New gTLD .WEB Appeal by Ruby Glen (Donuts), ICANN's Answering Brief

New gTLD .WEB Litigation Ruby Glen, LLC v. ICANN:  ICANN's Answering Brief filed Oct 30, 2017, in the Ninth Circuit. The appeal was brought by Ruby Glen LLC (Donuts affiliate) from the Final Judgment (pdf) and Order (pdf) dismissing Ruby Glen's First Amended Complaint (FAC) with prejudice, entered by the U.S. District Court at Los Angeles.

Answering Brief excerpt (page 23 of 75):

ICANN's Answering Brief's Conclusion:

ICANN's Answering Brief [pdf, 393 KB] 30 October 2017, full embed below:

See also:

• Plaintiff's Opening Appellate Brief [pdf, 370 KB] 30 August 2017

• Plaintiff's Notice of Appeal Regarding Dismissal [pdf, 35 KB] December 20, 2016

• Exhibit 1 [pdf, 70 KB] and Exhibit 2 [pdf, 43 KB]

Also note: "How long does it take from the time of the notice of appeal until oral argument? For civil, agency, or bankruptcy appeals, cases are typically scheduled for oral argument 12- 20 months from the notice of appeal date. If briefing isn’t delayed, this is typically approximately 9-12 months from completion of briefing."--The Appellate Lawyer Representatives’ Guide To Practice in the United States Court of Appeals for The Ninth Circuit (June 2017 ed.) (pdf), p. 16 (emphasis added).

Opinion and Analysis by the Editor of Domain Mondo: 
Donuts (Ruby Glen) has an extremely weak case, which it should have never filed. By appealing, Donuts is setting itself up--and all other registry operators and new gTLD applicants, now, and in the future (under the common law principle of stare decisis)--for a Ninth Circuit decision that will (but for a few narrow exceptions) "close the courthouse door" to all future wannabe gTLD litigants.

Verisign $VRSN is in no hurry to launch .WEB, as there is a pending CID from the Antitrust Division of the U.S. Department of Justice, and ICANN also has a pending CEP (pdf) with Donuts and Ruby Glen. In the meantime, most other new gTLDs are "dying on the vine" in the global market for domain names as "essentially, an unwanted and defective product."  The further away from the stench of the failing new gTLDs that Verisign is able to position .WEB, the more successful .WEB will be once launched. Once launched (and properly marketed), few doubt that Verisign will quickly recoup all of its upfront investment in .WEB  ($135Million+) and will thereafter enjoy years of a recurring cash flow stream well in excess of a hundred million dollars annually. As others have also noted, .WEB is, potentially, the only "must have" new gTLD for developers, investors, speculators, and trademark registrants, alike.

For further background, see on DomainMondo.com: News Review: ICANN Webinars ...  2) Other ICANN news a. New gTLD .WEB Litigation Sep 10, 2017, excerpt:

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DISCLAIMER

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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DISCLAIMER

ICANN Data Breach, ICANN Refuses to Review New gTLD .HOTEL

Give us yo money, give us* yo data, suckas

*and your competitor(s)

That's what ICANN, in effect, is saying to new gTLD applicants:

ICANN has decided not to re-evaluate the decision to award new gTLD (new generic Top Level Domain), .HOTEL even though the winning applicant has been accused of using a security flaw in ICANN’s database to gain access to other applicants' confidential information (background note: the IRP declaration (pdf), the ICANN Board resolution).

In correspondence dated March 1 (pdf) and March 8 (pdf), 2016, Flip Petillion, an attorney representing other applicants for .HOTEL, told the  ICANN Board of Directors and Akram Atallah, President of ICANN's "Global Domains Division," that they had been derelict in failing to properly investigate the data breach and that allowing the winning applicant to proceed would amount to:

"acquiescence in criminal acts that were committed with the obvious intent to obtain an unfair advantage over direct competitors. Such acquiescence would be contrary to ICANN's obligations under its Articles of Incorporation and Bylaws, and to ICANN's mandate to operate for the benefit of the internet community as a whole ..."

From evidence to date, it actually appears ICANN was at fault, in failing to properly secure its own website or 'portal' used by applicants, which may be the reason ICANN has dragged its feet --

Letter (excerpt) from Attorney Flip Petillion to ICANN Global Domains Division President Akram Atallah, March 1, 2016

In correspondence (embedded below), dated May 11, 2016, ICANN Vice President of gTLD Operations, Christine Willett, told Attorney Petillion that the ICANN Board of Directors would not further review the applications nor 're-evaluate' the winning application. Attorney Petillion had asked ICANN how it would proceed after the ICANN Board issued a resolution recommending ICANN staff investigate the data breach and whether ICANN would reevaluate the winner of .HOTEL, to which Willett responded:

“Your question conflates two aspects of the resolution ... nothing in the board’s resolution speaks to the re-evaluation of .hotel.”

Caveat Emptor: Never, ever, assume base-level competence on the part of ICANN.

See also Petillon's latest correspondence dated May 12, 2016, here (pdf), demanding ICANN cancel the winning application for .hotel. Stay tuned, we may have another case being filed in the U.S. District Court at Los Angeles.


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