ICANN Disputes DotConnectAfrica Trust's Lawsuit
ICANN pushed back against DotConnectAfrica (DCA) Trust's lawsuit against the nonprofit corporation over its delegation of the .africa generic top-level domain (gTLD), saying in a filing Friday that the DCA Trust waived its right to sue ICANN when it filed its application to become the .africa gTLD registry. DCA Trust disputed ICANN's decision to delegate the .africa gTLD to the ZA Central Registry (ZACR). DCA Trust filed suit against ICANN for not following a binding 2015 independent review process ruling that said ICANN violated its bylaws in its handling of DCA's 2013 challenge to the .africa delegation decision. The U.S. District Court in Los Angeles granted a temporary restraining order earlier this month to halt ICANN's delegation of the .africa gTLD until after an April hearing (see 1603070062). DCA Trust's lawyers didn't comment Monday about ICANN's filing.
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District Judge Gary Klausner should dismiss DCA Trust's entire complaint against ICANN because the plaintiff “expressly waived its right to file suit against ICANN and released ICANN” over its application to operate the .africa gTLD, Jones Day lawyers said in a filing for ICANN. DCA Trust “accepted and acknowledged the terms and conditions” that all registry applicants are bound to follow, ICANN said. “The language could not be more clear.” DCA Trust's claims “clearly arise out of ICANN’s 'review of [Plaintiff’s] application' and 'the decision by ICANN to recommend, or not to recommend, the approval of applicant’s gTLD application,'” ICANN said. “Indeed, Plaintiff does not contend otherwise.” All of DCA Trust's claim “is barred by the Covenant Not to Sue,” ICANN said.
The covenant “is fully enforceable” despite DCA Trust's claims to the contrary, ICANN said. DCA “knowingly and voluntarily determined to submit its gTLD application despite all the inherent risks.” A written release like DCA Trust's application generally “extinguishes any claim covered by its terms,” ICANN said. “Accordingly, a party seeking to avoid the plain language of a written release for reason of unconscionability bears the burden of demonstrating that the release is both procedurally and substantively unconscionable.” DCA Trust “cannot meet its burden to prove that the Covenant Not to Sue is unconscionable,” ICANN said. “Plaintiff’s situation is not in any way comparable to the employment and consumer contexts in which courts have sometimes found releases to be unconscionable. No entity is required to apply for a gTLD, and certainly no entity has a 'right' to do so.”
DCA Trust “was also aware of the other risks inherent in applying for .AFRICA,” ICANN said. “Specifically, Plaintiff alleges that it was aware of the Guidebook requirement that it have documented support or non-objection from at least 60% of African governments, a requirement Plaintiff primarily attempted to meet using the letter it had received from the AUC in 2009.” DCA Trust subsequently lost that required support threshold due to ZACR's competing bid, ICANN said.