The continuing case of African nonprofit DotConnectAfrica’s vs ICANN for the .Africa domain is set for another hearing January 31, 2017 after DCA filed an ex parte application for a temporary restraining order (“TRO “) PDF motion.
On Thursday December 22, 2016, the Los Angeles Superior Court Judge Howard L. Halm issued a written tentative ruling indicating he would grant the motion for a preliminary injunction filed by DCA Trust which was later denied on technicalities.
DCA Trust has in the past won both a temporary restraining order in March 4th 2016, and a preliminary injuction in April 12, 2016, to enjoin .Africa from being delegated until the case is fully heard. DCA has also won an Independent Panel Review in July 2015 which ruled that ICANN continue to refrain from delegating the .AFRICA gTLD.
The Tentative Ruling
The Good News to Plaintiff DotConnectAfrica Trust’s (“DCA”) is that on December 22, 2016, the Honorable Howard L. Halm, Superior Court of California, published a tentative ruling [PDF] in favour of DCA’s arguments and stated it would grant the PI. In inspecting the ruling further, among many arguments in favour of DCA, the Judge also agreed with Honorable Judge Klausner‘s view on the endorsement treatment at ICANN post IRP saying that, “it can reasonably be inferred that the reasons for denying DCA’s application were pretextual…”
DCA lost its PI Request on Technicality
After hearing the oral argument, in a surprise move, the court reversed course, denying DCA’s motion for a PI without explanation. The order [PDF] states only that “plaintiff’s motion for the imposition of a Preliminary Injunction is denied, based on the reasoning expressed in the oral and written arguments of the defense counsel.” The Judge did not call to the arguments of Defendant ZACR.
DCA’s Protest via ex parte application for a TRO
On January 4, 2017, Plaintiff DotConnectAfrica Trust’s (“DCA”) filed an ex parte application for a temporary restraining order (“TRO”) [PDF] order enjoining Defendant Internet Company for Assigned Names and Numbers (“ICANN”) from issuing the .Africa generic top level domain (“gTLD”) until this Court sets an Order to Show Cause as to why a Preliminary Injunction should not issue.
DCA advanced in its TRO submission, the ICANN argument that prevailed:
“As the Court stated that the ruling was based on defense counsel, the Court presumably did not adopt Intervenor ZACR’s arguments. ICANN pressed two arguments at the hearing:
That DCA could not win on cause of action No. 9 and that the Prospective Release barred any claim. DCA presumes the Court adopted the first because the tentative indicated that it can reasonably be inferred that the denial was pretextual: pretextual denial is willful and intentional and could not be barred by the Prospective Release
DCA also reminded of the tentative order granting it a PI
“The Court had tentatively agreed with DCA’s arguments and had indicated it would grant the PI. The tentative order stated that:”
1) “The evidence reflects that the potential harm to DCA significantly outweighs any harm to Defendants;”
2) “that the public interest in having the .Africa gTLD properly awarded through a fair and transparent application process outweighs concerns about the delay in the availability of the .Africa gTLD;”
3) “there is reason to question the legitimacy of ICANN’s purported reason for denying DCA’s application;” and
4) it can reasonably be inferred that the reasons for denying DCA’s application were pretextual and that ICANN… denied DCA a fair evaluation process because it had predetermined that it would award the gTLD to ZACR.”
DCA further argued that:
“ DCA believes that all of the reasons that the Court was inclined to grant the PI still stand”.
….The ground for denial must have been regarding the technical likelihood of success of cause of action No. 9. Accordingly, DCA now moves under alternative causes of action: its second and fifth causes of action, for intentional misrepresentation and unfair business practices, respectively.
….The gravamen of DCA’s complaint focuses on the improper processing of DCA’s application for .Africa, and ICANN’s improper assistance to ZACR and the AUC in defeating…..
….DCA continues to face the irreparable harm that justified both the IRP Panel and Judge Klausner in enjoining ICANN from acting further with respect to the .Africa domain.
….In the event the Court denies DCA’s application for a TRO, DCA respectfully requests this Court clarify its December 22, 2016 order denying the PI and state the grounds for the denial, and for denial of this TRO.
Judge Ordered for a second Preliminary Injunction hearing
At the TRO hearing , the Court did not rule on the application but would consider new arguments as grounds for the motion for preliminary injunction, the hearing was set for January 31, 2017.