.Africa gTLD: ICANN Loses MSJ, Back to Legal Arena

The battle for the control of the .Africa top level domain may yet become more protracted after a recent court decision to have the case proceed to trial.

BackGround

DotConnectAfrica (DCA) Trust after winning an IRP and still rejected by ICANN went to court and filed its first Amended Complaint (“FAC”) on 26 February 2016, against Defendants Internet Corporation for Assigned Names and Numbers (“ICANN”), and ZA Central Registry (“ZACR”) (collectively “Defendants”).

The Kenya based company the won its first ruling that granted an Ex Parte Application for TRO (DE [20]) Interim Relief that ICANN should hold off from delegating the .AFRICA generic top-level domain (gTLD) for ZA Central Registry (ZACR) and on April 12, 2016, the Court in Central District Of California granted DCA Trust a Preliminary Injunction on the .Africa gTLD, the decision was made for case no. 16-CV-00862 RGK (JCx) [PDF].

The hold placed on delegating the domain would then be lifted when the judge made a decision to deny DotConnectAfrica’s Motion for Preliminary Injunction to stop the delegation of the .AFRICA generic top-level domain (gTLD) to ZA Central Registry (ZACR), after DCA’s case was remanded from Federal court due to lack of jurisdiction.

The ruling, however did not yet address or resolve the merits of the claims made by the plaintiff DotConnectAfrica but that in the event that DCA ultimately prevails in this action, the gTLD can be re-delegated.

Case goes to trial, MSJ Dismissed!

In the most recent ruling, a California Superior court has denied [pdf] the ICANN’s motion for summary judgment (MSJ).  This decision was made after ICANN applied for a motion for a summary judgment, arguing that the entire action is barred by a covenant not to sue and judicial estoppel.  DCA Trust fought the MSJ and won.

The Legal Standard states, “[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issues as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

In its ruling, the court stated

ICANN’s motion for summary judgment is denied as to the second, third, fourth, fifth, seventh, and tenth causes of action. The motion is granted as to the remaining causes of action.

Earlier in his reasoning the judge wrote

The Court finds that acts of fraud or those that cause “willful injury” do not arise out of ICANN’s processing of applications in that they are extra-procedural: they are not related to the processing itself, but are acts that take ICANN outside of the process governed by its bylaws. Moreover, the Court finds that claims reviewable in the alternative mechanisms provided for in the bylaws do not exclude fraud claims, as committing fraud and causing willful injury certainly is not consistent with ICANN’s Articles of Incorporation and Bylaws. Therefore, the Court does not find the Covenant unenforceable as it does not exclude claims for fraud or acts causing willful injury. What this means in this case, therefore, is that any claims that do not lie in fraud or willful injury are barred by the Covenant. Those that do, are not. The first cause of action for breach of contract, sixth cause of action for negligence, eighth cause of action for confirmation of IRP reward, ninth cause of action for declaratory relief, and eleventh cause of action for declaratory relief, are thus barred by the Covenant. The second, third, fourth, fifth, seventh, and tenth causes of action, all of which relate to fraudulent actions or those causing willful injury, are not.

DCA Trust in their submissions raised a triable question of material fact as to whether ICANN committed fraud by indicating it would follow its Bylaws and Articles of Incorporation and the IRP’s decision in processing application.

The court also added

DCA points to evidence that ICANN subjected DCA to an extra set of questioning regarding its endorsements, and denied its application based on the pretextual reason that its responses to this questioning were insufficient. (Bekele Decl. ¶ 22-4, Exs. 10-12.) The pretext, DCA argues, is evident, when viewed in light of ICANN continuing to process ZACR’s application despite its lacking endorsements in order to meet ICANN’s requirements. (AMF 82-83.) DCA also submits evidence that ICANN ghostwrote an endorsement for ZACR. (AMF 84.)

The Court cannot, therefore, find as a matter of law that ICANN did not defraud DCA by stating on the one hand it would follow its Bylaws and Articles of Incorporation in processing DCA’s application, while on the other hand giving preference to ZACR’s application throughout the process.

With the dismissal, the case is set to go further and could go wither way, meaning DCA trust may finally get to manage the .Africa top level domain.

Case documents have been published on the following websites: https://www.icann.org/resources/pages/dca-v-icann-2016-01-26-en  and here http://dotconnectafrica.org/communications/dca-trust-v-icann/