DotConnectAfrica Trust (DCA), a client of our firm, won a victory in its ongoing efforts to bring greater internet access to the continent of Africa.
DCA is currently in a suit against the Internet Corporation for Assigned Names and Numbers (ICANN) for the fraudulent rejection of DCA’s application for the top-level domain name “.Africa”. In an effort to dismiss the case, ICANN moved for summary judgment, arguing DCA’s suit was barred by 1. a Covenant Not To Sue, and 2. Judicial Estoppel.
In its Motion, ICANN contended that DCA had completely waived its right to sue by signing a litigation waiver in ICANN and DCA’s original contract. Additionally, ICANN argued that DCA’s previous statements before an Independent Review Panel were so contradictory to its current positions that the suit should be barred by the doctrine of Judicial Estoppel.
Judge Howard L. Halm, however, ultimately agreed with DCA’s lawyers from BNSK. He ruled that, under California statutory law (Cal. Civ. Code § 1668), Covenants Not To Sue did not apply to lawsuits for fraud or willful injury. Therefore, six of DCA’s causes of action could not be barred by the Covenant, because they alleged fraud and/or willful injury. Additionally, Judge Halm did not apply Judicial Estoppel because 1. the evidence was unclear whether DCA had taken a contradictory position in the past, and 2. ICANN had not produced evidence indicating that, if DCA had changed its position, it had done so in bad faith.
With this victory, DCA can continue to vindicate its rights, in an effort to ensure that the significant benefits of information technology are available to the people of Africa.
DCA was represented by BNSK attorneys Ethan Brown, Sara Colón, and Rowennakete Barnes. ICANN was represented by international law firm, Jones Day.