ZACR has been dealt a huge blow in its .Africa bid after the California court that is handling the case quashed its Motion for reconsideration and to vacate Preliminary Injunction. This effectively means ICANN is now left to answer it’s own case.
ICANN joined this motion on May 10, 2016. Since then, the Court has granted ZACR’s Motion to Dismiss in its entirety, thereby extinguishing ZACR’s role a party to the action. Therefore, the Court denies as moot ZACR’s motion for reconsideration, and addresses the motion only as it pertains to ICANN.
DCA had stated in its opposition to the reconsideration motion that ZACR’s actions on .Africa was indeed an attempt at a second bite at the apple. DCA said
“Defendant ZA Central Registry’s (“ZACR”) motion to reconsider and vacate the Court’s preliminary injunction ruling is an attempt at a second bite at the apple”
The court seemed to agree with DCA Trust stating that
“ICANN cannot use a motion for reconsideration for a second bite at the apple. Moreover, even in its current motion, ICANN does not introduce any costs or damages it will suffer if it is found to have been wrongfully enjoined”
Erroneous Finding of Fact
ZACR had largely relied on a ‘Erroneous Finding of Fact’ in its application for reconsideration. The court however is of the opinion that that error did not change the outcomes, the court says
“ICANN argues, and Plaintiff concedes, that the Court made an erroneous finding of fact in its Order re Preliminary Injunction (“Order”). However, based on consideration of the corrected facts, the Court finds its determination of the merits unchanged…“The Court finds that the error in its factual finding was not determinative to its ultimate conclusion that there are serious questions going toward Plaintiff’s likelihood of success on the merits.”
ICANN and ZACR gve an opinion that the plaintiff DCA Trust could not suffer irreparable harm if the .Africa was delegated before the case is conluded, however the judge finds that
“There is still adequate evidence provided by Plaintiff (i.e., loss of business funding, etc.) to find irreparable injury on the part of Plaintiff. Therefore, the Court’s finding regarding balance of the hardships also remains unchanged.”
ZACR had also stated that it was not served on time with DCA trusts motion to seek a preliminary injunction, however the court says
The Court notes that even if ZACR was still in the action, there is a substantial question as to whether ZACR’s failure to even attempt to submit an opposition places it in the same situation as ICANN. It is undisputed that although ZACR was officially served with the complaint a week after the opposition briefing deadline had already passed, ZACR knew of Plaintiff’s motion well before that time. From the time ZACR had been served to the time the Court issued the injunction, three weeks had elapsed. At no time during this period did ZACR attempt to oppose Plaintiff’s motion.
The court also determined ZACR’s loss calculations to be speculative, stating “ZACR’s stated damages are unavoidable, and whether ZACR’s lost profits are too speculative to form the basis for security.”
The case is still ongoing and we will update you as the news develops