.Africa: Irrespective of Error, Serious Question on Merits & Balance of Harm weighs in DCA’s Favor

“However, nothing that ZACR presents changes the fact that DCA has shown a serious question as to the merits of its ninth cause of action or that the balance of harm weighs in DCA’s favor.  The facts that the Court previously considered – irrespective of the error – support the issuance of the preliminary injunction.  Accordingly, the Court should deny ZACR’s motion to reconsider and vacate”

Says the opposition filed by DotConnectAfrica Trust on 16th May 2016 to Defendant ZA Central Registry’s (“ZACR”) motion to reconsider and vacate the Court’s preliminary injunction ruling filed by ZACR, and calling ZACR’s action “an attempt at a second bite at the apple”

ZACR’ Motion is an attempt to re-litigate the same issue, opposes DCA Trust

Because ZACR’s motion is an attempt to re-litigate the same issues addressed in the preliminary injunction papers, and not the result of changed circumstances, the motion is a motion for reconsideration, not a motion to vacate.  Therefore, ZACR is required to show that the Court failed to consider some material fact, that there are newly discovered material facts, or that the Court committed clear error. ZACR fails to make this showing.   ZACR arguments are as follows:

“that the Court made a single factual error in its order with regard to DCA’s initial evaluation; that DCA did not have sufficient endorsements; that DCA’s application received 17 early warnings; that the Court based its ruling on irreparable harm on an incorrect assertion; and that ZACR’s submission on the balance of harms, which includes a declaration from its CEO on alleged harm to Africa and ZACR, should change the Court’s analysis”.

ZACR was also sitting on sidelines relying on ICANN to raise the issues, says DCA Trust

“Although ZACR did not appear in the case until April 26, 2016, it had DCA’s motion for preliminary injunction by March 22, 2016, at the latest.  DCA’s counsel also emailed ZACR’s CEO with the preliminary injunction and temporary restraining order papers on March 08, 2016.  ZACR had counsel at least as of April 1st, 2016.  Nevertheless, ZACR apparently chose to sit on the sidelines, rely on ICANN, and wait until after the Court issued its order on April 12, 2016 to raise issues, all but one of which it could have raised before the ruling.” 

The DCA’s Opposition to ZACR Motion for Reconsideration documents can be found here.

The DCA vs ICANN court filings are accessible at the following websites: ICANN and DCA Trust