14 April 2016

Will ICANN File An Interlocutory Appeal in DCA Trust gTLD AFRICA Case?

UPDATE June 16, 2016New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party.

UPDATE ICANN filed an appeal on May 11, 2016, of the District Court's Order granting DCA Trust a Preliminary Injunction--Notice of Appeal embedded below:




UPDATE May 6, 2016ICANN has withdrawn its Motion to Dismiss (pdf) "[i]n view of the Court's order on DCA's Motion for Preliminary Injunction" (which DCA won), and Defendant ZACR has now filed its own Motion to Dismiss (pdf) set for hearing on May 31, 2016, at 9:00 am in Los Angeles U.S. District Court.

UPDATE April 17: see News Review: dotAFRICA, Public Interest, Judge Holds ICANN Accountable.

[original post below]
"... Here, the public has an interest in the fair and transparent application process that grants gTLD rights. ICANN regulates the internet – a global system that dramatically impacts daily life in today’s society. The IRP Declaration recognizes that ICANN’s function is “special, unique, and publicly important” and ICANN itself “is the steward of a highly valuable and important international resources.” (Bekele Decl.¶ 23.110, Ex. 1, ECF No. 17.) .... the Court finds “serious questions” going toward DCA’s likelihood of success on the merits and a balance of hardships that tips sharply in DCA’s favor ... Additionally, the Court finds that both the likelihood of irreparable injury and the public interest favors the injunction. As such, the Court GRANTS a preliminary injunction barring ICANN from delegating the rights to .Africa until this case is resolved ..."--Judge Klausner, U.S. District Court, April 12, 2016, DotConnectAfrica Trust vs ICANN & ZA Central Registry, infra, embedded below (emphasis added).
In a U.S. District Court ruling that may have far reaching impacts beyond just the Plaintiff's case, new gTLD .AFRICA applicant, DotConnectAfrica Trust (DCA Trust), won its motion for preliminary injunction, as indicated above (read the full decision embedded below).

Will ICANN now file an interlocutory appeal from the Court's ruling?

One legal commentator on Standards of Appellate Review (pdf) has written:
"An appellate court reviews a preliminary injunction primarily for “abuse of discretion.” It will (and should) be predisposed to affirm the trial judge; getting a reversal will be difficult. Most trial courts will at least pay lip service to the usual factors for entering a preliminary injunction. This avoids reversal for simple legal error, and showing abuse in the weighing of those factors can be close to impossible.  The problem is more than just a likely loss, however. A hasty decision to take an interlocutory appeal that you then lose can hurt in the ultimate resolution of the merits. The fact that the standard of review is abuse of discretion reflects an appellate judgment that some decisions are best left to the trial court. Still, declaring the law is what appellate courts principally do; so, when they review the “possibility of success” criterion in injunction appeals, they often announce in controlling dicta the rules for later proceedings. See West Publishing Co. v. Mead Data Central, Inc. 799 F.2d 1219 (8th Cir. 1986)." (emphasis added)
In this case, ICANN and its counsel, Jones Day, may very well decide to file an interlocutory appeal. Obviously ICANN needs controlling legal precedent to prevent parties from seeking redress in the Courts after they have knowingly given up their "rights to sue" in new gTLD applications, registry agreements, etc. This case may also have a bearing on ICANN's suitability to serve as steward of the IANA functions and coordinate the global internet DNS, and may even affect the current IANA transition process now underway. In any event, this ruling is not dispositive of all issues in the case--ICANN has a pending motion to dismiss DCA Trust's case (pdf)--stay tuned.

Complete copy of Court's Ruling* (yellow highlighting added):

*DCA Trust issued a press release dated April 12, 2016, with link to the document embedded above. As of April 13, 2016, 2:50 pm PDT, ICANN still had not posted the decision on its webpage of all documents filed in this case, nor made any reference to the ruling on the ICANN website.

See also on Domain MondoNew gTLD AFRICA: DotConnectAfrica Trust vs ICANN, End of the Line?




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