[arin-ppml] Deceased Companies?

[Ronald F. Guilmette]

In message <F242B394-335C-401B-9D6C-08E520FB5835 at arin.net>, 
John Curran <jcurran at arin.net> wrote:

>I am unsure of ARIN's legal ability to not accept payment from George,

OK.  I'll bite.  Why are you unsure?

It seems to me altogether clear.  It is right there is black & white in the RSA.
It says "Holder shall pay..." It does not say "Anybody who ARIN management
unilaterally deems to be an acceptable stand-in for Holder shall pay..."

>but I am not certain it is relevant in this case, as:
>
>        - George was associated with the original request for the address block for TMBBATS

No.  He wasn't.  His LLC was.  He himself may have been _legally_ affiliated
with the LLC in some trivial or non-trivial way, but from a purely legal
perspective I am not persuaded that any such connection, however strong or
however tenuous and superfluous, has any clear legal relevance.

>        - The ARIN payments have been made

Yup.  (My hope, of course, is that this is not the one and only consideration, i.e.
that the check cleared and made it into ARIN's bank account.)

>        - TMBBATS has wound down (as opposed to be sold to some other party or creditor)
>        - The address block in question has been utilized throughout 

Not really.  Not in the hypothetical as I described it.  The /24 was originally
granted on the basis of "need" for an Internet cafe.  Now it is just hosting the
web sites of George and a couple of his friends.  So maybe only 5 IPv4 addresses
are being used out of the whole /24 block now.  In short, vastly underutilized.

>So, while it is true that the resources are registered to an entity that no technically longer 
>exists, they are being utilized by a party that has a credible claim to be the legal successor 
>to the rights to the address block,

Now we come to the crux of the matter.

John, please point me at the specific language in the RSA that grants any sort
of right or claim to the resource(s) to any entity other than the entity to
which those reasources were originally assigned.  To put it another way, what
basis in law do you have for asserting that George automatically inherits some
rights, titles, or claims to or upon -this- specific asset upon the (legal) death
of his (former) LLC?  (For the moment, we need not even delve into the various
possibilities that could clearly arise if it transpired that George's ex-wife
and/or George's brother-in-law and sister-in-law were in fact the real and only
beneficial owners of the now defunct LLC, with George himself perhaps having
owned a grand total of 0% of the LLC at the time of its demise.)

For now, let just pretend that this is a simple and obvious case where George
did indeed own 100% of the LLC at the time of the LLC's demise.  Even that
simplifying assumption does not really help at all to clarify who, if anyone,
might have some claim to or rights to the /24 after the demise of the LLC.

(Note:  I myself have an immediate family relative who "owns" a house.  And I am
that relative's sole legal death beneficiary for ALL of his assets.  But I will
NOT be getting the house in question, nor even any part of it, when he shuffles
off this mortal coil because he's got a reverse mortgage on the house, and the
way those work is that the reverse mortgage company gets the house, and the
whole house, upon his death.  Because that's what the contract says.)

So I ask again, where is the justification, either in legal principals or in the
actual text of the RSA that says that George retains (or obtains) _any_ interest
in the /24 upon the death of George's LLC?  The way I read the plain language of
the RSA, all claims, rights, and titles to the /24 must necessarily pass back to
ARIN upon the death of the LLC, if for no other reason, then at least for the
obviious reason that "The Holder" no longer exists and thus can no longer pay the
annual fees.

If you seriously believe otherwise, then I for one would be enlightened if you
would explain the basis for your differing view on this key point.

>ARIN's job is to administer the registry for productive use, and it would appear that is what
>is happening in this case.

No.  It isn't.  I think that I was clear in my hypothetical, which is not at
all far fetched, that when the LLC was a real and going concern, it needed, used,
and most importantly *justified*, to ARIN that it would be using most or all of
an entire /24.  Now, it's just George and his drinkin' buddies, and they are using
maybe 5 out of 256 of those IP addresses.

This is not my personal idea of efficient utilization of scarce resources.  Others
may of course disagree.

>I suspect that the Registration Services Helpdesk would ask that
>George register TMBBATS as a sole proprietorship, provide an appropriate attestation of 
>the events, and update the records accordingly. 

Well, that's a part of my question:  Would they?  When would they?  Why would they?

Are you asserting that the Registration Services Helpdesk is, as we speak, aware of
all cases in which ARIN members, corporate or otherwise, have died?  Are you also
asserting that the Registration Services Helpdesk has already or soon will ask
all such deceased members to do the things you have described?  Because if that is
in fact happening, I am not seeing any signs of it.  I am however seeing some
data which suggest that this _isn't_ what the Registration Services Helpdesk is
doing with regards to dead members.

>Am I to presume you're seeking some other outcome for George? (i.e. given that you are 
>asking whether ARIN can start rejecting his RSA fee payments?) 

Yes, you may so presume.  (But to be clear, I don't believe that I was "asking" if
ARIN can reject fee payments from third parties.  Rather, I was actively asserting
that the plain language of the RSA is clear that it may indeed do so, and perhaps
even that it _must_ reject such third-party payments.)

Remember, in my hypothetical George himself was never either the member nor the
resource registrant.  That was the LLC, not George.

John, I look forward to you elaborating further on your belief that upon the death
of what I have been informally calling "George's LLC"[1] George has any more rights
to the relevant /24 block than you or I do.  I am sure that this will be most
enlightening, for me anyway.

I will  only add that I don't believe that intuition serves here to arrive at proper
answers to the questions I have raised.  Rather, I believe that the plain language
of the RSAs, as written, together with longstanding basic principals of contract
law together form the only reliable guide to finding correct answers to these questions.


Regards,
rfg


[1]  Of course, although it may be maximally convenient for the Registration Services
Helpdesk to leap to the assumption that the LLC to which the /24 was assigned belonged...
at some unknown point in time... 100% to George... perhaps only because he was in the
relevant WHOIS record as the registered contact person, or perhaps becase he was the
LLC's legal representative that signed the original request papers... in point of fact
it is more than a little possible that the LLC had multiple beneficial owners, perhaps
even dozens of them, and it is even possible that George was not even amomg those
beneficial owners at the time of the LLC's demise.

These very real possibilities make it all the more inexplicable that ARIN would ever
take it upon itself to make assumptions about legal rights accruing to specific
individuals following the legal death of _any_ (now former) corporate entity member,
particularly absent any and all formal representations from the party or parties
that may wish to stake claims to all or part of the deceased's estate.