If IETF Trust was brought into the existing enforcement action, then ICANN could indemnify the Trust. That is an unlikely scenario, but I think that this addresses your concern below.
― Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631
On 8/17/16, 11:50 AM, "iana-ipr-bounces@nro.net on behalf of Andrew Sullivan" <iana-ipr-bounces@nro.net on behalf of ajs@anvilwalrusden.com> wrote:
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
-- Andrew Sullivan ajs@anvilwalrusden.com
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