Dear Andrew, I amassed by your detest for Due Process, and yet, you are calling for "Justice".
You have raised issue of NDA, but you are yet to substantiate the allegation. My questions are; Does sharing information with a staff of an organization constitute a violation of NDA? And is there a decided case, where sharing of information with a staff in the past, had been decided as violation of an NDA? Regards, Sunday Olutayo On Mar 23, 2018 3:27 AM, Andrew Alston <andrew.als...@liquidtelecom.com> wrote: > > Sorry Alan, > > > > The Board is seeking legal advice on whether or not there has been a breach > of any NDA, and expects to receive an answer by 30 March 2018. > > I cannot speak for others – but in my view – this is simply not good enough – > if this board however wishes to defy the members of this community as so > clearly expressed over the last few days based on technicalities and running > to the lawyers to see if there is a way out to protect their own – then -let > us look at the situation a little more closely. > > > > Let us look at some facts – firstly – resolution 201411.211 – the board saw > in its wisdom to word that resolution to refer to information discussed > within the board – not information within a formal board meeting – and > technicalities will not some how absolve someone of sharing confidential > information with a random employee. > > > > Secondly – and at the bottom of this email I paste the relevant sections I am > about to refer to – Mr Folayan’s actions are in my belief in violation of the > following sections of the Mauritian companies act of 2001: > > > > 143.1.(a), 143.1.(g), 160.1(b), 160.4(a), 160.4(d) > > > > I also include section 160.6 in what I have pasted below because it is > extremely relevant to the interpretation of 160.4(a) and 160.4(d) > > > > Thirdly – I point out that the board has the right to remove a director with > or without cause – Section 138 of the companies act does not limit the > reasons for a removal of a director – and nor does section 14(iii) of the > companies bylaws. > > > > Forth – If you wish to get into legal technicalities – you need to ask if the > community – who elected this board – believes that the sharing of the > information that was published in that document was a violation – because a > director is elected by the community – and if the community feels that > sharing the information was a grievous violation – and it has destroyed their > confidence in said director – then the director should be removed. > > > > Fifth – It is absolutely unquestionable that this saga has dragged AfriNIC > through the mud – and it is being seen by members of the Internet community > across the world. That does reputational harm – which in turn have the > possibility to hurt the company financially in terms of sponsorship, in terms > of new members and in terms of costs of things like investigations. I would > argue without hesitation that this brings section 160.3(a) into play – and > when the board refuses – at the request of the community – to act against Mr > Folayan – instead of seeking to save him by technicalities – they themselves > become liable under the aforementioned section. The only question is – how > do you quantify the damage being done here? > > > > Let us stop playing to technicalities and trying to absolve behaviour on > technicalities – the information shared was CLEARLY sensitive information in > the context of the company. It is admittedly that it was shared with an > employee of the company and this was a “mistake”. It was shared by the > chairperson of the board without thought to the potential consequences. > Let’s stop playing games – the NDA was violated – and if not the NDA – the > confidence of this community and the trust of this community – and again I > state – if the board refuses to act rather than attempt to find loopholes – > this community needs to act against the board in its entirety. > > > > Andrew > > > > Relevant sections of the companies act below: > > > > Section 143.1(g) of the companies act states: > > > > 143.1 - Subject to this section, the directors of a company shall – > > (d) - exercise the degree of care, diligence and skill > required by section 160; > > (g) - not make use of or disclose any confidential information > received by them on behalf of the company as directors otherwise than as > permitted and in accordance with section 153; > > > > Section 160 goes on to say: > > > > 160.1 - Every officer of a company shall exercise – > > (b) the degree of care, diligence and skill that a reasonably prudent person > would exercise in comparable circumstances. > > > > 160.3 - Without limiting any liability of a director under section 143, where > an officer commits a breach of any duty under this Part – > > (a) the officer and every person who knowingly participated in the breach > shall be liable to compensate the company for any loss it suffers as a result > of the breach; > > > > 160.4 - A director or other officer of a company who makes a business > judgment shall be taken to meet the requirements of subsections (1) and (2) > in respect of the judgment where the director or officer – > > (a) makes the judgment in good faith for a proper purpose; > > (d) reasonably believes that the judgment is in the best > interests of the company. > > > > 160.6 - In this section “business judgment” means any decision to take or not > take action in respect of a matter relevant to the business operations of the > company. > >
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