Showing posts with label injunction. Show all posts
Showing posts with label injunction. 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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2016-06-28

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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2016-05-25

IANA Transition, What's Next, Years of Litigation in U.S. Federal Courts?

Excerpt from IANA Functions Contract between ICANN and US government (p. 31, July 2, 2012) (pdf)
After Tuesday's Senate Commerce Hearing, it appears the movement to extend the IANA functions contract (currently due to expire September 30, 2016), "for the next two years until the new structure proves itself and the details of Work Stream 2 are fully developed and their implications understood" (see prepared testimony of  Brett Schaefer), has increasing support on Capitol Hill.

As the Obama Administration and NTIA have stated, the "community" has only one chance to get this right (though still unclear which community is being referred to: "ICANN community" or global internet community a/k/a global multi-stakeholder community?).

Several U.S. Senators, including Senator Ted Cruz, have already requested NTIA extend the IANA functions contract with ICANN, and Senator Marco Rubio (with other Senators) has also sent a letter requesting delay (pdf), and may also be gathering more signatures requesting same, based upon his remarks at the Senate Commerce Hearing. Even one ICANN community stakeholder from India stated following the hearing on Tuesday: "... In many ways, a soft interim role for the US Government, or a short delay would actually ensure that the transition details are gracefully accepted by the whole world."

But the issues are even deeper than those aired at the hearing, and include future jurisdiction of ICANN, federal property issues, and probably most troubling, antitrust issues as raised in the prepared testimony of Richard Manning at the Senate Commerce Hearing (embedded in full further below):
"That [40 U.S.C. 559 (b)(1)] is a huge liability for ICANN, and potentially for anyone involved at the agency if the provision of the contract stating “All deliverables under this contract become the property of the U.S. Government” was deliberately ignored. No more so than because 15 U.S.C. Section 2 prohibits and makes a felony any attempt “to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. Sections 13 and 14 forbid any business practice where the effect “may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” Antitrust law challenges to IANA functions administrator were anticipated in the 1998 statement ... Yet, to date, the White House has failed to produce the legal basis for transferring the IANA functions without Congress, despite numerous requests ..." (Manning, infra, pp. 6-7, emphasis added)
Prepared testimony of Richard Manning (highlighting added) at Senate Commerce Hearing:


It's not hard to see where this could all be headed. If the Obama administration and NTIA refuse to extend the IANA functions contract, then ensuing federal court litigation, with restraining orders and injunctions, could be filed before September 30, 2016. The irony is that in such case, final determination of the issues in U.S. courts will likely exceed the 2-year time extension being requested.

The common sense approach would be to extend the contract to September 30, 2018, and perhaps even ask for Congressional approval of the IANA transition, to avoid litigation. But the ICANN-IANA transition proponents who testified at the Senate Commerce Hearing, appear to have hardened their positions. Which is why we have a federal judicial branch of government. The lawyers are waiting.

See also on Domain Mondo:



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2016-03-21

New gTLD AFRICA: DotConnectAfrica Trust vs ICANN, End of the Line?

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

 UPDATE April 13, 2016: The U.S. District Court grants DotConnectAfrica Trust's Motion for Preliminary Injunction--see Will ICANN File An Interlocutory Appeal in DCA Trust gTLD AFRICA Case?.

 UPDATE April 4, 2016: "The Court issued the following docket text entry: "SCHEDULING NOTICE TO ALL PARTIES AND ORDER by Judge R. Gary Klausner. Plaintiff DotConnectAfrica Trust's Motion for Preliminary Injunction, calendared for hearing on April 4, 2016, has been taken under submission and off the motion calendar. No appearances by counsel are necessary. The Court will issue a ruling after full consideration of properly submitted pleadings. IT IS SO ORDERED"[March 29, 2016]. Note also that ICANN has moved to dismiss Plaintiff DotConnectAFRICA Trust's case, which motion is noticed for April 25, 2016. Update(s) will be posted here once the Court rulings are published.--end of April 4, 2016 update--

 "Whereas, on 17 February 2016, an Extended Evaluation report was posted and indicated that the resumed evaluation of DCA's application for .AFRICA had concluded, and that DCA had failed to submit information and documentation sufficient to meet the criteria described in AGB [Applicant Guide Book] Section 2.2.1.4.3, rendering it ineligible for further review or evaluation. Resolved (2016.03.03.01), the Board authorizes the President and CEO, or his designee(s), to proceed with the delegation of .AFRICA to be operated by ZACR pursuant to the Registry Agreement that ZACR has entered with ICANN. All members of the Board present voted in favor of Resolution 2016.03.03.01. Two members of the Board were unavailable to vote on the Resolution. The Resolution carried."--Preliminary Report | Regular Meeting of the ICANN Board 03 Mar 2016 (emphasis added).

The long drawn-out saga of ICANN's new gTLD .AFRICA and applicant DotConnectAfrica Trust (domain name: dotconnectafrica.org), may be (with emphasis on "may") coming to end, at least as far as being able to proceed with delegation of the new gTLD .AFRICA to be operated by ZACR. Two weeks from now, on April 4, 2016, there will be a hearing in Los Angeles Federal Court on DotConnectAfrica's Motion for Preliminary Injunction to stop ICANN from further proceeding with delegation of the new gTLD .AFRICA. DotConnectAfrica Trust is an unsuccessful applicant for the new gTLD, but successfully challenged ICANN and its process in awarding the new gTLD through a precedent-setting IRP (Independent Review Proceeding)--the IRP documents are available on the ICANN website here: DCA Trust v. ICANN (.AFRICA) [IRP].

Following issuance of the IRP Final Declaration on, July 9, 2015, there were complaints of misconduct about ICANN, its officers, staff, and Board of Directors, and others, including claims that ICANN's redactions from the Final Declaration, were an attempt to cover-up the misconduct -- see: former ICANN staffer Keiren McCarthy's series of articles in The Register: Unredacted: ICANN's hidden role in fierce battle over .Africa rights and Having been slammed and embarrassed, ICANN tells the world: We've done nowt wrong and ICANN further implicated in .Africa controversy.

 See also on DomainMondo.com: ICANN dot AFRICA IRP: WHO Redacted WHAT In the Final Declaration? and DCA Trust IRP Decision: ICANN Failed the Global Internet Community.

You won't find any mention of DCA Trust, DotConnectAfrica, or new gTLD .AFRICA in former ICANN CEO Fadi Chehade's recent "Farewell Letter" (pdf), to the ICANN Board, though there should have been since all of the alleged misconduct occurred "on his watch" as ICANN CEO, and there are many lessons to be learned about ICANN's propensity for "insider dealing," favoritism, conflicts of interest, and other conduct unbecoming of ICANN directors, officers, and staff illuminated in the DCA Trust IRP case. As Kieren McCarthy reported last July: "To date, ICANN's board has not made a statement about the appropriateness of its actions or those of its staff. Nor has it suggested an investigation or other review into the activities highlighted in the review panel's final report." This must be why ICANN wasted $106,000 on Fadi Chehade's Tribute party in Marrakech! Whatever happened to ethical leadership?

Nonetheless, 'having won the battle' DCA Trust a/k/a DotConnectAfrica may have 'lost the war' when it failed the subsequent evaluation referred to in the ICANN Board Resolution first above, which ICANN counsel relies upon in opposing Plaintiff DotConnectAfrica's Motion for Preliminary Injunction, set for Hearing April 4, 2016, in U.S. District Court in Los Angeles:
"When Plaintiff’s Application was returned to processing, it was sent back to exactly the same stage (as the IRP Panel had recommended), the Geographic Names Panel review. The Application was not  returned to the “beginning of the process” as Plaintiff alleges (an argument for which Plaintiff provides no evidence). Rather, the Geographic Names Panel reviewed Plaintiff’s previously-provided documentation, gave Plaintiff two chances to supplement its documentation, and ultimately determined that Plaintiff had not provided sufficient documentation of support or non-objection. If an applicant fails to submit sufficient documentation of support or non-objection, even with the chance to supplement its documentation, “the application will be considered incomplete and will be ineligible for further review.” (Guidebook at 174 (§ 2.2.1.4.4).) Accordingly, following the IRP Panel’s Declaration, ICANN’s Board lifted its stay on the delegation of .AFRICA. This was all entirely in accord with the IRP Panel’s recommendation that Plaintiff’s Application be “permit[ted] . . . to proceed through the reminder of the new gTLD application process.” (IRP Panel Declaration at 67-68 (¶ 149).) In sum, ICANN complied in full with the Declaration. There is no basis for declaratory relief because the only “controversy” between Plaintiff and ICANN is based on Plaintiff’s misrepresentation of the IRP Panel’s findings. ICANN fully complied with those findings, ICANN gave Plaintiff an extended opportunity to meet the conditions of the Guidebook, and Plaintiff failed to do so. Even if Plaintiff had not released ICANN of this claim, the claim provides no basis for the Court to issue a preliminary injunction. (ICANN filing embedded below, [Document 35, pp. 23-24 of 25], emphasis added, most citations deleted from quoted text.) (emphasis added)
ICANN’s Opposition to Plaintiff DotConnectAfrica's Motion for Preliminary Injunction (highlighting added) in full:



This post will be updated when the Court has ruled following the hearing on April 4th. The case has also been set for a scheduling conference on June 6, 2016, at 09:00 AM.  All litigation documents filed in this matter are available on the ICANN website. 

See also on Domain Mondo: US Federal Court Enjoins ICANN From Delegating New gTLD dot AFRICA (March 5, 2016).

For more background, see also: DotConnectAfrica - Wikipedia




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