Rejected community gTLD applicant Dot Registry has waded into the lawsuit between DotConnectAfrica and ICANN.
Filing an amicus brief on Friday in support of the unsuccessful .africa applicant, Dot Registry argues that chagrined new gTLD applicants should be allowed to sue ICANN, despite the legal releases they all signed.
The company is clearly setting the groundwork for its own lawsuit against ICANN — or at least trying to give that impression.
If the two companies are successful in their arguments, it could open the floodgates for more lawsuits by pissed-off new gTLD applicants.
Dot Registry claims applicants signed overly broad, one-sided legal waivers with the assurance that alternative dispute mechanisms would be available.
However, it argues that these mechanisms — Reconsideration, Cooperative Engagement and Independent Review — are a “sham” that make ICANN’s assurances amount to nothing more than a “bait-and-switch scheme”.
Dot Registry recently won an Independent Review Process case against ICANN that challenged the adverse Community Priority Evaluation decisions on its .inc, .llc, and .llp applications.
But while the IRP panel said ICANN should pay Dot Registry’s share of the IRP costs, the applicant came away otherwise empty-handed when panel rejected its demand to be handed the four gTLDs on a plate.
The ICANN board of directors has not yet fully decided how to handle the three applications, but forcing them to auction with competing applications seems the most likely outcome.
By formally supporting DotConnectAfrica’s claim that the legal waiver both companies signed is “unconscionable”, the company clearly reckons further legal action will soon be needed.
DotConnectAfrica is suing ICANN on different grounds. Its .africa bid did not lose a CPE; rather it failed for a lack of governmental support.
But both companies agree that the litigation release they signed is not legally enforceable.
They both say that a legal waiver cannot be enforceable in ICANN’s native California if the protected party carries out fraud.
The court seems to be siding with DotConnectAfrica on this count, having thrown out motions to dismiss the case.
Dot Registry’s contribution is to point to its own IRP case as an example of how ICANN allegedly conned it into signing the release on the assumption that IRP would be able to sort out any disputes. Its court brief (pdf) states:
although claiming to provide an alternative accountability mechanism, the Release, in practice, is just a bait-and-switch scheme, offering applicants a sham accountability procedure
Indeed, the “accountability” mechanism is nothing of the sort; and, instead of providing applicants a way to challenge actions or inactions by ICANN, it gives lip-service to legitimate grievances while rubber-stamping decisions made by ICANN and its staff.
That’s an allusion to the IRP panel’s declaration, which found no evidence that ICANN’s board of directors had conducted a thorough, transparent review of Dot Registry’s complaints.
Dot Registry is being represented by the law firm Dechert. That’s the current home of Arif Ali, who represented DotConnectAfrica in its own original IRP, though Ali is not a named lawyer in the Dot Registry brief.
A California judge just handed ICANN another upset in the interminable legal battle waged against it by unsuccessful .africa applicant DotConnectAfrica.
Gary Klausner yesterday admitted he made a mistake when he earlier slapped ICANN with a preliminary injunction preventing .africa being delegated to DCA rival ZA Central Registry, but said his error did not have a huge bearing on that decision.
More remarkably, he’s now suggesting that ICANN may have been wrong to make DCA undergo the same Geographic Names Review as every other new gTLD applicant.
Both DCA and ZACR applied for .africa and had to go through the same evaluation processes, one of which was the Geographic Names Review.
Both had to show that they had support from 60% of the governments in Africa, and no more than one governmental objection.
ZACR had that support — though there’s legitimate dispute over whether its paperwork was all in order — while DCA did not. DCA also had over a dozen objections from African governments.
ZACR passed its geographic review, but DCA’s application was tossed out based on Governmental Advisory Committee advice before the review could be completed.
DCA took ICANN to an Independent Review Process panel, which ruled that ICANN had failed to live up to its bylaws and that DCA’s application should be returned to the evaluation process.
ICANN returned DCA’s application to the process at the point it had left it — before the geographic review was complete.
DCA then failed the review, because it has no support.
But when he granted the injunction against ICANN back in April, Klausner thought that DCA had actually passed the geographic review on the first pass. Not even DCA had claimed that; it was just a brain fart on his behalf.
He’s now admitted the mistake, but says the April ruling was not dependent on that misunderstanding.
The Court finds that the error in its factual finding was not determinative to its ultimate conclusion that there are serious questions going toward Plaintiff’s likelihood of success on the merits.
Now, he says that there may be some merit in DCA’s claim that it should have been allowed to skip the GNR due to the IRP’s recommendation that ICANN “permit DCA Trust’s application to proceed through the remainder of the new gTLD application process.”
Klausner wrote yesterday:
At this stage of litigation, it is reasonable to infer that the IRP Panel found that ICANN’s rejection of Plaintiff’s application at the geographic names evaluation phase was improper, and that the application should proceed to the delegation phase.
The problem with this thinking is that it was not the geographic panel that flunked DCA on the first pass, it was the GAC.
DCA got this document (pdf) from the geographic panel. It just says “Incomplete”.
If DCA succeeds in persuading a jury that it should have skipped the geographic panel, Africa could wind up with a .africa gTLD operator that none of its governments support and in circumvention of ICANN’s rules.
Yesterday’s ruling isn’t a killer blow against ICANN, but it does make me wonder whether Klausner — who is also hearing the much higher-profile Stairway to Heaven case right now — is really paying attention.
Anyway, he’s thrown out the ZACR/ICANN motion to reconsider the injunction, so the case is carrying on as before. Read the ruling here (pdf).
South African registry ZACR did not engage in a fraudulent conspiracy with ICANN to get its .africa gTLD application approved, a court ruled yesterday.
The California judge in the case of DotConnectAfrica vs ICANN and ZACR threw out all of DCA’s claims against ZACR, approving ZACR’s motion to dismiss.
The judge said DCA had failed to make claims for fraud, contract intereference and unfair competition.
He also threw out DCA’s demand for ZACR’s .africa Registry Agreement to be scrapped.
The case is not over, however.
DCA’s claims against ICANN still stand and ICANN, perhaps regrettably, withdrew its own motion to dismiss the case weeks ago. The case still looks like heading to trial.
DCA reckons ICANN, ZACR, independent evaluator InterConnect Communications, and the Governmental Advisory Committee improperly ganged up on it, in breach of its new gTLD application contract.
The judge has already ruled that the litigation waiver DCA signed when it applied for
.dotafrica .africa may be unenforceable.
He also based a decision to give DCA’s claims the benefit of the doubt on a huge misunderstanding of the facts, which he has yet to address publicly.
You can read the judge’s latest order here (pdf).
Under an injunction DCA won, .africa cannot be delegated until the case is resolved.
ZA Central Registry has told the judge in DotConnectAfrica’s lawsuit against ICANN that the preliminary injunction he granted DCA recently was based on a misunderstanding.
The injunction, granted a month ago, prevents ICANN delegating the .africa gTLD to ZACR until the lawsuit reaches a conclusion.
But, in papers filed Friday, ZACR points out that the judge screwed up in his reasoning. Judge Gary Klausner’s ruling was “predicated upon a key factual error”, ZACR says.
The error is the same one I wrote about last month — the judge thinks DCA originally passed the Geographic Names Review of its Initial Evaluation for .africa, and that ICANN later failed it anyway.
In fact, DCA never passed the GNR, and the document the judge cites in his ruling is actually ZACR’s Initial Evaluation report.
The GNR is the bit of the evaluation where both .africa applicants had to prove they had support from 60% of African governments and no more than one African governmental objection.
ZACR said in one of its Friday filings (pdf):
The record is undisputed that DCA’s application had not passed the geographic names evaluation process. And it could not because DCA did not have the requisite support of 60% or more of the African Union governments. Further, DCA’s application had been the subject of 17 “Early Warning” submissions by African Union governments. Correcting for this factual error, the record is clear that DCA has no likelihood of success in this litigation.
ZACR also says Klausner erred by saying .africa could only be delegated once, saying that TLDs can be redelegated to different operators after their initial delegation.
It’s filed a motion asking the judge to “reconsider and vacate” his preliminary injunction ruling.
ZACR is now named as a defendant in the lawsuit, which originally only named ICANN and unidentified parties.
ICANN has dropped its motion to dismiss the case and last week filed its answer (pdf) to DCA’s complaint, in which it denies any wrongdoing.
ICANN appears to be happy to let the judge’s mistake slide, or at least to allow ZACR to burden the risk of potentially pissing him off by highlighting his error.
Ten dot-brand gTLDs may never see the light of day, after ICANN sent termination notices to the applicants.
The move means that the number of African-owned dot-brand gTLDs to go live in the current round will be precisely zero.
The 10 affected gTLDs are .naspers, .supersport, .mzansimagic, .mnet, .kyknet, .africamagic, .multichoice, .dstv and .gotv, which were applied for by four South African companies, and .payu, which came from a Dutch firm.
In each case, the applicant had signed a Registry Agreement with ICANN in early 2015, but had failed to actually go live in the DNS within the required 12-month window.
All had deadlines in February or March but failed to meet even extended deadlines.
The condemned gTLDs make up more than half of the total applications originating in Africa.
Of the original 17 African applications, only ZACR’s .joburg, .capetown and .durban city gTLDs have actually been delegated.
Another application, the generic .ummah from Ummah Digital of Gambia, was withdrawn in 2013.
The League of Arab States’ .arab and عرب. are both currently in pre-delegation testing, having signed ICANN contracts in November.
The remaining two applications are both for .africa, which is currently stuck in litigation.
We’re looking at a maximum of six African-owned gTLDs, of a possible 16, going live in the 2012 round.
ICANN was criticized back in 2012 for not doing enough to raise awareness of the new gTLD program, criticisms that have been raised again recently as the community starts to seriously look at how things can be improved for the next round.
UPDATE: This article originally stated that .ummah was a dot-brand application. It was not. The text has been corrected accordingly.