[Community-Discuss] Case Closed

[Ronald F. Guilmette]

In message <2BCE246D-270A-4C5A-BB1E-40441776EE69 at delong.com>, 
Owen DeLong <owen at delong.com> wrote:


>Had AFRINIC stuck to its governing documents as written...


Objection your honor!  Irrelevant and immaterial.

Despite all pretenses to the contrary on the part of Plaintiff, and
despite Plaintiff's repeated attempts to introduce extraneous and
irrelevant facts and considerations into the present case, at base
this case was and remains a relatively straightforward commercial
contractual dispute between the parties.  This contractual dispute
must necessarily be framed through the lens of the AFRINIC Registration
Services Agreement (RSA) whose provisions and conditions were mutually
agreed and undertaken by both Plaintiff and Defendant, first some
eight years ago and again, repeatedly, since that time.

Plaintiff attempts to look for something, anything, outside of the
four corners of the RSA agreement which might now relieve it of the
responsibilities, commitments, and business risks which it knowingly
undertook, beginning some eight years ago and continuing to the
present time.  It is thus little wonder that Plaintiff now attempts
to distract the court's attention from the actual and operative
contract which lies at the heart of this case with various irrelevances
and shiny objects.  Although the fundamental, incurable, and essential
weaknesses of Plaintiff's case, on both the facts and the law, oblige
it now to attempt to argue that the alignment of the stars was in some
ways inadequate, this court is obliged to look only to the plain language
of the contract that was undertaken, willingly, freely, and without
duress, by both parties, and to its express provisions which are explicit
in providing remedies in the event of a breach.

There has been and remains no factual dispute between the parties with
respect to Plaintiff's use of its registered IP address for purposes
other than those for which they were originally granted by Defendant.
Representatives of Plaintiff have repeatedly and publicly defended
Plaintiff's alleged rights to use these IP addresses in any manner
which may suit Plaintiff's current business objectives.

Although Plaintiff now finds its unambiguous contractual commitments
under Sections 4(c)(i), 6(d)(iii) and 6(d)(iv) of the RSA inconvenient
to its current business plans, Plaintiff nontheless remains legally
bound by those commitments -- commitments which Plaintiff itself freely
admits it has violated, and not merely in a de minimis manner, but
substantially, materially, and over an extended period of time.

The RSA agreement between Plaintiff and Defendant has been in effect
for some eight years now.  As long as Plaintiff was able to profit
from this contractual agreement it voiced no material objection to
the various provisions thereof.  Nor did it take issue with any of
the contract provisions prior to executing the agrement.  The apparent
fact that Plaintiff failed to take note of the obvious business risks
that are inherent and implied by Section 4(c)(i) of the argeeement
is not a problem which Defendant can be legally held responsible for,
particularly at this late date.  It was Plaintiff's responsibility
to seek out adequate counsel prior to entering into the RSA agreement
with Defendant, particularly if it failed to adequately understand
the business risks of such an undertaking.

Instead however, Plaintiff has slept on its rights for some eight years
and now arrives at this court requesting some judicial relief which
lies outside of the four corners of the RSA agreement, as written.
But the court is not now obliged to re-write the existing contract at
the behest of Plaintiff or in a manner favorable to it.  Furthermore,
doing so would abrogate many, most, or all of the fundamental tenets
of existing contract law.

Plaintiff protests that the Board and/or executives of Defendant have
in some ways acted outside of their rightful remit and authority in
enforcing the plain language of RSA Section 4(c)(i) against Plaintiff,
and/or that said Directors and executives are obliged to follow
certain internal rules and procedures of Defendant's member-based
association before undertaking to enforce provisions of the RSA
agreement which was undertaken by Plaintiff.  Although it may well
be the case that Defendant's Board or executives acted in ways not
explicitly sanctioned by Defendant's member-based association at the
time, the remedy, to the extent that there is one, lies entirely
in the hands of Defendant's own members who may recall and replace any
wayward Directors or executives as and when they may feel the need.
The members of Defendant may also, by consensus or popular vote,
revise or replace existing internal policies and procedures as may
best suit their common interests.

The *generalized* question of the propriety, or lack thereof, of the
actions of Defendant's Board or executives is not before this court.
Rather, as noted above, this court is asked to consider only the matter
of the contractual dispute between the parties, which must be resolved
by looking to the plain language of the RSA.  Matters internal to
Defendant's member-based association are not ones which this court
can, should, or would want to become enmeshed, and there exists ample
means within Defendant's association itself to correct any ostensibly
improper actions on the part of Defendant's Board or executives.

Plaintff asks this court to fashion, presumably out of whole cloth, some
extra-contractual remedy for Plaintiff's current contractual predicament,
into which it placed itself with eyes wide open.  When doing so, Plaintiff
makes reference to all manner of allegations relating to the internal
policies and procedures of Defendant.  What Plaintiff fails to do is to 
make any reference to any specific provision of the one and only legal
agreement that binds the two parties together, i.e. the RSA.  Plaintiff
does not allege any material breach, or indeed any breach whatsoever,
on the part of Defendant with respect the clear terms of the RSA.  Nor
does Plaintiff call the court's attention to any provision of the RSA
which would grant Plaintiff *any* relief in the case of a breach by
Defendant, even if there had been any such breach, which there has not
been.  Rather Plaintiff attempts to play the alchemist, magically
transmuting mere allegations of lapses in the internal procedures of
Defendant into some alleged but unspecified contractual breach of the
RSA by Defendant, even though Plaintiff can point to no specific
provision of the RSA which Defendant has breached.

Having also found no provision within the RSA which would provide Plaintiff
with any relief, even in the unlikely event that Defendant had been in
breach of contract, Plaintiff now also urges the court to become an active
participant in Plaintiff's alchemy by conjuring up some judicially-
manufactured remedy for a purported (but non-existant) contractual breach...
a remedy which simply does not exist within the RSA contract as written.

Given that there are no open issues of either fact or law in this case,
and for all of the foregoing reasons, I now move this court to declare
summary judgement in favor of Defendant.  The RSA is the one and only
controlling contract in this case, and Plaintiff has failed to allege
any material breach of any of the provisions of that contract on the
part of Defendant, thus rendering Plaintiff's case effectively void.
Furthermore even if there had been a breach by Defendant, the plain
language of the RSA agreement, which Plaintiff willingly and freely
accepted to be bound by, contains *no* provisions for any relief to
Plaintiff in case of a breach by Defendant.  Thus, even if this court
were to find that Defendant somehow breached its responsibilities under
the contract, the remedy due to Plaintiff would be nothing other than
what Defendant has already attempted to effectuate, i.e. the termination
of the contract together with the termination of any and all ongoing
responsibilities of the parties to one another, leaving each free to
go its separate way without any further vexation by the other.

Submitted this day, 1, August, 2021 by your humble servant, Ronald F.
Guilmette, Esq.