[CCWG-ACCT] Recommendation 4 - Board Removal Liability - Proposed Indemnification Language

Gregory, Holly holly.gregory at sidley.com
Thu Feb 4 13:59:31 UTC 2016

Dear Co-Chairs, Members, Participants and Staff,

We have reviewed the proposed language sent by ICANN Legal  yesterday regarding a new indemnification bylaw designed at protecting certain participants in efforts to remove directors or recall the full Board from legal claims.   We have also reviewed the sample Guidelines for Due Diligence in Board Removal Discussions that ICANN Legal provided.   We have the following concerns and observations:

1.  The  indemnification language in the current ICANN bylaws (pasted below for your reference) largely tracks the statutory limits and standards for indemnification for a California nonprofit public benefit corporation and is broader – and therefore more protective to the covered persons – than the proposed new additional provision.   Under the new additional provision proposed by ICANN Legal covered persons would have less protection with respect to claims resulting from efforts to remove directors and recall the full Board than would be provided under the current provision  to protect covered persons from claims.  In our view, the concerns raised by the CCWG-Accountability about protection from claims brought by directors is better served by relying on the current bylaw provision (with some minor clarifications explained below).  The current bylaw already provides significant indemnification from legal claims:
ICANN shall, to maximum extent permitted by the CNPBCL, indemnify each of its agents against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding arising by reason of the fact that any such person is or was an agent of ICANN, provided that the indemnified person's acts were done in good faith and in a manner that the indemnified person reasonably believed to be in ICANN's best interests and not criminal. For purposes of this Article, an "agent" of ICANN includes any person who is or was a Director, Officer, employee, or any other agent of ICANN (including a member of any Supporting Organization, any Advisory Committee, the Nominating Committee, any other ICANN committee, or the Technical Liaison Group) acting within the scope of his or her responsibility; or is or was serving at the request of ICANN as a Director, Officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise. The Board may adopt a resolution authorizing the purchase and maintenance of insurance on behalf of any agent of ICANN against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not ICANN would have the power to indemnify the agent against that liability under the provisions of this Article.
We recommend that, rather than adding the proposed new provision that would provide less protection for claims  relating to efforts to remove directors or recall the full Board, this current language be clarified to add in the list of covered persons / entities   in the first parenthetical, “any person acting in his or her capacity as a representative of the Empowered Community,” thereby clarifying that the Empowered Community and its representatives are indemnified agents.  We also recommend clarifying that an indemnified agent includes any person who is or was serving as an appointed member of an ICANN body (such as a member of a cross-community working group or a Review Team).

2.  If a new provision is added – which as indicated above would not be our preference – we recommend broadening that new provision to include all causes of action and removing the qualifications contained in paragraphs 2-5 (see the attached markup).  The indemnification process in this section should be parallel to that applicable to ICANN officers and directors; for example, an SO/AC chair who is sued for defaming a director should not have to jump through more hoops than an ICANN officer would if they were sued for defaming an SO/AC chair.  Note also that  if an agent has been successful on the merits in defending a suit brought by a director,  he or she would be entitled to indemnification related to the expenses associated with that defense  pursuant to Section 5238(d) of the California Corporations Code regardless of the bylaw; any attempt to impose additional qualifications in the Bylaws in that scenario would not be valid.

3.  We note that providing Guidelines for expected behavior of community participants may have positive benefits but care must be taken that they are not drafted to discourage community participants from taking action in a specific area.  To avoid any potential chill on efforts to seek removal of directors or recall the full Board – and in the interests of encouraging positive behavior from community participants generally – consider whether it would be  beneficial to have the Guidelines (as may be revised by CCWG-Accountability after due consideration) apply to  all discussions within ICANN, not just a carved-out set of circumstances where the community is participating in the director  removal or  Board recall  processes.

Kind regards,

Holly and Rosemary

Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: Samantha Eisner [mailto:Samantha.Eisner at icann.org]
Sent: Wednesday, February 03, 2016 7:06 AM
To: accountability-cross-community at icann.org
Cc: icann at adlercolvin.com; Sidley ICANN CCWG
Subject: Recommendation 4 - Board Removal Liability - Proposed Indemnification Language

Dear CCWG -

To further the discussion on Recommendation 4, Board Removal Liability, I am providing two documents on behalf of ICANN.

First is a proposed addition to ICANN’s Bylaws that specifically allows for indemnification for statements made in the Board removal process (in initiation of the Community Forum, during the Community Forum, or in written rationale) that were made in good faith and with due diligence as to veracity.  This language reflects the CCWG’s suggestions made during the 26 January call that limiting indemnification only to written rationale was probably not enough.

Second, we are providing some thoughts on how we can assist community members participating in a removal process in assessing the good faith nature of their assertions as they are participating.  We think that developing some guidelines will give participants confidence in working through the Board removal process.


Sam Eisner

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