UPDATE: Ninth Circuit Denies Stay of TRO, State of Washington vs Trump

State of Washington et al vs Trump et al, re: Trump's Executive Order on immigration, TRO, and appeal to  United States Court of Appeals for the Ninth Circuit in San Francisco for stay: 

UPDATE Feb 9, 2017: Trump Loses at Ninth Circuit: "... the emergency motion for a stay pending appeal is DENIED."  Opinion excerpt (p.26 of 29):

Opinion in full embed below:

17-35105 State of Washington v. Trump 3:00 pm PT (6:00pm ET), February 7, 2017

LIVE audio stream from Courtroom One in the James R. Browning Court of Appeals Building in San Francisco, California, scheduled for February 7, 2017, 3:00 pm PT (6:00pm ET). Because the hearing will be conducted telephonically, the stream is audio only and there will be no courtroom proceedings or associated video feed.

The United States Court of Appeals for the Ninth Circuit in San Francisco will hear arguments over whether to stay the temporary restraining order (TRO), essentially restoring the President's Executive Order, from attorneys representing the U.S. Department of Justice and the States of Minnesota and Washington.

The issue: note this Ninth Circuit hearing is not about whether or not Trump's executive order is unconstitutional, but whether to maintain a temporary block (TRO) on Trump's order pending further proceedings including consideration of the constitutional question.

The temporary block went into place last week after U.S. District Judge James Robart in Seattle ruled in favor of the two states over the Justice Department. The Ninth Circuit Judges scheduled to hear the arguments: Judges William Canby Jr., a Jimmy Carter appointee, Michelle Friedland, a Barack Obama appointee, and Richard Clifton, a George W. Bush appointee.

U.S. Department of Justice's Motion for Stay:

States of Washington and Minnesota response:

U.S. Department of Justice reply:

The 9th Circuit is likely to rule later this week, and many legal scholars expect the appeal court to affirm the temporary block, possibly leading to further proceeding(s) before the U.S. Supreme Court which is explained in depth here: Donald Trump Immigration Ban: The Supreme Court and What Happens Next | Fortune.com:

"Trump has a good shot at winning the underlying legal question, but only after more court wrangles and more criticism over how he's handled the process so far ... In light of the incredible controversy it has generated, the White House may choose to modify the ban, which could make the whole issue moot before the Supreme Court has a chance to decide."

Ninth Circuit Documents 17-35105 State of Washington & State of Minnesota v. Trump. WD Wash. 2:17-cv-141:

• 02/06/2017 Order clarifying live streaming oral argument
• 02/06/2017 Order re live streaming argument
• 02/06/2017 Anti-Defamation League Motion for Extension of Time
• 02/06/2017 Anti-Defamation League Amicus Motion
• 02/06/2017 Groupon Letter Joining Technology Companies Amicus Motion and Brief
• 02/06/2017 Reply In Support of Emergency Motion for Stay
• 02/06/2017 Washington State Labor Council Amicus Motion and Brief
• 02/06/2017 U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center Amicus Motion and Brief
• 02/06/2017 Additional Law Professors Amicus Motion and Brief
• 02/06/2017 National Immigrant Justice Center and ASISTA Amicus Motion and Brief
• 02/06/2017 Letter by Additional Technology Companies Joining Technology Companies Amicus Motion and Brief
• 02/06/2017 American Center for Law and Justice Amicus Motion and Brief
• 02/06/2017 Massachusetts, Pennsylvania, New York, California, Connecticut, Delaware, District of Columbia, Iowa, Illinois, Maryland, Maine, New Mexico, Oregon, Rhode Island, Virginia, and Vermont Amicus Motion and Brief
• 02/06/2017 Pivotal Software Letter Joining Technology Companies Amicus Motion and Brief
• 02/06/2017 SEIU Amicus Motion and Brief
• 02/06/2017 HIAS, Inc. Amicus Motion
• 02/06/2017 Law Professors Motion to Substitute Corrected Amicus Motion and Brief
• 02/06/2017 Anti-Defamation League Amicus Brief
• 02/06/2017 Constitutional Scholars Amicus Motion and Brief
• 02/06/2017 Order denying motion to intervene and setting oral argument
• 02/06/2017 Reply in support of emergency motion for stay
• 02/06/2017 Exhibits to response
• 02/06/2017 Exhibit A to response
• 02/06/2017 Response to emergency motion for stay
• 02/06/2017 HIAS amicus brief
• 02/06/2017 Americans United for Separation of Church and State amicus motion and brief
• 02/06/2017 ACLU amicus motion and brief
• 02/05/2017 Law Professors amicus motion and brief
• 02/05/2017 State of Hawaii emergency motion to intervene
• 02/05/2017 Korematsu Center amicus motion and brief
• 02/05/2017 Technology Companies amicus motion and brief
• 02/05/2017 Revised scheduling order
• 02/04/2017 Order denying immediate administrative stay pending full consideration of the emergency motion for stay and setting schedule
• 02/04/2017 Emergency motion for stay
• 02/04/2017 Video Video recording of hearing in the U.S. District Court for the Western District of Washington
• 02/03/2017 Order Temporary Restraining Order

What Do Europeans Think About Muslim Immigration? | ChathamHouse.org: "... Drawing on a unique, new Chatham House survey of more than 10,000 people from 10 European states, we can throw new light on what people think about migration from mainly Muslim countries. Our results are striking and sobering. They suggest that public opposition to any further migration from predominantly Muslim states is by no means confined to Trump’s electorate in the US but is fairly widespread ..."

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News Review: New gTLD .AFRICA Plaintiff Files for New TRO vs ICANN

Domain Mondo's weekly review of internet domain news:

Feature • New gTLD .AFRICA Plaintiff Files for new TRO vs ICANN: 
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).

Original post:
According to the website for the California State Superior Court, in the case involving new gTLD .AFRICA, Plaintiff DotConnectAfrica Trust (DCA) filed for a Temporary Restraining Order (TRO) on January 4, 2017, to which responses were filed that same date by Defendant ICANN and Intervenor ZA Central Registry (ZACR):

• 01/04/2017 Ex-Parte Application (FOR TRO, ETC; ) Filed by Plaintiff DCA
• 01/04/2017 Declaration (OF SOPHIE BEKELE ESHETE, ETC; ) Filed by Plaintiff DCA
• 01/04/2017 Declaration (OF ETHAN J. BROWN, ETC; ) Filed by Plaintiff DCA
• 01/04/2017 Opposition Document (TO PLFF'S EXPARTE APPL, ETC; ) Filed by Intervenor ZA Central Registry (ZACR)
• 01/04/2017 Declaration (OF DAVID W. KESSELMAN, ETC; ) Filed by Intervenor ZACR
• 01/04/2017 Opposition Document (TO DCA'S EXPARTE APPL, ETC; ) Filed by Defendant ICANN

According to the California State Superior Court website, Plaintiff's application for TRO has been scheduled for a hearing on January 31, 2017, at 08:30 A.M. in department 53 at 111 North Hill Street, Los Angeles, CA 90012.

As previously reported in an update to New gTLD AFRICA Redux: DotConnectAfrica Trust v. ICANN and ZACR | DomainMondo.com, the  California State Superior Court denied Plaintiff DCA's motion for preliminary injunction in an Order dated December 22, 2016. As of 11pm UTC, January 7, 2017, ICANN has not published on its litigation web page any of the TRO filings referenced above.

Other Internet Domain News:

•   Another flawed ICANN policy is about to take effect which could adversely impact domain name registrants--Putting your rights on the clock: The IRP supplementary rules | InternetGovernance.org: "... Each IOT [Implementation Oversight Team] member must bear responsibility ... ICANN staff also played a role in the procedural fail. ... The IRP has to protect registrants, not just contracted parties ... Send public comments to this email address: comments-irp-supp-procedures-28nov16 @ icann.org. The deadline is 25 January, 2016." More information at the link above, and here (open comment period) and here (pdf).

•  ICYMI: LogRhythm.com predicts the internet will shut down for 24 hours in 2017 | BusinessInsider.com: "If you can prove that you can take down massive sites and a large chunk of the US internet for a few hours, a 24-hour outage seems pretty easy to do."

•  Riding the ICANN gravy train:  In 2016, ICANN spent $2.5 million for a select number of people to attend 3 meetings. Details here and here.

• ICANN and NTIA on January 6, 2017, formally terminated (pdf) the Affirmation of Commitments entered into by the U.S. government and ICANN on September 30, 2009.

•  Jamie Hedlund to Take on Senior Contractual Compliance and Consumer Safeguards Role at ICANN | ICANN.org: "Duncan Burns, SVP, Global Communications, will take on Hedlund's former responsibilities overseeing U.S. government relations and management of ICANN's Washington D.C. office. As part of this change, Hedlund will become a member of the Executive Team and report to [ICANN President & CEO] Göran Marby."

•  Adding up the costs of ICANN's new gTLDs: It's Official: 2016 Was a Record Year for Domain Name Disputes | circleid.com by IP attorney Doug Isenberg.

• The Public Interest and ICANN--CCWG-ACCT WS2 Jurisdiction Subgroup Mail List--"Lets take and decide issues on merit, of public interest, of justice, equality, democracy, and the such. Let issues not get decided by which parties have the most resources, including time, to invest in these so-called 'open processes' . Obviously, the most well-resourced will have the most resources and time. Governance and policy spaces are meant more to side with those who otherwise have less means and resources, not to augment the power of who already are better off in this matter. That is the tragedy of open multistakeholder processes that are not framed within democratic principles and concepts. Public interest is not the sum of private interests that can assemble, and elbow out others, on a designated space/table, it is meant to be  a different, much higher, thing."

•  Warning Domain Name Registrants: Malware Purveyor Serving Up Ransomware Via Bogus ICANN Blacklist Removal Emails | Techdirt.com.

•  ICANN new gTLDs second round: it may be too late to "get it right this time" but some think not:

"... I’d like to think that a second time round, in whatever form the second time takes, we’re going to do a better job than the first time. We learned an awful lot in the first time round. There were a whole host of changes that were introduced really only after we saw what the applications were like. Now presumably we have an idea, you know, the balance may change but we’re not likely to see absolutely brand new types of applications. So I’m sure we’re still going to have some corrections to make along the way because we will be - almost certainly will be introducing a lot of changes, and some of those may have an issue with them as we go forward. I think we’re going to do a lot better than the last time ..."--Alan Greenberg, ALAC member, New gTLD Subsequent Procedures Working Group, Monday, 19 December 2016 transcript (pdf).

•  Internet Freedom | Free Speech Online:

• Turkey--′Worst country′ for media freedom in 2016 | DW.COM | 27.12.2016--"... According to the Turkish Journalists' Association, 148 journalists are currently imprisoned and many media outlets have been shut down ..."
• Africa--Govts Adopt Internet Shutdowns to Quell Crises in 2016 | allAfrica.com--"Governments in Africa are becoming increasingly intolerant to freedom of speech, with Internet shutdowns now a common occurrence in many countries, a new report shows."
• More African governments blocked the internet to silence dissent in 2016 | Quartz | qz.com: "For years, the internet has had a transformative effect on the economic and financial progress of the African continent. The availability of mobile broadband and fiber optic cable connections encouraged the growth of innovative industries ranging from e-commerce to education, health, insurance and beyond. But in 2016, the reverse became the reality, as government-directed internet outages became the rule rather than the exception."
• UK--This threat to Press freedom is so wrong ... | dailymail.co.uk--"... Under Section 40 of the Crime and Courts Act [UK], rushed into law after the Leveson Inquiry, any relevant newspapers or news websites - from MailOnline to The Guardian, Huffington Post and Buzzfeed - which refuse to join a regulator approved under the Government's Royal Charter for the Press, and are sued for libel, will be forced to pay the other side's legal costs — even if they win ..."

•  Most popular posts (# of pageviews Sun-Sat) this past week on DomainMondo.com:

1. TechReview | Tech Story of the Year: Tay, Microsoft's AI Chatterbot*
2. News Review: ICANN Busy Proving IANA Transition Was A Terrible Mistake
3. Predictions for 2017: Amazon $AMZN, Google $GOOG, Facebook $FB
4. Scott Galloway: 2016 Digital Winners & Losers, 2017 Predictions (video)
5. MacroView | Market Outlook for 2017: Trump Effect, Optimism, Risks
6. TechReview | 2017 Will Be The Year Of Amazon $AMZN (video)

*"Tay" post #1 for two weeks in a row!

-- John Poole, Editor, Domain Mondo 

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New gTLD WEB, Ruby Glen, LLC v. ICANN, Complaint & TRO Request

UPDATE: In Ruby Glen, LLC v. ICANN, U.S. District Court Denies TRO, .WEB Auction is ON! See New gTLD dot WEB 'Last Resort' ICANN Auction: and the Winner Is? | DomainMondo.com.

"Based on the strength of ICANN’s evidence submitted in opposition to the Application for TRO, and the weakness of Plaintiff’s efforts to enforce vague terms contained in the ICANN bylaws and Applicant Guidebook, the Court concludes that Plaintiff has failed to establish that it is likely to succeed on the merits, raise serious issues, or show that the balance of hardships tips sharply in its favor on its breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence claims. Moreover, because the results of the auction could be unwound, Plaintiff has not met its burden to establish that it will suffer irreparable harm in the absence of the preliminary injunctive relief it seeks. The Court additionally concludes that the public interest does not favor the postponement of the auction. Finally, the Court notes that Plaintiff’s Complaint has not adequately alleged a basis for this Court’s jurisdiction." (source: U.S. District Court Order, Ruby Glen v. ICANN, infra)

See embed below: Court Order Denying Plaintiff's Ex Parte Application for Temporary Restraining Order [PDF, 72 KB] 26 July 2016. See also:

• ICANN's Opposition to Ex Parte Application for Temporary Restraining Order [PDF, 255 KB] 
• Declaration of Christine Willett [PDF, 255 KB]
• Exhibits A to H to Declaration of Christine Willett [PDF, 887 KB]
• Declaration of Russ Weinstein [PDF, 257 KB]
• Exhibits A to C to Declaration of Russ Weinstein [PDF, 823 KB]
• Declaration of Jose Ignacio Rasco III [PDF, 166 KB]
• Declaration of Nicolai Bezsonoff [PDF, 264 KB]

Also on Domain Mondo: New gTLD dot WEB 'Last Resort' ICANN Auction: and the Winner Is?

Court Order Denying Plaintiff's Ex Parte Application for Temporary Restraining Order:

--Original post below--

ICANN has been sued by yet another new gTLD applicant. This time the suit involves new gTLD .WEB, currently scheduled for last resort auction on July 27. The lawsuit was filed in United States District Court for the Central District of California, on July 22, 2016, and in addition to the complaint (embedded below), also includes an ex parte application for temporary restraining order (TRO) (embedded below), together with declarations, and exhibits. ICANN has indicated it has not yet been served with the complaint or request for TRO. The complaint has drawn upon the U.S. District Court case involving new gTLD AFRICA, by requesting a declaration of rights regarding the release of ICANN required of all new gTLD applicants:

 "33. Plaintiff seeks a declaration of its rights regarding the enforceability of the Purported Release in light of California Civil Code Section 1668, which prohibits the type of broad exculpatory clauses contained in the Purported Release: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property or another, or violation of law, whether willful or negligent, are against the policy of the law.” 34. Plaintiff maintains that, 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."

Pleadings and other documents:

• Complaint [PDF, 535 KB] (embed below)
• Exhibits A to C to Complaint [PDF, 5.6 MB] 
• Plaintiff’s Ex Parte Application for Temporary Restraining Order; Memorandum of Points and Authorities [PDF, 812 KB] (embed below)
• Declaration of Paula Zecchini [PDF, 232 KB] 
• Exhibits A to J to Declaration of Paula Zecchini [PDF, 27.3 MB] 
• Declaration of Jonathon Nevett [PDF, 314 KB] 
• Exhibit A to Declaration of Jonathon Nevett [PDF, 614 KB] 

Complaint:


Plaintiff’s Ex Parte Application for Temporary Restraining Order; Memorandum of Points and Authorities:


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