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--
