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Sorry, you still can’t sue ICANN, two-faced .africa bidder told

Kevin Murphy, September 9, 2019, Domain Policy

Failed .africa gTLD applicant DotConnectAfrica appears to have lost its lawsuit against ICANN.

A California judge has said he will throw out the portions of DCA’s suit that had not already been thrown out two years ago, on the grounds that DCA was talking out of both sides of its mouth.

DCA applied for .africa in 2012 but lost out to rival applicant ZA Central Registry because ZACR had the backing of African governments and DCA did not.

It filed an Independent Review Process complaint against ICANN in 2013 and won in 2015, with the IRP panel finding that ICANN broke its own bylaws by paying undue deference to Governmental Advisory Committee advice.

It also emerged that ICANN had ghost-written letter of government support on behalf of the African Union, which looked very dodgy.

DCA then sued ICANN in 2016 on 11 counts ranging from fraud to breach of contract to negligence.

The Los Angeles Superior Court decided in 2017 that five of those charges were covered by the “covenant not to sue”, a broad waiver that all new gTLD applicants had to sign up to.

But the remaining six, relating to ICANN’s alleged fraud, were allowed to go ahead.

ICANN relied in its defense on a principle called “judicial estoppel”, where a judge is allowed to throw out a plaintiff’s arguments if it can be shown that it had previously relied on diametrically opposed arguments to win an earlier case.

The judge has now found that estoppel applies here, because DCA fought and won the IRP in part by repeatedly claiming that it was not allowed to sue in a proper court.

It had made this argument on at least seven occasions during the IRP, Judge Robert Broadbelt found. He wrote in his August 22 ruling (pdf):

DCA’s successfully taking the first position in the IRP proceeding and gaining significant advantages in that proceeding as a result thereof, and then taking the second position that its totally inconsistent in this lawsuit, presents egregious circumstances that would result in a miscarriage of justice if the court does not apply the doctrine of judicial estoppel to bar DCA from taking the second position in this lawsuit. The court therefore exercises its discretion to find in favor of ICANN, and against DCA, on ICANN’s affirmative defense of judicial estoppel and to bar DCA from bringing or maintaining its claims against ICANN alleged in the [First Amended Complaint] in this lawsuit.

In other words, ICANN’s won.

The case is not yet over, however. DCA still has an opportunity to object to the ruling, and there’s a hearing scheduled for December.

Blah blah ICANN blah .africa blah delegated blah blah…

Kevin Murphy, February 15, 2017, Domain Registries

Today blah blah ZA Central Registry blah blah .africa blah delegated blah.

ICANN blah blah root blah. Blah blah ZACR blah nic.africa.

Blah blah five years blah blah contention blah lawsuit blah blah DotConnectAfrica blah. Blah blah Bekele blah IRP blah.

ICANN blah blah Governmental Advisory Committee blah blah blah African Union blah blah blah.

Blah blah Geographic Names Panel blah blah controversy blah blah blah blah lawsuit blah blah blah leg to stand on.

Blah racist blah blah conspiracy blah blah blah… nutty. Blah.

Blah reporting blah damned blah story blah forever blah blah bored blah blah blah blah.

Blah blah blah.

.africa to finally go live after judge denies injunction

Kevin Murphy, February 10, 2017, Domain Policy

A Los Angeles court has rejected a demand for a preliminary injunction preventing ICANN delegating .africa, meaning the new gTLD can go live soon.

Judge Howard Halm ruled February 3, in documents published last night, that the “covenant not to sue” signed by every new gTLD applicant is enforceable and that Africans are being harmed as long as .africa is stuck in legal limbo.

The ruling comes two and a half years after ZA Central Registry, the successful of the two .africa applicants, signed its Registry Agreement with ICANN.

Rival applicant DotConnectAfrica, rejected because it has no African government support, is suing ICANN for fraud, alleging that it failed to follow its own rules and unfairly favored ZACR from the outset.

Unfortunately, the ruling does not address the merits of these claims. It merely says that DCA is unlikely to win its suit due to the covenant it signed.

Halm based his decision on the precedent in Ruby Glen v ICANN, the Donuts lawsuit that seeks to stop ICANN awarding .web to Verisign. The judge in that case ruled last November that Donuts signed away its right to sue.

An earlier judge in the DCA v ICANN case had ruled — based at least in part on a misunderstanding of the facts — that the covenant was unenforceable, but that decision now seems to have been brushed aside.

Halm was not convinced that DCA would suffer irreparable harm if ZACR got given .africa, writing:

The .Africa gTLD can be re-delegated to DCA in the event DCA prevails in this litigation… Further, it appears that any interim harm to DCA can be remedied by monetary damages

He balanced this against the harm of NOT delegating .africa:

The public interest also weighs in favor of denying the injunction because the delay in the delegation of the .Africa gTLD is depriving the people of Africa of having their own unique gTLD.

So what now?

ICANN said in a statement: “In accordance with the terms of its Registry Agreement with ZACR for .AFRICA, ICANN will now follow its normal processes towards delegation.”

As of this morning, ZACR’s .africa bid is officially still marked as “On Hold” by ICANN, though this is likely to change shortly.

Assuming ZACR has already completed pre-delegation testing, delegation itself could be less than a week away.

If DCA’s record is anything to go by, it seems unlikely that this latest setback will be enough to get it to abandon its cause.

Its usual MO whenever it receives an adverse decision or criticism is to double down and start screaming about conspiracies.

While the injunction was denied, the lawsuit itself has not been thrown out, so there’s still plenty of time for more of that.

You can read Halm’s ruling here (pdf).

DCA files for ANOTHER .africa injunction

Kevin Murphy, January 11, 2017, Domain Registries

DotConnectAfrica is continuing its legal attempt to prevent the .africa gTLD from being delegated to a competitor supported by African governments.

The recalcitrant applicant has filed for another temporary restraining order and preliminary injunction that would prevent ICANN handing .africa to the successful applicant, ZA Central Registry, according to ZACR.

DCA’s last application for an injunction was refused by a California judge in December, but last week it renewed its efforts to stymie the long-delayed geo.

ZACR said on its web site yesterday:

On January 4, 2017, DCA filed an ex parte (emergency) temporary restraining order (“TRO”) asking the Court to prevent ICANN from delegating .Africa to ZACR. The Court denied DCA’s ex parte request for a TRO on the grounds that there was no exigency that required an immediate ruling. The Court further clarified that the prior order denying DCA’s preliminary injunction motion was based upon all arguments submitted by ICANN and DCA (thereby rejecting DCA’s contention in its ex parte papers that the ruling did not include ZACR’s arguments). However, the Court agreed to consider DCA’s new arguments as grounds for a new motion for a preliminary injunction. DCA was given until January 6, 2017 to file its motion. ICANN and ZACR shall file opposition papers by January 18, 2017. DCA will then be given an opportunity to file a reply.

The court is scheduled to hear arguments for and against the injunction January 31, ZACR said.

In the meantime, .africa remains in limbo.

.africa could go live after court refuses injunction

Kevin Murphy, January 2, 2017, Domain Policy

DotConnectAfrica’s attempt to have ICANN legally blocked from delegating the .africa gTLD to rival applicant ZACR has been denied.

The ruling by a Los Angeles court, following a December 22 hearing, means ICANN could put .africa in the root, under ZACR’s control, even before the case comes to trial.

A court document (pdf) states:

The plaintiff is seeking to enjoin defendant Internet Corporation for Assigned Names and Numbers (ICANN) from issuing the .Africa generic top level domain (gTLD) until this case has been resolved…

The plaintiff’s motion for the imposition of a Preliminary Injunction is denied, based on the reasoning expressed in the oral and written arguments of defense counsel.

ICANN was just days away from delegating .africa last April when it was hit by a shock preliminary injunction by a California judge who later admitted he hadn’t fully understood the case.

My understanding is that the latest ruling means ICANN may no longer be subject to that injunction, but ICANN was off for the Christmas holidays last week and unable to comment.

“Sanity prevails and dotAfrica is now one (big) step closer to becoming a reality!” ZACR executive director Neil Dundas wrote on Facebook. He declined to comment further.

Even if ICANN no longer has its hands tied legally, it may decide to wait until the trial is over before delegating .africa anyway.

But its lawyers had argued that there was no need for an injunction, saying that .africa could be re-delegated to DCA should ICANN lose at trial.

DCA case centers on its claims that ICANN treated it unfairly, breaking the terms of the Applicant Guidebook, by awarding .africa to ZACR.

ZACR has support from African governments, as required by the Guidebook, whereas DCA does not.

But DCA argues that a long-since revoked support letter from the African Union should still count, based on the well-known principle of jurisprudence the playground “no take-backs”.

The parties are due to return to court January 23 to agree upon dates for the trial.

Dot Registry backs .africa loser, batters on the ICANN lawsuit floodgates

Kevin Murphy, August 28, 2016, Domain Registries

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.

Did the DotConnectAfrica judge make a big dumb mistake?

Kevin Murphy, April 14, 2016, Domain Registries

The court ruling that granted DotConnectAfrica a preliminary injunction preventing ICANN delegating .africa seems to be based to a large extent on a huge error by the judge.

In explaining why he was allowing DCA v ICANN to proceed, despite DCA’s signing away its right to sue when it filed its new gTLD application, California district judge Gary Klausner seems to have confused DCA with rival .africa applicant ZACR.

In his Tuesday ruling, Klausner said that evidence supports the claim that ICANN was determined to flunk DCA’s application no matter what.

The key evidence, according to the judge, is that the Initial Evaluation of DCA’s application found that it did have enough support from African governments to pass its Geographic Names Review, but that ICANN subsequently reversed that view in Extended Evaluation.

He wrote:

DCA claims that “the process ICANN put Plaintiff through was a sham with a predetermined ending – ICANN’s denial of Plaintiff’s application so that ICANN could steer the gTLD to ZACR.”

In support, DCA offers the following evidence. ICANN’s initial evaluation report in July 2013 stated that DCA’s endorsement letters “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) After the IRP Decision, ICANN performed a second evaluation on the same information originally submitted by DCA. In the second evaluation, however, ICANN found that the endorsement letters did not meet the same criteria applied in the first evaluation

He later writes:

Despite ICANN’s contention, the evidence presents serious questions pointing in favor of DCA’s argument. First, a March 2013 email from ICC to ICANN stated that ICANN needs to clarify AUC’s endorsements since AUC properly endorsed both DCA and ZACR. (Bekele Decl. ¶ 30, Ex. 19, ECF No. 17.) Subsequently, ICANN’s July 2013 initial evaluation report found that the endorsement letters have “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) Because ICANN found DCA’s application passed the geographic names evaluation in the July 2013 initial evaluation report, the Court finds serious questions in DCA’s favor as to whether DCA’s application should have proceeded to the delegation stage following the IRP Decision.

The document “Bekele Decl. ¶ 40, Ex. 27” referred to is exhibit 27 of DCA CEO Sophia Bekele’s March 1 declaration, filed in support of its preliminary injunction motion.

The problem is that that exhibit is not the Initial Evaluation report for DCA’s .africa bid, it’s the IE report for rival ZACR (aka UniForum).

Read it here (pdf).

DCA’s own application never received a scored IE report. At least, one was never published.

It only got this (pdf), which states simply “Overall Initial Evaluation Summary: Incomplete”. That document is dated July 3, 2013, almost two weeks before the ZACR report.

Bekele’s declaration even states that exhibit 27 is the IE report for the ZACR application.

It’s not clear to this non-lawyer how important this pretty basic error is to Klausner’s thinking, but as a layman it looks pretty crucial.

It certainly seems like something that needs to be addressed, given that the apparent misunderstanding plays into both the decision to allow the lawsuit to proceed and the decision that DCA’s complaint may have merit.

Several other exhibits cited in the ruling — including emails from the InterConnect Communications evaluators who carried out the Geographic Names Review — have been redacted by the court.

It’s possible there are smoking guns contained within these censored documents that were more influential on the ruling.

It’s also notable that ICANN is continuing to redact the court documents it publishes on its web site, beyond those filed under seal and censored by the court.

US judge freezes .africa gTLD

A US court has blocked ICANN from delegating the .africa gTLD for at least another month.

At the request of failed .africa applicant DotConnectAfrica, a California judge handed ICANN a temporary restraining order, enjoining it from “issuing” .africa.

The ruling came two days after the ICANN board of directors voted to allow .africa to be delegated to successful applicant ZACR.

The decision seems to be based on the fact that a delegation is essentially irreversible, so even if DCA were to win the lawsuit it would not be able to get its hands on the gTLD.

“Plaintiff has demonstrated that once the tGLD [sic] is issued, it will be unable to obtain those rights elsewhere,” the judge wrote (pdf).

DCA’s lawsuit, filed despite the that that it waived its right to sue under the new gTLD application agreement, basically makes the same arguments that its successful Independent Review Process made.

The court is due to hold a hearing on April 4 to decide whether ICANN can delegate .africa or will have to wait until the lawsuit is fully resolved.

The company, incidentally, appears to have changed lawyers since its original complaint against ICANN was filed. It’s now with Brown Neri & Smith, having briefly been with Brandon Schantz.

DCA fails .africa evaluation

Kevin Murphy, February 18, 2016, Domain Policy

DotConnectAfrice application for the .africa gTLD has, as expected, failed its ICANN evaluation for want of government support.

The official decision (pdf) was handed down overnight.

According to the Extended Evaluation panel, DCA’s “required documentation of support or non-objection was either not provided or did not meet the criteria”.

In other words, DCA did not have a shred of support for its controversial application.

For gTLDs representing multinational regions, support or non-objection is required from 60% of the governments in that region.

In addition, there cannot be more than one objection from a government in that region.

Not only did DCA not have any support, it also had over a dozen governmental objections.

The company had relied on support letters from the African Union Commission and the UN Economic Commission for Africa, both of which have been retracted.

The AU and most African governments support rival, successful applicant ZACR.

ZACR signed its .africa registry contract with ICANN in March 2014, but its bid has been kept in limbo while DCA has exploited ICANN appeals processes to delay delegation.

Most recently, DCA sued ICANN, despite signing away its right to sue when it applied.

DCA was originally rejected due to Governmental Advisory Committee advice, before it had completed evaluation.

But the company won an Independent Review Process ruling stating that ICANN erred by accepting the advice with no explanation, compelling ICANN to put the DCA application back into evaluation.

After a six-month review, the Geographic Names Panel has now concluded that, duh, nobody supports DCA’s bid.

ICANN has now changed the status of DCA’s application from “Not Approved” to “Will Not Proceed”.

Oddly, and possibly incorrectly, this status cites the GAC advice as the reason for the failure, rather than the fact that DCA failed its evaluation.

Per ICANN practice, no application is truly dead until the applicant withdraws.

ICANN will post more uncensored .africa info

Kevin Murphy, August 27, 2015, Domain Policy

ICANN has committed to post more unredacted documents from its Independent Review Process case with DotConnectAfrica, following a request from DI.

The organization told DI today that it will publish the documents on its web site by August 31, in response to our July 27 Documentary Information Disclosure Request.

I’d asked ICANN to publish, unredacted, the entire declaration of the IRP panel, along with all equally unredacted exhibits and hearing transcripts.

Aware that ICANN enjoys invoking its “Defined Conditions for Non-Disclosure” in order to stop material being released sometimes, I added “that the public interest and transparency benefits to ICANN of disclosing this information far outweigh any benefit that could be accrued by invoking the Defined Conditions for Non-Disclosure”.

In response, ICANN said today (pdf) that it evaluates the public interest when processing DIDP requests, adding:

we have determined that to the extent additional information warrants disclosure and can be released without further consultation with third parties ICANN will publish that unredacted information no later than 31 August 2015. We will send you an email notification upon that publication. To the extent that disclosure of some information designated as confidential by third parties may be warranted and requires further consultation with third parties, or consultation with other third parties not previously consulted, ICANN has already initiated that consultation process. ICANN will publish such further unredacted information promptly upon, and to the extent that we receive, authorization from the relevant parties to release the information, and will send you an email notification upon that publication.

Since the DIDP was filed, ICANN has published over 700 pages of redacted transcripts from two in-person IRP hearings that took place in May.

Today, it also published a letter from DCA’s competing .africa applicant, ZA Central Registry, comprising an ultimately unsuccessful request for a couple of seats at the hearing.

What has not yet been published are the IRP exhibits showing exactly what ICANN did to oil the gears for ZACR’s application.

Due to Kieren McCarthy’s articles at The Register and ICANN’s subsequent admissions, we know that ICANN staff drafted a letter that the African Union Commission could use to express its support for ZACR in the correct format.

However, the IRP exhibits that would give clarity into what exactly ICANN sent and why remain redacted.

Communications between ICANN and InterConnect, which ran the Geographic Names Panel, and references to the Kenyan government’s did-they-didn’t-they support for DCA also remain redacted.

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