I thought about that too. The problem is that ICANN is more a regulatory body than a party. In theory (though it is not done) a registrar can be sanctioned for not following the terms of the contract. Certain people at ICANN believes that the only sanction available is to terminate the registrar's contract, and the problem with that is that it could create a registerfly situation.
Even if that's true, it's entirely ICANN's fault for failing to enforce the escrow language that has been in the RAA for seven years. And it should be moot now since registrars are all supposed to be escrowing with Iron Mountain. If you look at ICANN's history, it is unfortunately clear that lawsuits get ICANN's attention like nothing else, so some sort of suit in this area is inevitable. Regards, John Levine, johnl@iecc.com, Primary Perpetrator of "The Internet for Dummies", Information Superhighwayman wanna-be, http://www.johnlevine.com, ex-Mayor "More Wiener schnitzel, please", said Tom, revealingly.