ICANN blocked DCA’s Case from being heard in court!
Since 2014 when the early adopters were scooping up domain names like crazy, DCA initiated.Africa domain, it is on records that it had a successful 6-year global awareness campaign to promote it, after obtaining legitimate endorsements from the office of the Chairman of the African Union and the Executive Secretary Offices of the UNECA. The rest of the protracted battle DCA faced with multiple parties and then of course ICANN over how it handled the bid over the .africa is left to history.
The following is a public update DCA communicated on December 12, 2021, on the status of its eight-year court battle with ICANN.
In summary, ICANN managed to successfully block DCA’s case from being heard on its merit (which is really on the endorsement) after multiple procedural wins DCA got from the court system, including a scheduled jury trial which was vacated when the initial Judge who ruled to DCA’s favor retired. It appears then ICANN was really not comfortable to have its dirty laundry aired in public. This also goes back to the redacted report ICANN lawyers published back when DCA was victorious on an accountability hearing against ICANN in 2013. Upon disagreement with DCA, ICANN was somehow forced to unredact the report which embarrassingly exposed many of the discoveries found on the misconducts of ICANN against the processing of DCA’s .africa application against ICANN. So to date, DCA’s case on how ICANN has handled its endorsement has not been heard by any judicial body.
Read on below. DCA vs ICANN Eight Year Domain Name Battle
On November 26, 2021, DotConnectAfrica Trust (DCA), the Mauritius/Kenya-based charitable Trust and principal applicant for the .Africa Internet Domain Extension has lost its Appeal case in Los Angeles Court in its ongoing legal battle against United States-based Internet Corporation for Assigned Names and Numbers (ICANN). The DCA vs. ICANN case involved many twists and turns, spanning nearly a decade of DCA’s efforts to hold ICANN accountable for the harm it caused to DCA over the delegation rights of the .Africa new gTLD Registry.
On September 20, 2021, the Appeal Court agreed with the earlier ruling of the Trial Court decision on October 3rd, 2019 that DCAs case against ICANN should be Judicially Estopped (JE) from bringing any claims against ICANN. The JE is estoppel that precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings. Although, in the United States, it is only a part of common law and therefore not sharply defined, is agreed that it can only be cited if the party in question successfully maintained its position in the earlier proceedings and benefited from it. DCA Trust did not in either case.
It is well known that the Independent Review Process (“IRP”) panel did not rule on many of DCA’s complaints/claims, but on a single issue – the ill advice from ICANN’s Governmental Advisory Committee to stop DCA’s application from further processing. In addition, it is well settled that Judicial Estoppel (JE) is “an extraordinary and equitable remedy” that “must be applied with caution and limited to egregious circumstances’” because it can impinge on the truth-seeking function of the court and produce harsh consequences.”
This is only the second time DCA has NOT prevailed against ICANN wrote The Register UK, on 13 Feb 2017, pertaining to the history of DCA’s many victories since its application submission. The precedent-setting win on its 1st IRP would affect the internet landscape by benefiting the global Internet community at large. The IRP process was declared “Binding”, among other significant procedural precedences.
Therefore, this last win in “overturning the waiver” would have had an even greater impact and significance on how ICANN would treat its applicants and its internet community.
In this instance, ICANN won its argument that statements made by DCA’s IRP Lawyer was inconsistent with DCA’s Lawsuit and DCA had already benefited from the IRP and therefore is not entitled to a second claim. Amongst others, ICANN heavily quoted the IRP Lawyer statements below that barred DCA’s case from being heard on its merit at a jury trial:
“These proceedings will be the first and last opportunity that DCA Trust will have to have its rights determined by an independent body.” and “DCA and other gTLD applicants, the IRP is their only recourse; no other remedy is available” — Arif Ali, IRP Lawyer
In its lawsuit, DCA was not intending to re-litigate the issues that has already been decided by the IRP Panel, rather just the causes of action that constitute the “triable issues” of material fact by the court, and which were never brought to the IRP Panel, as well as the post-IRP actions of ICANN staff.
Given that DCA’s appeal case was represented by the same lawyer who litigated the IRP, reputedly “ICANN Czar” by the Industry for his successful IRP wins against ICANN, it is most unfortunate, and surprising that DCA would lose this appeal case.
Judicial Estoppel should never be applied while there are triable issues outstanding. Applying judicial estoppel in the current circumstances by the Judges has allowed fraud to go unpunished. DCA Trust should not have been judicially estopped because there are “triable issues” in the lawsuit relating to alleged fraud which the trial court had earlier ruled were that DCA’s remaining claims are outside the scope of the Covenant, when denying ICANN’s MSJ in part and ruled to proceed directly to a jury trial. Unless the case proceeds to a jury trial on its merit, how would the court really know whether it has made a just decision?
Thus, ICANN made sure that the merits of the DCA case are never heard by a jury by proving a non-existent issue of judicial estoppel. Judicial Estoppel is an (equitable) doctrine in the Laws of Equity, there is preponderant evidence which suggests that ICANN: a) Acted unconscionably, b) Acted in bad faith -Administered a waiver that was unlawful and unenforceable under Californian law – or the waiver did not include the necessary riders/provisos that it would/would not apply if fraud was involved.
DCA or any applicant could or should not have gone to a 2nd INDEPENDENT REVIEW PROCESS (IRP) for many reasons.
During the oral argument, the appeal Judge kept hackling DCA’s lawyers, as to why DCA did not go to a second IRP? Contrary to ICANN’s argument and the lack of adequate and conclusive clarification DCA’s lawyers made in their reply, DCA could not have gone to a 2nd IRP for several reasons.
1. DCA’s case was the first IRP in the new gTLD space therefore, a second IRP was unheard of ICANN also did not direct DCA toward that.
2. There is no mention or mandate in the rule book that applicants should revert to a 2nd IRP, despite some applicants having exercised it and ICANN has accepted it.
3. Significantly, the IRP is a procedure that seeks relief for “Board Actions” and not “Staff Actions”, which the latter was the case in DCA’s lawsuit.
4. An IRP also does not have provisions to provide relief for alleged fraud which was the case for DCA.
Besides, as the industry knows, the IRP is an ICANN-created process and has significant limitations. These limitations may not be unique to DCA’s case, but Lawyers agreeing to redact the irregularities on the merits of the case in a final declaration written by a panel of Judges (amongst others, that the ICANN CEO himself ghost-wrote the endorsement letter for ZACR/AUC), and burying their so-called “Clients in Pyrrhic victories, and thereafter, throw the applicant back in the lion’s den for another review or contention, should be considered a major transgression. This of course, as the Lawyers come out on top as “winning” vs “doing the right thing”.
Besides, the IRP review process takes 18 months of the applicant’s time and money, which should not even be an acceptable timeline for a simple arbitration that blocks a whole discovery on its merit and rules on a single irregularity the Lawyers agree upon. In our instance, it was only through DCA’s persistence that the full unredacted report of the discovery work done on the merits of DCA’s case was even exposed to shade light on ICANN’s misconduct on DCA. So where is the justice in this long process?
On the contentious matter of Endorsement: By the time of the court trial, DCA has also established that the rule book does not in any way suggest that applicants renew the endorsement they received initially. Rather, the rule book asserts to get an early endorsement by applicants. Moreover, that endorsement cannot willfully be withdrawn, unless the applicant violated the registry operations agreement it signed with the endorser. Therefore, whatever ICANN was challenging DCA in this regard was subject to a judicial evaluation, which did not happen. Particularly, given the IRP panel never ruled on this matter.
As the first new gTLD applicant to go to an IRP, DCA is the one that highlighted the below passage to our IRP Lawyers to present it to the panel, but no proper redress came out of it.
“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 an independent review of that decision or action. 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.”
Therefore, with the same recycled IRP procedures, recycled IRP Judges, and recycled Lawyers, a decade later, we all saw the victors and the victims of the IRP process.
Judges misunderstanding of the ICANN & AUC process. Got no proper clarifications, despite repeatedly asking for it.
The Appeal Court’s Judges; apparent misunderstanding of the ICANN and the AUC processes was evident by how they simply composed a narrative in their ruling consistent with ICANN’s point of view. It was visibly embarrassing when one reads the tentative let alone the final report.
DCA insisted our lawyers correct the factual errors in their tentative opinion, which included among many, making assertions that the .africa gTLD was not delegated, and in other cases, erroneously asserting a point that ZACR won the AUC RFP because it was a “lone applicant”. As we all know the fact, the AUC had a public press release that ZACR won the RFP after an international call for a bid and was found to be the best qualified. It is therefore puzzling how the Appeals court reached its conclusion to the contrary when even ICANN’s briefs never claimed that? In addition, DCA has to also correct the court’s misappropriation that DCA is holding the “.africa” litigations unnecessarily in a long contention with ICANN, by demonstrating years of contention on gTLDs is not uncommon, similar to the “.amazon gTLD”, which took nearly 8 years to resolve with ICANN. For those who watched, .Amazon was objected to by GAC after DCA and their arguments on GAC were nearly a carob copy of DCA’s.
Yet another outlandish comment made by the court was claiming that ZACR “outmaneuvered” DCA on their endorsement, without understanding that ZACR was really a “proxy applicant” for AUC/ This was clear from DCA’s briefs submitted to the Appeal court. In fact, ZACR “outmaneuvered” the AUC and the African community that supported them by first, campaigning and applying at ICANN “on behalf of the community”, second opposing to DCA application with the independent objector (IO) the same, while in both instances knowing that .Africa is not a community gTLD, finally by submitting fraudulent endorsement that AUC solicited from African governments as they requested to “reserve”.Africa name” for themselves, which ICANN evaluators did not accept. Finally, ZACR also knowingly signed a direct contract in contravention of ICANN’s registry agreement to give .africa rights to AUC, all to the make-believe of the African governments and the African community. In reality, only ZACR controlled the rights to .africa as that contract was later deemed illegitimate. Despite all these irregularities, ICANN accepted ZACR’s application as legitimate, in fact, making all the corrections for them.
Thus, the Appeals court’s expecting that ZACR’s actions should have been matched by DCA, in order to win .africa is like asking a camel to pass through an eye of a needle. The gatekeepers were the poachers in ZACR’s case. The unscrupulous joint actions of ZACR/AUC/ICANN were never subject to any “judicial examination”, the reason DCA went to court in the first place. Instead, the court turns a blind eye to it and makes unsubstantiated remarks to influence public opinion in support of the decisions ICANN made. Here is where one says Judges are born and not made.
Hence, many pages of the appeal court’s report were dedicated to the history of the .africa process, again, where the merits have not been subject to any proper “judicial examination”. This is evident by the amount of space the court allocated to what can be construed as a face-saving exercise for ICANN, naming the African community members in detail who help facilitate the “AUC sponsored agenda” to assist ICANN during its transition from the oversight of the United State government and yet point to the IRP panel ruling that did not confirm the alleged conflict of interest filed by DCA over these people. Of course, who is fooling who? The IRP panel’ did not address any of these claims the court regurgitates about, as their declaration clearly stated, “their ruling was strictly limited to the GAC advise and nothing else”
Moreover, despite several key and relevant questions posed by the lady Judge on the various actions of the trial court, the appeals court in its final ruling did not also give much deference to DCA winning the Motion for Summary Judgment (MSJ) at the Los Angeles Superior Court. In May 2017, ICANN requested to dismiss all the causes of action contained in the DCA lawsuit. The Court had found that the causes of action that were based on allegations of fraud or willful injury were not barred by the waiver not to sue, and therefore constitute ‘triable issues’ and thus should proceed to a trial; whilst the MSJ was granted for the causes of action that were unrelated to fraud or willful injury.
The judge had agreed that since DCA Trust had alleged fraud in its lawsuit, then California Civil Code 1668 was applicable. Going back to DCA’s IRP outcome, the trial judge had also noted in his ruling that:
“committing fraud and causing wilful injury certainly is not consistent with ICANN’s Articles of Incorporation and Bylaws” – Judge Howard Halm
This suggests that ICANN possibly defrauded DCA. The judge noted in his tentative ruling that:
“Based on judicial estoppels, the Court finds that DCA is precluded from litigating claims already litigated before the IRP Panel on which the IRP Panel; made findings. […] This finding does not preclude DCA from introducing evidence that arose before the Final Declaration so long as the evidence is foundational for a post-IRP claim of fraud or willful misconduct, which will be the primary issues addressed during the jury trial currently set for August 22, 2018.” – Judge Howard Halm
Unfortunately, the sudden retirement of Judge Halm who made all those rulings caused a mistrial, and the new Judge’s ruling on the JE, in turn, favored ICANN, which meant stopping DCA from going to a jury trial on the merits. This prompted DCA to file for an Appeal at the California Court of Appeals.
Therefore, the Appeals court final ruling which did not much change from their tentative opinion, except the “factual” corrections made by DCA, reads like a narrative in support of a political construct justifying ICANN’s actions in the history of .africa and falls short to discuss intelligently any matters of law DCA had pointed out relating to the trial court’s decision. Unfortunately, the arguments presented by DCA’s Lawyers did not also convince them to change their opinion.
The Judges assigned to DCA vs. ICANN case at the Appeals Court were Justice John Shepard Wiley Jr., Justice Elizabeth A. Grimes, and Justice Sam OHTA, J.
On January 2016, after learning that ICANN would reject its application, DCA filed suit against ICANN. ICANN then removed the case to the Central District of California. While this case was pending before the district court, DCA moved for and won a temporary restraining order and subsequently a preliminary injunction, enjoining ICANN from delegating the rights to .Africa until the case was resolved. ZACR filed a motion to reconsider the preliminary injunction order which ICANN joined. The motion for reconsideration was denied. On October 19, 2016, the district court remanded the case to state court due to lack of jurisdiction. In the DCA v. ICANN lawsuit, DCA Trust (as ‘plaintiff’) had sued ICANN (as ‘defendant’) – initially at the California District of the US Federal High Court in February 2016, citing fraud and other causes of actions (stated in the legal complaint) over ICANN’s handling of the .Africa new generic Top-Level Domain name (new gTLD).
On July 9, 2015, DCA Trust had won a landmark decision, on an Independent Review Process (IRP), at the International Center for Dispute Resolution (ICDR) New York. DCA Trust had prevailed against ICANN in an IRP hearing. The panelists in the declaration stated that ICANN has violated its Bylaws and Articles of Incorporation following an expert determination and stated that: “both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN”. Aside from being victorious, the DCA vs ICANN precedential value also includes that all IRPs were pronounced as “binding” after DCA’s win. The IRP Declaration may be found here.
Years of multiple Lawyers wrangling and ill-performances that betrayed DCA’s case and the Internet Community. Essentially, the DCA’s trial court lawyer at BNSK Law firm ascribed losing DCA’s case at trial court to the same statement DCA lawyer made during the IRP – as being the only forum for redress. In this regard, when called to clarify at the court’s JE trial, the IRP Lawyer, Mr. Arif Ali had also refused to defend this statement, citing he can’t provide testimony to his own statement, as it will affect his current IRP practice.
Unfortunately, the same position was held after taking DCA’s case in appeal, abet the last minute. The main reason DCA chose Dechert was seeking the representation of an experienced lawyer who understands the “ICANN process” and had recurring wins against ICANN. To DCA’s surprise, Dechert arranged for the alternate Jr. Counsel instead, who was an apprentice on such a case. This last-minute unexpected switch and confrontation by DCA have caused a major rift between DCA and Dechert, particularly while DCA’s lawyers were well aware that ICANN’s veteran Lawyer was scheduled to appear during the final argument.
It was evident in the final hour, that the Judges did not get any convincing answers from the Lawyer presenting DCA’s case, as they probed and frustratingly asked for clarifications such as “this is a big and important case, and we want to get it right”, also in relation to the 2nd IRP “are there any procedures that DCA should have followed” or “we heard the factual errors, but what exactly is the error in law?”
In this regard, the judges seem to have understood the weight of the case more like ICANN vs. the Internet community, just like the DCA IRP panel did, and not a plight of an individual organization. The major decision in the court case was on overturning the waiver due to alleged fraud, as much as enforcing a “binding” ruling. Therefore, DCA felt Dechert’s Sr. Counsel who represented DCA during the IRP and throughout the Appeal case should have easily made the oral argument to mitigate the answers his apprentice, the Jr. Counsel could not respond to by the Judges. DCA sees this as a huge calculated mistake by Dechert to avoid a negative outcome in lieu of self-protection.
DCA knew that appeal was a 50/50 chance of winning. however, DCA also understood and stressed to our Lawyers that the oral argument is the key to winning an Appeal, especially after getting a negative tentative, which DCA did. DCA, therefore, feels betrayed that Dechert’s Sr. Counsel’s lack of cooperation to present the oral argument in appeal clarifying the statement made during the IRP, particularly after failing to do the same at the JE trial for our Lawyers.