[ga] Re: [IFWP] What a candidate for ICANN director needs to know...(fwd)

["!Dr. Joe Baptista" <baptista@pccf.net>]

Joe Baptista

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---------- Forwarded message ----------
Date: Thu, 6 Jul 2000 10:08:14 -0700 (PDT)
From: Karl Auerbach <karl@cavebear.com>
Reply-To: list@ifwp.org
To: DOMAIN-POLICY@LISTS.INTERNIC.NET, IFWP Mailing List <list@ifwp.org>
Subject: Re: [IFWP] What a candidate for ICANN director needs to know...


ICANN has so far not responded to the attached questions.

I've continued to inquire into the issue of liability of "volunteer"
directors of California non-profits and what I have found concerns me.

There are several statutes that purport to protect "volunteer" directors.  
But they are subject to many pre-conditions and limits.  And I have not
yet seen anything concrete that indicates that ICANN meets many, if any,
of those pre-conditions.

So it would not surprise me to discover that ICANN's "volunteer" directors
are as naked of liability protection as a newborn baby.

Any candidate for Director ought to be concerned about that - one's entire
personal wealth could be on the line.

I'm surprised that the current directors have not instructed "staff" to
put together an information package so that those directors could have
evaluated the risk to themselves.

I do wonder whether each of the current Directors (and candidates) realize
that they really need to have their own personal counsel for legal advice.  
Corporate counsel owes its obligation to the legal entity of the
corporation.  Corporate counsel's obligation to individual Directors (and
members and officers) exists only to the extent that it is not in conflict
with counsel's obligation to the corporation.

		--karl--

 
> As a possible candidate for the ICANN at-large board election, I've been
> looking at the liability exposure of a Director and the protections
> offered by California law.
> 
> The legal liability is potentially extremely large.
> 
> And the protections are potentially of more form than substance.  The
> California statutes that purport to protect Directors from liability in a
> non-profit are a Swiss cheese of conditions and exceptions.  And these
> exceptions are triggered by the existance or non-existance of many things.
> 
> It turns out that a potential candidate can not make an evaluation of the
> potential risk because ICANN has not revealed certain critical facts.
> 
> For a person to make an informed decision about running for Director,
> several questions need to be answered.  Among those questions are the
> following:
> 
>  - Is ICANN presently an IRS 501(c) corporation?  If so, then under
>    which subsection of 501(c)?
> 
>    [Certain procedural protections of Director liability hinge on whether
>    the non-profit is a 501(c) and which subsection of 501(c).  It is
>    interesting in that the most likely category for ICANN, 501(c)(3),
>    causes some procedural protection to vanish.]
> 
>    [By-the-way, if ICANN is an IRS 501(c) then where is ICANN's IRS 1023
>    posted?  It is a public document that the corporation is required to
>    make available subject to a $20/day accruing penalty.]
> 
>  - Does ICANN have a million dollars or more in General Liability
>    insurance?
> 
>    [Certain statutory liabilty protections are contingent on the
>    corporation holding at least that much general liability insurance.]
> 
>  - Does ICANN have a "reasonable" degree of liability protection against
>    the reasonably foreseeable risks?
> 
>    [Certain statutory liability protections are contingent on the
>    corporation holding insurance that is adequate to protect the public,
>    the exact  amounts or means to measure adequacy are not specified by
>    the statutes.]
> 
>  - Does ICANN have an operative Directors Liability insurance policy?  If
>    so, then it is important for the potential directors to obtain it as
>    the exact language is critical - general statements that "we have a
>    policy" are essentially useless given the wide variation in coverage
>    afforded by such policies.
> 
>  - What is ICANN's policy regarding payments to Directors?  [The statutes
>    often strip all liability protections if there is any form of
>    compensation beyond strict reimbursement for expenses.]
> 
> 		--karl--
> 
> 
> 


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