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Cavebear meets stonewall
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I reformatted Mr. Lynn's letter, already provided by Anon, to respond to it. I reprint it in its entirety here, my attempt at deconstruction follows. -g Date: Wed, 5 Dec 2001 14:01:31 -0800
To: David Farber , "Declan McUllough" [sic]
From: "M. Stuart Lynn"
Subject: Response to Karl Auerbach's note
The postings from Karl Auerbach to your lists regarding access to records were forwarded to me. I thought each of you might be interested in my response below. Feel free to post or not, of course, as you see fit.
Many thanks
Stuart
_______
Karl is free to examine ICANN records any time he is ready to comply with established procedures that apply to him and any other Director -- in
complete accordance with California law. Karl is not being singled out. Among other reasonable provisions, these procedures are designed to protect confidential records, such as personnel files. Karl wishes to set himself above the direct or delegated authority of the ICANN Board of Directors, in declaring himself as the sole determinant of what is confidential and what is not. That is not his prerogative according to
California law or ICANN bylaws.
The procedures to which he objects were endorsed by the Audit Committee of the ICANN Board, to whom the Board has delegated responsibility for this general area. He is always welcome to take his objections to the full Board should he wish. So far, he has not chosen to do so.
--
__________________
Stuart Lynn
President and CEO
ICANN
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292
Tel: 310-823-9358
Fax: 310-823-8649
Email: lynn@icann.org
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The following quote is from a California case (45 Cal.Rptr.2d 1) about a different, but identically worded ("absolute right to inspect") section of the California Corporations Code:
" Moreover, because the right of inspection under Corporations Code section 8334 has no exceptions, a director's motive for requesting an inspection is irrelevant. No reported decisions construe Corporations Code section 8334, but cases involving virtually identical provisions elsewhere in the Corporations Code conclude motive is irrelevant. For example, Valtz v. Penta Investment Corp. (1983) 139 Cal.App.3d 803, 188 Cal.Rptr. 922 concerned the "absolute right" under Corporations Code section 1600 of any shareholder with more than five percent of a company's stock to examine the shareholder list. The corporation contended a shareholder's inspection request was prompted by his desire to form a competing enterprise and refused the demand, asserting an unclean hands defense. (Id. at p. 806, 188 Cal.Rptr. 922.) Rejecting the argument, the Court of Appeal declared, "The California Legislature chose to allow inspection without any restriction based on the shareholder's purpose and we cannot impose such a restriction via the unclean hands doctrine." (Id. at p. 810, 188 Cal.Rptr. 922.)
True, Valtz involved a shareholder rather than a director. But a director has a stronger case for unqualified inspection rights than a shareholder. A director is a fiduciary charged with running the corporation in an informed manner. (National Automobile and Cas. Ins. Co. v. Payne (1968) 261 Cal.App.2d 403, 412-413, 67 Cal.Rptr. 784.) Because a director, unlike a shareholder, is potentially liable for failure to exercise appropriate oversight, an unconditional right to inspect is essential. (Hoiles v. Superior Court (1984) 157 Cal.App.3d 1192, 1201, 204 Cal.Rptr. 111; see also 1A Ballantine & Sterling, Cal. Corporation Law (4th ed.1995) § 272.02 at p. 22 ["A director must be familiar with the affairs of the corporation in order to perform his duties and the absolute right of inspection is to assist him in performing (those) duties in an intelligent and fully informed manner."].)
Also, in light of a director's potential exposure, the denial of unconditional access to corporate books and records constitutes poor policy: Well qualified individuals might decline to serve with something less than absolute inspection rights. (Cf. Gould v. American Hawaiian Steamship Co. (D.Del.1972) 351 F.Supp. 853, 859.) As this case illustrates, to allow defenses based on a director's alleged motive would in many cases result in the right to inspect being buried in litigation before it could ever be exercised, good motive or bad.
Nor does a director's unfettered access to corporate books and records leave the corporation unprotected. Any number of tort theories may be used to redress a misuse of information gleaned via an improperly motivated inspection. (Hoiles v. Superior Court, supra, 157 Cal.App.3d at p.
1201, 204 Cal.Rptr. 111.) Damages for misapplication of corporate information, rather than a threshold rejection of a director's inspection rights, is the appropriate remedy. [FN2] (Ibid.)
45 Cal.Rptr.2d 1
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Karl,
Why don't you simply file a lawsuit? This is not a complicated issue requiring years of discovery, experts, and rooms full of documents.
Additionally, because you are a director, the corporation will be required to indemnify you for the costs you incur in fulfilling your obligations as a director.
This case requires a complaint and motion for a preliminary injunction. After the injunction hearing, the case is basically over.
Quick and dirty action with your attorneys' fees paid by ICANN.
What are you waiting for?
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Depends on whether it is easier to change from without or from within. I would suggest the only way ICANN is going to change is from within, unless the US government does something drastic (or ICANN becomes redundant due to the spread of alternative roots, "Internet Keynames" or even the ccTLDs going nuclear).
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You post anonymously and so I call you a coward.
Do you do more than he who you criticize?
We have a duty to accept, move to alter or leave. You Mr. anonymous do nothing but obstruct.
e
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Your error is in speaking against a man who puts it on the line while you speak anonymously.
Karl is speaking out for us dotcommoners is real time in virtual time and yet all you do is detract.
You do not seem to have complaints against the BS members that do nothing.
Why is that?
e
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Mr. Auerbach responds to Mr. Roberts on the ALSC list. There's also a thread on the DNSO GA list. I was going to wait until after the archives are posted to report on the recent CIRA [administrators of the Canadian .ca ccTLD] General Meeting here, but will cover a few relevant points now. CIRA's meeting was webcast (in two languages, English and French, Canada is officially a bilingual country), and included a mechanism for online voting. Any .ca registrant is considered a voting general member of CIRA (the general membership also elects nine of the twelve CIRA BoD members, one of the remaining three is appointed to represent end-user interests). The general membership votes on the appointment of the external auditors. Compare and contrast. CIRA is only a year old yet somehow has managed a number of things that ICANN has spent a few years promising will happen real soon now. It was Mr. Roberts at the helm of ICANN for most of that time whilst it went in circles, floundered, and reversed course. The most polite thing that can be said is that he lacks credibility. Less politely, one could muse whether he knew exactly what he was doing. If not, he was in the wrong job. If so, who was he really working for? -g
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