript. Then have a very serious and frank discussion with
your professional advisors.
ICANN seek to restrict actual access to documents but only to assure proper
assessment of the releasability of anything considered confidential.
The law provides for this already in the duties that constrain directors.
Karl went the extra mile before the suit was filed, offering 7 days notice
before disclosure. The law does not require that (although it's a
sensible and prudent thing for a director to offer under these
circumstances). The court said, 'make it 10'.
Under the court's order ICANN must start delivering materials by tomorrow,
August 2 - a mere 20 months after I first requested them.
some material is not deliverable but only viewable/copyable at the ICANN site.
I trust that ICANN will make every effort to be cooperative and to
implement both the letter and the spirit of the court's order. It would
be nice to hear you say that.
--
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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