Showing posts with label DotConnectAfrica Trust. Show all posts
Showing posts with label DotConnectAfrica Trust. Show all posts

2017-02-05

News Review: .AFRICA Update, ICANN Annual Report, ICANN.org 404

News Review | ©2016 DomainMondo.com
Domain Mondo's weekly review of internet domain news:

 Features •  1. .AFRICA Update; 2. ICANN Annual Report 1 July 2015– 30 June 2016, follow the money; 3. ICANN.org 404; and 4. .SPORT, .MUSIC, .GAY--more ICANN incompetence:

1.  New gTLD .AFRICA litigation update: DotConnectAfrica Trust vs ICANN and ZA Central Registry, pending in the Superior Court of the State of California, County of Los Angeles, Central District:

UPDATE Feb 9, 2017: ICANN [Finally] Free to Proceed with the Delegation of .AFRICA Following Court Decision | ICANN.org: "LOS ANGELES – 9 February 2017 – The Internet Corporation for Assigned Names and Numbers (ICANN) announced that a California Superior Court has denied DotConnectAfrica’s (DCA’s) second Motion for Preliminary Injunction to stop the delegation of the .AFRICA generic top-level domain (gTLD) to ZA Central Registry (ZACR). DCA’s first Motion for Preliminary Injunction was denied by the Superior Court in December 2016. Among other things, the Judge found that it appears the "Covenant Not to Sue" found in the New gTLDApplicant Guidebook is enforceable, citing to the recent Federal District Court Order in the Ruby Glen, LLC v ICANN matter, wherein the Court held that the “covenant not to sue” in the Guidebook is enforceable. Accordingly, the Superior Court Judge ruled that “DCA's claims against ICANN for fraud and unfair business practices are likely to be barred. As a result, DCA cannot establish that it is likely to succeed on the merits.” View the Court Order here [embedded below]. In accordance with the terms of its Registry Agreement with ZACR for .AFRICA, ICANN will now follow its normal processes towards delegation." (emphasis added)

--End of update--original text below:

On Feb 3, 2016 ICANN updated its litigation page to indicate that on 4 January 2017, Court Order: Plaintiff's Ex Parte Application for Temporary Restraining Order is denied; Plaintiff's papers are deemed to be a new preliminary injunction motion; Parties are to submit supplemental briefs; and Preliminary Injunction hearing set for 31 January 2017 (which the Court later moved to 3 February 2017).  No further update as to the Feb 3rd hearing (as of Feb 5, 2017, 00:00 UTC).

2.  Want to know where the money is going at ICANN from all those domain name fees paid by registrants despite the fact that most domain name registrants have no representation within ICANN's so-called multistakeholder community?  Follow the money:

ICANN Annual Report: 1 July 2015– 30 June 2016 (pdf) excerpt below:

Advice equally applicable to the stakeholders of ICANN and its Global Domains Division (GDD): When shareholders aren’t watching, managers misbehave | ChicagoBooth.edu: "Perhaps the best advice to a distracted shareholder is to assume that management is misbehaving when no one is looking."

3.  ICANN.org 404 | The page you were looking for doesn't exist (404)

Above is the result if you go to https://www.icann.org/resources/board-material/minutes-brc-2017-02-01-en cited by ICANN as the proper link for Board Risk Committee (BRC) Meeting – Minutes 4 November 2016 --[published] Wednesday, February 01 2017 11:45 PM--BRC Attendees:  Rafael Lito Ibarra, Ram Mohan (Co-Chair), George Sadowsky, Mike Silber (Co-Chair), Jonne Soininen, Kuo-Wei Wu, and Suzanne Woolf Other Board Member Attendees: Asha Hemrajani Board Member Elect Observing: Maartern Botterman, Akinori Maemura, ICANN Organization Attendees:  S...  --Oh well, so much for ICANN transparency and accountability! 

 4.  .SPORT, .MUSIC, .GAY--more ICANN incompetence:

a)  New gTLD .SPORT--ICANN loses, yet again, another IRP (pdf)--ICANN also ordered to pay (i) fees and expenses of the Panel and (ii) fees and expenses of the ICDR acting as administrator of the proceedings in the sum of US$152,673.26.
"7.90. Accordingly, the IRP Panel is of the view that in order to have upheld the integrity of the system, in accordance with its Core Values, the ICANN Board was required properly to consider whether allegations of apparent bias in fact gave rise to a basis for reconsideration of an Expert Determination.  It failed to do so and, consequently, is in breach of its governing documents."--IRP Final Declaration, p.43 (pdf)(emphasis added) 
b)  Letter 30 Jan 2017 (pdf) from Arif H. Ali, Partner, Dechert LLP, to Göran Marby and Members of the ICANN BGC re: New gTLD Application for .MUSIC:
"We are writing on behalf of our client, DotMusic Limited (“DotMusic”), to remind ICANN about the Board Governance Committee’s (the “BGC”) delay in making a final recommendation to the ICANN Board (the “Board”) regarding DotMusic’s Reconsideration Request 16-5 (“Reconsideration Request”). Over 11 months have passed since DotMusic submitted the Reconsideration Request to the BGC, however, the BGC has not made a final recommendation to the Board with respect to DotMusic’s Reconsideration Request. This is inconsistent with the BGC’s obligation under ICANN’s Bylaws to review a reconsideration request on a timely basis ...." (emphasis added)
c) Letter 30 Jan 2017 (pdf) from Arif H. Ali, Partner, Dechert LLP, to Göran Marby and Members of the ICANN Board re: New gTLD Application for .GAY:
"... We are writing on behalf of our client, dotgay LLC (“dotgay”), to complain about ICANN Board’s (the “Board”) failure to issue its final decision on the Board Governance Committee’s (“BGC”) 26 June 2016 Recommendation on Reconsideration Request 16-3 (“Reconsideration Request”). Pursuant to Section 4.2(r) of ICANN’s Bylaws (October 1, 2016): The Board shall issue its decision on the recommendation of the Board Governance Committee within 45 days of receipt of the Board Governance Committee's recommendation or as soon thereafter as feasible ... Here, seven months have passed since the Board received the BGC’s final recommendation on Dotgay’s Reconsideration Request, yet the Board has failed to make a final decision on dotgay’s Reconsideration Request ..."

Other Internet Domain News

•  Does the U.S. have new clout over the global internet? | FCW.com--John Kneuer, former head of the NTIA at a Feb. 2 U.S. House hearing--"Kneuer told the [House Energy and Commerce] committee [video here] that it would be "absolutely" appropriate for President Donald Trump or other U.S. official to back Amazon's effort to obtain a dot-Amazon top level domain name. "With the conclusion of the transition of the IANA contracts … the U.S  government can take, counterintuitively perhaps, a more proactive role for domestic companies…" Kneuer said. "When the U.S. government had its exclusive contractual relationship with ICANN, there was some hesitancy to be perceived as abusing that authority or overplaying that role." Some Republican lawmakers were highly critical of the [IANA transition] transfer and sought to block it, calling it essentially a giveaway of U.S. power ..." (emphasis added)

•  Special-Use Names Problem Statement (Jan 31 update) | ietf.org: 4.3 Summary: "... The assignment of Internet Names is not under the sole control of any one organization. IETF has authority in some cases, but only with respect to "technical uses." ICANN at present is the designated administrator of the root zone, but generally not of zones other than the root zone. And neither of these authorities can in any practical sense exclude the practice of ad-hoc use of names. This can be done by any entity that has control over one or more name servers or resolvers, in the context of any hosts and services that that entity operates. It can also be done by authors of software who decide that a special-use name is the right way to indicate the use of an alternate resolution mechanism."  See also Domain Name System Operations (dnsop) WG Virtual Meeting: 2017-02-16.

•  Quick Takes:
•  Q4 2016 Financial Results & Webcasts this coming week:
  • Tucows (TO:TC) (NASDAQ:TCX) Feb 7
  • Twitter TWTR Feb 9 before market open
  • Verisign VRSN Feb 9 after market close
•  Domain registry and technology services provider Neustar NYSE: NSR--Neustar: Investor Relations - News Release Feb 2, 2017: "On December 14, 2016, Neustar announced that it had entered into a definitive merger agreement to be acquired by a private investment group led by Golden Gate Capital. Under the terms of the merger agreement, Neustar’s stockholders will be entitled to receive $33.50 per share following the closing of the proposed merger. The merger, which is expected to close no later than the end of the third quarter of 2017, is subject to approval by Neustar’s stockholders, regulatory approvals and other customary closing conditions. In light of the proposed merger, Neustar will not be providing guidance for 2017 and will not hold a conference call to discuss its results for full-year and fourth quarter 2016."--NeuStar (NYSE:NSR) Q4 2016 Results: EPS of $1.38 (missed estimates by $0.01); revenue $324.9M (+16.0% Y/Y) (miss by $1.08M).

 •  4 most popular posts (# of pageviews Sun-Sat) this past week on DomainMondo.com:
  1. NewsReview: Ruby Glen Appeals .WEB ICANN Case to Ninth Circuit
  2. Apple $AAPL Q1 2017FY Earnings, LIVE Stream Jan 31st Replay
  3. Amazon $AMZN Q4 2016 Earnings LIVE Webcast Feb 2, 5:30pm ET
  4. Facebook $FB Q4 2016 Results, LIVE Webcast Feb 1, 5pm ET

-- John Poole, Editor, Domain Mondo 

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2016-12-16

New gTLD AFRICA Redux: DotConnectAfrica Trust v. ICANN and ZACR


UPDATES in new gTLD .AFRICA litigation DotConnectAfrica Trust vs ICANN and ZA Central Registry, pending in the Superior Court of the State of California, County of Los Angeles, Central District:

 UPDATE 3 Feb 2017: On Feb 3, 2016 ICANN updated its litigation page to indicate that on 4 January 2017, Court Order: Plaintiff's Ex Parte Application for Temporary Restraining Order is denied; Plaintiff's papers are deemed to be a new preliminary injunction motion; Parties are to submit supplemental briefs; and Preliminary Injunction hearing set for 31 January 2017 (which the Court later moved to 3 February 2017).  No further update as to the Feb 3rd hearing (as of Feb 4, 2017, 00:00 UTC).

UPDATE 8 January 2017: News Review: New gTLD .AFRICA Plaintiff Files for New TRO vs ICANN.

UPDATE 3 January 2017: California State Superior Court has denied DotConnectAfrica Trust's motion for preliminary injunction in an Order dated December 22 but not posted until Jan. 3, 2017 on the ICANN.org website, the Court indicating it will assign the case for a trial date at the case management conference January 23rd:


The above corrects and updates an earlier update based on a report from Law360.com:
UPDATE: ICANN not (corrected) enjoined from delegating .AFRICA by California State Superior Court Judge. According to Law360.com on Thursday, December 22, 2016, California Superior Court Judge Howard L. Halm issued a "written tentative ruling" indicating he would grant the motion for a preliminary injunction filed by African nonprofit DotConnectAfrica Trust (DCA), blocking ICANN from delegating new gTLD (new generic top-level domain) .AFRICA  to ZA Central Registry (ZACR), ruling DCA’s claim that its application was unfairly rejected must be resolved first. Based on the update of January 3, above, the Law360.com report was erroneous.

New gTLD AFRICA: DotConnectAfrica Trust v. ICANN and ZA Central Registry (ZACR), Case No. BC607494, Superior Court of the State of California, County of Los Angeles – Central (trial court proceeding):

15 November 2016:

Plaintiff's Motion for Preliminary Injunction:



9 December 2016:

ICANN's Opposition to Plaintiff's Motion for Preliminary Injunction:



9 December 2016

ZACR's Opposition to Plaintiff's Motion for Preliminary Injunction:



15 December 2016:
Plaintiff's Joint Reply to ICANN and ZACR's Opposition to Motion for Preliminary Injunction:
How did the case get from U.S. District Court to State of California Superior Court?
For more:

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2016-09-06

ICANN Litigation, Cooperative Engagement, and IRP Status Update

UPDATES (links provided further below):
1) ICANN response to Ruby Glen's Amended Complaint: Motion to Dismiss filed Oct. 26, 2016;
2) .AFRICA case remanded to California State Court by U.S. District Court Judge Oct 21, 2016;
3) Appellants Petition for Rehearing En Banc DENIED by Court of Appeals in Weinstein vs Iran;
_______

 Status Update: 1) ICANN Litigation; and 2) Cooperative Engagement Process (CEP) and Independent Review Process (IRP), in accordance with the sources referenced below:

1) Litigation:
Graphic: new gTLD .WEB © DomainMondo.com

•  Ruby Glen, LLC v. ICANN lawsuit filed in United States District Court for the Central District of California. Issue: new gTLD .WEB. Status: Plaintiff's motion for TRO denied; Plaintiff filed amended complaint on August 8, 2016. ICANN has until September 26, 2016 (pdf)--UPDATE--Wednesday, October 26, 2016 (pdf) to "answer, move to dismiss or otherwise respond to the Amended Complaint."  See on Domain Mondo: New gTLD WEB Loser, Ruby Glen, Files Amended Complaint vs ICANN.
UPDATE October 26 Ruby Glen, LLC v. ICANN:
Graphic: new gTLD .AFRICA © DomainMondo.com
•  DotConnectAfrica Trust v. ICANN lawsuit filed in United States District Court for the Central District of California. Issue: new gTLD .AFRICA. Status: jury trial (10-12 days) scheduled to begin February 28, 2017. Appeals of the preliminary injunction enjoining delegation of new gTLD .AFRICA, have been taken by ICANN and ZA Central Registry (ZACR). The appeals are now consolidated and pending before the U.S. Court of Appeals for the Ninth Circuit. Optional reply briefs are due September 9, 2016, and new gTLD applicant Dot Registry LLC has filed a motion for leave to file amicus curiae (friend of the court) brief in support of DCA Trust on the issue of the enforceability of the ICANN "Release" in the new gTLD guidebook (pdf), required of all new gTLD applicants. See on Domain Mondo: New gTLD AFRICA Appeal: DCA Trust Answering Brief vs ICANN & ZACR. Dismissed defendant and appellant, ZACR, has also filed a motion to intervene in the U.S. District Court, to which Plaintiff responded August 29, 2016 (pdf)(highlighting added).

UPDATE DotConnectAfrica Trust v. ICANN Trial Court Proceeding:
ccTLDs: .IR (IRAN), .SY (Syria), .KP (North Korea)
•  Ben Haim v. Islamic Republic of Iran; Calderon-Cardona v. Democratic People's Republic of Korea; Rubin v. Islamic Republic of Iran; Stern v. Islamic Republic of Iran; Weinstein v. Islamic Republic of Iran; Wyatt v. Syrian Arab Republic filed in United States District Court for the District of Columbia. Issue: whether ccTLDs .IR (IRAN), .SY (SYRIA), and .KP (North Korea), are property subject to judicial attachment. Status: US Court of Appeals Decision on August 2, 2016, affirming District Court that the ccTLDs are not subject to judicial attachment, handing ICANN and the "global community" a legal victory in a case that potentially could have jeopardized the IANA stewardship transition. Order and Judgment entered August 2, 2016 (pdf), by the United States Court of Appeals for the District of Columbia Circuit. Appellants have 90 days to file a petition for writ of certiorari with the U.S. Supreme Court (see U.S. Supreme Court Rule 13). See on Domain Mondo: US Court of Appeals Decision re: ICANN & Iran, Syria, North Korea ccTLDs.

 UPDATE: Petition for Rehearing En Banc:
“Relying on conjecture, it [D.C. Circuit Court of Appeals] significantly solidified ICANN’s monopoly over Internet governance (antagonizing many small Internet participants who have been bullied by ICANN over many years), massively altered the waiver doctrine, impaired the operation of 28 U.S.C. 1610(g), and injured judgment creditors who must recover their judgments from third-party garnishees.”--Appellants' Petition for Panel Rehearing and Hearing En Banc filed 31 August 2016, Weinstein et al. vs Islamic Republic of Iran et al. , U.S. Court of Appeals for the D.C., (pdf 434 KB, highlighting added). 
UPDATE 19 Sep 2016: Order Denying Appellants’ Petition for Rehearing En Banc [PDF, 53 KB] 19 September 2016; and Order Denying Appellants’ Petition for Panel Rehearing [PDF, 53 KB] 19 September 2016. Formal Mandate of U.S. Court of Appeals for the D.C. [PDF, 54 KB] 27 September 2016.

ICANN Cooperative Engagement Process (CEP) and Independent Review Process (IRP) defined
2) Cooperative Engagement Processes (CEP) and Independent Review Processes (IRP) Status update as of August 22, 2016, via ICANN (pdf) embedded below (highlighting added):
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2016-08-24

New gTLD AFRICA Appeal: DCA Trust Answering Brief vs ICANN & ZACR

DotConnectAfrica Trust v. ICANN UPDATE September 9, 2016: ICANN’s Reply Appellate Brief [PDF, 276 KB] and ZACR's Reply Appellate Brief [PDF, 195 KB].

UPDATE September 2, 2016: ZACR's Reply in Support of Motion to Intervene [PDF, 46 KB].

 UPDATE August 29, 2016: Plaintiff DotConnectAfrica Trust's Response to ZACR’s Motion to Intervene [PDF, 412 KB], embedded below (highlighting added):

UPDATE August 26, 2016: New gTLD applicant Dot Registry, LLC, has filed motion for leave to file amicus curiae (friend of the court) brief in support of DCA Trust . Motion with attached Amicus Curiae Brief embedded below (highlighting added):

--original post below--

Map of Africa | DomainMondo.com
"ICANN expressly agreed to process gTLD applications fairly and transparently. Instead, ICANN colluded with ZACR to award the .Africa domain to the AUC [African Union Commission]. The district court properly granted DCA’s motion for a PI [preliminary injunction] and properly affirmed the PI on reconsideration. DCA respectfully requests this Court affirm those decisions."--Conclusion of Answering Brief filed by DocConnectAfrica Trust (DCA Trust), infra (emphasis added)

DotConnectAfrica Trust (DCA Trust), appellee, has filed its Appellate Answering Brief together with Supplemental Excerpts of the Record (both embedded below), in response to briefs filed by appellants ICANN and ZA Central Registry (ZACR). The issues in this consolidated interlocutory appeal by ICANN and ZACR to the Ninth Circuit Court of Appeals, involve whether the U.S. District Court properly granted DCA Trust's motion for preliminary injunction "barring ICANN from delegating the rights to .AFRICA until this case is resolved." See District Court Order (pdf).

Case Status: ICANN's and ZACR's optional reply briefs are due September 9, 2016. Meanwhile the U.S. District Court has assigned the case to a 10-12 day jury trial beginning February 28, 2017. See Scheduling Order (pdf).

For more on this case, see the previous posts (and links therein), on Domain Mondo: ICANN and Dot AFRICA: Dismissed Party ZACR Files Notice of Appeal (includes ICANN brief); and .AFRICA: DCA Trust v ICANN, ZACR Motion to Intervene & Opening Brief.

Appellee DCA Trust's Answering Brief (pdf) embed below (highlighting added):


Supplemental Excerpts of the Record (pdf) embed below (highlighting added):


Most document filings in this case are available on the ICANN website at: DotConnectAfrica Trust v. ICANN | ICANN.org. 
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2016-08-10

.AFRICA: DCA Trust v ICANN, ZACR Motion to Intervene & Opening Brief

Map of Africa | DomainMondo.com

UPDATE: DotConnectAfrica Trust v. ICANN -- the plot thickens --
"ZACR seeks to intervene pursuant to Fed. R. Civ. P. 24(a), or alternatively, under Fed. R. Civ. P. 24(b), as a defendant to the Ninth and Tenth causes of action to enforce its right to .Africa. Intervention is proper because ZACR has an interest in the Registry Agreement which may be impaired or impeded by the disposition of this action and ZACR’s interest is not adequately represented by the existing parties." --ZACR's Memorandum of Points and Authorities (pdf)
Dismissed defendant, ZA Central Registry, which filed an interlocutory appeal, has now filed its opening brief (embed below), and has also filed a motion to intervene as a party:
The DotConnectAfrica Trust answering brief is due August 19, 2016. The optional reply brief is due September 9, 2016.  Meanwhile the U.S. District Court has assigned the case to a 10-12 day jury trial beginning February 28, 2017. See Scheduling Order (pdf).  

 See also: ICANN and Dot AFRICA: Dismissed Party ZACR Files Notice of Appeal | DomainMondo.com and the history and background of this case at .africa | Wikipedia.org.

ZACR's Opening Appellate Brief (embed below):


 Memorandum of Points and Authorities in support of ZACR's motion to intervene:



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2016-06-28

ICANN and Dot AFRICA: Dismissed Party ZACR Files Notice of Appeal

UPDATE July 18: AFRICA Appeals Consolidated--"the parties’ joint motion (Docket Entry No. 5) to consolidate Nos.16-55693 and 16-55894 and to amend the briefing schedule is granted. The opening brief in No. 16-55693 has been filed. The opening brief in No. 16-55694 is due July 22, 2016. The answering brief is due August 19, 2016. The optional reply brief is due September 9, 2016"--Order embedded below:

UPDATE June 29: ICANN filed its opening brief:

The sad saga of ICANN's bungling of the application process for new gTLD (new generic top-level domain) .AFRICA has added another chapter as dismissed party ZA Central Registry (ZACR) has filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit, from Orders entered by the Hon. R. Gary Klausner, U.S. District Court Judge, granting DotConnectAfrica Trust's (DCA) Motion for Preliminary Injunction (enjoining ICANN from delegating .AFRICA) and denying ICANN's motion for reconsideration of the Preliminary Injunction Order. The unusual twist in this case is that the District Court had dismissed ZACR as a Defendant "thereby extinguishing ZACR's role a[s] party to the action" (see  Order of June 20 included as Exhibit 2 of the notice of appeal embedded in full below), prior to denying ICANN's reconsideration motion.

ICANN's appellant brief in its interlocutory appeal is due June 29, 2016, and the U.S. District Court has assigned the case to a 10-12 day jury trial beginning February 28, 2017.

UPDATE June 28, 2016: ICANN has amended its notice of appeal and also appeals the U.S. District Court’s Order entered on June 20, 2016 (ECF No. 113), attached to ICANN's Amended Notice of Appeal (last embed below), which denied ICANN's motion for reconsideration of the Court's Order granting the preliminary injunction.

See also on Domain Mondo:

ZACR's Notice of Appeal with Exhibits 1 & 2 (highlighting added):


ICANN's Amended Notice of Appeal with Exhibits (highlighting added):


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2016-06-16

New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party

See UPDATE June 24: ICANN and Dot AFRICA: Dismissed Party ZACR Files Notice of Appeal.

UPDATE: On June 20, 2016, the U.S. District Court denied ICANN's motion for reconsideration of the Order enjoining ICANN from delegating new gTLD .AFRICA. The trial judge, Hon. R. Gary Klausner, has obviously carefully read and considered the IRP Final Declaration in this matter, upon which Plaintiff has relied in support of its claims. The case has already been assigned to a 10-12 day jury trial beginning February 28, 2017 (see scheduling Order further below) and ICANN is due to file its appellant's brief on June 29, 2016, in its interlocutory appeal to the Ninth Circuit of the District Court's Preliminary Injunction Order. The Court's June 20, 2016, Order is embedded below (highlighting added):

 --original post below--
In the new gTLD .AFRICA litigation, Case No. 16-CV-00862 RGK (JCx), DotConnectAfrica Trust (DCA Trust) v. Internet Corporation for Assigned Names and Numbers (ICANN) & ZA Central Registry (ZACR), the U.S. District Court for Central District of California at Los Angeles, Honorable R. Gary Klausner, U.S. District Judge, has granted ZACR's Motion to Dismiss the Complaint (as to defendant ZACR only), concluding, along with other reasons (see embed below):
"... the Court finds Plaintiff’s first request against ZACR (i.e., that the Court declare the registry agreement null and void) unnecessary, as a favorable ruling on its claims against ICANN will result in the relief it seeks ..." (emphasis added)
The District Court has also set the case for a jury trial (estimated length: 10−12 days), starting February 28, 2017 at 09:00 AM (see scheduling conference proceedings embedded further below).

ICANN has filed an interlocutory appeal of the District Court's order granting Plaintiff DCA Trust's motion for preliminary injunction which enjoined ICANN from delegating the new gTLD .AFRICA. That appeal is pending before the U.S. Court of Appeals for the Ninth Circuit, and appellant ICANN's opening brief is due June 29, 2016; appellee DCA Trust's answering brief is due July 29, 2016; and ICANN's optional reply brief is due within 14 days after service of the answering brief. See Order (pdf).

District Court ruling (highlighting added):


Scheduling conference proceedings (highlighting added):


See also on Domain Mondo:

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2016-06-03

ICANN Pending Litigation and IRP Status Report as of 1 June 2016

As of June 1, 2016, all pending litigation and Independent Review Processes (IRPs) involving the Internet Corporation for Assigned Names and Numbers (ICANN), a California non-profit corporation, deal with ICANN's problematic new gTLDs program, with the exception of a pending U.S. Court of Appeals decision concerning ccTLDs of IRAN (.IR), Syria (.SY), and North Korea (.KP)--see Ben Haim et al below:

 Pending ICANN Litigation:
  • DotConnectAfrica Trust v. ICANN and ZA Central Registry (ZACR) - action filed in United States District Court for the Central District of California at Los Angeles (D.C. No. 2:16-cv-00862-RGK-JC) - Interlocutory Appeal filed by ICANN, United States Court of Appeals for the Ninth Circuit, Case No. 16-55693 - pending Motion to Reconsider and Vacate Preliminary Injunction, District Court hearing June 6, 2016 - Issue: new gTLD .AFRICA.

Independent Review Processes (IRP), ICANN Status Update, 1 June 2016 (pdf):


According to ICANN, the Independent Review Process (IRP) "is a process by which any person materially affected by a decision or action by the Board that he or she asserts is inconsistent with the Articles of Incorporation or Bylaws may submit a request for independent review of that decision or action. (See Bylaws, Art. IV, § 3.) In order to be materially affected, the person must suffer injury or harm that is directly and causally connected to the Board's alleged violation of the Bylaws or the Articles of Incorporation, and not as a result of third parties acting in line with the Board's action." 

In addition, there are pending Cooperative Engagement Processes (CEP):


Further info is available at: 

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2016-04-17

News Review: dotAFRICA, Public Interest, Judge Holds ICANN Accountable

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Domain Mondo's review of the past week and look ahead [pdf of this post is here]:

 It was a rough week for arrogant and unaccountable ICANN. A U.S. District Court Judge, The Honorable R. Gary Klausner, in Los Angeles, actually held the California corporation accountable, a rare event, to which most stakeholders can attest, sweeping aside every one of the arguments interposed by Jones Day, ICANN's lawyers, and granted a preliminary injunction "barring ICANN from delegating the rights to [new gTLD] .Africa until this case [DotConnectAfrica Trust vs ICANN and ZA Central Registry] is resolved." You can read the Court's full decision at Will ICANN File An Interlocutory Appeal in DCA Trust gTLD AFRICA Case? | DomainMondo.com. [UPDATE June 16, 2016: New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party.]

Key to the case was the application of California state law (a California statute invalidating "Covenants Not to Sue" or "Releases"), to ICANN in connection with new gTLD applicants. Specifically, the U.S. District Court case involves Plaintiff DotConnectAfrica Trust (DCA Trust), a Mauritius Charitable Trust, applicant for new gTLD .AFRICA, and Defendants ICANN (Internet Corporation for Assigned Names and Numbers), a California corporation, and  ZA Central Registry, a South African non-profit company.

If this all sounds like a confusing mix of global internet governance with California state law and jurisdiction and U.S. federal law and jurisdiction (U.S. District Court), welcome to the world of ICANN and the legal system of the United States of America, see Erie doctrine (Wikipedia).

Here's the California state statute in question, California Civil Code §1668:
"All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." 
Here's the“Release and Covenant Not To Sue” that ICANN is relying on (yellow highlighting added):

Judge Klausner:
"On its face, the Release is “against the policy of the law” because it exempts ICANN from any and all claims arising out of the application process, even those arising from fraudulent or willful conduct. Cal. Civ. Code § 1668. ICANN argues that Section 1668 is limited only to agreements involving the public interest which the Guidebook is not, and cites to Tunkl v. Regents of Cal., 383 P.2d 441 (Cal. 1963) for support. However, Tunkl concerns the validity of a release from liability for negligence, not intentional acts or fraud. Here, the Release waives all liability, not just liability resulting from negligence. Thus, Tunkl is distinguishable, and the Court need not determine whether the Release is in an agreement involving the public interest ... ICANN fails to recognize that the alleged conduct giving rise to this claim is intentional. Specifically, 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 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 ... the Court finds that both the likelihood of irreparable injury and the public interest favors the injunction ..." (emphasis added).
Boiled down to its essence, ICANN's argument seems to be:
  1. There is no public interest involved with new gTLD applications nor the new gTLD guidebook which resulted from ICANN policy-making;
  2. ICANN can, therefore, do whatever it wants with new gTLD applications without any liability because California Civil Code §1668 does not apply, and all new gTLD applicants are required to accept the terms and conditions of the guidebook which includes a Covenant Not To Sue and Release;
  3. There is nothing any Court, including a U.S. District Court, can do about this, other than dismiss all cases filed by parties claiming otherwise.
Judge Klausner's response, in essence, seems to be:
  1. 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;
  2. California Civil Code §1668 applies and the guidebook's Covenant Not To Sue and Release violates California public policy, i.e., the Release is “against the policy of the law”;
  3. In such cases, the United States District Court for the Central District of California, at Los Angeles, serves as a judicial forum to provide remedies, legal and equitable, for injured parties.
The fact that ICANN is arguing in a U.S. Court that there is no public interest involved in the new gTLD application process is illuminating. This may be related to what Internet Hall of Famer Dr. Paul Vixie characterized as the corruption of ICANN and its new gTLDs program. Contrast the ICANN position on its new gTLD process with that elucidated by Timothy Berners-Lee:
"When a decision is taken about a possible new top-level domain, ICANN's job is to work out, in a transparent and accountable manner, whether it is really in the best interest of the world as a whole, not just of those launching the new domain."
Sir Tim is referring to the public interest. Judge Klausner apparently agrees, there is a public interest involved.

Nonetheless, ICANN is not giving up, and repeated the same arguments in a filing two days after the injunction was granted:

"Plaintiff [DotConnectAfrica Trust] asserts “[i]t [the Release or Covenant Not To Sue] cannot mean that ICANN can decide to reject a qualified applicant for any reason whatsoever.” (Opp’n at 16: 24- 26.) However, that is exactly what the contract term means. Thor Seafood Corp. v. Supply Management Services, 352 F.Supp.2d 1128, 1131 (2005) ...."--ICANN's Amended Reply Memorandum (pdf) filed April 14, 2016, in support of ICANN's Motion to Dismiss DCA Trust's First Amended Complaint in its entirety, with prejudice, set for hearing on April 25 (emphasis added).

Of course, all of this bears on the touchy subject of ICANN's future jurisdiction, which was deferred to Work Stream 2 (WS2) of the CCWG-Accountability process, for political reasons--foreign and domestic--Congress would not otherwise approve an IANA transition that changed ICANN's jurisdiction, and others outside the U.S. are adamant that ICANN should be located in a neutral jurisdiction such as Switzerland. Jurisdiction is not a fundamental bylaw under the proposed new bylaws, and theoretically ICANN could change its jurisdiction at any time in the future after the transition is complete and the Affirmation of Committments (see paragraph 8), is no longer in effect. However, this decision to defer the threshhold issue of jurisdiction has only contributed to the dysfunction of the overall CCWG-Accountability WS1 process--all of the new proposed bylaws are drafted in accordance with, and dependent upon, ICANN's jurisdiction remaining in California.

ICANN has tried to "play both sides of the fence" on the jurisdiction issue--telling Congress (under oath), ICANN will stay in the U.S., and telling, e.g., the French Senate, that ICANN is moving forward with plans to create a “parallel, legal, international structure, maybe in Switzerland, for ICANN,”--see Fadi Chehadé, Will ICANN Move to Switzerland? | DomainMondo.com and Will ICANN Board Disclose New Swiss Legal Structure at ICANN 50 London? | DomainMondo.com.

 Wonder why people don't trust ICANN?

• In the IANA Transition process, this Wednesday, April 20, is the scheduled posting date for public comment on ICANN's new proposed bylaws in connection with the IANA transition and ICANN accountability proposal. Public comment period is scheduled for the period April 20 through May 20, 2016:

• Calls with Community on Public Comments Submitted on ICANN's Draft FY17 Operating Plan and Budget - Finance Community Wiki: ICANN will be holding community calls during which the comments submitted on the Draft FY17 Operating Plan and Budget will be presented by the submitters to ICANN staff. According to ICANN, this is intended to enhance the understanding of the comments and so improve the quality of the response. The schedule for these calls will be published as dates and times are agreed with each constituency group, more info here.

• In the world of tech,  the Yahoo ($YHOO) bid deadline is Monday, April 18, 2016. Yahoo's Q1 2016 earnings release is Tuesday, April 19, after market close. Google n/k/a Alphabet ($GOOGL, $GOOG) will be reporting Q1 2016 earnings Thursday, April 21, after market close [corrected to delete reference to Amazon which will report April 28].

• In Washington this week, venture capital firm Andreessen Horowitz is hosting a summit on Tuesday and Wednesday (media not invited), which will feature Speaker Paul Ryan (R-Wis.), interviewed by a16z.com co-founder partner, Marc Andreessen.

• On Tuesday, April 19, House Energy and Commerce Subcommittee on Oversight and Investigations will hold a hearing entitled, “Deciphering the Debate Over Encryption: Industry and Law Enforcement Perspectives.” Bruce Sewell, general counsel of Apple, and Amy Hess, the FBI's executive assistant director for Science and Technology, will be among those testifying.

• On Friday, April 15, Neustar, Inc. (NYSE: NSR), a Top-Level Domain Name (.co, .us, .biz, etc.) Registry Operator and Registry Services provider, and technology company, announced that J. Beckwith (“Becky”) Burr, Deputy General Counsel and Chief Privacy Officer, has been elected by domain name industry registries and registrars, to serve on the ICANN Board of Directors, replacing Melbourne IT's Bruce Tonkin whose term expires November, 2016. Burr has been an effective advocate for the interests of Neustar, and the domain name industry generally, within ICANN, most recently as the Registry Stakeholder Group appointed member of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability). Like many lawyers-lobbyists-stakeholders active in ICANN, Burr not only has domain name industry ties, but is also a product of Washington, D.C.'s revolving door culture, having once served as Associate Administrator of NTIA, U.S. Department of Commerce, at the time of ICANN's formation in 1998, about which Domain Mondo may have an upcoming post.

• ICANN ex-CEO Fadi Chehade's partner in his NETmundial schemes, Brazil's Presidenta Dilma Rousseff, faces an impeachment vote on Sunday, April 17, based on allegations of misappropriated funds from public banks to shore up the government’s finances as she faced a tough re-election in 2014, the same year as the NETmundial Conference in São Paulo, Brazil. Maybe she should have followed Fadi's example and just left voluntarily. Who knows, she might have gotten a big bonus and a grand $100,000+ "Tribute Party" in Marrakech, complete with camel selfies, like Fadi did!

Finally, check out the Domain Mondo posts (including videos) this past Friday and Saturday on the IMF Spring Meetings in Washington, D.C. Note the IMF legal structure and compare it to ICANN's.

Have a great week!

-- John Poole, Editor, Domain Mondo



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