porthos

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About porthos

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  1. porthos

    How to watch live races?

    I have SlingTV and switched my subscription to the Blue package last night, which has NBC Sports. I looked at the schedule and confirmed that the races are on starting tomorrow. It is $25/month and you can cancel anytime, so it can be a cost-effective way to get NBC Sports without having to get an expensive cable package. Moreover, the quality of SlingTV currently is good. It had some buffering issues about a year ago but is rock solid now. You'll need a box of some kind (AppleTV, Roku, Xbox, etc.) to watch it on your television, but you can also download the SlingTV app on your phone or computer and watch everything there. For an extra $5/month, you can add a DVR function if you cannot watch the races live (and they may be available on demand anyway after the airing live -- the NBC Sport channel on SlingTV has a couple of races from AC34 available to watch on demand). tl;dr: SlingTV should be a good option for watching in the US.
  2. porthos

    Oracle Team USA

    OUTRAGE! It's a warm-up race -- the actual cup contest is still almost two years away. Besides, and to torture a metaphor, that nationality ship sailed a while ago. This is a surprise to exactly nobody.
  3. porthos

    Team France

    ^ Thanks.
  4. porthos

    Team NZ

    And I keep coming back to the fact that if changing boats at this stage is such a patently-bad idea, ETNZ and LR easily ought to be able to convince ONE more competitor to join their view. Hell, buy Team France's vote -- I'm fairly certainly Oracle has done that in the past.
  5. porthos

    Team NZ

    As the Protocol is currently written. They can change that as well. Yes of course they can - but then this would just join the long list of things done for expediency rather than any sport related reason. And that is your opinion, which are are certainly entitled to have. But it doesn't change the fact that a majority of competitors must agree to any Protocol change, and if they do, would serve to suggest that a majority of competitors believe such a change is better than not changing.
  6. porthos

    Team NZ

    As the Protocol is currently written. They can change that as well.
  7. porthos

    Oracle Team USA

    Your assumption that the judge's reference to settlement must mean that Oracle breached the contract is just plain silly. Porthos, you told us that you believe Spooner signed an at will contract and it that is "silly" to think that OTUSA breached its contract. So why did they obliged them to settle, if for one of the two above reason. If OTUSA was that right they would already have rejected Spooner claims. At the end I bet OTUSA will pay Spooner for his claim and for an NDA to protect the Oracle name If that is the case they still pay more than they would have initially, damage their image, lose money, demotivate their team. No, what I said was "silly" was your assumption that because the judge ordered or requested the parties to discuss settlement, the court must therefore believe that Oracle breached the contract. I covered this in a previous post. The judge did not "oblige them to settle." The judge told them to discuss settlement in the next two weeks. Bear in mind, no judge can force a party to settle. If the party wants to refuse settlement and have their day in court, they are perfectly allowed to do that. Happens all the time. In this particular case, there could be many reasons why the judge asked the parties to discuss settlement that have no relation to the strength of Oracle's claim. First, the parties themselves may have mentioned at the hearing that they were discussing settlement, in which case the judge may have told them to work on settlement over the next two weeks in order to move the case along. Ordering parties to get settlement discussions done in a certain time frame does not require or mean that the court is passing judgment on the strength or weakness of a claim. Second, this judge may require all parties in every case before him to discuss settlement and report back. This is common in federal courts, such as the one where this case is. I have practiced before federal courts and they love requiring people to go to mediation and at least discuss settlement. These settlement conferences can be mandatory even if they have no chance of success. The court does not order settlement discussions out of a belief that one party has a bad position but simply because it orders settlement discussions as a matter of practice. Finally, the court just finished ruling against Spooner on a significant motion. The arrest of Boat 4 was a big deal. Had the court upheld the arrest of Boat 4, Spooner would have been in a much stronger negotiating position. Often times, the resolution of a significant motion can provide the impetus for settlement negotiations. The court may have simply said, "now that the arrest issue is resolved, I want counsel for the parties to take a shot at settlement and let me know if you are successful." The court may not be taking a position on the strength or weakness of any party's case, but may simply be taking advantage of having resolved a significant issue to get the parties to talk settlement. Those are three reasons why the court may have ordered the parties to discuss settlement without taking any position on the strength or weakness of any party's claims or defenses. In my experience, judges in general and federal judges in particular are very careful not to prejudge a case, particularly at the outset, which is where this case is. Is it possible that, as you surmise, the judge ordered the parties to discuss settlement because he thinks Oracle breached the contract? Sure. But I highly doubt that is what is going on here.
  8. porthos

    Oracle Team USA

    I will just dump my thoughts here. I apologize if this should be sent somewhere else. To understand what Spooner and his attorneys are trying to do with the visa argument, you need to understand just a bit about employment law. Employees are one of two types: (1) those who can be fired at will; and (2) those that can only be fired for cause. An employment agreement between the employer and employee typically spells out when and under what circumstances an employer may terminate an employee, but not always. Employee handbooks and other, similar employment documents can also determine what termination rights the employer has. In any termination suit between an employee and employer, the employee always seeks to characterize himself or herself as one who could only be terminated for cause, and the employer always seeks to characterize the employee as terminable at-will. That characterization is crucial because if the employee is at will (i.e., one who can be fired by the employer at any time for any reason), then the employee has no right to expect future wages and the employee's wrongful termination claim evaporates. Conversely, if the court deems the employee as one who can only be fired for cause, then the employer will be on the hook for future wages if it terminated the employee without cause. Spooner and his attorneys are trying like hell to characterize Spooner as an employee who could only be terminated for cause and that is where his visa argument comes in. Spooner's contract with Oracle contains pretty clear language that Oracle could terminate him at any time, which is pretty strong evidence that Spooner was an employee at-will. Indeed, it was that clear language that led the Court to deny Spooner's first request to arrest Boat 4, ruling that Spooner could have no wrongful termination claim against the boat where his contract permitted Oracle to fire him whenever it wished. To counter that, Spooner filed an Amended Complaint containing the visa allegations. More specifically, Spooner alleged that he obtained his visa based on a representation to the INS that he had a contract for a fixed period of time. Spooner insinuates -- but does not allege directly -- that INS would not have granted him an O-1 visa if he did not have a contract for a fixed period of time. In other words, Spooner is essentially arguing that the Court must find that Spooner's contract was not at-will but rather was for-cause because the alternative, where he could be fired by Oracle at any time, would end up working a fraud on the INS. That, argues Spooner, violates public policy. I suspect -- and this is what your immigration attorney friend might be able to confirm -- that the INS doesn't give a shit whether Oracle could terminate Spooner at will. As far as I can tell from the regulations governing O-1 visas, the INS only cares that the person seeking the O-1 visa is coming to the United States for an athletic or competitive event. That event has to conclude itself within four years, as the visa is good for three years and can be extended for one. In other words, the visa only places restrictions on how long a person can be here, and not how short a person can be here. In that regard, the INS may have been interested in the term of the contract (and wanted to see Spooner's contract) only to confirm whether the person applying for the visa was anticipating being in the United States for more than four years. If the contract term was for less than four years -- and Spooner's was -- then I suspect that is all the INS cared about. That Oracle could terminate Spooner before the end of the term likely was of little consequence to the INS. If the INS didn't care that Oracle could terminate Spooner before the end of the contract, there was no fraud worked on the INS, there was no violation of public policy, and Spooner can't use those arguments to turn his at-will contract into a just-cause contract. Those are the questions I would ask an immigration attorney. I hope that helps.
  9. porthos

    Oracle Team USA

    I will get some thoughts to you offline. I don't want to clutter things up here.
  10. porthos

    Oracle Team USA

    Figuring out what a court will do is difficult even for experienced lawyers. This particular case is a good example. The judge in this case considered Spooner's request to arrest Boat 4 not once but twice. The judge denied it both times but for entirely different reasons. The first time, he ruled that Spooner could not assert a claim against the boat for wrongful termination because the contract he had with Oracle Racing allowed him to be terminated at any time (such that there could be no wrongful termination). This time, the court ruled that the contract Spooner had with Oracle Racing did not contemplate Spooner providing specific services to Boat 4 such that he could not place a lien on that boat. The result is the same -- no lien -- but the reasoning is different. The judge could have used the exact same reasoning he applied the second time around to deny the lien the first time around but failed to do so. Why? Who knows. Certainly the reasoning the judge used the second time around obviated the need for him to decide a whole bunch of other issues. For instance, the judge the second time around did not even address what the termination provisions of the contract were (which he did address the first time around.) As a general matter, courts do like to find the easiest way to rule on something, particularly at a preliminary stage of the proceeding, which is where this is. Perhaps the judge had some more time to think about the matter. Perhaps the parties raised different arguments this time around. From this most recent opinion, it does appear that Oracle argued exactly what the judge ruled, namely that Spooner did not have a close enough connection with Boat 4 to be able to place a lien on it. I know next to nothing about maritime law and could in no way have predicted the judge's ruling. To the extent that Friedman dude knows something about it, he missed it, too. Sometimes you can have a good sense as to what a court will do; others, not so much.
  11. porthos

    Oracle Team USA

    Yes, that's my point, and as for being disingenuous, this is the America's Cup after all. On the matter of collection, there's the issue of time (given the inevitable appeals if OR loses) and whether OR will still have sufficient assets within reach of the Court to satisfy a judgement. If everything is in Bermuda, there may not be much Spooner can get. Unless he wants Dogzilla. Federal judgments are good for 20 years. Moreover, Oracle Racing surely will not be moving all of its assets to Bermuda. Even if it did, Spooner would have six years to register the judgment in Bermuda and act on it. Enforcing a money judgment like this overseas is not as onerous as one might think, particularly in a self-governing British territory. Moreover, if Oracle loses and appeals, Oracle would have to post a bond equal to 125% of the judgment. Which means that money would be readily available to Spooner if he ultimately prevails. All of which is to say, of all the problems with Spooner's case -- and there are a few -- collection is not one of them.
  12. porthos

    Oracle Team USA

    Respectfully, that conclusion makes no legal sense and is entirely contrary to Spooner's attempt to recover $750,000 from Oracle. If Spooner wanted out, he simply could have walked away from the employment relationship. Oracle could not force him to work where he did not wish to work. We fought a war about that a bit ago. Moreover, one of the prerequisites Spooner must show in his claim to recover against Oracle for denying him future employment and $750,000 was that he (Spooner) was ready, willing, and able to provide the future employment. If Spooner was unwilling to work for Oracle going forward, he cannot assert a claim for future wages. You cannot get paid for work you cannot or are unwilling to perform. Given the fact that Spooner sued Oracle for future wages, the better assumption is that he was willing to work to earn them. With respect, you're missing my point. Things are not always what they seem. Had Spooner simply walked away, he would have gone home with nothing (and looked like a quitter). This way he has some chance of going home with a large check (although collecting if he wins could be difficult now that the boat arrest is over). And just because he might like to go home doesn't mean he's not ready, willing, and able to fulfill the contract. As for why (if my speculation is correct), it might simply be that his family doesn't want to spend years in Bermuda. Another possibility is that he's been (or expects to be) downgraded, and doesn't want to spend years on the beach in Bermuda. He's already pretty old. Well, I guess if Spooner wanted to get out of the contract and still get paid for it this would be one way to do it. If that is your point. Rather disingenuous on his part, if that is the case. You can't have your cake and eat it, too. Why do you suggest that Spooner would have a hard time collecting from Oracle Racing? If Oracle Racing doesn't have sufficient assets to satisfy a $750,000 judgment, it has no hopes of winning AC35.
  13. porthos

    Oracle Team USA

    Respectfully, that conclusion makes no legal sense and is entirely contrary to Spooner's attempt to recover $750,000 from Oracle. If Spooner wanted out, he simply could have walked away from the employment relationship. Oracle could not force him to work where he did not wish to work. We fought a war about that a bit ago. Moreover, one of the prerequisites Spooner must show in his claim to recover against Oracle for denying him future employment and $750,000 was that he (Spooner) was ready, willing, and able to provide the future employment. If Spooner was unwilling to work for Oracle going forward, he cannot assert a claim for future wages. You cannot get paid for work you cannot or are unwilling to perform. Given the fact that Spooner sued Oracle for future wages, the better assumption is that he was willing to work to earn them.
  14. porthos

    Oracle Team USA

    The short answer is that the court this time only addressed whether Spooner had a legal right to put a lien on Boat 4 and the court did not make any decision on the merits of Spooner's underlying claims. In other words, the court said that even if Spooner had a valid claim -- and the court was not ruling one way or the other whether he did -- maritime law did not permit him to put a lien on Boat 4 under the circumstances he alleged. The first time Spooner tried to arrest Boat 4, the court denied it and (unlike this time) did address directly the merits of Spooner's claims. That time, the court said that the contract allowed Oracle to terminate the agreement at any time such that Spooner had no claim for wrongful termination. The court dismissed Spooner's claims against the boat (but not against Oracle Racing). As a result of these filings and decisions, Spooner will still be able to pursue his claims against Oracle Racing for wrongful termination; he may not seek to recover anything from Boat 4 (which for legal purposes is its own entity). I don't know why the court told the parties to talk settlement. As I indicated in an earlier post, it could be because the parties themselves mentioned it at the hearing, it could be that this judge tells all litigants before him to talk settlement, it may be that he thinks this particular case should settle and was leaning on the parties to do that. Without more information, I would just be speculating.
  15. porthos

    Oracle Team USA

    Court said that the issuance of the arrest warrant was proper as there was some uncertainty as to whether or when Oracle was going to move the boat. Court then said that in order to be able to place a lien on Boat 4, Spooner had to show that he was hired to provide services to, and did provide services to, that vessel. Spooner's contract, however, was much more general than that and did not reference him supplying services to a specific Oracle vessel. Rather, he was just hired to work for the Oracle team and his duties to the team could have varied and included non-maritime components. Because Spooner could not allege that he was hired specifically to work on Boat 4, he could not place a lien on it. For the same reason, the court rejected Spooner's argument that he can place a lien on Boat 4 because he supplied "necessities" to it in the form of getting in O-1 visa (the lien would have been for the expenses he incurred in getting the visa). The court indicated that his requirement to get a visa was not tied to any specific vessel (including Boat 4) but rather was so that he could fulfill his general obligations to the Oracle team. As such, he could not place a visa-related lien on any specific vessel, including Boat 4. In other words, Oracle hired Spooner to be available to work on any of many existing and non-existing Oracle boats. Under those circumstances, maritime law does not allow him to place a lien on any specific vessel. The court did note that if he had not been paid for work that he had done, then he would likely be entitled to a lien. But Oracle paid Spooner for all the work he did and Spooner is only seeking to be paid for work that he expected to do but was prevented from doing due to Oracle terminating his contract.