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Re: [ga] Auerbach vs. ICANN update

----- Original Message -----
From: "Ken Stubbs" <kstubbs@digitel.net>

> > Does this strike you as OK?     And the gall of ICANN lawyers to
> > Karl's mandate on the basis of the votes......  What was that about?
> > is an organization who can't explain to anyone how the board is picked.
> an interesting interpretation of the icann response Jamie... i am sorry
> i dont happen to agree at all with your "read" here..

Ken, , Jones Day, the firm that Karl Auerbach said should be fired when he
ran for the ICANN board, is handing the litigation. It filed a 24 page
response.  These are some of the references to Auerbach in the ICANN
response.  Is Jones Day running up a bill to settle some scores?  Or is this
failure to solve this problem in the best interests of ICANN?     Jamie


33. Auerbach is one member of ICANN's Board of Directors. A
self-described radical, Auerbach is one of five ICANN
Directors who were chosen to become members of the ICANN
Board of Directors through an experimental on-line voting
process in October 2000.  Auerbach campaigned on a platform
based on criticism of ICANN and its staff and existing
directors; he made it clear that his goal if elected was to
change ICANN dramatically. During the process leading up to
the elections, Auerbach made it clear that he did not want
ICANN to grow, and that he viewed ICANN as a loathsome,
secretive body that desperately needed to be "remodeled,"
"overhauled," "dismembered," and "reformed." Auerbach was
explicit that, if elected, Auerbach would be on a crusade to
harm, not support, ICANN. For example, Auerbach stated:

     Mike Roberts [then ICANN's CEO] had better know
     that when I come in there, I am going to exercise
     every power given to a director under California
     law to review every single document that ICANN has
     and every process. California law gives directors
     very strong authority to direct a corporation. In
     fact they're obligated to direct the corporation,
     and I suspect that we will find things that could
     very well trigger things like the IRS intermediate
     sanctions for 501(c)'s. That's a big hammer
     against a corporation and its
     board members.

34. Since becoming a director, Auerbach has generally taken
the position that as an individual director he has
unilateral authority to direct the corporation. As a result,
Auerbach has often refused to accept collective decisions of
the Board even though he is often the lone dissenting vote
on ICANN Board decisions. Auerbach generally seems far more
interested in being quoted in news stories or testifying
before Congress than in seeking collective solutions on the
Board. Despite having accepted a position as a Board member
of an organization that is designed to seek consensus policy
development whenever possible, Auerbach admittedly "[does
not] like consensus."

35. In short, Auerbach has chosen to assert his "right" to
have his views prevail over the collective wisdom of the
Board as a whole whenever he does not agree with the
consensus result. And he has continued, sporadically, to
attempt to utilize what he obviously feels is the sword of
his "absolute" right to inspect and copy corporate records,
apparently certain (without ever actually taking the
opportunities afforded him to look at the documents) that
they will contain scandalous material that he will be able
to publicize widely and thus overcome his inability to
otherwise persuade his Board peers of the wisdom of his


After Marginalizing Himself Repeatedly, Auerbach Files This

55. As the factual recitation above indicates, Auerbach
plainly is more interested in damaging ICANN's ability to
function than in the inspection of any particular records.
The large amounts of time that have passed between various
communications, and the refusal to exercise his
administrative remedy of seeking Board review makes it clear
that the object of this exercise is to injure ICANN, not to
carry out Auerbach's fiduciary duty in any meaningful way.

56. The timing of Auerbach’s lawsuit, four months after the
last communication on this issue, is further evidence of
Auerbach's real motive here. Auerbach filed this lawsuit
after that long silence only when it became clear that on
substantive matters (unrelated to the inspection) his views
and those of the Board were becoming increasingly divergent.
By tradition, the ICANN Board works hard to achieve
consensus resolutions on the often-contentious policy
matters it addresses. This process involves persuasion,
deliberation, and compromise. Auerbach, however, often
behaves in a strident manner not compatible with the
building of consensus. As a result, he has seen his
influence in Board decisions wane. At the March 14, 2002
ICANN Board of Directors meeting in Accra, Ghana, for
example, the Board voted on ten substantive resolutions
(other than resolutions expressing thanks, etc.). Throughout
the meeting, the Board members worked hard to reach
consensus positions, and ultimately versions of all ten
resolutions were passed. In the end, no director other than
Auerbach voted against any of the ten consensus resolutions;
he cast opposing votes to five of them. Auerbach abstained
on two of the other five.

57. One illustration of Auerbach’s marginalization involves
the Board’s consideration of the process by which directors
are chosen to represent the public interest. After
considering lengthy studies sounding reservations about the
validity and practicality of global online voting (the
process that resulted in Auerbach being chosen in 2000 after
receiving only 1,738 votes from all of the United States and
Canada where there are over 150,000,000 Internet users), the
Board rejected an effort by Auerbach and others to repeat
the process of direct on-line voting to choose certain
directors of ICANN by a vote of 14-1 (with 2 abstentions),
instead resolving to search for another mechanism for
meaningful, informed participation by Internet users.
Auerbach was the only dissenting vote. During the Board
debate on the resolution at the Accra, Ghana, meeting,
Auerbach made clear his view that the Board's proposed
action was illegitimate: "What this resolution does very
clearly, it says to the world that ICANN is not a democratic
public institution
but it’s a paternalistic oligarchy. We return to the day
when we assume the white man's burden."

58. The Board also rejected an effort to commit to extending
the terms on the Board of Auerbach and the eight other At
Large Directors by a 13-3 vote (with 1 abstention), leaving
that issue to be decided at a subsequent meeting. Of the
four other Board members (in addition to Auerbach) who were
selected by the 2000 on-line voting process, three voted in
favor of the latter resolution to defer any action on
extending At Large Director terms, and one abstained.
Auerbach was the only such Director who voted for that

59. The next day, Friday, March 15, 2002, Auerbach posted
the following statement on the Internet: "My board seat, and
those of the other four elected board members will simply
vaporize this fall, with no replacements, no elections . . .
no nothing. ICANN will be reduced a body run by those who
have today proclaimed themselves to be our self-designated
"betters", who know better than we do what is best for you
and me." This statement is not correct, and does not reflect
the actual Board decision, which simply postponed for later
consideration the issue of what (if any) extensions of At
Large Director terms should take place. But it does reflect
Auerbach's unhappiness, and thus it is unlikely to be a mere
coincidence that Auerbach signed the Verification for the
Petition in this action just one day after the Board meeting
in Accra. After the weekend passed, Auerbach filed this

Auerbach's Lawsuit is Aimed at Public, Not Director, Access
to Confidential Records
60. In the days immediately after Auerbach filed his
Petition, Auerbach has granted multiple interviews in which
he has wildly exaggerated the scope of this lawsuit and its
potential impact on public access to ICANN activities and
records. In addition, one of the co-founders of
the organization providing representation to Auerbach in
this lawsuit, John Gilmore, contributed significant funding
to this lawsuit and has warned that, in his view, ICANN "is
going down, one way or another. Either it will go down like
East Germany, with a peaceful transition to
governance responsive to the public will, or it will go down
like Japan, with big bombs dropped on it." Gilmore's
statements and Auerbach's course of conduct both before and
after the filing of this lawsuit make it clear that the
ostensible purpose of this lawsuit --a routine inspection of
documents -- is clearly not the underlying motivation for
the Petition.

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