On Wed, Aug 17, 2016 at 06:20:38PM +0000, Samantha Eisner wrote:
The limitation that indemnification should not cover open, existing claims by ICANN against third parties makes sense to me.
I think the idea was that the indemnification _should_ cover such claims, so that at the time of the asset transfer the Trust doesn't end up with a bunch of potential liabilities that it didn't undertake. (We don't exactly know the nature of these actions yet, which is part of what's making trustees nervous.)
On a related note, given the enforcement language we have in place in the draft, the IETF Trust could agree that ICANN is the appropriate party to continue with enforcement of those items (subject to the cooperation clauses, etc.) so that responsibility for those existing enforcement actions doesn¹t get called into question.
I'll suggest this to the trust. It's something to consider.
A