AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC. et al v. PUBLIC.RESOURCE.ORG, INC.
Filing
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MOTION for Summary Judgment Filed by AMERICAN EDUCATIONAL RESEARCH ASSOCIATION, INC., AMERICAN PSYCHOLOGICAL ASSOCIATION, INC., NATIONAL COUNCIL ON MEASUREMENT IN EDUCATION, INC. (Attachments: #1 Statement of Facts Points of Authority, #2 Statement of Facts Statement of Undisputed Facts, #3 Declaration Declaration of Jonathan Hudis, #4 Exhibit Ex. A, #5 Exhibit Ex. B, #6 Exhibit Ex. C, #7 Exhibit Ex. D, #8 Exhibit Ex. E, #9 Exhibit Ex. F, #10 Exhibit Ex. G, #11 Exhibit Ex. H, #12 Exhibit Ex. I, #13 Exhibit Ex. J, #14 Exhibit Ex. K, #15 Exhibit Ex. L, #16 Exhibit Ex. M, #17 Exhibit Ex. N, #18 Exhibit Ex. O, #19 Exhibit Ex. P, #20 Exhibit Ex. Q, #21 Exhibit Ex. R, #22 Exhibit Ex. S, #23 Exhibit Ex. T, #24 Exhibit Ex. U, #25 Exhibit Ex. V-1, #26 Exhibit Ex. V-2, #27 Exhibit Ex. W, #28 Exhibit Ex. X, #29 Exhibit Ex. Y, #30 Exhibit Ex. Z, #31 Exhibit Ex. AA, #32 Exhibit Ex. BB, #33 Exhibit Ex. CC, #34 Exhibit Ex. DD, #35 Exhibit Ex. EE, #36 Exhibit Ex. FF-1, #37 Exhibit Ex. FF-2, #38 Exhibit Ex. FF-3, #39 Exhibit Ex. FF-4, #40 Exhibit Ex. FF-5, #41 Exhibit Ex. FF-6, #42 Exhibit Ex. GG, #43 Exhibit Ex. HH, #44 Exhibit Ex. II, #45 Exhibit Ex. JJ, #46 Exhibit Ex. KK, #47 Exhibit Ex. LL, #48 Exhibit Ex. MM, #49 Declaration Declaration of Marianne Ernesto, #50 Exhibit Ex. NN, #51 Exhibit Ex. OO, #52 Exhibit Ex. PP, #53 Exhibit Ex. QQ, #54 Exhibit Ex. RR, #55 Exhibit Ex. SS, #56 Exhibit Ex. TT, #57 Exhibit Ex. UU, #58 Exhibit Ex. VV, #59 Exhibit Ex. WW, #60 Exhibit Ex. XX, #61 Exhibit Ex. YY, #62 Exhibit Ex. ZZ, #63 Exhibit Ex. AAA, #64 Exhibit Ex. BBB, #65 Exhibit Ex. CCC, #66 Exhibit Ex. DDD, #67 Exhibit Ex. EEE, #68 Exhibit Ex. FFF, #69 Exhibit Ex. GGG, #70 Exhibit Ex. HHH, #71 Exhibit Ex. III, #72 Exhibit Ex. JJJ, #73 Declaration Declaration of Lauress Wise, #74 Exhibit Ex. KKK, #75 Exhibit Ex. LLL, #76 Declaration Declaration of Wayne Camara, #77 Exhibit Ex. MMM, #78 Declaration Declaration of Felice Levine, #79 Exhibit Ex. NNN, #80 Exhibit Ex. OOO (Public Version), #81 Exhibit Ex. PPP, #82 Exhibit Ex. QQQ, #83 Exhibit Ex. RRR, #84 Exhibit Ex. SSS, #85 Exhibit Ex. TTT-1, #86 Exhibit Ex. TTT-2, #87 Exhibit Ex. UUU, #88 Declaration Declaration of Kurt Geisinger, #89 Declaration Declaration of Dianne Schneider, #90 Text of Proposed Order Proposed Order, #91 Certificate of Service Certificate of Service)(Hudis, Jonathan). Added MOTION for Permanent Injunction on 12/22/2015 (td).
EXHIBIT C
Case No. 1:14-cv-00857-TSC-DAR
Public.Resource.Org: Articles of lncorporation
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Bra,ews oF Punrrc.RESouRCE. ORc, INC.
Anrrcrn I: Orrrcns or Pusrrc.Rnsounca.Onc, Iwc.
SECTION r.r: PRINCIPAL OFFICE. The principal office of Public.Resource.Org, Inc. shall be at
roo5 Gravenstein Highway North, Sebastopol, CAg547z, or at such other place as the Board of
trustees shall designate from tine to tirne. The business of Public.Resource.Org, Inc. shall be
transacted from the principal office, and the records of Public.Resource.Org, Inc. shali be kept
there.
SECTION r.z: OTHER OF:FICES. Public.Resource.Org, Inc. may also have offices at such other
places, within or without the State of California and within or without the United States, whele it is
qualified to do business, as its business may require, and as the Board of Trustees may, from time
to time, designate.
Anrrcra II: PunposEs oF Pusrrc.REsorrRcE.ORG, INc.
SECTION z.r. OBJECTIVES AND PURPOSES. The objectives and purposes of
Public.Resource.Org, Inc. shall be: to create, architect, design, implement, operate and maintain
public works projects on the Internet for BoucarroNAl, Cnen¡renrn, AND Scrersrn'rc Pr¡nrosns to
the benefit of the general public and the public interest; to increase and diffuse linowledge about
the Internet in its broadest sense; to promote and facilitate the expansion, development, and
growth of the public infrastructure of the Internet by any means consistent with the public interest
through other activities, including, but not limited to, publications, meetings, conferences,
training, educational seminars, and the issuance of grants and other financial support to
educational institutions, foundations and other organizations exclusively for EDucenower-,
Crrenrranr,E, AND Scrnrwrnrc Punposns.
Anrrcrn B:
BoARD oF TRUSTEES
SECTION 3.r. NUMBER. Public.Resoulce.Org, Inc. shall have at least 3 (three) trustees and no
lnore than 5 (five) trustees and collectively they shall be knon'n as the Board of Trustees. The
maximum and minimurn number may be changed by amendment of this bylaw, or by repeal of this
bylaw and adoption of a new byìarv, as provided in these Bvr,ews.
SECTION 3.2. POI\IERS. Subject to the provisions of the Cermonrvra No¡wnorrr Pusrrc BEunnrr
Conponerrow L¡w and any limitations in the Anrrcr,Es or lwconroRATroN and Bvr-ews relating to
action required or permitted to be taken or approved by the members of this corporation, the
activities and affairs of this corporation shall be conducted and all corporate powers shall be
exercised by or under the direction of the Board of Trustees.
SECTION s.g. DUTIES. It shall be the duty of the trustees to:
a. Perform any and all duties imposed on them collectively or individually by law, by the
A¡.rrcr,ns on INconpoRATroN of this corporation, or by these Bvt aws;
and remove, employ and discharge, and, except as otherwise provided in these
Byr,aws, prescribe the duties and fix the compensation, if any, of all officers, agents, and
employees of the corporation;
b. Appoint
c. Supervise all officers, agents, and employees of the corporation to
are performed properly;
d. Meet
at such times and places as required by these Brr,aws;
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assure that their duties
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e. Register their addresses and URLs with the secretary of the corporation and notices of
meetings rnailed, emailed, or telegraphed to them at such addresses shall be valid notices
thereof.
SECTION S.+. TERMS OF OFFICE. Each trustee shall hold office until the next annuaì meeting
for election of the Board of Trustees as specified in these Brr-aws, and until his or her successor is
elected and qualifies.
SECTION g.S. COMPENSATION. Trustees shall serve without compensation. They shall be
allowed reasonable advancement or reimbursement of expenses incurred in the perforrnance of
their regular duties as specified in Section 3.3 of this Article. Trustees may not be compensated for
rendering services to the corporation in any capacity other than trustee unless such other
compensation is reasonable and is allowable under the provisions of Section 3.6 of this Article. Any
payments to trustees shall be approved in advance in accordance with this corporation's conflict of
interest policy, as set forth in Alticle 9 of these Bvr.aws.
SECTION 3.6. RESTRICTION REGARDINGINTERESTED TRUSTEES. Notwithstanding any
other provision of these Bvr,aws, not more than forty-nine percenl (+g%) of the persons serving
on the board may be interested persons. For purposes of this Section, "interested persons" means
either:
a. Any person currently being compensated by the corporation for services rendered it within
the previous twelve (rz) months, whether as a full- or part-time officer or other employee,
independent contractor, or otherwise, excluding any reasonable compensation paid to a
trustee as trustee; or
b.
Any brother, sister, ancestor, descendant, spouse, brother-in-law, sister-in-law, son-in-law,
daughter-in-law, mother-in-law, or father-inlaw of any such person.
SECTION S.7. PI-ACE OF MEETINGS. Meetings shall be held at the principal office of
Public.Resource.Org, Inc. unless otherwise provided by the board or at such place within or
without the State of California and within or without the United States which has been designated
from time to time by resolution of the Board of Trustees.
Any meeting, regular or special, may be held by conference telephone, Internet, or other
cornrnunications channel. Participation in a meeting constitutes preserìce in person at that meeting
if all of the following apply:
a.
Each trustee participating in the meeting can communicate with all of the other trustees
concurrently;
b.
Each trustee is provided the means of participating in all matters before the board,
including, without limitation, the capacity to propose, or to interpose an objection to,
specific action to be taken by the corporation; and
a
c. The corporation adopts and implements
sorne means of verifying r) that all persons
participating in the meeting are trustees of the corporation or are otherwise entitled to
participate in the meeting, and z) that all actions of, or votes by, the board are taken and cast
only by trustees and not by persons who are not trustees.
SECTION 3.8. REGULARAND ANNUAL MEETINGS . Regular rneetings of trustees shall be
called by the chairperson no less frequently than four times per year. The annual meeting of the
Board of Trustees shall be called by the chairperson no less frequently and no more frequently
than once per year.
SECTION g.q. SPECIAL MEETINGS. Special meetings of the Board of Trustees may be called by
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the chairperson ofthe board, the president, the vice president, the secretary, or by any two
trustees, and such meetings shall be held at the place, within or without the State of California and
within or without the United States, designated by the person or persons calling the meeting, and
in the absence of such designation, at the principal office of the corporation.
SECTION 3.ro. NOTICE OFMEETINGS. Meetings of the board shall be held upon four days'
notice by first-class mail or folty-eight (+8) hours' notice delivered personally or by telephone,
telegraph, telefax, or Internet. The notice shall be deemed to be delivered on its deposit in the
mails or on its delivery to the telegraph company or other service provider. Such notices shall be
addressed to each trustee at his or her address and URIs as shown on the books of the
corporation.
SECTION 3.u. CONTENTS OFNOTICE. Notice of meetings not herein dispensed with shall
specify the place, day, and hour of the meeting. The purpose of any board rneeting need not be
specified in the notice.
SECTION 3.r2. WAIVER OF NOTICE AND CONSENT TO HOLDING MEETINGS. The
transactions of any meeting of the board, however caìled and noticed or wherever held, are as valid
as though the meeting had been duly held after proper call and notice, provided a quorum, as
hereinafter defined, is present and provided that either before or after the meeting each trustee
not present signs a waiver of notice, a consent to holding the meeting, or an approval of the
minutes thereof. All such waivers, consents, or approvals shall be filed with the corpolate records
or made a part of the minutes of the meeting.
SECTION 3.r3. QUORUM FORMEETINGS. Aquorum shall consist of the majority of the Board
of Trustees.
Except as otherwise plovided in these Brr,ews or in the Anrrclrs or INconpoRATroN of this
corporation, or by law, no business shall be considered by the board at any meeting at which a
quorum, as hereinafter defined, is not present, and the only motion which the chair shall entertain
at such meeting is a motion to adjourn. However, a majority of the trustees present at such meeting
may adjourn from time to time until the time fixed for the next regular meeting of the board.
When a meeting is adjourned for lackof a quorum, it shall not be necessary to give any notice of
the time and place of the adjourned meeting or of the business to be transacted at such meeting,
other than by announcement at the meeting at which the adjournment is taken, except as provided
in Section 3.ro of this Alticle.
The trustees present at a duly called and held meeting at which a quorum is initialìy present may
continue to do business notwithstanding the loss of a quorum at the meeting due to a withdrawal of
trustees from the meeting, provided that any action thereafter talrywhich is markedby a menrber "withhold" or otherwise marked in a manner indicating that
the authority to vote for the election of trustees is withheld shall not be voted either for or against
the election of a trustee.
Proxies shall afford an opportunity for the member to specify a choice between approval and
disapproval for each matter or group of related matters intended, at the time the proxy is
distributed, to be acted upon at the meeting for which the proxy is solicited. The proxy shall also
provide that when the person solicited specifies a choice with respect to any such matter, the vote
shall be cast in accordance therewith.
SECTION r4.9. CONDUCT OFMEETINGS. Meetings of members of the Cou¡gcr on Pusrrc
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E¡,¡cnrnEns shall be presided over by the chairperson of the board, or, if there is no chairperson, by
the president of the corporation or, in his or her absence, by the vice plesident of the corporation
or, in the absence of all of these persons, by a chairperson chosen by a majority of the voting
members, present in person or by pro)ry. The secretary of the corporation shall act as secretary of
all meetings of members, provided that, in his or her absence, the presiding officer shall appoint
another person to act as secretary of the meeting.
Meetings shall be governed by Robert's Rules of Order NewlSr Revised, roth Edition, as such rules
may be revised from time to time, insofar as such rules are not inconsistent with or in conflict with
these Bu-ews, with the Anrrcr,Es or lruconpoRATroN of this corporation, or with any provision of
law.
SECTION t4.to.ACTION BYWRITTEN BALLOT \IVITHOUT A MEETING. Any action which
maybe taken at any regular or special meeting of members of the CouNcu, or Pusrrc E¡,¡cnrnnns
may be taken without a meeting if the corporation distributes a rvritten or electronic ballot to each
member entitled to vote on the matter. The ballot shall set forth the proposed action, provide an
opportunity to specify approval or disapproval of each proposal, provide that where the person
solicited specifies a choice with respect to any such proposal the vote shall be cast in accordance
therewith, and provide a reasonable time within which to return the ballot to the corporation.
Balìots shall be mailed or emailed or delivered in the manner required for giving notice of rneetings
specified in Section r4.4 of this Article.
All rvritten or electronic ballots shall also indicate the number of responses needed to meet the
quorum requirement and, except for ballots soliciting votes for the election of trustees, shall state
the percentage of approvals necessary to pass the measure submitted. The ballots must specify the
time by which they must be received by the corporation in order to be counted.
Approval of action by written or electronic ballot shall be valid only when the number of votes cast
by ballot within the time period specified equals or exceeds the quorum required to be present at a
meeting authorizing the action, and the number of approvals equals or exceeds the number of
votes that would be required to approve the action at a meeting at which the total number of votes
cast was the same as the number of votes cast by ballot.
Trustees may be elected by written or electronic ballot. Such ballots for the election of trustees
shall list the persons norninated at the time the ballots are mailed or emailed or delivered. If any
such ballots are marked "withhold" or otherwise marked in a manner indicating that the authority
to vote for the election of trustees is withheld, they shall not be counted as votes either for or
against the election of a trustee.
A written or electronic ballot may not be revoked after its receipt by the corporation or its deposit
in the mail, whichever occurs first.
SECTION t4.aL REASONABLE NOMINATION AND ELECTION PROCEDURES. This
corporation shali make available to members reasonable nomination and election procedures with
respect to the election of trustees by members. Such procedures shall be reasonable given the
nature, size, and operations of the corporation, and shall include:
a. A reasonable means of nominating persons for election
b.
as
trustees.
A reasonable opportunity for a nominee to communicate to the members the nominee's
qualifications and the reasons for the nominee's candidacy.
c. A reasonable opportunity for all nominees to solicit votes.
d. A reasonable opportunity for all members to choose among the nominees. Upon the rvritten
request by any nominee for election to the board and the payment with such lequest of the
reasonable costs of mailing (including postage), the corporation shall, within ten (ro)
business days after such request (provided payment has been made) mail or email to all
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members or such portion of them that the nominee may reasonably specify, any material
which the nominee shall furnish and which is reasonably related to the election, unless the
corporation within five business days after the request allows the nominee, at the
corporation's option, the right to do either of the following:
r. inspect and copy the record of all members' names, addresses, and voting rights, at
reasonable times, upon five business days' prior written demand upon the
corporation, which demand shall state the purpose for which the inspection rights are
requested; or
z.
obtain from the secretary, upon rryritten demand and payment of a reasonable charge,
a list of the names, addresses, and voting rights of those members entitled to vote for
the election of trustees, as of the most recent record date for which it has been
compiled or as of any date specified by the nominee subsequent to the date of
demand.
The demand shall state the purpose for which the list is requested and the membership list shall be
made available on or before the later of ten (ro) business days after the demand is received or after
the date specified therein as the date as of which the list is to be compiled.
If the corporation distributes any written or electronic election material soliciting votes for any
nominee for trustee at the corporation's expense, it shall rnake available, at the corporation's
expense, to each other nominee, in ol with the same material, the same amount of space that is
provided any other nominee, with equal prominence, to be used by the nominee for a purpose
reasonably related to the election.
Generally, any person who is qualified to be elected to the Board of Trustees shall be nominated at
the annual meeting of members of the Cou¡¡cu- or Pr-rsI,rc ENcnrsnns held for the purpose of
electing trustees by any member present at the meeting in person or by proxy. However, if the
corporation has five hundred (Soo) or more members of the Coumcn on Prmrrc Ewcnrnnns, any of
the additional nomination procedures specified in subsections and of Section 5zer of the
Cerrnonrvre No¡vpnorrr Pusr,rc Brxonrr ConponanroN Lew maybe used to nominate persons for
election to the Board of Trustees.
If this corporation has five thousand (b,ooo) or more members of the Cou¡.¡cn on Pusr,rc
Ervcnrrnns, then the nomination and election procedures specified in Section 55zz of the
C.a'r,monrvra Norwnorrr Conponerro¡.r Lew shall be followed by this corporation in nominating and
electing persons to the Board of Trustees.
SECTION t4.l^z.. ACTION BY UNANIMOUS WRITTEN CONSENT \MITHOUT MEETING.
Except as otherwise provided in these Brr,aws, any action required or permitted to be taken by the
members maybe taken without a meeting, if all members shall individually or collectively consent
in vwiting to the action. The written consent or consents shall be filed with the minutes of the
proceedings of the members. The action by written consent shall have the same force and effect as
the unanimous vote of the members.
SECTION :.4.LB. RECORD DATE FOR MEETINGS. The record date for purposes of determining
the members entitled to notice, voting rights, written ballot rights, or any other right with lespect
to a meeting of members or any other lawful membership action, shall be fixed pursuant to Section
56rr of the Cer,monrvre NorvpRoFm Pr-rrr,rc Bnrvrnrr Conponanro¡¡ Law.
IJr.iewnvrous Cor.rsnNr oF THB
Boeno or Tnus-rnns oF Puerrc.Rnsouncn.Onc, hvc.
We, the undersigned, are all of the persons named as the initial trustees of Public.Resource.Org,
Inc., a California nonprofit corporation, and, pursuant to the authority granted to the trustees by
these Brr-ews to take action by unanimous written consent without a meeting, consent to, and
hereby do, adopt the foregoing Bvr-ews, consisting of r file, as the Brr-e.ws of this corporation.
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Public.Resource.Org: Ariicles of lncorporation
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Dated:
Hal R. Varian, Trustee of Public.Resource.Org,
Inc.
Randy Bush, Trustee of Public.Resource.Org, Inc.
Carl Malamud, Trustee of Public.Resource.Org,
Inc.
CsnrrFrcarroN oF rrrn IwconpoRAToR
This is to certify that the foregoing is a true and correct copy of the Brr-¿.ws of
Public.Resource.Org, Inc. and that such Brr-ews were duly adopted by the Board of Trustees of
said corporation on the date set forth below.
Dated:
, Carl Malamud,
Public. Reso urce. Org, Inc.
Last reuised: WedApr t8 o8:43:24 PDT zooT
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Incorporator of