[Acct-Legal] Response to two questions posed in agenda

[Gregory, Holly]

Robin,  here is a quick reaction:  Members – as distinct from directors -- are not fiduciaries and are allowed to (they are even expected to) approach decisions in their own self interest.  A membership body needs to be sensitive to antitrust concerns – avoiding concerted action that is anticompetitive--  but those concerns can be fairly readily managed with strong antitrust policies and counsel.

HOLLY GREGORY
Partner

Sidley Austin LLP
+1.212.839.5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

From: Robin Gross [mailto:robin at ipjustice.org]
Sent: Friday, April 03, 2015 12:22 PM
To: Gregory, Holly
Cc: León Felipe Sánchez Ambía (leonfelipe at sanchez.mx); ccwg-accountability5 at icann.org; Boelter, Jessica C.K.
Subject: Re: [Acct-Legal] Response to two questions posed in agenda

I can't help but wonder about liability issue -- and if, given the nature of ICANN's work (regulating the domain name industry) if there could be a greater risk for community participants taking on a member role in a membership organization than might typically be the case.  Since ICANN's members are industry competitors and ICANN is always making decisions which benefit some community players over others, might these members be at risk of being sued for self-dealing (exactly what isn't protected) on a very practical level?  It doesn't take much to make a claim of self-dealing - and having to deal with that could be enough to discourage participants from wanting to take on a true member role.  Perhaps the exception doesn't quite swallow the rule in this case, but I wonder if it takes a big bite out it.  Would appreciate hearing others thoughts on this point.  Thanks!

Robin


On Apr 1, 2015, at 7:07 AM, Gregory, Holly wrote:


[...]

B.  Liability: Which would be the liability of those persons conforming the proposed bodies? (IRP, Supervisory Board) Has the figure of a supervisory board has been put in practice in California?

1.  Liability of persons participating on proposed bodies:   While directors and officers of a corporation take on certain responsibilities and liabilities as fiduciaries, it is relatively rare for a director or officer of a non-profit corporation to be found liable for breach of duty absent malfeasance – for example engaging in self-dealing.  In addition, the corporation generally can exculpate (hold harmless) and indemnify (promise to pay for a financial liability outcome) so long as the act was not criminal or a breach of the duty of loyalty (self-dealing) or otherwise in bad faith.  As to other persons – for examples members of a review panel, these same protections of exculpation and indemnification are available.  Generally there are a variety of protections available to help protect persons involved in ICANN governance from personal liability.

[...]


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