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

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:

• Thick WHOIS Registration Data Directory Services Requirements to Take Effect | ICANN.org
• ICANN CEP and IRP Status Update – 31 January 2016 | ICANN.org (pdf, 438 KB) (does not include .SPORT IRP final declaration referenced above).
• MarkMonitor New gTLDs Q1 Report--info.markmonitor.com
• Are Domain Names Contract of Services or Property Rights? | circleid.com
• Protecting your website from user generated spam--webmasters.googleblog.com
• Ransomware Freezes Eight Years of Police Evidence | bankinfosecurity.com
• GoDaddy (NYSE:GDDY) reportedly hires adviser for sale of Host Europe Group's PlusServer business--SeekingAlpha.com

•  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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DISCLAIMER

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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DISCLAIMER

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 [PDF, 436 KB] Hearing December 22, 2016, embed below
• Declaration of Sara C. Colon [PDF, 192 KB]
• Exhibits 1 to 3 [PDF, 3.53 MB]
• Declaration of Ethan J. Brown [PDF, 184 KB]
• Exhibits 1 to 4 [PDF, 617 KB]
• Declaration of Sophia Bekele Eshete [PDF, 1.44 MB]
• Exhibits 1 to 27 [PDF, 25.49 MB]

Plaintiff's Motion for Preliminary Injunction:

9 December 2016:

• ICANN's Evidentiary Objections to Declaration of Sophia Bekele Eshete Filed in Support of Plaintiff's Motion for Preliminary Injunction [PDF, 126 KB]
• ICANN's Opposition to Plaintiff's Motion for Preliminary Injunction [PDF, 255 KB] embed below
• Declaration of Christine Willett [PDF, 46 KB]
• Exhibits A to D [PDF, 416 KB]
• Declaration of Akram Atallah [PDF, 102 KB]
• Exhibits E to F [PDF, 94 KB]
• Declaration of Jeffrey LeVee [PDF, 107 KB]
• Exhibits G to J [PDF, 376 KB]
• Declaration of Kevin Espinola [PDF, 31 KB]
• Exhibit K [PDF, 110 KB]
• Declaration of Mark McFadden [PDF, 110 KB]

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

9 December 2016

• ZACR's Opposition to Plaintiff's Motion for Preliminary Injunction [PDF, 1.30 MB] embed below
• Declaration of Amy T. Brantly [PDF, 247 KB]
• Exhibits 1 to 3 [PDF, 652 KB]
• Declaration of Moctar Yedaly [PDF, 170 KB]
• Exhibits A to K [PDF, 17.6 MB]
• Declaration of Mokgabudi Lucky Masilela [PDF, 366 KB]
• Exhibits A to I [PDF, 8.27 MB]

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[PDF, 509 KB] Embed below
• Response to Evidentiary Objections to Declaration of Sophia Bekele [PDF, 129 KB]
• Evidentiary Objections to Declaration of Christine Willett [PDF, 205 KB]
• Evidentiary Objections to Declaration of Akram Atallah [PDF, 209 KB]
• Evidentiary Objections to Declaration of Kevin Espinola [PDF, 177 KB]
• Evidentiary Objections to Declaration of Mark McFadden [PDF, 241 KB]
• Evidentiary Objections to Declaration of Moctar Yedaly [PDF, 229 KB]
• Evidentiary Objections to Declaration of Mokgabudi Lucky Masilela [PDF, 224 KB]
• Request for Judicial Notice in Support of Joint Reply to ICANN and ZACR’s Opposition to Motion for Preliminary Injunction [PDF, 211 KB]
• Exhibit A [PDF, 81 KB]

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?

• Order Granting ZACR's Motion to Intervene and Remanding Case to State Court [PDF, 32 KB] 19 October 2016
• Notice of Remand [PDF, 482 KB] 25 October 2016
• DotConnectAfrica Trust v. ICANN (U.S. Circuit Court of Appeals for the Ninth Ciruit) | ICANN.org: Order Dismissing ICANN and ZA Central Registry Appeals [PDF, 52 KB] 14 December 2016, but "Appellant Internet Corporation for Assigned Names and Numbers’ [ICANN] request that this court’s order dismissing the appeal contain language “reflecting that the preliminary injunction order is void and the appeal is moot,” is denied."

For more:

• News Review: dotAFRICA, Public Interest, Judge Holds ICANN Accountable | DomainMondo.com
• DotConnectAfrica Trust v. ICANN (Trial Court Proceeding) | ICANN.org and 
• All Domain Mondo posts with label: AFRICA.

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DISCLAIMER

.AFRICA, .WEB, ICANN Litigation Update, IRP & CEP Status Report

ICANN active litigation status update:

1. New gTLD .AFRICA--DotConnectAfrica Trust vs. ICANN and ZACR (trial court proceeding and interlocutory appeal)--case remanded to California state court for lack of subject matter jurisdiction by U.S. District Court Judge (pdf), Notice of Remand (pdf) filed by ICANN, October 25, 2016, and ICANN's Reply Memorandum Regarding the District Court's Lack of Jurisdiction (pdf) filed November 7, 2016, in the U.S. Court of Appeals for the Ninth Circuit.

2. New gTLD .WEB--Ruby Glen, LLC v. ICANN--legal action filed in United States District Court for the Central District of California by Ruby Glen, LLC, affiliate of Donuts. Status: Motion to Dismiss filed by ICANN on October 26, 2016, hearing scheduled for November 28, 2016.

3.  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--Consolidated legal actions filed in U.S. federal courts to judicially attach ccTLDs in satisfaction of civil judgments of Plaintiffs/Appellants--Status: On appeal, DC Circuit Court of Appeals (pdf) affirmed judgment of District Court (on alternative grounds) that ccTLDs are not subject to judicial attachment. Formal Mandate of U.S. Court of Appeals for the D.C. (pdf) 27 September 2016. Motions for rehearing and hearing en banc denied. Possible next step, Petition for Writ of Certiorari to the U.S. Supreme Court (pdf), within 90 days after denial of rehearing (September 19, 2016).

__________

ICANN Cooperative Engagement Process (CEP) And Independent Review Process (IRP) Status Report: The Cooperative Engagement Process (CEP) is a process voluntarily invoked by a complainant prior to the filing of an Independent Review Process (IRP) for the purpose of resolving or narrowing the issues that are contemplated to be brought to the IRP. (See ICANN Bylaws, Art. 4 §4.3(e).) The requesting party may invoke the CEP by providing written notice to ICANN, noting the invocation of the process, identifying the Board action(s) at issue, identifying the provisions of the ICANN Bylaws or Articles of Incorporation that are alleged to be violated, and designating a single point of contact for the resolution of the issue. More info about CEP and IRP processes here (pdf).

• Active CEP: .GCC, .SPORTS, .PERSIANGULF, .SPA, .CPA, .WEB, .MUSIC
• Active IRP: .SPORT, .ISLAM, .HALAL, .SHOP,  .AMAZON

CEP & IRP Status Update (pdf) as of 9 November 2016 embedded below (highlighting added).

References:

• Previous litigation, IRP & CEP status report on Domain Mondo, Sep 6, 2016
• https://www.icann.org/resources/pages/governance/litigation-en
• https://www.icann.org/resources/pages/accountability/irp-en
• https://www.icann.org/resources/pages/mechanisms-2014-03-20-en.

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DISCLAIMER

AFRICA: DCA Trust vs ICANN & ZACR Case Remanded To California Court

In a ruling sure to get the attention of those (governments, companies, organizations, and individuals) concerned with ICANN's jurisdiction in the United States, including the current WS2 ICANN jurisdiction working group, the federal court trial judge in the new gTLD .AFRICA case, DotConnectAfrica Trust (DCA) vs ICANN and ZA Central Registry (ZACR), has ruled: 1) ZACR is an indispensable party entitled to intervene; 2) ZACR's presence in the case as a foreign party (as is the Plaintiff), destroys the Court's federal diversity (subject matter) jurisdiction, and therefore, 3) the case must be remanded to California state court for further proceedings. Note that there is also an interlocutory appeal pending in the United States Court Of Appeals For The Ninth Circuit. The complete ruling of the U.S. District Court is embedded below, but here is the most relevant part:

"... Plaintiff DCA and Intervenor-Defendant ZACR are both foreign citizens. See Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983) (holding “[d]iversity jurisdiction does not encompass foreign plaintiffs suing foreign defendants”); Faysound, Ltd. v. United Coconut Chems., Inc., 878 F.2d 290, 294–95 (9th Cir. 1989) (holding the presence of citizen defendant does not save diversity jurisdiction as to alien co-defendant in action brought by alien plaintiff because diversity must be complete); Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas, S.A., 20 F.3d 987, 991 (9th Cir. 1994). As the Court has already found that ZACR is entitled to intervene as a matter of right, if ZACR is considered an indispensable party, ZACR’s presence would destroy complete diversity ....  the Court finds that ZACR is an indispensable party. As a nondiverse, indispensable party, ZACR destroys diversity jurisdiction, and remand of this action to state court is proper ..."--U.S. District Court, October 19, 2016 (emphasis added)

Ironically, this could be a BIG win for the plaintiff DCA (DotConnectAfrica Trust). Unlike U.S. federal courts where unanimous jury verdicts are required, in a California civil case, it only takes 9 of the 12 jurors to agree on a verdict (source pdf). The U.S. District Court Judge had previously assigned this case to a (10-12 days) jury trial beginning February 28, 2017. See Scheduling Order (pdf).

For more background on this case on Domain Mondo, see: New gTLD AFRICA Appeal: DCA Trust Answering Brief vs ICANN & ZACR, which has links to the other previous Domain Mondo posts.

Complete U.S. District Court ruling (pdf) embedded below (highlighting added):

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DISCLAIMER

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:

•  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:

• ICANN's Notice of Motion to Dismiss First Amended Complaint [PDF, 120 KB]
• ICANN's Memorandum of Points and Authorities in Support of Motion to Dismiss First Amended Complaint [PDF, 262 KB] 26 October 2016
• Plaintiff's Notice of Motion and Motion for Leave to Take Third Party Discovery or, in the Alternative, Motion for the Court to Issue a Scheduling Order [PDF, 305 KB]
• Declaration of Paula Zecchini [PDF, 322 KB]
• Exhibits A to C [PDF, 8.46 MB]

•  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:

• Order Directing Parties to File Additional Briefing Regarding Indispensable Party [PDF, 18 KB] 22 September 2016
• Plaintiff's Supplemental Regarding Indispensable Party [PDF, 415 KB] 27 September 2016
• ICANN's Supplemental Brief Regarding Indispensable Party [PDF, 94 KB] 27 September 2016
• ZACR's Supplemental Brief Regarding Indispensable Party [PDF, 61 KB] 27 September 2016
• October 21: 1) AFRICA: DCA Trust vs ICANN & ZACR Case Remanded To California Court and 2) DotConnectAfrica Trust v. ICANN (Appellate Court Proceeding) ICANN's Memorandum Regarding the District Court's Lack of Jurisdiction [PDF, 330 KB]
• *October 25: Notice of Remand [PDF, 482 KB] 

•  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.

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

/

UPDATE: CEP and IRP Status Update – 26 September 2016 [PDF, 535 KB]
References:

• https://www.icann.org/resources/pages/governance/litigation-en
• https://www.icann.org/resources/pages/accountability/irp-en
• https://www.icann.org/resources/pages/mechanisms-2014-03-20-en.

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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--

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

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:

• ZACR's Notice of Motion and Motion to Intervene [PDF, 232 KB] scheduled for September 19, 2016 hearing;
• Memorandum of Points and Authorities [PDF, 166 KB] (embed below)
• Declaration of David W. Kesselman [PDF, 42 KB] 1 August 2016
• ZACR's Opening Appellate Brief [PDF, 275 KB] 22 July 2016 (embed below)

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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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:

• New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party 16 June 2016
• News Review [May 15]: IANA, ICANN, New gTLDs .AFRICA, .AMAZON, .BLOG: ".AFRICA UPDATE: "ICANN has appealed the U.S. District Court's Order granting a Preliminary Injunction in the DCA (DotConnectAfrica) Trust vs ICANN and ZACR litigation over new gTLD.AFRICA ..."
• News Review [Apr 17]: dotAFRICA, Public Interest, Judge Holds ICANN Accountable
• Will ICANN File An Interlocutory Appeal in DCA Trust gTLD AFRICA Case? 13 April 2016
• New gTLD AFRICA: DotConnectAfrica Trust vs ICANN, End of the Line? 21 March 2016
• US Federal Court Enjoins ICANN From Delegating New gTLD dot AFRICA 5 March 2016
• DCA Trust IRP Decision: ICANN Failed the Global Internet Community 12 July 2015

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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