>Russ Allbery <rra@Stanford.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@stanford.edu) <http://www.eyrie.org/~eagle/> -- ======================================================== The COOK Report on Internet, 431 Greenway Ave, Ewing, NJ 08618 USA (609) 882-2572 (phone & fax) cook@cookreport.com Subscription info & prices at http://cookreport.com/subscriptions.shtml Summary of content for 10 years at http://cookreport.com/past_issues.shtml Here Comes Asset Based Telecom A 120 page - Aug Sept issue available at http://cookreport.com/11.05-6.shtml ========================================================