[Community-Discuss] [members-discuss] Update from the Board regarding recent allegations

[Sunday Olutayo]

Andrew,

Thanks for your answer to my questions.

 "I would say that very much constitutes information discussed within the board"

this quote is your statement, but it does not sound as if you are sure of what constitute an NDA, the reason an expert advice is needed. Also you yet to provide a decided case on the subject matter.

Thanks for your effort so far, I will wait for rest of the answer to my questions.

Regards,
Sunday Olutayo

On Mar 23, 2018 4:10 AM, Andrew Alston <Andrew.Alston at liquidtelecom.com> wrote:
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> Sunday,
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> The resolution cast in November of 2014 – defines any information discussed within the board and disclosed without board approval as a violation.  Elements of what was shared stem from discussions being held between directors about company matters – I would say that very much constitutes information discussed within the board.
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> A third party is anyone who is not a board member and subject to the same NDA – which would include staff.
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> Andrew
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> From: Sunday Olutayo [mailto:olutayo at olutayo.ng] 
> Sent: 23 March 2018 11:07
> To: AfriNIC <members-discuss at afrinic.net>; Andrew Alston <Andrew.Alston at liquidtelecom.com>; Alan <alan.barrett at afrinic.net>
> Cc: General <community-discuss at afrinic.net>
> Subject: Re: [Community-Discuss] [members-discuss] Update from the Board regarding recent allegations
>
>  
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> Dear Andrew,
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> I amassed by your detest for Due Process, and yet, you are calling for "Justice".
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> 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.Alston at liquidtelecom.com> wrote:
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>> Sorry Alan,
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>> 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.
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>> 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.
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>> 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.
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>> 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:
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>> 143.1.(a), 143.1.(g), 160.1(b), 160.4(a), 160.4(d)
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>> 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)
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>> 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.
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>> 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.
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>> 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?
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>> 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.
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>> Andrew
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>> Relevant sections of the companies act below:
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>> Section 143.1(g) of the companies act states:
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>> 143.1 - Subject to this section, the directors of a company shall –
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>>                (d) - exercise the degree of care, diligence and skill required by section 160;
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>>                (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;
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>> Section 160 goes on to say:
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>> 160.1  - Every officer of a company shall exercise –
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>> (b) the degree of care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
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>> 160.3 - Without limiting any liability of a director under section 143, where an officer commits a breach of any duty under this Part –
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>> (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;
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>> 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 –
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>>                (a) makes the judgment in good faith for a proper purpose;
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>>                (d) reasonably believes that the judgment is in the best interests of the company.
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>> 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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>>  
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