Dear All, I gave an update to the Plenary today in Copenhagen that went well. I referenced some additional background that I received from ICANN Legal as recently as 3 hours ago and wanted to make sure that I shared with the group. I think that it demonstrates the very reasonable and practical approach that was taken with regard to indemnifying representatives of the empowered community. I had asked Samantha for any relevant legal background out of a personal interest. Her response would be helpful to the group as far as context is concerned and I am forwarding it. Lori Lori S. Schulman Senior Director, Internet Policy International Trademark Association (INTA) +1-202-704-0408, Skype: lsschulman From: Samantha Eisner [mailto:Samantha.Eisner@icann.org] Sent: Friday, March 10, 2017 2:25 PM To: Lori Schulman <lschulman@inta.org> Cc: Patrick Dodson <patrick.dodson@icann.org> Subject: Re: [Ext] Legal Review of Guidelines on Good Faith Conduct for Participating in Board Removal Discussions Hi Lori - I was trailing through my notes and emails from my conversations with external counsel from the beginning of 2016 when we addressed this indemnification language and proposed language for the proposal to see what I could find on backup of this conversation. Neither from the ICANN side nor the Adler/Colvin side did we prepare memoranda or exchange any detailed legal briefings on this. We were guided almost exclusively by looking at the indemnification provisions arising out of the California Civil Code, particularly 5328 (http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=C....), which covers the proper scope of indemnification that an organization can provide. While the people participating in the Board removal process are not agents of ICANN, we agreed with the external counsel that the statutory indemnification limitations applicable to officers, agents, etc. would be an appropriate scheme to follow so that we did not create a new process out of whole cloth. Given that, limiting indemnification to situations where "if the person acted in good faith and in a manner the person reasonably believed to be in the best interests of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of the person was unlawful.” seemed an appropriate line to draw. When looking at what “ good faith” meant, we were able to agree, without trading legal research, that initiating a Board removal where there was some level of diligence available on the assertions made – and not based on falsehoods – would be the type of guidance appropriate to issue to the community. I know from prior legal work that there is a wealth of case law on the application of indemnification and when it is and is not appropriate under California law, but we did not have a need to go in depth on this issue given the straightforward nature of the situation we were addressing. The bigger issue to solve amongst counsel was agreeing to use an indemnification scheme guided by 5238 while recognizing that 5238 wasn’t an exact fit. The “good faith” issue seemed readily apparent to us after we reached agreement on the application of the indemnification scheme. Please let me know if you have any questions. Sam — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631