home Domains DCA Protests against Judge Rushed Reversal of 7 page Tentative Ruling of PI to its favor

DCA Protests against Judge Rushed Reversal of 7 page Tentative Ruling of PI to its favor

DCA Trust is contesting a .Africa Court decision that was made over the Christmas holiday that went contrary to a previous tentative ruling.

DCA believes that all of the reasons that the Court was inclined to grant the PI still stand”. 

Contested Preliminary Injunction on .Africa

The Thursday December 22, 2016, 7 page tentative ruling [PDF] issued by the Los Angeles Superior Court Judge Howard that stated it would grant the motion for a preliminary injunction to DCA Trust seem analytical and to have been produced after a thought-out process over the months that the filing was done, but was later denied on what appears to be on technicalities of the presentation by ICANN counsel.

The written tentative ruling had also affirmed the views of Honorable Judge Klausner‘s on the endorsement evaluations by ICANN after the IRP of 2015 which had ruled in DCA’s favor saying that, “it can reasonably be inferred that the reasons for denying DCA’s application were pretextual…”

However, in a surprise move, the court reversed its view thus 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.

Plaintiff DotConnectAfrica Trust’s (“DCA”) then soon filed On January 4, 2017 an  ex parte application for a temporary restraining order (“TRO”) [PDF] order, demanding the Court to clarify its December 22, 2016 order denying the PI and state the grounds for the denial,  requesting also to enjoin or stop Defendant ICANN from delegating 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 in its TRO stresses 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 saying “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.

A second Preliminary Injunction hearing to consider new arguments as grounds for the  motion for preliminary injunction has been scheduled for January 31, 2017, since the Court did not rule on the application.

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Brent Donald

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