.africa to finally go live after judge denies injunction

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

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

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.

Donuts loses $22.5m .web lawsuit as judge rules gTLD applicants cannot sue

The promise not to sue ICANN that all new gTLD applicants made when they applied is legally enforceable, a California judge has ruled.
Judge Percy Anderson on Monday threw out Donuts’ lawsuit against ICANN over the controversial $135 million .web auction, saying the “covenant not to sue bars Plaintiff’s entire action”.
He wrote that he “does not find persuasive” an earlier and contrary ruling in the case of DotConnectAfrica v ICANN, a case that is still ongoing.
Donuts sued ICANN at first to prevent the .web auction going ahead.
The registry, and other .web applicants, were concerned that ultimately successful bidder Nu Dot Co was being covertly bankrolled by Verisign, which turned out to be completely correct.
Donuts argued that ICANN failed to adequately vet NDC to uncover its secret sugar daddy. It wanted $22.5 million from ICANN — roughly what it would have received if the auction had been privately managed, rather than run by ICANN.
But the judge ruled that Donuts’ covenant not to sue is enforceable. Because of that, he made no judgement on the merits of Donuts’ arguments.
Under the relevant law, Donuts had to show that the applicant contract was “unconscionable” both “procedurally” and “substantively”.
Basically, the question for the judge was: was the contract unfairly one-sided?
The judge ruled (pdf) that it was not substantively unconscionable and “only minimally procedurally unconscionable”. In other words: a bit crap, but not illegal.
He put a lot of weight on the fact that the new gTLD program was designed largely by the ICANN community and on Donuts’ business “sophistication”. He wrote:

Without the covenant not to sue, any frustrated applicant could, through the filing of a lawsuit, derail the entire system developed by ICANN to process applications for gTLDs. ICANN and frustrated applicants do not bear this potential harm equally. This alone establishes the reasonableness of the covenant not to sue.

Donuts VP Jon Nevett said in a statement yesterday that the fight over .web is not over:

Donuts disagrees with the Court’s decision that ICANN’s required covenant not to sue, while being unconscionable, was not sufficiently unconscionable to be struck down as a matter of law. It is unfortunate that the auction process for .WEB was mired in a lack of transparency and anti-competitive behavior. ICANN, in its haste to proceed to auction, performed only a slapdash investigation and deprived the applicants of the right to fairly compete for .WEB in accordance with the very procedures ICANN demanded of applicants. Donuts will continue to utilize the tools at its disposal to address this procedural failure.

It looks rather like we could be looking at an Independent Review Process filing, possibly the first to be filed under ICANN’s new post-transition rules.
Donuts and ICANN are already in the Cooperative Engagement Process — the mediation phase that usually precedes an IRP — with regards .web.
Second-placed bidder Afilias is also putting pressure on ICANN to overturn the results of the auction, resulting in a bit of a public bunfight with Verisign.
TL;DR — don’t expect to be able to buy .web domains for quite a while to come.

RANT: Governments raise yet another UN threat to ICANN

ICANN’s transition away from US government oversight is not even a month old and the same old bullshit power struggles and existential threats appear to be in play as strongly as ever.
Governments, via the chair of the Governmental Advisory Committee, last week yet again threatened that they could withdraw from ICANN and seek refuge within the UN’s International Telecommunications Union if they don’t get what they want from the rest of the community.
It’s the kind of thing the IANA transition was supposed to minimize, but just weeks later it appears that little has really changed in the rarefied world of ICANN politicking.
Thomas Schneider, GAC chair, said this on a conference call between the ICANN board and the Generic Names Supporting Organization on Thursday:

I’m just urging you about considering what happens if many governments consider that this system does not work. They go to other institutions. If we are not able to defend public interest in this institution we need to go elsewhere, and this is exactly what is happening currently at the ITU Standardization Assembly.

This is a quite explicit threat — if governments don’t like the decisions ICANN makes, they go to the ITU instead.
It’s the same threat that has been made every year or two for pretty much ICANN’s entire history, but it’s also something that the US government removing its formal oversight of ICANN was supposed to help prevent.
So what’s this “public interest” the GAC wants to defend this time around?
It’s protections for the acronyms of intergovernmental organizations (IGOs) in gTLDs, which we blogged about a few weeks ago.
IGOs are bodies ranging from the relatively well-known, such as the World Health Organization or World Intellectual Property Organization, to the obscure, such as the European Conference of Ministers of Transport or the International Tropical Timber Organization.
According to governments, the public interest would be served if the string “itto”, for example, is reserved in every new gTLD, in other words. It’s not known if any government has passed laws protecting this and other IGO strings in their own ccTLDs, but I suspect it’s very unlikely any have.
There are about 230 such IGOs, all of which have acronyms new gTLD registries are currently temporarily banned from selling as domains.
The multi-stakeholder GNSO community is on the verge of coming up with some policy recommendations that would unblock these acronyms from sale and grant the IGOs access to the UDRP and URS mechanisms, allowing them to reclaim or suspend domains maliciously exploiting their “brands”.
The responsible GNSO working group has been coming up with these recommendations for over two years.
While the GAC and IGOs were invited to participate in the WG, and may have even attended a couple of meetings, they decided they’d have a better shot at getting what they wanted by talking directly to the ICANN board outside of the usual workflow.
The WG chair, Phil Corwin of the Internet Commerce Association, recently described IGO/GAC participation as a “near boycott”.
This reluctance to participate in formal ICANN policy-making led to the creation of the so-called “small group”, a secretive ad hoc committee that has come up with an opposing set of recommendations to tackle the same IGO acronym “problem”.
I don’t think it’s too much of a stretch to call the the small group “secretive”. While the GNSO WG’s every member is publicly identified, their every email publicly archived, their every word transcribed and published, ICANN won’t even say who is in the small group.
I asked ICANN for list of its members a couple of weeks ago and this is what I got:

The group is made up of Board representatives from the New gTLD Program Committee (NGPC), primarily, Chris Disspain; the GAC Chair; and representatives from the IGO coalition that first raised the issue with ICANN and some of whom participated in the original PDP on IGO-INGO-Red Cross-IOC protections – these would include the OECD, the UN, UPU, and WIPO.

With the publication two weeks ago of the small group’s recommendations (pdf) — which conflict with the expect GNSO recommendations — the battle lines were drawn for a fight at ICANN 57, which kicks off this week in Hyderabad, India.
Last Thursday, members of the GNSO Council, including WG chair Corwin, met telephonically with GAC chair Schneider, ICANN chair Steve Crocker and board small group lead Disspain to discuss possible ways forward.
What emerged is what Crocker would probably describe as a “knotty” situation. I’d describe it as a “process clusterfuck”, in which almost all the relevant parties appear to believe their hands are tied.
The GNSO Council feels its hands are tied for various reasons.
Council chair James Bladel explained that the GNSO Council doesn’t have the power to even enter substantive talks.
“[The GNSO Council is] not in a position to, or even authorized to, negotiate or compromise PDP recommendations that have been presented to use by a PDP working group and adopted by Council,” he said.
He went on to say that while the GNSO does have the ability to revisit PDPs, to do so would take years and undermine earlier hard-fought consensus and dissuade volunteers from participating in policy making. He said on the call:

By going back and revisiting PDPs we both undermine the work of the community and potentially could create an environment where folks are reluctant to participate in PDPs and just wait until a PDP is concluded and then get engaged at a later stage when they feel that the recommendations are more likely adopted either by the board or reconciled with GAC advice.

He added that contracted parties — registries and registrars — are only obliged to follow consensus policies that have gone through the PDP process.
Crocker and Disspain agreed that the the GAC and the GNSO appear to have their hands tied until the ICANN board makes a decision.
But its hands are also currently tied, because it only has the power to accept or reject GNSO recommendations and/or GAC advice, and it currently has neither before it.
Chair Crocker explained that the board is not able to simply impose any policy it likes — such as the small group recommendations, which have no real legitimacy — it’s limited to either rejecting whatever advice the GAC comes up with, rejecting whatever the GNSO Council approves, or rejecting both.
The GNSO WG hasn’t finished its work, though the GNSO Council is likely to approve it, and the GAC hasn’t considered the small group paper yet, though it is likely to endorse it it.
Crocker suggested that rejecting both might be the best way to get everyone around a table to try to reach consensus.
Indeed, it appears that there is no way, under ICANN’s processes, for these conflicting views to be reconciled formally at this late stage.
WG chair Corwin said that any attempt to start negotiating the issue before the WG has even finished its work should be “rejected out of hand”.
With the GNSO appearing to be putting up complex process barriers to an amicable way forward, GAC chair Schneider repeatedly stated that he was attempting to reach a pragmatic solution to the impasse.
He expressed frustration frequently throughout the call that there does not appear to be a way that the GAC’s wishes can be negotiated into a reality. It’s not even clear who the GAC should be talking to about this, he complained.
He sounds like he’s the sensible one, but remember he’s representing people who stubbornly refused to negotiate in the WG over the last two years.
Finally, he raised the specter of governments running off to the UN/ITU, something that historically has been able to put the willies up those who fully support (and in many cases make their careers out of) the ICANN multistakeholder model.
Here’s a lengthier chunk of what he said, taken from the official meeting transcript:

If it turns out that there’s no way to change something that has come out of the Policy Development Process, because formally this is not possible unless the same people would agree to get together and do the same thing over again, so maybe this is what it takes, that we need to get back or that the same thing needs to be redone with the guidance from the board.
But if then nobody takes responsibility to — in case that everybody agrees that there’s a public interest at stake here that has not been fully, adequately considered, what — so what’s the point of this institution asking governments for advice if there’s no way to actually follow up on that advice in the end?
So I’m asking quite a fundamental question, and I’m just urging you about considering what happens if many governments consider that the system does not work. They go to other institutions. They think we are not able to defend public interest in this institution. We need to go elsewhere. And this is exactly what is happening currently at the ITU Standardization Assembly, where we have discussions about protection of geographic names because — and I’m not saying this is legitimate or not — but because some governments have the feeling that this hasn’t been adequately addressed in the ICANN structure.
…
I’m really serious about this urge that we all work together to find solutions within ICANN, because the alternative is not necessarily better. And the world is watching what signals we give, and please be aware of that.

The “geographic names” issue that Schneider alludes to here seems to be a proposal (Word .doc) put forward by African countries and under discussion at the ITU’s WTSA 2016 meeting this week.
The proposal calls for governments to get more rights to oppose geographic new gTLD applications more or less arbitrarily.
It emerged not from any failure of ICANN policy — geographic names are already protected at the request of the GAC — but from Africa governments being pissed off that .africa is still on hold because DotConnectAfrica is suing ICANN in a California court and some batty judge granted DCA a restraining order.
It’s not really relevant to the IGO issue, nor especially relevant to the issue of governments failing to influence ICANN policy.
The key takeaway from Schneider’s remarks for me is that, despite assurances that the IANA transition was a way to bring more governments into the ICANN fold rather than seeking solace at the UN, that change of heart is yet to manifest itself.
The “I’m taking my ball and going home” threat seems to be alive and well for now.
If you made it this far but want more, the transcript of the call is here (pdf) and the audio is here (mp3). Good luck.

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

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.

Donuts rolls the dice with $22.5 million .web lawsuit

Donuts is demanding ICANN pay up the $22.5 million it reckons it is owed from the auction of the .web gTLD, which sold late last month for $135 million.
The company yesterday amended its existing California lawsuit against ICANN to allege that Verisign tried to avoid regulatory scrutiny by secretly bankrolling successful bidder Nu Dot Co.
The updated complaint (pdf) reads:

VeriSign’s apparent acquisition of NDC’s application rights was an attempt to avoid allegations of anti-competitive conduct and antitrust violations in applying to operate the .WEB gTLD, which is widely viewed by industry analysts as the strongest competitor to the .COM and .NET gTLDs.

Donuts wants a minimum of $22.5 million, which is roughly what each of the six losing .web applicants would have received if the contention set had been resolved via private auction.
(I previously reported that number as $18.5 million, because I accidentally counted .webs applicant Vistaprint as losing .webs applicant, when in fact it won .webs, paying $1.)
The company’s claims are still based around the allegation that ICANN breached its duties by failing to root out Verisign as the puppet-master.
The complaint alleges breach of contract, negligence, unfair competition and other claims. It says:

ICANN allowed a third party to make an eleventh-hour end run around the application process to the detriment of Plaintiff, the other legitimate applicants for the .WEB gTLD and the Internet community at large.
…
ICANN intentionally failed to abide by its obligations to conduct a full and open investigation into NDC’s admission because it was in ICANN’s interest that the .WEB contention set be resolved by way of an ICANN auction.

The irony here is that Ruby Glen LLC, the Donuts company that applied for .web, is subject to an arrangement not dissimilar to NDC’s with Verisign.
Ruby Glen is owned by Covered TLD LLC, in turn a wholly-owned Donuts subsidiary.
It’s well-known that fellow portfolio registry Rightside has rights to acquire Covered TLD’s over 100 applied-for strings, but this is not disclosed in its .web application.
ICANN will no doubt make use of this fact when it files its answer to the complaint.
Verisign itself has not been added as a defendant, but much of the new text in the complaint focuses on its now-confirmed involvement with NDC. The suit reads:

Had VeriSign’s apparent acquisition of NDC’s application rights been fully disclosed to ICANN by NDC… the relationship would have also triggered heightened scrutiny of VeriSign’s Registry Agreements with ICANN for .COM and .NET, as well as its Cooperative Agreement with the Department of Commerce.

The fact that Verisign is allowed to collect over half a billion dollars cash every year as a result of its state-endorsed monopoly is a longstanding cause of embarrassment for the Department of Commerce.
It has taken an interest in regulating Verisign’s .com contract in the past — it’s the only reason Verisign has not been able to raise .com prices in the last few years.
But the US government is not a party to the .web contract (unlike .com, where it has a special relationship with Verisign) and is not involved in the new gTLD program’s management or policies.
The complaint also makes reference to a completely unrelated Independent Review Process declaration from last week, which slammed ICANN for its lack of accountability and transparency.
Donuts faces the additional problem that, like all new gTLD applicants, it signed a covenant not to sue ICANN when it applied for its new gTLDs.
A judge in the DotConnectAfrica v ICANN can has allowed that lawsuit to proceed, regardless, but it may prove a stumbling block for Donuts.
It all looks a bit flimsy to me, but I’ve learned not to second-guess American judges so we’ll just have to see how it plays out.

Donuts files $10 million lawsuit to stop .web auction

Donuts has sued ICANN in an attempt to block the auction of the .web gTLD this Wednesday.
The gTLD portfolio registry filed a lawsuit in California on Friday, seeking over $10 million in damages and a temporary restraining order to stop the auction going ahead.
The complaint alleges breach of contract, negligence and unfair competition and seeks a court declaration that the covenant not to sue signed by all new gTLD applicants is unenforceable.
According to Donuts, ICANN breached its duties by not fully investigating the allegation that rival .web applicant Nu Dot Co has undergone a change of control and has a new, wealthier owner.
NDC is the only applicant in the eight-strong .web/.webs contention set that refuses to resolve the contest privately.
A private auction would enrich all losing applicants to the tune of many millions of dollars.
By forcing a “last resort” ICANN auction, NDC has ensured that ICANN will be the only party to benefit from the auction proceeds.
Last-resort auction funds are placed in a separate ICANN account, currently worth over $100 million, which will be spent according to a currently undecided policy created by the ICANN community.
But Donuts’ complaint strongly implies that ICANN is forcing the auction to go ahead because it stands to benefit financially.
Donuts repeats the allegation from its recent joint Request for Reconsideration with Radix that NDC should be forced to disclose to ICANN, via a gTLD application change, the names of its alleged new directors.
It cites again a redacted email from NDC director Jose Ignacio Rasco which talks about fellow listed director Nicolai Bezsonoff no longer being involved with the application but that “several” new directors were.
It adds a quote about Rasco talking about “powers that be”, which Donuts takes to mean he is answering to someone else.
NDC is not listed in the lawsuit, which focuses on ICANN’s obligations under the new gTLD program application contract.
Donuts alleges, for example, that ICANN has a duty to fully investigate whether NDC has indeed changed directors.
ICANN’s Board Governance Committee said last week that ICANN staff had talked to and emailed Rasco about the allegations. Donuts says it should have at least talked to Bezsonoff too.
Donuts also claims that ICANN is not allowed to go ahead with a last-resort auction while there are still outstanding “accountability mechanisms” — including the RfR, which has not yet been formally closed out by the full ICANN board.
The lawsuit also reveals that Donuts simultaneously filed a complaint using ICANN’s less legally formal Independent Review Process, though documentation for that is not yet available.
ICANN’s most recent statement on .web, which just confirms that the .web auction will go ahead this coming Wednesday, was also posted on Friday. It’s not clear if that was posted before or after ICANN became aware of the lawsuit.
All new gTLD applicants had to agree not to sue ICANN when they applied, but Donuts argues that this is unfair and unenforceable.
DotConnectAfrica has had some success with this argument, though Donuts does not cite that case in its own complaint.
There’s been some speculation about the motives of Donuts and others in trying to delay the auction.
The lawsuit will not force NDC into a private auction, but it might buy Donuts and the other applicants more time to consider their strategies.
I’m getting into speculative territory here, but if NDC’s strategy is to win the .web auction as a Trojan horse for its alleged new owner, perhaps revealing the identity of that new owner would make it less likely to insist on a last-resort auction.
If NDC’s alleged new owner has a time-sensitive need for the revenue .web could bring (which could be the case if, for example, the owner was Neustar) perhaps the prospect of a long lawsuit and IRP case could make it more likely to accept a private auction.
If the alleged new owner was revealed to be Verisign — a company more likely than most to acquire .web simply in order to bury it — perhaps that revelation could spur remaining applicants into pooling their resources to defeat it.
It it was a big tech firm from outside the domain industry, perhaps that would strengthen Google’s resolve to win the auction.
That’s all just me talking off the top of my head, of course.
I have no idea whether or not NDC even has new backers, though its behavior in avoiding private auction goes against character and certainly raises eyebrows.
The Donuts complaint, filed as its subsidiary Ruby Glen LLC, can be read here (pdf).

dotgay loses third .gay appeal

Death warrant or portent of impending legal action?
dotgay LLC has lost its third attempt to get ICANN to reconsider tossing its application for community priority status in the fight for the .gay gTLD.
According to ICANN, on Sunday its Board Governance Committee threw out dotgay’s third Request for Reconsideration, an attempt to give the company an unprecedented third go at the Community Priority Evaluation process.
CPEs allow community gTLD applicants to avoid expensive auctions, but dotgay has lost two primarily on the grounds that its definition of community includes people who are not gay.
Its latest RfR was pretty weak, based on a technicality about which staffers at the Economist Intelligence Unit (which carries out the CPEs) were in charge of verifying its letters of community support.
The rationale for the BGC’s determination, which still needs to be rubber-stamped by the full ICANN board, has not been published yet.
But it seems from a blog post that ICANN now expects .gay to go to auction, where there are four competing applicants in total.
ICANN does not usually publish blog posts on RfR decisions, but in the .gay case it has been keen to avoid being accused of any motivation beyond a dogged pursuit of correct procedure.
So will dotgay go quietly? It remains to be seen.
While all new gTLD applicants had to sign a release promising not to sue ICANN, .africa applicant DotConnectAfrica sued earlier this year and managed to get a sympathetic judge who seems bent on allowing the case to go to trial.

Judge hands DotConnectAfrica another bizarre win

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).