[CCWG-ACCT] Draft language narrowing waiver to mitigate liability for board removal

Rosemary E. Fei rfei at adlercolvin.com
Tue Jan 26 20:11:57 UTC 2016

Dear Co-Chairs and CCWG:

As promised on the call currently occurring, below you will find a revised description of the waiver to be signed by directors as a pre-condition to service, narrowed to address concerns we (Holly and I) discussed with ICANN-Legal and Jones Day, which were also echoed by participants on today’s call, i.e., that it would not be desirable to protect or encourage defamatory, malicious, or reckless statements about directors during the removal or recall process.  As I mentioned on the call, the Board does not support any such waiver.

Here’s the current proposal says now, in full:

39.  As a condition to being nominated by an AC, an SO, or the Nominating Committee and seated on the Board, each Director-nominee shall be required to sign an irrevocable letter agreement that:

·        Expresses a contractual commitment that:  (1) Acknowledges that the nominating AC or SO, or, for directors appointed by the Nominating Committee, the Empowered Community, has the right to remove the director from service at any time and for any reason through the processes set out in the Bylaws (as described below);  (2)  Confirms that service as a director does not establish any employment or other relationship to ICANN, the Empowered Community, the ACs, the SOs, or the Nominating Committee, or the agents of any of them, that provides any due process rights related to termination of service as a director other than those specified in the Bylaws; and  (3) Waives any and all claims against, and releases from all liability, ICANN, the Empowered Community, the ACs, the SOs, the Nominating Committee, and all of their agents, and any other individuals participating in the removal process, arising from or in connection with the removal process.

·        Provides a conditional irrevocable resignation from the Board  that is automatically effective upon a final determination of removal through the individual director removal process or the full board recall process upon communication of such decision  to the Board (as set forth below).
In addition, ICANN shall indemnify and advance expenses of defending against any claim against  the Empowered Community, the ACs, the SOs, the Nominating Committee, or the agents of any of them for their good faith actions in seeking removal of a director or of the full Board.

A narrower version of the waiver portion could read as follows:

(3) Waives claims against and releases from liability (a) ICANN and its directors, officers, and employees,  and (b) the Empowered Community, the ACs, the SOs, the Nominating Committee, and the Chairs or other individuals serving as executive officers of any of them, arising from statements made in good faith after reasonable due diligence as to factual accuracy, during the course of exercising any right or power, or performing any duty, contemplated by the director removal or recall processes set forth in the Bylaws.

Happy to discuss, of course.

Rosemary and Holly

Rosemary E. Fei
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
415/421-7555 (phone)
415/421-0712 (fax)
rfei at adlercolvin.com

Adler & Colvin is a San Francisco Green Business certified by the City and County of San Francisco. Please consider the environment before you print this email.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160126/c755b4d1/attachment-0001.html>

More information about the Accountability-Cross-Community mailing list