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Advisory: Court Ruling in Auerbach v. ICANN Lawsuit

29 July 2002

Marina del Rey, California, USA (29 July 2002) -- At a hearing today, Los Angeles Superior Court Judge Dzintra Janavs ordered that ICANN Director Karl Auerbach should be allowed to inspect specified ICANN documents, but also ruled that Auerbach must respect ICANN's confidentiality designations, with the Court to resolve any disagreements over the propriety of those designations. While ICANN believes that portions of the Court's legal analysis are incorrect, it notes that the practical effect of the overall ruling is quite similar to the ICANN procedure that Mr. Auerbach rejected last October.

That rejection was followed, in March, by Auerbach's filing of a lawsuit in the Los Angeles Superior Court (the local court of first instance) challenging ICANN's procedure. In her analysis, Judge Janavs ruled that California law does not permit California non-profit corporations to place any restrictions or conditions on director's inspection rights, but allows only courts to place restrictions, after a demand for inspection has been refused. In this respect, the court rejected ICANN's position. ICANN respectfully disagrees and will consider whether to appeal this decision upon review of the Court's written judgment, which will be issued next week.

The Court also ruled orally that ICANN must, by Friday of this week, provide Mr. Auerbach with electronic copies of all "non-confidential" (as designated by ICANN) materials he has requested that already exist in electronic form. However, the Court also established a procedure where the Court will decide the extent, if any, to which Mr. Auerbach may publish materials that ICANN considers confidential. The Court also sided with ICANN that Mr. Auerbach's inspection of such materials must be at ICANN's offices.

The ultimate effect of the Court order is essentially the same as the ICANN procedure that Mr. Auerbach refused to follow. In both cases, Mr. Auerbach had the full right to inspect any and all documents at the ICANN offices, a right that was never in dispute. And in both cases any disagreements about his right to publish any of those materials would ultimately be resolved by a court, not by ICANN or Auerbach.

It is unfortunate that ICANN's limited resources must be used for matters such as this, which do not advance the core mission of ICANN. But so long as one of ICANN's directors continues to assert that he has a unilateral right to make decisions on behalf of ICANN without regard to the views of his fellow directors, ICANN is required to seek to protect the rights of the corporation from being abridged by the unilateral action of an individual director.