Victory for DCA Trust: Judge Moot ZACR from .Africa case, Outs its Reconsideration



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Africa applied for 17 new gTLDs, among these, .Africa which as remained in the news due to a precedent setting court case in California may be available after the jury determines the case in February 28, 2017.  ICANN  recently terminated 9 out of the 17 African new Top-level Domain (TLD) as a result of missing their deadlines.

Last week on June 20, 2016, the U.S. District Court determining the DCA Trust vs ICANN case for .Africa denied  ICANN’s motion for reconsideration [PDF] on the Order enjoining ICANN from delegating new gTLD .AFRICA.

In the week before this denial,  ZACR was dismissed as a party to the case saying DCA Trust can get all its claims from ICANN, stating:

“… the Court finds Plaintiff’s first request against ZACR (i.e., that the Court declare the registry agreement null and void) unnecessary, as a favorable ruling on its (DCA Trust) claims against ICANN will result in the relief it seeks …”

The order denying reconsideration PDF read in part

“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.”

It the application for a reconsideration, ICANN and the co-defendant ZACR had used in what was seen as a Machiavellian scheme of a coordinated effort to get a reconsideration appeal for the court’s preliminary injunction (PI) ruling, citing the ‘factual error’  to get back to the court, however the Judge ordered that the error did not affect the status of the  PI, saying:

“At this stage of the litigation, it is reasonable to infer that the IRP Panel found that ICANN’s rejection of Plaintiff’s application at the geographic names evaluation phase was improper, and that the application should proceed to the delegation phase.”….

“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.”

The court further recognized the injury that DCA trust as the plaintiff would incur if the domain was delegated before a determination of the suit.  The court indicated 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.

The court further emphasized 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.” 

Following the ruling, a DCA representative said,

“DCA is very pleased about the outcome of the PI reconsideration. We were confident that the court would find any corrected facts or justifications for irreparable injury by ZACR and ICANN would change the merits of DCA’s case.

ZACR on the other hand, reacted saying the decision was a travesty.

role extinguished because the Court granted ZACR earlier Motion to Dismiss in its entirety. ZACR role now moot.

Follow the case from the court documents here and here

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