In Opposition to ZACR’s motion to dismiss, which was filed on 10th May 2016, DCA Lawyers argue that contrary to what ZACR states, DCA has adequately stated claims against ZACR for declaratory relief, intentional interference with contract, aiding and abetting fraud, and unfair competition, and argued their reasons that the Court should deny ZACR’s motion to dismiss based on those claims.
DCA Has Standing to Make its Declaratory Relief Claim, based on
(1) the registry agreement between ZACR and ICANN is null and void and
(2) that ZACR’s application to ICANN is deficient.
The basic elements of standing are as follows:
- Plaintiff must have suffered an injury in fact that is concrete and particularized,
- There must be a causal connection between the injury and defendant’s conduct
- It must be likely, as opposed to speculative, that the injury will be redressed by a favorable decision.
DCA states improper agreement between ZACR & ICANN has caused it injury
- In order to have standing for declaratory relief with regard to a contract claim, a claimant need not be a party to the contract but must have “a stake in the controversy”. DCA has a stake in the controversy because ICANN and ZACR infringed on its right to have its application processed fairly, as per its agreement with ICANN.
- In contrast to the facts of ZACR’s argument, DCA is the only other applicant for .Africa and, as the IRP panel found when it granted DCA emergency relief, ICANN improperly entered into a registry agreement with ZACR before DCA’s application had been properly adjudicated. Therefore DCA was actually injured by ICANN’s signing of the registry agreement with ZACR because it was not afforded the process it was entitled. DCA is also threatened with injury because – as the only other applicant and a qualified applicant – DCA may lose its right to act as .Africa’s registry due to the improper agreement between ZACR and ICANN. See FAC ¶ 60.
But even if DCA does not have standing to seek declaratory relief that the registry agreement is null and void, it does have standing to seek a declaration from the court that ZACR’s application does not meet ICANN’s standards.
ZACR argues that DCA does not have standing because it “is not a party to…ZACR’s application to ICANN.” Motion at 11:18. However, DCA argues saying , DCA is not seeking declaratory relief with regard to the validity of ZACR’s application to ICANN as a contract between ZACR and ICANN; instead; DCA is seeking declaratory relief regarding the sufficiency of ZACR’s application under ICANN’s own standards.
As evidenced by this lawsuit, there is an actual legal controversy as to whether ICANN properly denied DCA’s application while passing ZACR’s. ZACR cites no case law that support supports any argument to the contrary.
DCA’s also states a claim for Intentional Interference with Contract.
In order to state a claim for intentional interference with contract, a Plaintiff must allege
(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional acts designed to induce breach or disruption of the contract; (4) actual breach or disruption; and (5) resulting damage.”
DCA has adequately alleged these elements by stating ZACR intended to induce ICANN to disregard its own rules. to unfairly delegate .Africa to it instead of DCA, in contravention of the Guidebook. As such:
ZACR wrongfully campaigned against DCA’s application both to ICANN and the AUC;
ZACR represented that it was applying for the .Africa gTLD on behalf of the African ‘community.’ However, it failed to submit the required type of application for organizations applying on behalf of a ‘community,’ which is a term of designation and differentiation for gTLDs.;
ZACR did not have sufficient country specific endorsements to meet the ICANN requirements for geographic gTLDs. Only five of the purported endorsement letters submitted by ZACR from African governments actually referenced ZACR by name
ZACR’s improper relationship with AUC is evident in the signed contract in which ZACR signed over all its rights to .Africa to the AUC.
ZACR/AUC political clout disfavored DCA from ICANN
In addition to these specific acts the gravamen of the FAC is that ZACR and AUC were improperly using their political clout (given the transition issue) to encourage ICANN to favor them and disfavor DCA at every turn – and in fact, ICANN bowed to that pressure at every turn to the great detriment of DCA. Despite ZACR’s argument to the contrary, these activities are tethered to the disruption of the Guidebook. ZACR’s involvement with the GAC opinion alone contributed to ICANN’s violation of the Guidebook as the IRP already determined that the GAC opinion was not in accordance with Guidebook Rules.
DCA alleges that ICANN breached the Guidebook.
As the IRP panel already found, Even ICANN abandoned its motion to dismiss asserting the same failed argument. DCA alleges that ICANN failed to comply with provisions in the Guidebook regarding:
1) gTLD program rules of transparency and fair competition, 2) the geographic names evaluation process; and 3) GAC procedures.
DCA alleges that ZACR proximately caused its damages.
DCA argues in page 22 that If ICANN had followed its own rules – which despite its “discretion” it was required to do as explained in Section IV.B.2, supra, – and had ZACR not interfered, DCA would have had more than a “hope” of being delegated .Africa.
DCA had passed all phases of the initial evaluation but for the geographic names evaluation, which ZACR disrupted through Alice Munyua’s (a member of the ZACR steering committee) involvement with the GAC. FAC ¶45.
If ICANN had properly dismissed ZACR’s application for lack of proper endorsements and failure to submit an application as a community applicant, which ZACR purported to be, DCA would have been the only applicant for .Africa and would have moved to the delegation phase of the application process. But even were this not the case, ICANN had an agreement with DCA to review its application fairly and pursuant to ICANN’s rules in the Guidebook, the Bylaws, and its Articles of incorporation. FAC ¶20.
The complete filing of DCA Trust ‘s Opposition to Defendant ZACR’s Motion to Dismiss First Amended Complaint is found here