Subject: [Iasa20] Legal responsibility of LLC Board

From: "Brad Biddle" <[email-masked]>
Date: Sun, 10 Feb 2019 14:43:29 -0800

Greetings all. IETF legal counsel here. A few quick thoughts arising in 
part from this thread [1], but applicable more generally too, I suspect.

The LLC Board is ultimately responsible for the actions of the LLC, and 
they cannot abdicate this responsibility. If in good faith they believe 
that a proposed contract is illegal, for example, or would cause the LLC 
to violate contractual obligations that the LLC has towards ISOC under 
the LLC Agreement, or would otherwise cause such harm to the IETF that 
the individual Board members would be violating their duties to act in 
the best interest of the IETF, then they are obligated to act, as a 
legal matter. If another body in the IETF said “look, we don’t care 
that you think this is illegal or unethical or would cause massive 
liability or whatever — we think it’s fine, and your job is just to 
do what we tell you to do and we insist you execute this contract,” 
the Board would be correct to refuse. The Board is required to meet 
their obligations under applicable corporate and contractual law as the 
parties ultimately responsible for the acts of the LLC as a legal 
entity, and they cannot hand this ultimate responsibility to others.

To be clear, this was certainly the case under ISOC as well. If a body 
in the IETF insisted that ISOC enter into an agreement on its behalf, 
but the ISOC Trustees believed that doing so would conflict with their 
legal duty as Trustees (board members) to act in the best interest of 
ISOC (for example), ISOC would have rightly refused to do so.

That said, the LLC Board can otherwise be extraordinarily deferential to 
other bodies within the IETF. For example, if there is a collective 
understanding that Body A will identify person X for a role, and that 
the LLC will then contractually engage person X, that’s perfectly 
fine. The legal concern only arises if we appear to be saying that Body 
A has power to supersede the ultimate judgment of the LLC Board in 
connection with the actions of the LLC. The LLC Board can be extremely 
deferential, but they must retain ultimate responsibility for the 
LLC’s acts.

Hoping this is clarifying and not confusion-inducing. Happy to discuss, 
of course.

—Brad

Brad Biddle | [email-masked] | +1.503.502.1259 (mobile) | 
http://biddle.law

[1] 
https://mailarchive.ietf.org/arch/msg/iasa20/izvnwsqC2v1YSSncCoU4ClRZ_qI