The mandate to manage ad administer the dotAfrica (.africa) domain may have been awarded to South Africa’s ZA Central Registry but the controversy surrounding the process leading to the award will take long time to cool down or be resolved.
This is because a case filed by one of the firms – DotConnectAfrica Trust (DCA Trust) – which applied to be mandated to manage dotAfrica in 2012 filed a case against ICANN, the US-based body which manages the global internet, arguing that the process leading to the award of the domain to ZA Central Registry was not transparent. And the case is still on-going in US courts.
Just this week, DCA Trust announced that it had “scored an important victory against the United States-based Internet Corporation for Assigned Names and Numbers (ICANN) in an ongoing legal battle at the Los Angeles Superior Court in the State of California, United States of America.”
In the statement issued on September 13, DCA notes that: “The legal dispute relates to the delegation rights of the .Africa new gTLD Registry.”
Here’s some background. In May 2017, ICANN, as the the defendant in the DCA vs. ICANN lawsuit, had filed a Motion for Summary Judgment (MSJ) at the Los Angeles Superior Court requesting that the court dismiss all the causes of action contained in the DCA law suit. ICANN submitted the MSJ in May 2017 after the Court had earlier denied the Motion for Preliminary Injunction (PI) that DCA Trust had filed to stop the body (ICANN) from delegating the .Africa new gTLD registry to ZA Central Registry (ZACR).
The Court’s denial of DCA Trust’s Preliminary Injunction motion subsequently allowed ICANN to delegate the .Africa registry to ZACR.
However, following an opposition to the MSJ by DCA Trust, the Presiding Judge in August 9, 2017 denied the ICANN MSJ in part and granted it in part.
The court considered the (a) legal standard, (b.) ICANN’s Covenant Not to Sue, (c.) Judicial Estoppel, and (d.) DCA Trust’s allegation of Fraud or Willful Injury. DCA Trust in its suit had alleged the following causes of action: (1) breach of contract; (2) intentional misrepresentation; (3) negligent misrepresentation; (4) fraud and conspiracy to commit fraud; (5) unfair competition; (6) negligence; (7) intentional interference with contract; (8) confirmation of IRP award; (9) declaratory relief; (10) declaratory relief; and (11) declaratory relief.
The Court 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’, while the MSJ was granted for the causes of action that were not related to fraud or willful injury.
The Presiding Judge, Howard Halm, in his ruling stated that:
“The Court finds DCA raises 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. 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… 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… DCA also submits evidence that ICANN ghostwrote an endorsement for ZACR.”
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.”
Based on this reasoning, the Presiding Judge denied ICANN’s motion for summary judgment as to the second, third, fourth, fifth, seventh, and tenth causes of action. The motion was granted as to the remaining causes of action.
DCA Trust had in its July 9, 2015 Final IRP prevailed against ICANN, with the panelists in the declaration stating 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”. The IRP Declaration may be found here.
In January 2016, after learning that ICANN would reject its application, DCA filed a suit against ICANN. ICANN then moved the case to the Central District of California. While this case was pending before the district court, DCA moved for and was granted 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.