.Africa litigation is due for a show down in the appeals court after DCA Trust the appellee, filed its Appellate Answering Brief on August 19, 2016 in reply to ICANN’s amended its notice of appeal and also appeals the U.S. District Court’s Order entered on June 20, 2016 (ECF No. 113).   The case is has been assigned to a February 28, 2017 10-12 day jury trial. See Scheduling Order (pdf).

DCA argues, none of these arguments support overturning the district court’s considered decisions to grant the PI and deny the motion for reconsideration

The case follows a July 2015 IRP ruling,  that ICANN refused to follow, triggering DCA to seek a solution in the courts.

DCA has so far won two stages two injunctions (temporary, March 4^th 2016 and preliminary, April 12, 2016) thus the .Africa domain remains undelegated.

Questionable Rejection of Endorsement

ICANN ultimately denied DCA’s application after arguing that it did not have the required endorsements, even though DCA had submitted with its application for .africa  endorsement letters from the African Union Commission (“AUC”) in 2009 and the United Nations Economic Commission for Africa (“UNECA”) in 2008.

Contentious withdrawal

The appellee DCA argues the following 6 points the endorsement issue:

1. Indeed, ZACR has passed the endorsement round on the basis of its endorsement from AUC so this treatment was transparently discriminatory and biased and contrary to ICANN rules.
2. Only later, after ICANN rejected DCA’s application and its wrongful rejection of DCA’s application was patent, ICANN tried to belatedly justify the rejection by arguing that the AUC had “withdrawn” its endorsement.
3. But, ICANN’s rules only allow endorsement withdrawals where a condition to the endorsement has been broken. There were no conditions whatsoever to the AUC’s endorsement of DCA. 
4. To make matters worse, the AUC’s purported withdraw was signed only by a lower level official and not the Chairman’s office which executed the original endorsement.
5. Moreover, the AUC’s purported “withdrawal” of its endorsement came only because ZACR agreed to serve as the AUC’s proxy in obtaining the .Africa gTLD for itself:  ZACR agreed to transfer the gTLD rights to the AUC after obtaining it.
6. Thus, the purported withdrawal was plainly self-serving and improper on its face, in addition to being disallowed by ICANN rules.

In short, DCA lists that ICANN’s actions were improper on three grounds:

1.  re-evaluated DCA’s endorsements in violation of the IRP Panel’s ruling,
2.  rejected it for a reason entirely inconsistent with its decision on ZACR’s competing application in violation of its own rules and policies, and then
3. tried to justify that improper action through yet another pretextual ground that was also foreclosed by ICANN’s own rules and policies.

Covenant Not to Sue is YET another pretextual ground

The DCA Brief also addresses ICANN and ZACR’s three (3) primary points on appeal:

• First, that DCA’s case is barred by a broad prospective release (the “Covenant Not to Sue”) ..which forecloses all legal action against ICANN, even for willful wrongdoing.
• Second, that the district court made certain factual errors, which district court deemed immaterial to the outcome on reconsideration.
• Third,  that DCA would not suffer irreparable harm.

DCA argues that none of these arguments support overturning the district court’s considered decisions to grant the PI and deny the motion for reconsideration, stating:

“The district court’s reasoning regarding the Covenant Not to Sue is sound. The district court found that a prospective release in the applicant Guidebook was “[o]n its face… ‘against the policy of the law’” and therefore did not protect ICANN from this litigation. California law prohibits any party from excluding claims for intentional wrongdoing – such as intentional misrepresentation, negligent misrepresentation, fraud, negligence, or unfair competition – and the Covenant Not to Sue does exactly that.  Even if the Covenant Not to Sue were not void on its face, it would still not preclude the declaratory relief claim at issue in the PI because, as the trial court noted, the declaratory relief claim is based on alleged intentional and wrongful conduct.”

DCA notes

“ICANN cannot argue that its IRP provides redress because ICANN refuses to recognize IRP Panel decisions as binding, and the IRP is permitted only to evaluate the limited question of whether ICANN violated its own Articles of Incorporation, Bylaws, policies and procedures.”

DCA also adds

“The district court found “serious questions” as to the merits that DCA was likely to succeed on its claim that ICANN improperly rejected DCA’s application for the .Africa gTLD for its favored candidate ZACR. Neither ICANN nor ZACR have shown that the district court abused its discretion or based its rulings on material errors. Further, reconsideration that “it is reasonable to infer that the IRP Panel found that ICANN’s rejection of Plaintiff’s application at the geographic names evaluation phase was improper, and that the application should proceed to the delegation phase.”

AUC endorsement of ZACR by the AUC is really just an endorsement of itself.

ICANN together with the geographic panelist Interconnect ghost wrote the Africa Union endorsement letter that was used to pass ZACR, DCA states

“Both ZACR and DCA were endorsed by the AUC.  If ZACR did not have the purported support from the AUC, ZACR could not have passed the regional endorsement evaluation. The ICC recommended that ICANN accept the AUC and UNECA as endorsers and send clarifying questions to both DCA and ZACR or to the AUC. However, ICANN ceased reviewing DCA’s application after the GAC advice.  ICANN accepted the AUC endorsement from ZACR but then refused to accept the same endorsement for DCA. ICANN also failed to send DCA clarifying questions, which would have alerted DCA to ICANN’s contentions regarding its endorsements, until after the IRP.   ICANN’s subsequent attempt to justify its rejection of DCA’s application based on the AUC’s purported withdrawal fails because, under ICANN rules, endorsements cannot be withdrawn unless conditions to them are violated.  Additionally, ZACR’s original AUC endorsements had problems that ICANN ignored.  The endorsements ZACR originally submitted from the AUC did not even mention ZACR.”

DCA contends a conflict of interest between the AUC and ZACR which ICANN fails hard to acknowledge:

“ZACR is the AUC’s proxy and any endorsement of ZACR by the AUC is really just an endorsement of itself.   The AUC’s later endorsement of ZACR is an end run around this decision and plainly a self-interested attempt by the AUC to control .Africa itself.   Both ICANN and ZACR fail to acknowledge this undisputed relationship in their opening briefs. ”

You can read the rest of the detailed Appellate Answering Brief here