Earlier this year in February ICANN announced that it was free to proceed with the delegation of .AFRICA domain following a Court decision that denied DotConnectAfrica’s (DCA’s) Motion for Preliminary Injunction to stop the delegation of the .AFRICA generic top-level domain (gTLD) to ZA Central Registry (ZACR).
The case had been remanded to State court from the Federal court following an appeal by ICANN and ZACR due to lack of jurisdiction. But despite the fact that the ICANN delegated the .africa domain, the case is still active, the judge wrote that the .Africa gTLD can be re-delegated to DCA in the event DCA prevails in this litigation.
In August 2017, DCA Trust won another ruling where the judge partly dismissed ICANN’s motion for summary judgment (MSJ). The MSJ is therefore 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.
The judge reasoned that 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. adding that
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.
In an MSJ, the court stated as a matter of fact that Legal Standard states, “[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
DCA Trust’s Causes of Action included, Breach of Contract; Intentional Misrepresentation; Negligent Misrepresentations; Fraud & Conspiracy to Commit Fraud; Unfair Competition (Violation of Cal. Bus. & Prof. Code §17200; Negligence; Intentional Interference with Contract Against ZACR; Confirmation of IRP Declaration; Declaratory Relief Against ICANN; Declaratory Relief Against All Defendants; and Declaratory Relief Against ICANN
The case results from a July 2015 arbitration where DotConnectAfrica won in an Independent Review Process. The IRP Panel had unanimously ruled “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”.
In April, 2016, DCA Trust won a preliminary injunction that also comes after the company also won a Temporary Restraining Order (TRO) on 4th March 2016, ordering ICANN not to delegate .Africa until a lawsuit by DotConnectAfrica is resolved in its entirety.
The case continues and you can follow the process from this link