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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.

It’s open season on ICANN as judge rules new gTLD applicants CAN sue

Kevin Murphy, April 13, 2016, Domain Policy

DotConnectAfrica has won a California court ruling that will allow it to continue suing ICANN over its twice-rejected .africa gTLD application.

District judge Gary Klausner ruled yesterday that the litigation waiver all applicants had to sign when they applied may be unenforceable.

“The Court finds substantial questions as to the Release, weighing toward its unenforceability,” he wrote (pdf).

California law says that such waivers cannot stop people being sued for fraud, and fraud is what DCA is alleging, he explained.

DCA alleges that ICANN intended to deny DCA’s application after the IRP proceeding under any pretext and without a legitimate reason.

The evidence suggests that ICANN intended to deny DCA’s application based on pretext. Defendants have not introduced any controverting facts. As such, the Court finds serious questions regarding the enforceability of the Release due to California Civil Code § 1668.

The judge granted DCA’s request for a preliminary injunction that will prevent it from delegating .africa to successful applicant ZACR.

ZACR has the backing of the African Union Commission and, per ICANN rules, over 60% of the governments in Africa.

DCA applied for .africa with no government support, but with an AUC letter of support than had already been retracted. The company claims that the AUC was not allowed to withdraw its endorsement under ICANN rules.

But it doesn’t seem to matter what the governments of Africa want. Klausner wrote:

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

Sorry Africa, no gTLD for you yet!

The case continues…

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 sues ICANN for fraud, demands cash

Kevin Murphy, February 3, 2016, Domain Policy

New gTLD applicants may have signed away all their rights to sue ICANN, but that doesn’t seem to be a concern for loose-cannon .dotafrica .africa applicant DotConnectAfrica.

The company has filed suit in California, trying to kill off rival ZACR’s application as “fraudulent” and demanding a load of cash from ICANN.

The suit was filed January 20, and DCA’s request for an emergency restraining order has already been thrown out by the judge.

DCA is basically attempting to re-litigate the Independent Review Process case it won against ICANN last year.

The company claims that ICANN, ZACR, independent evaluator InterConnect Communications, and the Governmental Advisory Committee improperly ganged up on it, in breach of contract.

It also claims fraud, negligence, and a few other alleged violations of the law on the same grounds.

It’s looking for three flavors of monetary damages and “rescission of ICANN’s registry agreement with ZACR as a null and void contract predicated on fraud.”

The IRP panel ruled last year that ICANN breached its bylaws by kicking out DCA’s application based on GAC advice that had not been properly and transparently explained.

The case revealed that ICANN had drafted a letter of support for the African Union Commission to submit in order to show its support for ZACR.

ICANN claims there was nothing improper about that — and the IRP panel did not express an opinion — but it looked pretty dodgy.

The organization says it has not yet been formally served with DCA’s complaint, but told the court that there’s no need for an emergency TRO against .africa being delegated because it’s not an imminent possibility.

Indeed, there’s no danger of ZACR getting .africa live while DCA’s application is undergoing a second round of InterConnect scrutiny for evidence of governmental support (which it does not have).

ICANN added in its filing, almost as an aside, that DCA has signed away its right to sue.

DCA’s new choice of law firm, post-IRP, may be an indication of either the fragile nature of its standing or dwindling cash reserves.

Pricey ICANN-killer Arif Ali is out. Replacing him, a dude who runs a website-free, six-month-old, one-man show from his home in a California cul-de-sac.

Disclosure: DCA thinks I’m a racist, and I think it’s mad. The long, sordid history of the company’s shenanigans can be perused at your leisure with this search.

Africa hands coffin nails to DotConnectAfrica evaluators

Kevin Murphy, October 1, 2015, Domain Policy

The African Union and a United Nations commission have formally told ICANN that they don’t support DotConnectAfrica’s bid for .africa.

When it comes to showing governmental support, a necessity under ICANN’s rules for a geographic gTLD applications, the UN Economic Commission for Africa was DCA’s only prayer.

Company CEO Sophia Bekele had managed to get somebody at UNECA to write a letter supporting .africa back in 2008, and DCA has continued to pretend that the letter was relevant even after the entire continent came out in support of rival applicant ZA Central Registry.

During its Independent Review Process appeal, DCA begged the IRP panel to declare that the 2008 letter showed it had the support of the 60% of African governments that it requires to be approved by ICANN.

The panel naturally declined to take this view.

Now UNECA has said in a letter to the African Union Commission (pdf) dated July 20, which has since been forwarded to ICANN:

ECA as United Nations entity is neither a government nor a public authority and therefore is not qualified to issue a letter of support for a prospective applicant in support of their application. In addition, ECA does not have a mandate represent the views or convey the support or otherwise of African governments in matters relating to application for delegation of the gTLD.

It is ECA’s position that the August 2008 letter to Ms Bekele cannot be properly considered as a “letter of support or endorsement” with the context of ICANN’s requirements and cannot be used as such.

The AUC itself has also now confirmed for the umpteenth time, in a September 29 letter (pdf), that it doesn’t support the DCA bid either. It said:

Any reliance by DCA in its application… proclaiming support or endorsement by the AUC, must be dismissed. The AUC does not support the DCA application and, if any such support was initially provided, it has subsequently been withdrawn with the full knowledge of DCA even prior to the commencement of ICANN’s new gTLD application process.

The AUC went on to say that if DCA is claiming support from any individual African government, such claims should be treated “with the utmost caution and sensitivity”.

That’s because a few years ago African Union member states all signed up to a declaration handing authority over .africa to the AUC.

The AUC ran an open process to find a registry operator. DCA consciously decided to not participate, proclaiming the process corrupt, and ZACR won.

The new letters are relevant because DCA is currently being evaluated for the second time by ICANN’s independent Geographic Names Panel, which has to decide whether DCA has the support of 60% of African governments.

ZACR passed its GNP review largely due to a letter of support from the AUC.

If DCA does not have the same level of support, its application will fail for the second time.

The 2008 UNECA letter was the only thing DCA had left showing any kind of support from any governmental authority.

Now that’s gone, does this mean the DCA application is dead?

No. DCA has a track record of operating irrationally and throwing good money after bad. There’s every chance that when it fails the Geographic Names Review it will simply file another Request for Reconsideration and then another IRP, delaying the delegation of .africa for another year or so.