For the reasons stated, the Court finds the public interest favors granting the preliminary injunction. I wonder which Public Interest, Global or Local Regards On 4/13/16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

My friends in China say that "may you live in interesting times" is intended as a curse :-)

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key

-----Original Message----- From: Barrack Otieno [mailto:otieno.barrack@gmail.com] Sent: Wednesday, April 13, 2016 11:46 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] .Africa Preliminary Injunction

Hi Paul,

Many thanks. The quote doesn't make sense, Who is fooling who?, you sign against litigating and go against your commitment yet the Court see's nothing wrong with such an action in the first place. Indeed the law can be just that..the Law. I see interesting times ahead.

Regards

On 4/13/16, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

...

For those following the case, the decision can be accessed here: case no. 16-CV-00862 RGK (JCx) <http://r20.rs6.net/tn.jsp?f=001cSDGDz8h71ckml9p90Ehw8ncA4XI-441d1R6i4 Gdh49b 0o5PqbSu2_fNz2D980RdiKtnEUB5oN7WUEvZk4N2t56rIfjT4IzEEitUsX4btBWIIwuMC9 yVBbru kWnEqPH2U_62NtGIrfarESQcH6Nv1jQWyTaLpXki3hJ_UAmEHbnN3oQHMJGa7IqZYDWg5s 7IFjJs DBZYYBCkSLT1wjDyCWyPQugzRHtKpx39rSzhaSfzgiF6l8IlUmqh0VyvOu1jCLu2-8PM9P WpmofG Rfr8fpNTp5WVJpvRPu4Ila4ot9KmZHYRw3brpg==&c=nCw9I7GmGoPkTifN2DG2n6NRUMT 5WssKM 8rUL9KbTSu91VMOq8cp7A==&ch=02N2sUAFFSxqQmguVimPDaSjfa_ZKafSOV5-ZnF8AFE I4Q9Kp kPQ1w==>

Short summary - ICANN is enjoined from delegating the .Africa gTLD. The whole case is worth reading, but the money quote is: "The evidence suggests that ICANN intended to deny DCA's application based on pretext."

Paul

Paul Rosenzweig

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-- Barrack O. Otieno +254721325277 +254733206359 Skype: barrack.otieno

Do we already have ICANN official public interest definition? Or are we still in the process of finding it? Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg Current UTC offset: -6.00 (Costa Rica) On 13 Apr 2016, at 10:03, Nigel Roberts wrote:

The 'public interest' is exactly what it says.. The global public.

He refers SPECIFICALLY to the African internet users' public interest in the judgment.

As follows:

...

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

@Nigel +1 Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg Current UTC offset: -6.00 (Costa Rica) On 13 Apr 2016, at 10:31, Nigel Roberts wrote:

Courts are fairly adept at divining the public interest.

ICANN is not a legislature.

As we have seen, the hubris that ICANN can simply exist in a vacuum is clearly false.

Just because Jones Day, this WG or Uncle Tom Cobley and all define black to be white, means Bill Adams** as far as the judicial system is concerned; and they will continue to draw on several hundred years of experience in this area . .

Nigel

(** Bill Adams, or 'BA' was a Great War euphemism for "bugger all")

On 13/04/16 17:10, Carlos Raúl Gutiérrez G. wrote:

...

Do we already have ICANN official public interest definition? Or are we still in the process of finding it?

Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg Current UTC offset: -6.00 (Costa Rica) On 13 Apr 2016, at 10:03, Nigel Roberts wrote:

...

The 'public interest' is exactly what it says.. The global public.

He refers SPECIFICALLY to the African internet users' public interest in the judgment.

As follows:

...

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Dear Carlos No we don't It was discussed at length but no clear definition apart from those already in the Bylaws has beed seriously adopted/agreed Kavouss Sent from my iPhone

On 13 Apr 2016, at 18:10, Carlos Raúl Gutiérrez G. <crg@isoc-cr.org> wrote:

Do we already have ICANN official public interest definition? Or are we still in the process of finding it?

Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg Current UTC offset: -6.00 (Costa Rica)

...

On 13 Apr 2016, at 10:03, Nigel Roberts wrote:

The 'public interest' is exactly what it says.. The global public.

He refers SPECIFICALLY to the African internet users' public interest in the judgment.

As follows:

...

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

---

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

As an FYI, Seun, it is not common for the date of the next hearing to be noted in such an opinion in US court. The court’s clerk maintains a public docket with that information. FWIW, my understanding is that ICANN has filed a motion to dismiss the entire case (i.e. they argue that it is so without merit that it should be stopped now) and a hearing on that is scheduled for early May. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Wednesday, April 13, 2016 12:20 PM To: Nigel Roberts <nigel@channelisles.net> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] .Africa Preliminary Injunction Isn't it interesting that a US court is able to determine that delegating .Africa is harmful to Africa internet users even though AU affirms otherwise. Things like this is what makes some to always raise ICANN jurisdiction issue. Nevertheless, I will recognise the fact that any other jurisdiction court could also act in a similar manner. That said, I had thought there would be indications on what date the next hearing will be (to ascertain the supposed fairness) Regards Sent from my LG G4 Kindly excuse brevity and typos On 13 Apr 2016 5:03 p.m., "Nigel Roberts" <nigel@channelisles.net <mailto:nigel@channelisles.net> > wrote: The 'public interest' is exactly what it says.. The global public. He refers SPECIFICALLY to the African internet users' public interest in the judgment. As follows: On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

+1 Sent from my iPhone

On 13 Apr 2016, at 17:53, Mueller, Milton L <milton@gatech.edu> wrote:

Seun The court does not make a ruling on the public interest of Africans. It makes a ruling on the right of DCA to obtain an injunction against ICANN to stop it from delegating the name. Its approach to the public interest in this case is that “the public has an interest in the fair and transparent application process that grants gTLD rights.” This pertains to ICANN globally, not to Africans specifically.

In other words, the court is not ruling about whether .Africa being run by DCA or the AUC is better, it is deciding that ICANN’s process for making the decision was unfair and biased.

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Wednesday, April 13, 2016 12:20 PM To: Nigel Roberts <nigel@channelisles.net> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] .Africa Preliminary Injunction

Isn't it interesting that a US court is able to determine that delegating .Africa is harmful to Africa internet users even though AU affirms otherwise.

Things like this is what makes some to always raise ICANN jurisdiction issue. Nevertheless, I will recognise the fact that any other jurisdiction court could also act in a similar manner.

That said, I had thought there would be indications on what date the next hearing will be (to ascertain the supposed fairness)

Regards Sent from my LG G4 Kindly excuse brevity and typos

On 13 Apr 2016 5:03 p.m., "Nigel Roberts" <nigel@channelisles.net> wrote: The 'public interest' is exactly what it says.. The global public.

He refers SPECIFICALLY to the African internet users' public interest in the judgment.

As follows:

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

You miss the point of what the judge says. He's says the Yedaly Declaration is self-serving. Which it is. Or in other words, the Rice-Davies Principle applies. https://en.wikipedia.org/wiki/Mandy_Rice-Davies#.22He_would.2C_wouldn.27t_he... On 13/04/16 19:00, Seun Ojedeji wrote:

We can disagree on this Milton, I never mentioned public interest in my statement! My views were derived from the buildup and not the final conclusion. Look at the second to the last paragraph of section D. I quote relevant part below:

"....ICANN argues that a delay in delegating .Africa will prejudice the African community’s efforts to participate in the Internet economy and strengthen their technology sectors....",

Then the court says:

"....The AUC’s relationship with ZACR, and its interest in preventing the delay of issuing rights to .Africa creates a conflict of interest.Therefore, on this point, the Court accords little weight to the Yedaly Declaration ..."

SO: The AUC supported ZACR (as part of the application requirement), I find it quite unfortunate that such further view from AUC would be found to create conflict of interest. If AUC did not write such, who else should do so; I mean which other source of interest from Africa will not form conflict in this matter?

...

"...On balance, the Court finds it more *prejudicial to the African community*....., if the delegation of .Africa is made...."

...

SO: That is the section that provoked my previous view and I still stand by it; Who is the US court to conclude that it will be harmful to Africa community even when the AUC is pushing otherwise. This process has just taken too long than necessary.

Nevertheless, I will stop here and look forward to the outcome of the case filed by ICANN as indicated by Paul.

Regards

Sent from my LG G4 Kindly excuse brevity and typos

On 13 Apr 2016 5:34 p.m., "Mueller, Milton L" <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:

Seun____

The court does not make a ruling on the public interest of Africans. It makes a ruling on the right of DCA to obtain an injunction against ICANN to stop it from delegating the name. Its approach to the public interest in this case is that “the public has an interest in the fair and transparent application process that grants gTLD rights.” This pertains to ICANN globally, not to Africans specifically. ____

__ __

In other words, the court is not ruling about whether .Africa being run by DCA or the AUC is better, it is deciding that ICANN’s process for making the decision was unfair and biased.____

__ __

*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Wednesday, April 13, 2016 12:20 PM *To:* Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] .Africa Preliminary Injunction____

__ __

Isn't it interesting that a US court is able to determine that delegating .Africa is harmful to Africa internet users even though AU affirms otherwise. ____

Things like this is what makes some to always raise ICANN jurisdiction issue. Nevertheless, I will recognise the fact that any other jurisdiction court could also act in a similar manner.____

That said, I had thought there would be indications on what date the next hearing will be (to ascertain the supposed fairness)____

Regards Sent from my LG G4 Kindly excuse brevity and typos____

On 13 Apr 2016 5:03 p.m., "Nigel Roberts" <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:____

The 'public interest' is exactly what it says.. The global public.

He refers SPECIFICALLY to the African internet users' public interest in the judgment.

As follows:____

On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.____

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community____

Do you know what 'without prejudice' actually means? It's a procedural legal term which means that the contents of your letter or other communication, if sent within the context of a genuine effort at settling a controversy by mutual discussion, cannot be used against you before the court. Its close cousin, 'without prejudice save as to costs' or a Calderbank letter means it can't be used against you on the topic of liability (but can be used to screw you on costs if you are found liable). ICANN tried to 'oust the jurisdiction of the courts' in the Guidebook. The Courts (in all countries) generally do not like this. Any such restriction of access to the judicial system has to be reasonable and proportionate. What the Court said here is that ICANN tried to absolve itself, for the future, for all purposes, of all, including its own willful ones. This goes far beyond what is allowed, and should never have made it in to the Guidebook. Furthermore, those who naively believed (or as you appear, to continue to believe) that this was in any way right or proper should take heed. On 13/04/16 17:45, Barrack Otieno wrote:

Precisely Seun,

The wise say Justice delayed is Justice denied , without prejudice i would like to understand from colleagues who are familiar with the applicant guidebook how applicants can ignore the fact that they signed against taking legal action on ICANN and the court finds their actions to be ok, is this a weakness within the new gTLD process ( applicants guidebook) or do we have loopholes within the ICANN bylaws that can be exploited?, i think it is an important point of reflection as we move forward with the transition.

Regards

On 4/13/16, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:

...

Isn't it interesting that a US court is able to determine that delegating .Africa is harmful to Africa internet users even though AU affirms otherwise.

Things like this is what makes some to always raise ICANN jurisdiction issue. Nevertheless, I will recognise the fact that any other jurisdiction court could also act in a similar manner.

That said, I had thought there would be indications on what date the next hearing will be (to ascertain the supposed fairness)

Regards Sent from my LG G4 Kindly excuse brevity and typos On 13 Apr 2016 5:03 p.m., "Nigel Roberts" <nigel@channelisles.net> wrote:

...

The 'public interest' is exactly what it says.. The global public.

He refers SPECIFICALLY to the African internet users' public interest in the judgment.

As follows:

On balance, the Court finds it more prejudicial to

...

the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community