Dear Mr Andrew, I am amassed that you detest due process, and yet, you are calling for "justice" You stated that NDA has been violated, good you have raised a point, but yet to be proofed.
Now my question are; does discussion or sharing information with a staff of an organization constitute a violation of an NDA, also, is there a decided case, where a discussion or information sharing with a staff in the past, has been decided as violation of NDA? Regards, Sunday Olutayo On Mar 23, 2018 3:27 AM, Andrew Alston <[email protected]> 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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