Russ Allbery <rra(_at_)Stanford(_dot_)EDU> writes:
However, ICANN has now been found to be engaging in illegal activity to
obstruct the ability of an independent director to perform his oversight
responsibilities. This has been established in a court of law.
Someone has correctly pointed out to me that the activities were found to
be improper rather than illegal, or in other words civil rather than
criminal.
Don't let them push you around with their efforts to confuse and
obfuscate Russ. what you were told is wrong.
Yes some infractions of law are regarded as less serious and are
triable as civil infractions other matters more serious are regarded
as felonies and triable in criminal courts. For something to be
"illegal" it may fall under either civil or criminal jurisdiction.
Karl's suit is being heard in civil court. The judge ruled that the
actions of ICANN of which Vint Cerf is Chairperson of the Board of
Directors unreasonably restricted "directors' access to corporate
records and depriving directors of inspection rights afforded them by
law."
That's not 'improper' it's illegal.
When one is ticked for doing 40 mph in a 25 mph zone is one ticketed
for improper speeding? Or illegal speeding?
While this doesn't change my opinion, that's a valid point, and
my language was sloppy. My apologies.
You owe apologies to no one. As Michael Froomkin wrote here earlier
today to Vint Cerf:
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.
Instead of a clear statement from Vint Cerf that ICANN will now act
fully and gracefully to carry out the directions of the Superior
Court of Los Angeles, we have unknown list members (surely not Dave
Crocker!?) skulking around convincing self admitted 'novices' that
they have errored by using the term illegal when the action was
really only 'improper'.
Please read
http://www.icannwatch.org/article.php?sid=883&mode=thread&order=0 on
why ICANN should think twice before appealing
Why ICANN Has No Good-Faith Reason to Appeal
Posted by michael on Thursday, August 01 @ 09:10:52 MDT
Contributed by michael
ICANN has a few days left to decide whether to appeal and also seek
to stay the California court order requiring it to turn over
documents to Karl Auerbach. The appeal is as of right; if California
works like the states I know about, the appellate court's stay of a
trial court's order is discretionary, but not uncommon. The
temptation to try to play out the clock must be intense since
Auerbach's term ends soon, and ICANN has ensured that it will have no
troublesome outsiders on its board in the future. But a new court
decision issued two days ago demonstrates why ICANN's appeal would
not be a sound legal decision.
On July 30, 2000 -- coincidentally one day after the decision in the
Auerbach case -- a California court of appeal decided a case which
demonstrates in conclusive terms why any appeal of the Auerbach
decision by ICANN is certain to fail. Although this court is not the
one whose jurisdiction would cover an appeal Auerbach v. ICANN, and
hence this is not legally controlling I am certain that the other
appellate districts in California would find it persuasive and follow
it. Indeed, given that the decision concerns rights of access to
documents in a for-profit company, the case for the director's rights
can only be stronger in a non-profit, public benefit corporation.
After this, surely now it is clear beyond debate (if somehow it
wasn't already) that any further attempt to delay by ICANN would not
just be without legal foundation, but in very bad faith.
Here's the relevant part of the text of that decision:
Saline v. Superior Court
2002 WL 1752820
Cal.App. 4 Dist.,2002.
MOORE, J.
Petitioner Joseph Saline, a member of the board of directors of real
party in interest Commonwealth Energy Corporation (CEC), seeks a writ
of mandate directing the trial court to vacate its order restricting
Saline's access to corporate records and directing that he keep the
contents of the records confidential. Saline argues the order runs
afoul of Corporations Code section 1602 and constitutes an unlawful
prior restraint in violation of the First Amendment of the United
States Constitution. CEC responds that the restrictions the court
imposed are "just and proper" under Corporations Code section 1602,
given Saline's alleged misbehavior and conflicts of interest. We hold
that the trial court failed to make the findings necessary to justify
the limitation on Saline's right to corporate documents and that a
prior restraint on his speech has no legal basis. We therefore grant
the petition.
[snip]
also
http://personal.law.miami.edu/~froomkin/articles/formandsubstance.pdf
Grab this PDF and read it and you will see what it is like to have to
deal with Joe Sims. As professor Froomkin said here earlier today he
tried to warn Vint at INET last month but Vint was not ready to
listen and by the looks of it still isn't ready to listen.
--
Russ Allbery (rra(_at_)stanford(_dot_)edu)
<http://www.eyrie.org/~eagle/>
--
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