John, While I agree wholeheartedly that in the course of litigation answers may be hard to come by – the clause I refer to in the companies act has little to do with the litigation when it stands in isolation – it raises a question about if the company cannot pay its debtors – in any circumstance – irrespective of litigation.
Now, further to this – yes a company may be able to say little during litigation – but – when an entity goes to the community and its members – asking for money to fund itself through a hard time, any prudent person who is going to donate money – is going to want to know certain basic things 1. How will the money they are diverting from other projects be spent 2. Are the individuals in control of the entity requesting money behaving in a way that is both within the bounds of the law and doing everything reasonable to ensure that the amount of money being requested is kept to a minimum – I.E – that they aren’t taking actions that would increase the burden on members any more than it already is 3. Is the board complying with their fiduciary duties in all of their actions. If the answers are not clear – an entity may well decide not to donate a single cent – because to do so could well be akin to enabling bad behavior. So while these questions may seem irrelevant normally – in the context of being asked for money over and above the fees members pay every year – they are very pertinent in my view. And if the company should indeed be under the control of an administrator – that is something we need to know before we start donating money. Andrew From: John Curran <jcur...@arin.net> Date: Wednesday, 18 August 2021 at 16:09 To: Andrew Alston <andrew.als...@liquidtelecom.com> Cc: General Discussions of AFRINIC <community-discuss@afrinic.net> Subject: Re: [Community-Discuss] FUNDRAISING & DONATIONS - TO KEEP AFRINIC RUNNING On 18 Aug 2021, at 8:05 AM, Andrew Alston <andrew.als...@liquidtelecom.com<mailto:andrew.als...@liquidtelecom.com>> wrote: John, I query where queries may actually get answered – and since previous emails to the members list have gone unanswered – here is as good a place as any. ... We are a community – this is a bottom up organization – and the community has the right to ask questions – however hard those questions may be to answer and however much answering those questions may be distasteful to the people who have to answer. As a concerned community member, you could have simply asked – “Do we have to recognize a contingent liability given the litigation, and are there any Section 162 implications to be considered?” You chose a rather different approach of posting legal speculation in the name of "seeking a legal position” and hence I replied. If you want something more definitive, then seeking actual legal counsel would likely help clarify far more than speculation here. The community has every right to know that the organization is being properly operated, but it also true that the community vests the routine oversight in the elected governance body – as they are both accountable for such oversight and have access to legal counsel to inform their course of action. This becomes even more important when in litigation, as organizations need to take great care with their communication – even to their members – to balance the need for openness with the obligation to sustain a prudent legal defense. You may not get answers to all your questions in the midst of litigation, but that’s an indication of a governing body being true to its job rather than any indication to the contrary. As someone who has had to manage such a difficult balance when defending ARIN in litigation, I know firsthand it can be quite challenging to maintain open communication with community at the same time. I’d encourage you to continue to raise questions that you might have as concerned community member (if indeed out of bona fide concern for AFRINIC), but you also should recognize that circumspect communications is quite normal when it comes to litigation matters, so you might not get the answers you seek – particularly to legal speculation. Best wishes, /John John Curran President and CEO American Registry for Internet Numbers
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