A. Likelihood of Success on the Merits
1. The Release Does Not Bar DCA's Claim at This Time.
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 questions regarding the enforceability of the Release due to California Civil Code § 1668.
Because the Court finds serious questions regarding the enforceability of the Release due to
California Civil Code § 1668, the Court need not address DCA's arguments regarding unconscionability or procurement by fraud.
2. There Are Serious Questions as to the Merits of DCA's Ninth Claim.
..DCA contends that ICANN violated the IRP Decision by restarting the geographic name evaluation, which it had already passed, rather than permitting the application to resume at the delegation phase....[Cont'd].... Despite ICANN's contention, the evidence presents serious questions pointing in favor of DCA's argument ....[Cont'd].... It is clear the decision that ICANN violated its bylaws by failing to fairly review DCA's application is binding ....[Cont'd].... Because the IRP is presumably in place to effect dispute resolution, and the IRP provided no explanation or acknowledgment that its decision was merely advisory, the Court finds serious questions on this issue.
B. Likelihood of Irreparable Harm,
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 a
preliminary injunction, DCA will lose the opportunity to obtain rights to .Africa because ICANN will likely delegate the rights to ZACR prior to the conclusion of this action, and these rights can be delegated only once. DCA has invested much time and money in the application process under the representation that the process would be unbiased and fair. Although DCA may be able to recover certain 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 delegating the 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 ....[Cont'd]...
.The evidence supporting ICANN's argument is a declaration of Moctar Yedaly, the head of the Information Society Division of the AUC's Infrastructure and Energy Department. (Yedaly Decl. ¶ 11, ECF No. 40.) 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. 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.
For the reasons stated, the Court finds the public interest favors granting the preliminary
E. Implementing the "Sliding Scale" Approach
...the Court finds "serious questions" going toward DCA's likelihood of success on the merits and a balance of hardships that tips sharply in DCA's favour.....[Cont'd].... As such, the Court GRANTS a preliminary injunction barring ICANN from delegating the rights to .Africa until this case is resolved.