excerpts of record (er-1-47) · for the central district of california, no. 2:16-cv-00862-rgk the...

No. 16-55693

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DOTCONNECTAFRICA TRUST,

Plaintiff/Appellee,

v.

INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS, et al.

Defendant/Appellant.

On Appeal from the United States District Court for the Central District of California, No. 2:16-CV-00862-RGK

The Honorable R. Gary Klausner

EXCERPTS OF RECORD

VOLUME 1 OF 7 (ER-1-47)

Craig E. Stewart JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939

Jeffrey A. LeVee Rachel T. Gezerseh Charlotte Wasserstein JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071.2300 Telephone: (213) 489-3939 Attorneys for Defendant/Appellant INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS

Case: 16-55693, 06/29/2016, ID: 10034460, DktEntry: 15-1, of 59

No. 16-55693

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EXCERPTS OF RECORD

ECF No.

DATE DESCRIPTION VOL. PAGE

119 6/27/2016 ICANN’s Amended Notice of Appeal

1 ER-1 – ER-2

119-1 6/27/2016 Exhibit 1 Order re: Plaintiff’s Motion for Preliminary Injunction; Exhibit 2 June 20 Court Order Denying Reconsideration of Previous Order Granting the Preliminary Injunction and Exhibit 3 ICANN’s Representation Statement

1 ER-3 – ER-20

113 6/20/2016 Order re: Defendants Motion for Reconsideration re Order on Motion for Preliminary Injunction

1 ER-21 – ER-24

89 5/11/2016 Notice of Appeal 1 ER-25 – ER-39

75 1/12/2016 Order Granting Motion for Preliminary Injunction

1 ER-40 – ER-47


-1-

ECF No.


112 6/14/2016 Order Granting ZACR Motion to Dismiss

2 ER-48 – ER-52

97-1 5/23/2016 Supplemental Declaration of Mokgabudi Lucky Masilela in Support of ZACR’s Motion to Reconsider and Vacate Preliminary Injunction Ruling

2 ER-53 – ER-56

97-2 5/23/2016 Exhibit A Summary of the Average Costs from July 2015 to April 2016

2 ER-57 – ER-60

97-3 5/23/2016 Exhibit B Exemplar Printouts of Redelegations

2 ER-62 – ER-81

97-4 5/23/2016 Exhibit C Printouts which Discuss Redelegation of gTLDs

2 ER-82 – ER-92

97-5 5/23/2016 Exhibit D Geographic Names Panel Clarifying Questions submitted by ICANN’s

2 ER-93 – ER-95

97-9 5/23/2016 Declaration of Akram Atallah in Support of Defendant ZACR’s Motion to Reconsider and Vacate Preliminary Injunction Ruling

2 ER-96 – ER-97

93 5/16/2016 Declaration of Sophia Bekele Eshete

2 ER-98 – ER-101

92 5/16/206 Declaration of Sara C. Colon 2 ER-102 – ER-105


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ECF No.


92-1 5/16/206 Exhibit 1 Contract SA 1301-12-CN-0035

2 ER-106 – ER-171

92-2 5/16/206 Exhibit 2 ICANN’s press release “Plan to Transition Stewardship of Key Internet Functions Sent to the U.S. Government”

2 ER-172 – ER-177

92-3 5/16/206 Exhibit 3 Internal Review Panel’s (“IRP”) Decision on Interim Measures of Protection

2 ER-178 – ER-191

92-4 5/16/206 Exhibit 4 March 8, 2016 email to Lucky Masilela

2 ER-192 – ER-193

92-5 5/16/206 Exhibit 5 April 1, 2016 email chain

2 ER-194 – ER-196

86 5/10/2016 Defendant Internet Corporation for Assigned Names and Numbers’ Joinder in Defendant ZACR’s Motion to Reconsider and Vacate Preliminary Injunction Ruling

2 ER-197 – ER-198

85-1 5/6/2016 Memorandum of Points and Authorities in Support of ZACR’s Motion to Reconsider and Vacate Preliminary Injunction Ruling

2 ER-199– ER-220

85-2 5/6/2016 Declaration of David W. Kesselman in Support of ZACR’s Motion to Reconsider and Vacate Preliminary

2 ER-221 – ER-222


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ECF No.


Injunction Ruling

85-3 5/6/216 Declaration of Mokgabudi Lucky Masilela in Support of Defendant ZACR’s Motion to Reconsider and Vacate Preliminary Injunction Ruling

2 ER-223 – ER-228

85-4 4/26/2016 Exhibit A-E to the Declaration of Mokgabudi Lucky Masilela

2 ER-229 – ER-338

46 3/21/2016 Declaration of Sara C. Colon 3 ER-339 – ER-342

46-1 3/21/2016 Exhibit 1 ICANN’s 2014 Annual Report

3 ER-343 – ER-409

46-2 3/21/2016 Exhibit 2 ICANN’s 2026 Operation Plan & Budget

3 ER-410 – ER-483

46-3 3/21/2016 Exhibit 3 July 15, 2015 letter from Defendant ZA Central Registry

3 ER-484 – ER-493

45 3/21/2016 Supplemental Declaration of Sophia Bekele Eshete

3 ER-494 – ER-496

45-1 3/21/2016 Exhibit 1 Excerpt of DCA’s .Africa gTLD Application

3 ER-497 – ER-503

45-2 3/21/2016 Exhibit 2 June 25, 2013 Email and attachment from Trang Nguyen

3 ER-504 – ER-507


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ECF No.


45-3 3/21/2016 Exhibit 3 September 22, 2015 Letter from The United Nations Economic Commission for Africa

3 ER-508 – ER-511

42 3/17/2016 Unredacted Exhibits 19 &23-25 to Sophia Bekele Eshete Declaration in Support of Motion for Preliminary Injunction

3 ER-512 – ER-525

40 3/14/2016 Declaration of Moctar Yedaly in Support of ICANN’s Opposition to Plaintiff’s Motion for Preliminary Injunction

3 ER-526 – ER-531

40-1 3/14/206 Exhibit A August 7, 2010 Abuja Declaration

3 ER-532 – ER-537

40-2 3/14/2016 Exhibit B GAC Early Warning – Submittal Africa–AUC–42560

3 ER-538 – ER-617

40-3 3/14/2016 Exhibit C 11 April 2013 GAC Communiqué – Beijing, People’s Republic of China

3 ER-618 – ER-630

40-4 3/14/2016 Exhibit D June 2, 2014 AUC Letter to ICANN

3 ER-631 – ER-633

39 3/14/2016 Declaration of Christine Willett in Support of Defendant ICANN’s Opposition to Plaintiff’s Motion for Preliminary Injunction

4 ER-634 – ER-639


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ECF No.


39-1 3/14/2016 Exhibit A Excerpts of the technical explanation Plaintiff submitted as part of its New gTLD Application

4 ER-640 – ER-651

39-2 3/14/2016 Exhibit B UNECA’s September 2015 Letter

4 ER-652 – ER-654

39-3 3/14/2016 Exhibit C The Board’s March 3, 2016 resolution

4 ER-655 – ER-672

38 3/14/2016 Declaration of Jeffrey A. LeVee 4 ER-673 – ER-677

38-1 3/14/2016 Exhibit A Excerpt of the Declaration of Sophia Bekele Eshete

4 ER-678 – ER-686

37 3/14/2016 Declaration of Kevin Espinola in Support of Defendant ICANN’s Opposition to Plaintiff’s Motion for Preliminary Injunction

4 ER-687 – ER-691

37-1 3/14/2016 Exhibit A Plaintiff’s Comment.

4 ER-692 – ER-693

37-2 3/14/2016 Exhibit B Excerpt of the New gTLDs Proposed Final Applicant Guidebook Public Comment Summary

4 ER-694 – ER-697

37-3 3/14/2016 Exhibit C Module 6 of the April 2011 Guidebook

4 ER-698 – ER-703


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ECF No.


37-4 3/14/2016 Exhibit D ICANN Board-GAC Consultation Legal Recourse for New Gtld Registry Applicants

4 ER-704 – ER-712

37-5 3/14/2016 Exhibit E Excerpt of Public Comments to the February 2009 Guidebook

4 ER-713 – ER-715

37-6 3/14/2016 Exhibit F 25 September Adopted Resolutions

4 ER-716 – ER-728

36 3/14/2016 Declaration of Akram Atallah in Support of ICANN’s Opposition to Plaintiff’s Motion for Preliminary Injunction

4 ER-729 – ER-733

36-1 3/14/2016 Exhibit A Excerpt of the final Declaration of the ICM Panel

4 ER-734 – ER-737

36-2 3/14/2016 Exhibit B ICANN Board Resolutions 2015.07.16.01-05

4 ER-638 – ER-751

27 3/4/2016 Order re: Temporary Restraining 4 ER-752 – ER-753

17 3/1/2016 Declaration of Sophia Bekele Eshete

4 ER-754 – ER-760

17-01 3/1/2016 Exhibit 1 Internet Corporation for Assigned Names and Numbers (“ICANN”) Internal Review Process (“IRP”) Final Declaration dated July 9, 2015

4 ER-761 – ER-824


-7-

ECF No.


17-02 3/1/2016 Exhibit 2 ICANN IRP Declaration on the IRP Procedure dated August 14, 2014

4 ER-825 – ER-858

17-03 3/1/2016 Exhibit 3 ICANN’s gTLD Applicant Guidebook

5 ER-859 – ER-1157

17-03 Cont.

3/1/2016 Exhibit 3 ICANN’s gTLD Applicant Guidebook

6 ER-1158 – ER-1197

17-04 3/1/2015 Exhibit 4 Bylaws for Internet Corporation for Assigned Names and Numbers

6 ER-1198 – ER-1306

17-05 3/1/2015 Exhibit 5 ICANN Reconsideration and Independent Review by Laws Article IV Accountability and Review

6 ER-1307 – ER-1310

17-06 3/1/2015 Exhibit 6 August 27, 2009 DCA endorsement letter from the AUC

6 ER-1311 – ER-1312

17-07 3/1/2016 Exhibit 7 April 16, 2010 letter from the AUC

6 ER-1313 – ER-1314

17-08 3/1/2016 Exhibit 8 August 8, 2008 DCA endorsement letter from the United Nations Economic Commission on Africa

6 ER-1315 – ER-1316


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ECF No.


17-09 3/1/2016 Exhibit 9 March 23, 2014 email from Alice Munyua

6 ER-1317 – ER-1319

17-10 3/1/2016 Exhibit 10 September 21, 2015 letter from UNECA to Dr. Ibrahim, a representative of the AUC

6 ER-1320 – ER-1323

17-11 3/1/2016 Exhibit 11 December 5, 2010 DCA endorsement letter from the Internationalized Domain Resolution Union

6 ER-1324 – ER-1325

17-12 3/1/2016 Exhibit 12 November 17, 2010 DCA endorsement letter from the Corporate Council on Africa

6 ER-1326 – ER-1327

17-13 3/1/2016 Exhibit 13 August 7, 2012 endorsement letter from Kenya

6 ER-1328 – ER-1330

17-14 3/1/2016 Exhibit 14 March 8, 2012 letter from ICANN to AUC

6 ER-1331 – ER-1340

17-15 3/1/2016 Exhibit 15 First set of clarifying questions ICANN issued to DCA on September 2, 2015

6 ER-1341 – ER-1351

17-16 3/1/2016 Exhibit 16 ICANN’s response to DCA regarding the clarifying questions in the Initial Evaluation Results Report issued

6 ER-1352 – ER-1354


-9-

ECF No.


on October 13, 2015

17-17 3/1/2016 Exhibit 17 Second set of clarifying questions ICANN issued to DCA on October 30, 2015

6 ER-1355 – ER-1365

17-18 3/1/2016 Exhibit 18 New gTLD Program Extended Evaluation Report Date 17 February 2016

6 ER-1366 – ER-1367

17-19 3/1/2016 Exhibit 19 March 15, 2013 email from Mark McFadden of the ICC to ICANN employees

6 ER-1368 – ER-1374

17-20 3/1/2016 Exhibit 20 ZACR’s public application for the .Africa gTLD

7 ER-1375 – ER-1463

17-21 3/1/2016 Exhibit 21 AUC Communique on the AUC selecting ZACR

7 ER-1464 – ER-1468

17-22 3/1/2016 Exhibit 22 ICANN news article regarding InterConnect Communications

7 ER-1469 – ER-1472

17-23 3/1/2016 Exhibit 23 October 15, 2012 email from the ICC to ICANN with attachment

7 ER-1473 – ER-1476

17-24 3/1/2016 Exhibit 24 October 15, 2012 email from the ICC to ICANN with attachment

7 ER-1477 – ER-1478

17-25 3/1/2016 Exhibit 25 April 9, 2013 email from Samuel

7 ER-1479 –


-10-

ECF No.


Buruchara to Heather Dryden ER-1480

17-26 3/1/2016 Exhibit 26 April 11, 2013 GAC Communique

7 ER-1481 – ER-1493

17-27 3/1/2016 Exhibit 27 New GTLD Program Initial Evaluation Report for ZACR’s application

7 ER-1494 – ER-1496

17-28 3/1/2016 Exhibit 28 March meeting schedule

7 ER-1497 – ER-1500

17-29 3/1/2016 Exhibit 29 GAC Operating Principles

7 ER-1501 – ER-1508

16 3/1/2016 Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities

7 ER-1509 – ER-1535

16-1 3/1/2016 Declaration of Ethan J. Brown in Support of Plaintiff’s Motion for Preliminary Injunction

7 ER-1536 – ER-1537

10 2/26/2016 Plaintiff’s First Amended Complaint

7 ER-1538 – ER-1567

1 2/8/2016 Notice of Removal 7 ER-1568 – ER-1656

Case No 16-cv-00862-RGK-JC Docket Index

7 ER-1657 – ER-1668


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AMENDED NOTICE OF PRELIMINARY INJUNCTION APPEAL

CV16-00862-RGK

Jeffrey A. LeVee (State Bar No. 125863)[email protected] Kate Wallace (State Bar No. 234949) [email protected] Rachel Gezerseh (State Bar No. 251299) [email protected] Charlotte Wasserstein (State Bar No. 279442) [email protected] JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071.2300 Telephone: +1.213.489.3939 Facsimile: +1.213.243.2539

Attorneys for Defendant INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION


Plaintiff,

v.

INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS, et al.,

Defendants.

Case No. CV 16-00862-RGK

Assigned for all purposes to the Honorable R. Gary Klausner

AMENDED NOTICE OF APPEAL

PRELIMINARY INJUNCTION APPEAL

Case 2:16-cv-00862-RGK-JC Document 119 Filed 06/27/16 Page 1 of 2 Page ID #:4493

ER-001


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AMENDED NOTICE OF PRELIMINARY INJUNCTION APPEAL

CV16-00862-RGK

Notice is hereby given that defendant Internet Corporation for Assigned

Names and Numbers (“ICANN”) amends its notice of appeal filed May 11, 2016

(ECF No. 89) in the above-captioned action to the United States Court of Appeals

for the Ninth Circuit. By that notice, ICANN appealed from the order entered on

April 12, 2016 (ECF No. 75), attached hereto as Exhibit 1, which granted a

preliminary injunction in favor of the plaintiff. ICANN now also appeals the

Court’s order entered on June 20, 2016 (ECF No. 113), attached hereto as

Exhibit 2, denying reconsideration of the previous order granting the preliminary

injunction. ICANN’s Representation Statement is attached hereto as Exhibit 3. Dated: June 27, 2016 JONES DAY

By: /s/ Jeffrey A. LeVee Jeffrey A. LeVee



ER-002


EXHIBIT 1

Case 2:16-cv-00862-RGK-JC Document 119-1 Filed 06/27/16 Page 1 of 18 Page ID #:4495

ER-003


UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 16-CV-00862 RGK (JCx) Date April 12, 2016

Title DotConnectAfrica Trust v. Internet Corporation for Assigned Names andNumbers & ZA Central Registry

Present: TheHonorable

R. GARY KLAUSNER, U.S. DISTRICT JUDGE

Sharon L. Williams (Not Present) Not Reported N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (IN CHAMBERS) Order re: Plaintiff’s Motion for PreliminaryInjunction (DE 16)

I. INTRODUCTION

On February 26, 2016, Plaintiff DotConnectAfrica Trust (“DCA”) filed a First AmendedComplaint (“FAC”) against Defendants Internet Corporation for Assigned Names and Numbers(“ICANN”), and ZA Central Registry (“ZACR”) (collectively “Defendants”) alleging the followingclaims: (1) Breach of Contract; (2) Intentional Misrepresentation; (3) Negligent Misrepresentation; (4)Fraud & Conspiracy to Commit Fraud; (5) Unfair Competition (Violation of Cal. Bus. & Prof. Code. §17200); (6) Negligence; (7) Intentional Interference with Contract; (8) Confirmation of IRP Award; (9)Declaratory Relief (that ICANN follow the IRP Declaration and allow the DCA application to proceedthrough the delegation phase of the process); (10) Declaratory Relief (that the registry agreementbetween ZACR and ICANN is null and void and that ZACR’s application does not meet ICANNstandards); and (11) Declaratory Relief (that the covenant not to sue is unenforceable, unconscionable,procured by fraud and/or void as a matter of law and public policy).

Presently before the Court is DCA’s Motion for Preliminary Injunction. For the followingreasons, the Court GRANTS the Motion.

II. STATEMENT OF FACTS

The following facts are alleged in the Complaint.

Defendant ICANN is the sole organization worldwide that assigns rights to Generic Top-level

CV-90 (06/04) CIVIL MINUTES - GENERAL Page 1 of 8

Case 2:16-cv-00862-RGK-JC Document 75 Filed 04/12/16 Page 1 of 8 Page ID #:3377Case 2:16-cv-00862-RGK-JC Document 119-1 Filed 06/27/16 Page 2 of 18 Page ID #:4496

ER-004


Domains (“gTLDs”). In 2011, ICANN approved the expansion of the number of gTLDs available toeligible applicants as part of its 2012 Generic Top-Level Domains Internet Expansion Program (“NewgTLD Program”). Examples of gTLDs include .Lat, .Wales, .Africa, and .Swiss. ICANN invited eligibleparties to submit applications to obtain the rights to these various gTLDs. ICANN promised to conductthe bid process in a transparent manner, ensure competition, and abide by its own bylaws and the rulesset forth in the gTLD Applicant’s Guidebook. In March 2012, Plaintiff DCA submitted an application toICANN to obtain the rights to the .Africa gTLD. DCA paid ICANN the mandatory application fee of$185,000. On February 17, 2014, Defendant ZACR also submitted an application for .Africa.

A. Geographic Name Applications and the Governmental Advisory Committee

ICANN’s Applicant Guidebook contains an overview of the application process. (Bekele Decl.,Ex. 3 at 1-3–1-14, ECF No. 17.) After the administrative completeness check, ICANN conducts aninitial evaluation of the application. (Bekele Decl., Ex. 3 at 1-7, ECF No. 17.) During the initialevaluation, ICANN conducts string reviews, which determine whether a gTLD is too similar to existingTLDs. (Bekele Decl., Ex. 3 at 1-7, ECF No. 17.) The initial evaluation also includes the geographicname evaluation, in which ICANN determines whether an application contains sufficient endorsements,along with determining whether an applicant has the requisite technical, operational, and financialcapabilities to operate a gTLD. (Bekele Decl., Ex. 3 at 1-7, ECF No. 17.) Applicants can request anextended evaluation if it fails the initial evaluation. (Bekele Decl., Ex. 3 at 1-11, ECF No. 17.)Applicants who have successfully completed the initial evaluation (and the extended evaluation, ifrequested) proceed to the delegation stage, which includes executing a registry agreement with ICANNand conducting a pre-delegation technical test to validate information in the application. (Bekele Decl.,Ex. 3 at 1-14, ECF No. 17.)

According to ICANN’s policy and procedures, applicants for geographic gTLDs must obtainendorsements from 60% of the national governments in the region and no more than one writtenobjection from the relevant governments or public authorities associated with the region. DCA obtainedendorsements of the United Nations Economic Commission for Africa (“UNECA”) in August 2008 andthe African Union Commission (“AUC”) in August 2009. In 2010, however, AUC sent a letterinforming DCA that it has “reconsidered its approach” and “no longer endorses individual initiatives inthis matter related to continental resource.” (FAC ¶ 24, ECF No. 10.) The Guidebook states that agovernment may withdraw its endorsement only if the conditions of its endorsement have not beensatisfied. Contrary to ICANN’s allegations, DCA maintains that the AUC letter did not formallywithdraw its endorsement of DCA because AUC did not have conditions on its endorsement.

On behalf of ICANN, InterConnect Communications (“ICC”) performs string similarity andgeographic review during the initial evaluation stage of the gTLD application process. ICC explained toICANN that if the endorsements of regional organizations like AUC and UNECA were not appliedtoward the 60% requirement, neither DCA nor Defendant ZACR would have sufficient geographicsupport. (Bekele Decl., Ex. 19 & 23, ECF No. 17.) ICANN decided to accept endorsements from bothAUC and UNECA. During its initial evaluation, the ICC was required to inform applicants of anyproblems with their endorsements. The ICC failed to inform DCA of any such problems. ThereforeDCA assumed that its endorsements from AUC and UNECA were sufficient.

In 2011, AUC itself, attempted to obtain the rights to .Africa by requesting ICANN to include.Africa in the list of Top-Level Reserved Names, which would have made .Africa unavailable fordelegation under the New gTLD Program. In a March 8, 2012 letter, the ICANN Board ChairmanStephen Crocker explained to AUC that ICANN could not reserve .Africa for AUC’s use. However,Crocker explained, AUC could “play a prominent role in determining the outcome of any application”for .Africa as a public authority associated with the continent by (1) filing one written statement ofobjection, (2) filing a community objection, or (3) utilizing the Governmental Advisory Committee



ER-005


(“GAC”) to combat a competing application. (FAC ¶ 69, ECF No. 10.) The Governmental AdvisoryCommittee (“GAC”) is an internal committee that considers applicants and provides advice related togovernmental concerns. Under ICANN’s rules, the GAC can recommend that ICANN cease reviewingan application if all of the GAC members agree that an application should not proceed because anapplicant is sensitive or problematic. Membership on the GAC is open to representatives of all nationalgovernments. AUC became a GAC member in June 2012, apparently on the advice of ICANN.

Because AUC could not obtain .Africa directly through ICANN, AUC contracted with ZACR inMarch 2014. In exchange for AUC’s endorsement, ZACR would assign to AUC all rights relating to.Africa upon its delegation to ZACR. Subsequently, because of AUC’s interest in ZACR’s applicationfor .Africa, AUC used its influence as a GAC member to campaign against DCA’s application. In June2013, ICANN accepted the GAC’s advice and rejected DCA’s application for lacking the requisiteendorsements. This decision was made amid DCA’s objection that several members of the GAC hadconflicts of interest and that Kenya was unrepresented at the GAC meeting. (Bekele Decl., Ex. 24 & 25,ECF. No. 17.) Contrary to ICANN’s contentions, DCA maintains that the lack of unanimous supportwithin the GAC rendered the decision to suspend DCA’s application improper.

DCA further argues that, if ICANN applied the GAC’s rationale for rejecting DCA’s applicationequally to ZACR, ZACR’s application should have failed as well. Specifically, applying the samestandards, ZACR did not have sufficient country specific endorsements to meet ICANN’s requirements:(1) only five of the purported endorsement letters from specific African governments referenced ZACRby name; and (2) ZACR filed support letters in which African governments generally endorsed AUC’s“Reserved Names” initiative without specifically referencing ZACR. ZACR presumably passed the 60%threshold requirement based on the same regional endorsements that the GAC used to derail DCA’sapplication. Nonetheless, ZACR passed the initial evaluation and entered into the delegation phase withICANN.

B. The Independent Review Process

As a means to challenge ICANN’s actions with respect to gTLD applications, ICANN providesapplicants with an independent review process (“IRP”). The IRP is arbitration comprised of anindependent panel of arbitrators. In October 2013, DCA sought an IRP to review ICANN’s processingof its application, including ICANN’s handling of the GAC opinion. In its decision, the IRP Panel foundagainst ICANN as follows: (1) ICANN’s actions and inactions with respect to DCA’s application wereinconsistent with ICANN’s bylaws and articles of incorporation; and (2) ICANN should refrain fromdelegating .Africa and permit DCA’s application to proceed through the remainder of the evaluationprocess.

DCA asserts that ICANN did not act in accordance with the decision, which was binding.Instead of allowing DCA’s application to proceed through the remainder of the application process (i.e.the delegation phase), ICANN restarted DCA’s application from the beginning and re-reviewed itsendorsements. In September 2015, during the second review, ICANN issued clarifying questionsregarding DCA’s endorsements, which it did not raise during the initial evaluation of these sameendorsements. The DCA requested an extended evaluation, hoping to gain insight on what was wrongwith its application. Rather than providing clarification, ICANN merely restated the same questions –allegedly as a pretext to deny DCA’s application – then denied DCA’s application in February 2016.Soon thereafter, ICANN began the process of delegating .Africa to ZACR.

On March 4, 2016, this Court issued a Temporary Restraining Order to prevent ICANN fromdelegating .Africa to ZACR until the Court decided this present Motion.

III. JUDICIAL STANDARDCV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 8


ER-006


“[I]njunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showingthat the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22(2008). For a court to grant a preliminary injunction, a plaintiff must establish the following: (1)likelihood of success on the merits, (2) likelihood of irreparable harm in the absence of preliminaryrelief, (3) that the balance of equities tips in its favor, and (4) that the public interest favors injunction.Id. at 20.

The Ninth Circuit also employs a “sliding scale” approach to preliminary injunctions. Alliancefor the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). This approach uses the same fourfactors as the Winter test, but allows the plaintiff to receive a preliminary injunction in situations wherethere are “serious questions” going toward the plaintiff’s likelihood of success on the merits, so long asthe “balance of hardships tips sharply in the plaintiff’s favor.” Id. at 1134-35. The plaintiff must stilldemonstrate a likelihood of irreparable harm and that public interest favors the injunction. Id. at 1135.

VI. DISCUSSION

DCA seeks a preliminary injunction barring ICANN from issuing the rights to .Africa until thiscase is resolved. DCA moves for a preliminary injunction based on its Ninth Claim for DeclaratoryRelief. DCA’s Ninth Claim seeks a judicial declaration that ICANN follow the IRP decision and allowthe DCA application to proceed through the delegation phase of the application process. In determiningwhether relief should be granted, the Court addresses each of the relevant factors for preliminaryinjunction.

A. Likelihood of Success on the Merits

1. The Release Does Not Bar DCA’s Claim at This Time.

As a preliminary matter, ICANN argues that DCA, by submitting a New gTLD Programapplication, is bound by the terms in the Applicant Guidebook. These terms include a Release barringapplicants from challenging in court any decision made by ICANN. (Bekele Decl. 6-4, Ex. 3, ECF No.17.) DCA argues, however, that the Release is unenforceable because it violates California Civil Code §1668, is unconscionable, and was procured by fraud. The Court finds substantial questions as to theRelease, weighing toward its unenforceability.

California Civil Code § 1668 finds that “[a]ll contracts which have for their object, directly orindirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person orproperty or another, or violation of law, whether willful or negligent, are against the policy of the law.”

The Release applies to all gTLD applicants and states, in relevant part:

Applicant hereby releases ICANN . . . from any and all claims by applicant that ariseout of, are based upon, or are in any way related to, any action, or failure to act, byICANN . . . in connection with ICANN’s . . . review of this application. . . .Applicant agrees not to challenge . . . and irrevocably waives any right to sue orproceed in court.

(Bekele Decl. 6-4, Ex. 3, ECF No. 17.) On its face, the Release is “against the policy of the law”because it exempts ICANN from any and all claims arising out of the application process, even thosearising from fraudulent or willful conduct. Cal. Civ. Code § 1668.

ICANN argues that Section 1668 is limited only to agreements involving the public interest,CV-90 (06/04) CIVIL MINUTES - GENERAL Page 4 of 8


ER-007


which the Guidebook is not, and cites to Tunkl v. Regents of Cal., 383 P.2d 441 (Cal. 1963) for support.However, Tunkl concerns the validity of a release from liability for negligence, not intentional acts orfraud. Here, the Release waives all liability, not just liability resulting from negligence. Thus, Tunkl isdistinguishable, and the Court need not determine whether the Release is in an agreement involving thepublic interest.

ICANN further argues that, if the Release is found to violate Section 1668, the Court shouldlimit its unenforceability to DCA’s claims sounding in fraud. ICANN contends that because the requestfor preliminary injunction is based solely on DCA’s Declaratory Relief Claim, which does not sound infraud, the Release is enforceable as it pertains to this Claim. (Def.’s Opp’n to Mot. for Prelim. Inj.15:12-14, ECF No. 35.) The Court disagrees. ICANN fails to recognize that the alleged conduct givingrise to this claim is intentional. Specifically, DCA alleges that ICANN intended to deny DCA’sapplication after the IRP proceeding under any pretext and without a legitimate reason. (FAC ¶ 59, ECFNo. 10.) DCA claims that “the process ICANN put Plaintiff through was a sham with a predeterminedending – ICANN’s denial of Plaintiff’s application so that ICANN could steer the gTLD to ZACR.”(FAC ¶ 60, ECF No. 10.)

In support, DCA offers the following evidence. ICANN’s initial evaluation report in July 2013stated that DCA’s endorsement letters “met all relevant criteria in Section 2.2.1.4.3 of the ApplicantGuidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) After the IRP Decision, ICANN performed asecond evaluation on the same information originally submitted by DCA. In the second evaluation,however, ICANN found that the endorsement letters did not meet the same criteria applied in the firstevaluation, and sent DCA clarifying questions regarding its endorsements. (Bekele Decl. ¶ 24, Ex. 15,ECF No. 17.) The clarifying questions required DCA to submit endorsement letters that “[d]emonstrate[d] the government’s or public authority’s understanding that the string is being soughtthrough the gTLD application process and that the applicant is willing to accept the conditions underwhich the string will be available.” (Bekele Decl. ¶ 24, Ex. 15, ECF No. 17.) The discrepancy betweenthe pre-IRP and post-IRP evaluations led DCA to seek further clarification, specifically regarding thestandard imposed on the endorsement letters at issue. However, in response, ICANN merely sent thesame questions. (Bekele Decl. ¶ 26, Ex. 17, ECF No. 17.) DCA then submitted to an extendedevaluation, which allows further review and is available to applicants who failed the initial evaluation.Without further communication, ICANN then issued a final decision that restated that the endorsementletters “did not meet the criteria described in Section 2.2.1.4.3 of the Applicant Guidebook.” (BekeleDecl. ¶ 28, Ex. 18, ECF No. 17.) ICANN’s conduct thereby rendered DCA’s application ineligible forfurther review. (Bekele Decl. ¶ 28, Ex. 18, ECF No. 17.)

The evidence suggests that ICANN intended to deny DCA’s application based on pretext.Defendants have not introduced any controverting facts. As such, the Court finds serious questionsregarding the enforceability of the Release due to California Civil Code § 1668.

Because the Court finds serious questions regarding the enforceability of the Release due toCalifornia Civil Code § 1668, the Court need not address DCA’s arguments regarding unconscionabilityor procurement by fraud.

2. There Are Serious Questions as to the Merits of DCA’s Ninth Claim.

After its review, the IRP Panel declared: (1) “both the actions and inactions of the Board withrespect to the application of DCA [] relating to the .AFRICA gTLD were inconsistent with the Articlesof Incorporation and Bylaws of ICANN” and (2) ICANN “continue to refrain from delegating the.AFRICA gTLD and permit [DCA’s] application to proceed through the remainder of the [New gTLDProgram] application process.” (Bekele Decl., Ex. 1 ¶ 61, ECF No. 17.) DCA alleges in its Ninth Claimthat ICANN failed to follow the IRP Panel’s binding order, resulting in ICANN’s not properly



ER-008


considering DCA’s application.

After the IRP Decision, ICANN placed DCA at the geographic name evaluation stage of theapplication process and thereafter determined that DCA lacked the requisite support. (Bekele Decl. ¶ 28,Ex. 18, ECF No. 17.) DCA contends that ICANN violated the IRP Decision by restarting the geographicname evaluation, which it had already passed, rather than permitting the application to resume at thedelegation phase. (Pl.’s Mot. for Prelim. Inj. 13:4-5, ECF No.16.) ICANN, however, argues that at thetime DCA’s application had been initially rejected, the application was still under review at thegeographic name evaluation stage, and the evaluation was not yet complete. (Def.’s Opp’n to Mot. forPrelim. Inj. 17:20-22, ECF No. 35.) Accordingly, ICANN maintains that it placed DCA’s application atthe proper stage of evaluation after the IRP Decision.

Despite ICANN’s contention, the evidence presents serious questions pointing in favor ofDCA’s argument. First, a March 2013 email from ICC to ICANN stated that ICANN needs to clarifyAUC’s endorsements since AUC properly endorsed both DCA and ZACR. (Bekele Decl. ¶ 30, Ex. 19,ECF No. 17.) Subsequently, ICANN’s July 2013 initial evaluation report found that the endorsementletters have “met all relevant criteria in Section 2.2.1.4.3 of the Applicant Guidebook.” (Bekele Decl. ¶40, Ex. 27, ECF No. 17.) Because ICANN found DCA’s application passed the geographic namesevaluation in the July 2013 initial evaluation report, the Court finds serious questions in DCA’s favor asto whether DCA’s application should have proceeded to the delegation stage following the IRPDecision.

ICANN further argues that even if ICANN failed to follow the IRP Decision, the Decision wasonly advisory, and not binding. The evidence does not provide clear indications on this point. On theone hand, the Panel concluded “that its [Decision] on the IRP and its future [Decision] on the Merits ofthe case were binding on the Parties.” (Bekele Decl., Ex. 1 ¶ 23, ECF No. 17.) The Panel explains,“[v]arious provisions of ICANN’s Bylaws and the Supplementary Procedures support the conclusionthat the Panel’s decisions, opinions and declarations are binding . . . [t]he selection of the [InternationalDispute Resolution Procedures] as the baseline set of procedures for IRP’s, therefore, points to a bindingadjudicative process.” (Bekele Decl., Ex. 1 ¶ 23, ECF No. 17.) The Panel opined that if the decision isnot binding, then at a minimum, “the IRP should forthrightly explain and acknowledge that the processis merely advisory.” (Bekele Decl., Ex. 1 ¶ 23, ECF No. 17.) The IRP did not provide such explanationor acknowledgment. (Bekele Decl., Ex. 1 ¶ 23, ECF No. 17.) On the other hand, language in the IRPDecision states that the Panel “recommends that ICANN continue to refrain from delegating the .AfricagTLD and permit [DCA’s] application to proceed through the remainder of the new gTLD applicationprocess.” (Bekele Decl., Ex. 1 ¶ 149, ECF No. 17 (emphasis added).) It is clear the decision that ICANNviolated its bylaws by failing to fairly review DCA’s application is binding. However, it is not clearwhether ICANN was mandated to permit DCA’s application to proceed through the remainder of theprocess. Without extrinsic evidence as a guide, logic dictates that if the “recommendation” is, in fact,non-binding, the Panel’s decision that ICANN violated its bylaws (which is undisputedly binding) isrendered ineffectual. Because the IRP is presumably in place to effect dispute resolution, and the IRPprovided no explanation or acknowledgment that its decision was merely advisory, the Court findsserious questions on this issue.

For the reasons stated above, the Court finds serious questions going toward the merits of DCA’sNinth Claim.



ER-009


B. Likelihood of Irreparable Harm

As DCA points out, without preliminary relief, DCA will lose the opportunity to fairly have itsapplication reviewed by ICANN. If DCA loses this opportunity, DCA will suffer irreparable harmbecause .Africa can be delegated only once, and only by ICANN. (Bekele Decl., Ex. 3 ApplicationTerms and Conditions ¶ 3, ECF No. 17.) Further, only one entity can operate .Africa. (Bekele Decl., Ex.3 at 4-2, ECF No. 17.) DCA has sufficiently demonstrated that, due to the unique nature of .Africa, itwill likely suffer irreparable harm without preliminary relief.

Moreover, on March 4, 2016, the Court issued a temporary restraining order precluding ICANNfrom delegating the rights to .Africa until the Court rules on the present motion. (Order Granting TRO,ECF No. 27.) In that Order, the Court found that without a TRO, ICANN would have immediatelydelegated the rights to .Africa. (Order Granting TRO, ECF No. 27.) The Court finds no evidenceindicating a change in circumstances. It is reasonable to believe that without a preliminary injunction,ICANN will immediately delegate the rights to .Africa to ZACR, causing DCA to suffer irreparableharm.

ICANN argues only that DCA cannot possibly suffer irreparable harm because it seekscompensatory relief. This argument is unavailing. Seeking compensatory damages does not preclude theCourt from finding irreparable harm, as the control over .Africa cannot fully be compensated by money.See Blackwater Lodge & Training Ctr., Inc. v. Broughton, 2008 U.S. Dist. Lexis 49371 at *28 (S.D. Cal.2008) (granting preliminary injunction despite plaintiff seeking monetary relief).

The Court thus finds that without relief, DCA will likely suffer irreparable harm.

C. Balance of Equities

The balance of equities tips in favor of granting the preliminary injunction. Without apreliminary injunction, DCA will lose the opportunity to obtain rights to .Africa because ICANN willlikely delegate the rights to ZACR prior to the conclusion of this action, and these rights can bedelegated only once. DCA has invested much time and money in the application process under therepresentation that the process would be unbiased and fair. Although DCA may be able to recovercertain funds through litigation, such as the application fee, the opportunity to obtain the rights to.Africa would be forever gone. ICANN’s position, however, will be no different if it delays delegatingthe rights to .Africa. Thus, the balance of equities tips sharply in DCA’s favor.

D. The Public Interest Favors Granting Preliminary Injunction

The public interest favors granting a preliminary injunction. “The public interest analysis for theissuance of a preliminary injunction requires us to consider whether there exists some critical publicinterest that would be injured by the grant of preliminary relief.” Alliance for the Wild Rockies v.Cottrell, 632 F.3d 1127, 1138 (9th Cir. 2011). Here, the public has an interest in the fair and transparentapplication process that grants gTLD rights. ICANN regulates the internet – a global system thatdramatically impacts daily life in today’s society. The IRP Declaration recognizes that ICANN’sfunction is “special, unique, and publicly important” and ICANN itself “is the steward of a highlyvaluable and important international resources.” (Bekele Decl.¶ 23.110, Ex. 1, ECF No. 17.)

ICANN argues that a delay in delegating .Africa will prejudice the African community’s effortsto participate in the Internet economy and strengthen their technology sectors. (Def.’s Opp’n to Mot. forPrelim. Inj. 20:3-5, ECF No. 35.) The evidence supporting ICANN’s argument is a declaration ofMoctar Yedaly, the head of the Information Society Division of the AUC’s Infrastructure and EnergyDepartment. (Yedaly Decl. ¶ 11, ECF No. 40.) The AUC’s relationship with ZACR, and its interest in



ER-010


preventing the delay of issuing rights to .Africa creates a conflict of interest. Therefore, on this point, theCourt accords little weight to the Yedaly Declaration. On balance, the Court finds it more prejudicial tothe African community, and the international community in general, if the delegation of .Africa is madeprior to a determination on the fairness of the process by which it was delegated.

For the reasons stated, the Court finds the public interest favors granting the preliminaryinjunction.

E. Implementing the “Sliding Scale” Approach

Implementing the Ninth Circuit’s “sliding scale” approach to preliminary injunctions, the Courtfinds “serious questions” going toward DCA’s likelihood of success on the merits and a balance ofhardships that tips sharply in DCA’s favor. Alliance for the Wild Rockies at 1131. Additionally, theCourt finds that both the likelihood of irreparable injury and the public interest favors the injunction. Assuch, the Court GRANTS a preliminary injunction barring ICANN from delegating the rights to .Africauntil this case is resolved.

VI. CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiff’s Motion for Preliminary Injunction.

IT IS SO ORDERED.

:

Initials of Preparer



ER-011


EXHIBIT 2


ER-012




Case No. 16-CV-00862 RGK (JCx) Date June 20, 2016








Proceedings: (IN CHAMBERS) Order re: Defendants Motion for Reconsideration reOrder on Motion for Preliminary Injunction (DEs 85 and 86)

I. FACTUAL BACKGROUND

On February 26, 2016, Plaintiff DotConnectAfrica Trust (“Plaintiff”) filed a First AmendedComplaint (“FAC”) against Defendants Internet Corporation for Assigned Names and Numbers(“ICANN”), and ZA Central Registry (“ZACR”) (collectively “Defendants”). The action arises out of adispute involving the delegation of rights related to the .Africa top-level domain.

On March 4, 2016, the Court granted Plaintiff’s Ex Parte Application for TRO, enjoiningICANN from issuing the .Africa top-level domain until the Court decided Plaintiff’s Motion forPreliminary Injunction. On April 12, 2016, the Court granted Plaintiff’s Motion for PreliminaryInjunction, keeping the injunction in place until resolution of the action.

On April 26, 2016, ZACR filed a Motion to Dismiss all claims asserted against it. On May 6,2016, ZACR filed the current Motion for Reconsideration regarding the Court’s Order re PreliminaryInjunction. ICANN joined this motion on May 10, 2016. Since then, the Court has granted ZACR’sMotion to Dismiss in its entirety, thereby extinguishing ZACR’s role a party to the action. Therefore,the Court denies as moot ZACR’s motion for reconsideration, and addresses the motion only as itpertains to ICANN.

Upon review ICANN’s arguments, the Court denies ICANN’s motion.



ER-013


II. JUDICIAL STANDARD

Federal Rule of Civil Procedure 59(e) governs a motion to reconsider a preliminary injunction,and Federal Rule of Civil Procedure 54(b) governs a motion to vacate or dissolve a preliminaryinjunction. Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005). While amotion made under Rule 59(e) seeks to relitigate the issues underlying the original preliminaryinjunction, a motion made under Rule 54(b) seeks relief from inequities that arise after the originalorder. Id. Therefore, a Rule 54(b) motion requires new or changed circumstances that have arisen afterthe court granted the injunction. Id. Here, ICANN does not raise any new or changed circumstances thathave arisen after the Court’s April 12, 2016 Order re Preliminary Injunction. Therefore, the standards ofRule 59(e) and its corresponding Local Rule 7-18 apply.

Relief under Rule 59(e) is appropriate if the court “(1) is presented with newly discoveredevidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is anintervening change in controlling law.” Dixon v. Wallowa Cty., 336 F.3d 1013, 1022 (9th Cir. 2003)(internal citation omitted). Additionally Local Rule 7-18 states that a motion for reconsideration may bemade only on the following grounds:

(a) a material difference in fact or law from that presented to the Court before suchdecision that in the exercise of reasonable diligence could not have been known tothe party moving for reconsideration at the time of such decision, or (b) theemergence of new material facts or a change of law occurring after the time of suchdecision, or (c) a manifest showing of a failure to consider material facts presentedto the Court before such decision. No motion for reconsideration shall in any mannerrepeat any oral or written argument made in support of or in opposition to theoriginal motion.

III. DISCUSSION

ICANN moves for reconsideration on the following grounds: (1) the Court made an erroneousfactual finding that impacts its determination of the merits; and (2) Plaintiff misrepresented factsregarding irreparable injury. ICANN further argues that even if the Court maintains the injunction, itshould order Plaintiff to post a bond. For the following reasons, the Court finds ICANN’s argumentsunavailing.

A. Erroneous Finding of Fact

ICANN argues, and Plaintiff concedes, that the Court made an erroneous finding of fact in itsOrder re Preliminary Injunction (“Order”). However, based on consideration of the corrected facts, theCourt finds its determination of the merits unchanged.

After the IRP conducted its investigation, it issued a declaration stating that ICANN should“permit [Plaintiff’s] application to proceed through the remainder of the new gTLD applicationprocess.” (Eschete Decl. Ex. 1 (IRP Panel Decl. at 62).) In response, ICANN resumed Plaintiff’sapplication at the Geographic Names Panel. A key issue in the parties’ dispute is whether ICANNviolated the IRP Declaration by not allowing the application to resume at a point after the geographicnames evaluation phase.

In its Order, the Court stated, “[b]ecause ICANN found [Plaintiff’s] application passed thegeographic names evaluation in the July 2013 initial evaluation report, the Court finds serious questionsin [Plaintiff’s] favor as to whether [Plaintiff’s] application should have proceeded to the delegation stagefollowing the IRP decision.” (Order at 6.) Both parties agree that Plaintiff, in fact, did not pass the



ER-014


geographic name evaluation process. Rather, the evidence relied on by the Court shows that ZACRpassed the geographic name evaluation. Therefore, the Court erred.

Nonetheless, upon reconsideration of the facts and evidence, there still exists serious questionsgoing to whether Plaintiff had acquired a sufficient number of endorsements to have passed thegeographic names evaluation phase in the first instance. In the IRP Declaration, the panel stated that“both the actions and inactions of the Board with respect to the application of [Plaintiff] relating to the.AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.” (IRPPanel Decl. at 61.) At this stage of litigation, it is reasonable to infer that the IRP Panel found thatICANN’s rejection of Plaintiff’s application at the geographic names evaluation phase was improper,and that the application should proceed to the delegation phase.

The Court finds that the error in its factual finding was not determinative to its ultimateconclusion that there are serious questions going toward Plaintiff’s likelihood of success on the merits.

B. Irreparable Injury

ICANN states that the Court found irreparable injury in Plaintiff’s favor by erroneously relyingon Plaintiff’s representation that .Africa can be delegated only once. ICANN now argues that a gTLD,including .Africa, can be redelegated, and in fact, ICANN’s 2013 manual provides step-by-stepinstructions on how to perform a redelegation. ICANN’s argument fails.

As an initial matter, ICANN failed to make this argument in its opposition to Plaintiff’s Motionfor Preliminary Injunction. ICANN does not state that this fact was unknown or unavailable to ICANNprior to the Court’s issuance of the injunction, nor is there reason to believe it can. On this basis alone,ICANN’s argument fails.1

Even if the Court considered this argument, however, there is still adequate evidence providedby Plaintiff (i.e., loss of business funding, etc.) to find irreparable injury on the part of Plaintiff.Therefore, the Court’s finding regarding balance of the hardships also remains unchanged.

C. Posting of Bond

Federal Rule of Civil Procedure 65(c) states that a court may issue a preliminary injunction onlyif the movant gives security in an amount that the court considers proper to pay the costs and damagessustained by any party found to have been wrongfully enjoined or restrained.

Again, ICANN failed to make any argument or showing of costs or damages in its initialopposition to Plaintiff’s Motion for Preliminary Injunction. ICANN cannot use a motion forreconsideration for a second bite at the apple. Moreover, even in its current motion, ICANN does notintroduce any costs or damages it will suffer if it is found to have been wrongfully enjoined.2

1 The Court notes that even if ZACR was still in the action, there is a substantial question as to whetherZACR’s failure to even attempt to submit an opposition places it in the same situation as ICANN. It is undisputedthat although ZACR was officially served with the complaint a week after the opposition briefing deadline hadalready passed, ZACR knew of Plaintiff’s motion well before that time. From the time ZACR had been served to thetime the Court issued the injunction, three weeks had elapsed. At no time during this period did ZACR attempt tooppose Plaintiff’s motion.

2 All evidence of costs and damages were submitted by ZACR. Even if ZACR was still a party to theaction, there are substantial questions as to whether ZACR’s stated damages are unavoidable, and whether ZACR’slost profits are too speculative to form the basis for security. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 4


ER-015


IV. CONCLUSION

For the foregoing reasons, the Court DENIES ICANN’s Motion Reconsideration.

IT IS SO ORDERED.

:




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EXHIBIT 3


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REPRESENTATION STATEMENT CV16-00862-RGK

Jeffrey A. LeVee (State Bar No. 125863) [email protected] Kate Wallace (State Bar No. 234949) [email protected] Rachel Gezerseh (State Bar No. 251299) [email protected] Charlotte Wasserstein (State Bar No. 279442) [email protected] JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071.2300 Telephone: +1.213.489.3939 Facsimile: +1.213.243.2539




WESTERN DIVISION


Plaintiff,

v.


Defendants.



REPRESENTATION STATEMENT


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REPRESENTATION STATEMENT The undersigned represents defendant-appellant Internet Corporation for

Assigned Names and Numbers (“ICANN”) and no other party. Pursuant to Ninth

Circuit Rule 3-2(b), ICANN submits this Representation Statement. The following

list identifies all parties to the action, and it identifies their respective counsel by

name, firm, address, telephone number, fax number, and email address.

Parties Counsel

Plaintiff-Appellee DotConnectAfrica Trust

Ethan J. Brown [email protected] Sara C. Colón [email protected] BROWN NERI & SMITH LLP 11766 Wilshire Boulevard, Suite 1670 Los Angeles, California 90025 Telephone: (310) 593-9890 Facsimile: (310) 593-9980

Defendant-Appellant ICANN Jeffrey A. LeVee [email protected] Kate Wallace [email protected] Rachel Gezerseh [email protected] Charlotte Wasserstein [email protected] JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071.2300 Telephone: +1.213.489.3939 Facsimile: +1.213.243.2539 Craig Stewart [email protected]


ER-019


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- 2 -


JONES DAY 555 California St., 26th Floor San Francisco, CA 94104 Telephone: +1.415.626.3939 Facsimile: +1.415.875.5700

Dated: June 27, 2016 JONES DAY




ER-020




Case No. 16-CV-00862 RGK (JCx) Date June 20, 2016








Proceedings: (IN CHAMBERS) Order re: Defendants Motion for Reconsideration reOrder on Motion for Preliminary Injunction (DEs 85 and 86)

I. FACTUAL BACKGROUND

On February 26, 2016, Plaintiff DotConnectAfrica Trust (“Plaintiff”) filed a First AmendedComplaint (“FAC”) against Defendants Internet Corporation for Assigned Names and Numbers(“ICANN”), and ZA Central Registry (“ZACR”) (collectively “Defendants”). The action arises out of adispute involving the delegation of rights related to the .Africa top-level domain.

On March 4, 2016, the Court granted Plaintiff’s Ex Parte Application for TRO, enjoiningICANN from issuing the .Africa top-level domain until the Court decided Plaintiff’s Motion forPreliminary Injunction. On April 12, 2016, the Court granted Plaintiff’s Motion for PreliminaryInjunction, keeping the injunction in place until resolution of the action.

On April 26, 2016, ZACR filed a Motion to Dismiss all claims asserted against it. On May 6,2016, ZACR filed the current Motion for Reconsideration regarding the Court’s Order re PreliminaryInjunction. ICANN joined this motion on May 10, 2016. Since then, the Court has granted ZACR’sMotion to Dismiss in its entirety, thereby extinguishing ZACR’s role a party to the action. Therefore,the Court denies as moot ZACR’s motion for reconsideration, and addresses the motion only as itpertains to ICANN.

Upon review ICANN’s arguments, the Court denies ICANN’s motion.



ER-021


II. JUDICIAL STANDARD

Federal Rule of Civil Procedure 59(e) governs a motion to reconsider a preliminary injunction,and Federal Rule of Civil Procedure 54(b) governs a motion to vacate or dissolve a preliminaryinjunction. Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005). While amotion made under Rule 59(e) seeks to relitigate the issues underlying the original preliminaryinjunction, a motion made under Rule 54(b) seeks relief from inequities that arise after the originalorder. Id. Therefore, a Rule 54(b) motion requires new or changed circumstances that have arisen afterthe court granted the injunction. Id. Here, ICANN does not raise any new or changed circumstances thathave arisen after the Court’s April 12, 2016 Order re Preliminary Injunction. Therefore, the standards ofRule 59(e) and its corresponding Local Rule 7-18 apply.

Relief under Rule 59(e) is appropriate if the court “(1) is presented with newly discoveredevidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is anintervening change in controlling law.” Dixon v. Wallowa Cty., 336 F.3d 1013, 1022 (9th Cir. 2003)(internal citation omitted). Additionally Local Rule 7-18 states that a motion for reconsideration may bemade only on the following grounds:

(a) a material difference in fact or law from that presented to the Court before suchdecision that in the exercise of reasonable diligence could not have been known tothe party moving for reconsideration at the time of such decision, or (b) theemergence of new material facts or a change of law occurring after the time of suchdecision, or (c) a manifest showing of a failure to consider material facts presentedto the Court before such decision. No motion for reconsideration shall in any mannerrepeat any oral or written argument made in support of or in opposition to theoriginal motion.

III. DISCUSSION

ICANN moves for reconsideration on the following grounds: (1) the Court made an erroneousfactual finding that impacts its determination of the merits; and (2) Plaintiff misrepresented factsregarding irreparable injury. ICANN further argues that even if the Court maintains the injunction, itshould order Plaintiff to post a bond. For the following reasons, the Court finds ICANN’s argumentsunavailing.

A. Erroneous Finding of Fact

ICANN argues, and Plaintiff concedes, that the Court made an erroneous finding of fact in itsOrder re Preliminary Injunction (“Order”). However, based on consideration of the corrected facts, theCourt finds its determination of the merits unchanged.

After the IRP conducted its investigation, it issued a declaration stating that ICANN should“permit [Plaintiff’s] application to proceed through the remainder of the new gTLD applicationprocess.” (Eschete Decl. Ex. 1 (IRP Panel Decl. at 62).) In response, ICANN resumed Plaintiff’sapplication at the Geographic Names Panel. A key issue in the parties’ dispute is whether ICANNviolated the IRP Declaration by not allowing the application to resume at a point after the geographicnames evaluation phase.

In its Order, the Court stated, “[b]ecause ICANN found [Plaintiff’s] application passed thegeographic names evaluation in the July 2013 initial evaluation report, the Court finds serious questionsin [Plaintiff’s] favor as to whether [Plaintiff’s] application should have proceeded to the delegation stagefollowing the IRP decision.” (Order at 6.) Both parties agree that Plaintiff, in fact, did not pass the



ER-022


geographic name evaluation process. Rather, the evidence relied on by the Court shows that ZACRpassed the geographic name evaluation. Therefore, the Court erred.

Nonetheless, upon reconsideration of the facts and evidence, there still exists serious questionsgoing to whether Plaintiff had acquired a sufficient number of endorsements to have passed thegeographic names evaluation phase in the first instance. In the IRP Declaration, the panel stated that“both the actions and inactions of the Board with respect to the application of [Plaintiff] relating to the.AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.” (IRPPanel Decl. at 61.) At this stage of litigation, it is reasonable to infer that the IRP Panel found thatICANN’s rejection of Plaintiff’s application at the geographic names evaluation phase was improper,and that the application should proceed to the delegation phase.

The Court finds that the error in its factual finding was not determinative to its ultimateconclusion that there are serious questions going toward Plaintiff’s likelihood of success on the merits.

B. Irreparable Injury

ICANN states that the Court found irreparable injury in Plaintiff’s favor by erroneously relyingon Plaintiff’s representation that .Africa can be delegated only once. ICANN now argues that a gTLD,including .Africa, can be redelegated, and in fact, ICANN’s 2013 manual provides step-by-stepinstructions on how to perform a redelegation. ICANN’s argument fails.

As an initial matter, ICANN failed to make this argument in its opposition to Plaintiff’s Motionfor Preliminary Injunction. ICANN does not state that this fact was unknown or unavailable to ICANNprior to the Court’s issuance of the injunction, nor is there reason to believe it can. On this basis alone,ICANN’s argument fails.1

Even if the Court considered this argument, however, there is still adequate evidence providedby Plaintiff (i.e., loss of business funding, etc.) to find irreparable injury on the part of Plaintiff.Therefore, the Court’s finding regarding balance of the hardships also remains unchanged.

C. Posting of Bond

Federal Rule of Civil Procedure 65(c) states that a court may issue a preliminary injunction onlyif the movant gives security in an amount that the court considers proper to pay the costs and damagessustained by any party found to have been wrongfully enjoined or restrained.

Again, ICANN failed to make any argument or showing of costs or damages in its initialopposition to Plaintiff’s Motion for Preliminary Injunction. ICANN cannot use a motion forreconsideration for a second bite at the apple. Moreover, even in its current motion, ICANN does notintroduce any costs or damages it will suffer if it is found to have been wrongfully enjoined.2

1 The Court notes that even if ZACR was still in the action, there is a substantial question as to whetherZACR’s failure to even attempt to submit an opposition places it in the same situation as ICANN. It is undisputedthat although ZACR was officially served with the complaint a week after the opposition briefing deadline hadalready passed, ZACR knew of Plaintiff’s motion well before that time. From the time ZACR had been served to thetime the Court issued the injunction, three weeks had elapsed. At no time during this period did ZACR attempt tooppose Plaintiff’s motion.

2 All evidence of costs and damages were submitted by ZACR. Even if ZACR was still a party to theaction, there are substantial questions as to whether ZACR’s stated damages are unavoidable, and whether ZACR’slost profits are too speculative to form the basis for security. CV-90 (06/04) CIVIL MINUTES - GENERAL Page 3 of 4


ER-023


IV. CONCLUSION

For the foregoing reasons, the Court DENIES ICANN’s Motion Reconsideration.

IT IS SO ORDERED.

:




ER-024


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NOTICE OF PRELIMINARY INJUNCTION APPEAL

CV16-00862-RGK





WESTERN DIVISION


Plaintiff,

v.


Defendants.



NOTICE OF APPEAL

PRELIMINARY INJUNCTION APPEAL


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NOTICE OF PRELIMINARY INJUNCTION APPEAL

CV16-00862-RGK

Notice is hereby given that defendant Internet Corporation for Assigned

Names and Numbers (“ICANN”) hereby appeals in the above-captioned action to

the United States Court of Appeals for the Ninth Circuit from the Order entered on

April 12, 2016 (ECF No. 75), attached hereto as Exhibit 1, which granted a

preliminary injunction in favor of the plaintiff. Pursuant to Ninth Circuit Rule 3-2,

ICANN’s Representation Statement is attached hereto as Exhibit 2. Dated: May 11, 2016 JONES DAY




ER-026


EXHIBIT 1


ER-027













I. INTRODUCTION







Case 2:16-cv-00862-RGK-JC Document 75 Filed 04/12/16 Page 1 of 8 Page ID #:3377Case 2:16-cv-00862-RGK-JC Document 89 Filed 05/11/16 Page 4 of 15 Page ID #:4061

ER-028










ER-029











ER-030




VI. DISCUSSION











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ER-034






VI. CONCLUSION


IT IS SO ORDERED.

:




ER-035


EXHIBIT 2


ER-036


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WESTERN DIVISION


Plaintiff,

v.


Defendants.



REPRESENTATION STATEMENT


ER-037


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REPRESENTATION STATEMENT The undersigned represents defendant-appellant Internet Corporation for

Assigned Names and Numbers (“ICANN”) and no other party. Pursuant to Ninth

Circuit Rule 3-2(b), ICANN submits this Representation Statement. The following

list identifies all parties to the action, and it identifies their respective counsel by

name, firm, address, telephone number, fax number, and email address.

Parties Counsel

Plaintiff-Appellee DotConnectAfrica Trust

Ethan J. Brown [email protected] Sara C. Colón [email protected] BROWN NERI & SMITH LLP 11766 Wilshire Boulevard, Suite 1670 Los Angeles, California 90025 Telephone: (310) 593-9890 Facsimile: (310) 593-9980

Defendant-Appellant ICANN Jeffrey A. LeVee [email protected] Kate Wallace [email protected] Rachel Gezerseh [email protected] Charlotte Wasserstein [email protected] JONES DAY 555 South Flower Street Fiftieth Floor Los Angeles, CA 90071.2300 Telephone: +1.213.489.3939 Facsimile: +1.213.243.2539 Craig Stewart [email protected]


ER-038


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- 2 -


JONES DAY 555 California St., 26th Floor San Francisco, CA 94104 Telephone: +1.415.626.3939 Facsimile: +1.415.875.5700

Dated: May 11, 2016 JONES DAY




ER-039













I. INTRODUCTION








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VI. DISCUSSION











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VI. CONCLUSION


IT IS SO ORDERED.

:




ER-047


excerpts of record (er-1-47) · for the central district of california, no. 2:16-cv-00862-rgk the...

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