RE: [gnso-restruc-dt] Q10. Section 3.6: Restriction on who can be elected to a board seat. (13 or 14)

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

I would also like to add that if you asked Rita who the bulk of her clients 
were, she would tell you that her practice consists of representing Fortune 500 
companies in intellectual property and commercial transaction matters.  See 
http://www.skadden.com/Index.cfm?contentID=45&bioID=535

 

According to her bio:

 

Rita Rodin Johnston is a partner in Skadden's Intellectual Property and 
Technology and Internet and E-Commerce practices.  She represents clients in 
structuring and negotiating domestic and international transactions with a 
focus on technology and trademarks.  She regularly negotiates outsourcing 
agreements, strategic alliances, joint ventures, development and distribution 
agreements, trademark and technology licensing agreements, and marketing and 
co-branding agreements.  She also advises companies on Internet and e-commerce 
business and compliance issues, open source issues, privacy matters and 
branding issues.  Her experience also includes regularly addressing 
intellectual property and technology and operational issues that arise in 
connection with mergers and acquisitions, project finance matters and initial 
public offerings.  She has handled matters for companies ranging from startups 
to global institutions.  Ms. Rodin Johnston has been repeatedly selected for 
inclusion in Chambers Global: The World's Leading Lawyers for Business and 
Chambers USA: America's Leading Lawyers for Business.  She also was listed in 
The Best Lawyers in America 2009. 

 

Yes, she has represented a few registries in the past, BUT, she has also 
represented the following:

 

Projects on which Ms. Rodin Johnston has worked include the representation of: 

·         Skype Technologies SA 

·         Compagnie Financière Richemont SA 

·         International Paper Company 

·         IBM 

·         Merck KGaA 

·         Capgemini North America 

·         Madison Avenue Diamonds 

·         CIT Group Inc. 

·         Deloitte & Touche USA LLP 

·         Women's Funding Network

 

So Steve, we all need to stop saying that the two members of the Board are from 
the contracted parties, because when you boil it down, its just not true.   

 

I believe Rita has done a great job for the entirety of the GNSO.

 

 

 

Jeffrey J. Neuman, Esq.: NeuStar, Inc.
Vice President, Law & Policy 



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From: owner-gnso-restruc-dt@xxxxxxxxx [mailto:owner-gnso-restruc-dt@xxxxxxxxx] 
On Behalf Of Gomes, Chuck
Sent: Sunday, May 10, 2009 10:09 AM
To: Metalitz, Steven; Nevett, Jonathon; Margie Milam; Gnso-restruc-dt@xxxxxxxxx
Subject: RE: [gnso-restruc-dt] Q10. Section 3.6: Restriction on who can be 
elected to a board seat. (13 or 14)

 

Let's be absolutely clear that the contracted parties do not have veto power 
under the current Council voting  procedures.  The contracted parties have the 
same number of votes as the noncontracted parties, no more, no less.  The 
election of a Board member under our current system only requires a simple 
majority vote so it is simply wrong to suggest that the contracted parties have 
a veto power.  If the noncontracted parties nominated a candidate that was 
supported by all noncontracted parties  and two of the three NCAs, that person 
could have been elected and the contracted parties could have done nothing to 
change that.

 

In reality, what happened in the last Board seat election is that we 
unanimously elected Rita.  The fact that Rita was provided was legal support to 
a new registry operator has not in my opinion made her favor contracted or 
noncontracted parties in her service as a director.  The same would apply to 
Bruce.

 

Chuck

         

________________________________

        From: Metalitz, Steven [mailto:met@xxxxxxx] 
        Sent: Saturday, May 09, 2009 2:09 PM
        To: Nevett, Jonathon; Gomes, Chuck; Margie Milam; 
Gnso-restruc-dt@xxxxxxxxx
        Subject: RE: [gnso-restruc-dt] Q10. Section 3.6: Restriction on who can 
be elected to a board seat. (13 or 14)

        I wanted to explain a bit more the concern I expressed on the call 
regarding which Board seat is to be filled by which House.  As IPC responded to 
Denise Michel in November 2008:  

         

        Finally, I will take this opportunity to repeat IPC's recommendation, 
contained in its September 18 submission (and detailed in previous 
correspondence), that whenever the new system is brought into force, the first 
election be held within the non-contracted parties House.  The simple reason 
for this is that, at present, both seats #13 and 14 are held by persons who are 
employed by, act as agent for, or receive compensation from an ICANN-accredited 
registry or registrar.  Thus, under the "exclusivity language," as your memo 
refers to it, the first vacancy would have to be filled by a person who did not 
fit this description.  It is more appropriate for the non-contracted parties 
House to make that choice.   

         

        I think the language Jon wants to remove is the "exclusivity language" 
as labeled by Denise.  If that were done, the point above would remain valid:  
given the status quo, under which the contracted parties hold effective veto 
power over GNSO Council selection of Board members, the non-contracted parties 
should have the opportunity to fill the first vacancy that arises after the new 
Council is seated.  If this principle were agreed to (and written into the 
by-laws or a transition article), then I would recommend to IPC that we accept 
the elimination of the "exclusivity language."  Otherwise, I think as a matter 
of principle we would be unable to agree to remove language that undermines the 
status quo, i.e., contracted party control over GNSO Council board selections.  
I also agree with Chuck that the best reading of the last phrase would be that 
a person cannot serve simultaneously on the Council and the Board, and if that 
is not already clear elsewhere in the By-laws, then it should be explicitly 
stated here.  

         

        Steve Metalitz

________________________________

        From: owner-gnso-restruc-dt@xxxxxxxxx 
[mailto:owner-gnso-restruc-dt@xxxxxxxxx] On Behalf Of Nevett, Jonathon
        Sent: Friday, May 08, 2009 4:15 PM
        To: Gomes, Chuck; Margie Milam; Gnso-restruc-dt@xxxxxxxxx
        Subject: RE: [gnso-restruc-dt] Q10. Section 3.6: Restriction on who can 
be elected to a board seat. (13 or 14)

        I agree with Chuck.  In addition, the draft Bylaw actually made the 
second part of the criteria less clear than what appeared in the Final Report 
from the working group.  The original recommendation included parallel 
criteria: 

         

        "Contracted Parties House elects Seat 13 by a 60% vote and 
User/Non-Contracted Party House elects Seat 14 by a 60% vote; BUT both seats 
may not be held by individuals who are employed by, an agent of, or receive any 
compensation from an ICANN-accredited registry or registrar, nor may they both 
be held by individuals who are the appointed representatives to one of the GNSO 
user stakeholder groups."

         

        Somehow, that parallel criteria became more one-sided in the draft 
Bylaw recently circulated:

         

        "Both seats shall not be held by individuals who are employed by, an 
agent of, or receive any compensation from an ICANN-accredited registry or 
registrar nor shall both seats be held by individuals who are the elected or 
appointed representatives to one of the four GNSO Stakeholder Groups or any 
Constituency."

         

        I'm not even sure what the second part means.  Chuck has one 
interpretation below, but the language is less than clear.  Regardless, both 
parts should be deleted.

         

        For your reference, the following is the Registrar view on this topic:

         

        The RC has concerns with the criteria related to the election of Board 
Seats 13 and 14, which would prohibit both seats from being held by someone 
affiliated with a registry or registrar or both seats being held by 
representatives to one of the user/non-contracted party groups.  The rationale 
for the criteria only applied when the entire Council was electing both 
candidates, and there was a sense that there should be protection against a 
voting block that could elect both directors.  However, once the recommendation 
changed to be that each house would elect one director, the need for the 
criteria no longer was necessary or helpful. Each voting house will ensure that 
the two directors come from a diverse viewpoint.

         

        If the criteria are included, it could result in gaming by either house 
by electing someone who might have nominal contacts with one interest group, 
but really represents another.

        Moreover, it also could result in a situation that would hurt the ICANN 
Board by disqualifying stellar candidates.  For example, under the drafted 
criteria, Bruce Tonkin and Vint Cerf could not serve in seats 13 and 14 (as 
both Melbourne IT and Google are accredited registrars). Indeed, Vint Cerf and 
Bill Gates both could not serve in such capacities (Microsoft also is an 
accredited registrar). As there is no longer need for the criteria, and in 
light of the risk that the criteria may be gamed and could potentially 
disqualify outstanding candidates, the RC suggests that the criteria be 
deleted. Specifically, the Contracted Parties House should elect Seat 13 by a 
60% vote and User/Non-Contracted Party House should elect Seat 14 by a 60% vote 
without reference to Criteria.  

         

        Thanks.

         

        Jon

         

        -----Original Message-----
        From: owner-gnso-restruc-dt@xxxxxxxxx 
[mailto:owner-gnso-restruc-dt@xxxxxxxxx] On Behalf Of Gomes, Chuck
        Sent: Wednesday, May 06, 2009 5:17 PM
        To: Margie Milam; Gnso-restruc-dt@xxxxxxxxx
        Subject: RE: [gnso-restruc-dt] Q10. Section 3.6: Restriction on who can 
be elected to a board seat. (13 or 14)

         

         

        Thanks Avri and Margie for getting this thread started.  I will try to

        move forward a little further. To make it easier to see the context of

        my comments, I inserted them below.

         

        Chuck 

         

        > -----Original Message-----

        > From: owner-gnso-restruc-dt@xxxxxxxxx 

        > [mailto:owner-gnso-restruc-dt@xxxxxxxxx] On Behalf Of Margie Milam

        > Sent: Wednesday, May 06, 2009 1:01 PM

        > To: Gnso-restruc-dt@xxxxxxxxx

        > Subject: RE: [gnso-restruc-dt] Q10. Section 3.6: Restriction 

        > on who can be elected to a board seat. (13 or 14)

        > 

        > 

        > Dear All,

        > 

        > To assist your discussions on these questions, I thought it 

        > would be useful to provide the current proposed language on 

        > the table related to these questions.

        > 

        > Best Regards,

        > 

        > Margie Milam

        > Senior Policy Counselor

        > ICANN

        > ______________________________________________________________

        > _________________________________________________

        > 

        > Currently Proposed Revisions:

        > 

        > 6. Each of the two GNSO Houses, as described in Section 3(8) 

        > of this Article (link TBD), shall make a selection to fill 

        > one of two ICANN Board seats, as outlined below, by written 

        > ballot or by action at a meeting; any such selection must 

        > have affirmative votes comprising 60% of all the respective 

        > voting house members: 

        >  

        > a.  the Contracted Party & Suppliers House shall select Seat 

        > 13; and b.  the Users & Providers House shall select Seat 14. 

        > 

        > Both seats shall not be held by individuals who are employed 

        > by, an agent of, or receive any compensation from an 

        > ICANN-accredited registry or registrar

         

        Chuck: I support deletion of this requirement as I stated in our call

        yesterday.  Jon did a good job of explaining how this language was a

        legacy from when we were considering a different approach for electing

        Board reps.  I believe that each house should be able to elect whoever

        they believe is most qualified as long as Bylaws Board qualifications

        are met.  In my opinion, and I would be very surprised if it wasn't the

        opinion of most, the two present GNSO-elected Directors are outstanding,

        but they would have been ineligble if this requirement was in place. 

         

        > nor shall both seats 

        > be held by individuals who are the elected or appointed 

        > representatives to one of the four GNSO Stakeholder Groups or 

        > any Constituency.

         

        Chuck: As I shared in our call yesterday, if our intent is to preclude

        anyone from serving on the GNSO Council and the ICANN Board at the same

        time, I support that intent but think we should say that more clearly;

        for example, "An individual may not serve simultaneously as a GNSO

        Councilor and an ICANN Board member."  The way the requirement is

        presently worded, it would seem to prevent a current GNSO Councilor from

        being elected to a Board seat; under my suggested wording, it would be

        okay if that happened as long as the individual resigned his/her

        position on the GNSO Council. Note that this is exactly what happened

        when we elected Bruce to the Board seat.

         

        >   Notification of the Board seat selections 

        > shall be given by the GNSO Chair in writing to the ICANN 

        > Secretary, consistent with Article VI, Sections 8(4) and 12(1).

        > ______________________________________________________________

        > ________________________________________________

        > 

        > 

        > 

        > -----Original Message-----

        > From: owner-gnso-restruc-dt@xxxxxxxxx 

        > [mailto:owner-gnso-restruc-dt@xxxxxxxxx] On Behalf Of Avri Doria

        > Sent: Tuesday, May 05, 2009 9:42 PM

        > To: Gnso-restruc-dt@xxxxxxxxx

        > Subject: [gnso-restruc-dt] Q10. Section 3.6: Restriction on 

        > who can be elected to a board seat. (13 or 14)

        > 

        > 

        > Q10. Section 3.6: Restriction on who can be elected to a board seat.

        > 

        > It was recommended that the following paragraph be deleted:

        > 

        > Both seats shall not be held by individuals who are employed 

        > by, an agent of, or receive any compensation from an 

        > ICANN-accredited registry or registrar nor shall both seats 

        > be held by individuals who are the elected or appointed 

        > representatives to one of the four GNSO Stakeholder Groups or 

        > any Constituency

        > 

        > It was noted that this should probably be changed into 2 sentence.  

        > 

        > - The first concerning employment in ICANN accredited 

        > registrars of registries.  

        > - The second concerning being simultaneously elected into 

        > seat 13 or 14 and being a Stakeholder representative in the 

        > GNSO  council.

        > 

        > 

        > What is the status of this deletion?

        > 

        > 

        > 

        > 

        >