A Huge Win for Legal Front-Runner DotConnectAfrica Trust!
On 20th April 2016, ICANN withdrew its Motion to Dismiss [PDF] against DCA Trust’s First Amended Complaint filed on 26 February 2016.
In its stipulation to the Court, ICANN moved to withdraw its dismissal citing the following reason:
“in view of the Court’s order on DCA’s motion for Preliminary Injunction, ICANN has elected to withdraw its Motion to Dismiss”.
Instead DCA has agreed for ICANN to file a response to DCA’s First Amended complaint by May 9th, 2016, which is in few days.
ICANN’s Motion to Dismiss heavily relied on Litigation waiver DCA signed
A Motion to Dismiss is often filed with the court at the earliest stages of the lawsuit, typically before either party has conducted their discovery. This is done when the defendant believes a claim in the lawsuit is legally invalid, or there are legitimate grounds for throwing the case out of court.
The motion to dismiss hearing was scheduled for April 25, 2016 and ICANN’s arguments for dismissal relied heavily on the litigation waiver that the court found ineffective in the injunction rulings. The court has found amongst other things the following:
- that an injunctions were appropriate because DotConnectAfrica raised serious questions on the merits.
- that .africa is a unique asset and DotConnectAfrica could suffer irreparable harm without an injunction.
- that ICANN’s broad litigation waiver, which includes intentional and fraudulent behavior, is likely unenforceable under California law.
DotConnectAfrica’s attorney Ethan Brown, partner at Brown Neri Smith & Khan LLP in Los Angeles told Bloomberg BNA April 13, 2016 “That finding now means that, at the very least, the substantial majority of DCA’s case will survive the Motion to Dismiss and the case against ICANN will move forward to full litigation and discovery” ..
History of DCA’s Legal Victories against ICANN
DotConnectAfrica Trust has been winning it’s legal disputes against ICANN since it filed for an Independent Review Panel (IRP) filing in October 2013 to challenge an ICANN Board decision at the American Arbitration Association (AAA), New York, USA. The landmark decision of the IRP panel at the International Center for Dispute Resolution (ICDR) came in June 10th 2015, after a sweeping wins by DCA Trsut on various injunctions and all of the procedural grounds that DCA filed against ICANN. Finally, the panel unanimously ruled that both the actions an inaction of the Internet Corporation for Assigned Names and Numbers (ICANN) has violated its Bylaws and Articles of Incorporation. The IRP is the accountability review processes set out in the ICANN Bylaws.
DotConnectAfrica Trust then sued ICANN for breach of contract, fraud and declaratory relief that ICANN should refrain from processing ZACR’s application and that it shouldn’t have required a new geographic names evaluation. After filing its case in California court, DCA has this far won two injunctions (temporary, March 4th 2016 and preliminary, April 12, 2016 making sure the .Africa domain is not going to be delegated to ZACR until the Court hears its case. ICANN withdrawal of its Motion to Dismiss on DCA’s complaint is yet another huge victory for DCA.