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      Abbreviated rules   07/28/2017

      Underdawg did an excellent job of explaining the rules.  Here's the simplified version: Don't insinuate Pedo.  Warning and or timeout for a first offense.  PermaFlick for any subsequent offenses Don't out members.  See above for penalties.  Caveat:  if you have ever used your own real name or personal information here on the forums since, like, ever - it doesn't count and you are fair game. If you see spam posts, report it to the mods.  We do not hang out in every thread 24/7 If you see any of the above, report it to the mods by hitting the Report button in the offending post.   We do not take action for foul language, off-subject content, or abusive behavior unless it escalates to persistent stalking.  There may be times that we might warn someone or flick someone for something particularly egregious.  There is no standard, we will know it when we see it.  If you continually report things that do not fall into rules #1 or 2 above, you may very well get a timeout yourself for annoying the Mods with repeated whining.  Use your best judgement. Warnings, timeouts, suspensions and flicks are arbitrary and capricious.  Deal with it.  Welcome to anarchy.   If you are a newbie, there are unwritten rules to adhere to.  They will be explained to you soon enough.  
Otterbox

Lasers - Applying a Blow Torch

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Are there people in the financial world who would pay me a lump sum in exchange for that stream of royalties?

 

 

 

Yes but now you are just...

 

 

I did warn you guys.

 

Canntt believe Ganntt would not even answer one simple question. I even answered his, asked nicely, and was sure to not have any typos in the spelling of his name.

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When Kirby filed his lawsuits agains LP and ISAF and the Laser Class, his lawyers didn't seen to think the 1983 ISAF agreement was historic.

 

They cited that agreement several times in Kirby's Complaint in support of the their case.

 

Kirby can't have it both ways.

 

If his lawyers think the 1983 ISAF agreement is still current and enforceable , then they should have sought prior approval from ISAF and ILCA before assigning Kirby's rights under that agreement to Global Sailing.

 

 

Just to be precise. Kirby's lawyers have not made any claim under the 1983 ISAF agreement. They quote it as evidence and background but they have studiously avoided bringing a claim under the ISAF agreement.

 

 

 

True. Perhaps it's because they know the their client was in clear breach of the 1983 ISAF Agreement?

 

He should have asked for prior approval from ISAF and ILCA to sell his rights to GS.

 

Of course, if he had, the answer probably would have been... "You Cantt Do That."

 

There is no indication that the ILCA or ISAF would have opposed the sale of BKI to Global sailing. My guess is that, if asked, they would have approved it accompanied by certain obvious common sense provisions.

 

During the discovery process, in deposition, BK's lawyer is almost certainly going to ask the ILCA's rule 30 b 6 witness this question. (The ILCA will most likely be asked to produce a witness to represent the entity, ILCA .This witness is known as a 30 b 6 witness)

 

The obvious answer (because your client should give as little information as they can in deposition) is "I don't know"

But if I was prepping the ILCA witness, I might suggest that the answer is "Yes, subject to certain conditions"

BK lawyer now is forced to ask "What would those conditions be?"

Answer "Well obviously we would amend the requirement for BKI to approve builders because it would be nonsensical to have builders approve themselves and create a potential conflict of interest if one builder had the right to approve or disapprove other builders. Nor would we wish any third party to have the right to approve or disapprove a class approved builder. But subject to that obvious and implicit condition, we would have no problem with the royalty stream being sold to another entity and if Bruce Kirby had asked us to approve the sale, I think that we would have approved it."

 

It is not so much the sale to Global sailing which creates problems for Bruce Kirby's lawyers in regard to the ISAF agreement, but the launch of the Torch. That was a legal error.

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Wess, Tiller, Gouv et al,

 

I wonder if I could change the direction of the conversation back to a question which was asked a couple of pages back.

 

Why did Bruce Kirby purportly reacquire the rights of BKI back from Global Sailing?

 

Its the piece in the jigsaw puzzle which makes the least sense.

 

Bruce had sold his rights to Global sailing.

The value of those rights had been fatally, possibly mortally damaged by disputes between Global sailing , PS and LPE.

The Class vote was well advanced and the writing was on the wall that the rule requiring an agreement with BKI was going to be removed.

Bruce had sold the contractual rights in good condition to Global Sailing.

The dispute between GS, PS and LPE certainly wasn't the responsibility of Bruce Kirby.

He was of a certain age.

Why did he agree to get involved in this mess?

 

Wess......we have agreed that the Class Association took the right sensible steps when this dispute boiled over into threats to suspend production of Lasers for their European members. I entirely agree with you that the Class did the right thing in submitting a vote to membership and amending the rule.

 

However, I wonder if I might prevail on you to take a more objective and kindly view of Bruce Kirby's standing in all this.

 

Five years ago, Bruce Kirby had a set of reasonably iron clad contracts guaranteeing him a royalty on the Laser until 2025. Judging from the contracts he played an instrumental role in easing the path to new builders when Ian Bruce ("father of the Laser") went bankrupt. He negotiated extensions of those contracts when the builders changed ownership, as is his right under the law.

 

Some have posted on other threads that the royalty fee lined BK's pockets at the expense of Laser owners. I think if we pause for a moment, we will realize that any royalty of 2% does not affect the price of the Laser. All three builders charge the price that the market can bear. If they could get another $500 for the Laser without a commensurate decline in sales, they would charge another $500. Although they are monopoly suppliers of the Laser, they will be keenly aware that they are competing for the leisure dollar and the Laser product has to be a Value proposition vs other forms of sailing. It commands a premium compared to other value products because of the numbers but I would bet that the pricing is determined by market, not cost. The price of the Laser did not come down by 2% when the royalties stopped and the price will continue to be determined by market when they are manufactured in China.

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So continuing my theme.....

 

Bruce had these relatively iron clad contracts. He was of a certain age, where receiving the capital value of the asset would be more valuable than the income stream. He considered selling that royalty stream.

 

If I had been an advisor to BK, I would have told him that (putting aside emotional attachment etc) such a consideration was a very sensible estate planning strategy. Many inventors sell their IP royalty streams.

 

So he seeks some bids. LP offers a price. GS offers a higher price. BK takes the higher price and who can blame him.

 

For two years, all is good, GS is receiving the royalty stream. BK is involved in other projects (designers never stop designing. I bet that there are still drawings on the grand old man's drawing board) .

 

Then this fight flares up between LP and Global sailing. I fail to see why this becomes BK's problem.

As far as I can see it should be GS and LP suing each other.

 

To me......this is the most interesting part of the dispute to speculate on.

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or we could end the thread right here......and leave unanswered the question to life, the universe, the Laser dispute and everything.

 

The answer might be disappointing.

 

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IPL -

 

Can only respond quickly and would need to reread everything but your post gets at the most interesting aspects of the case to me - both parts which for me are also potentially related parts.

 

I don't think anyone knows why Kirby got pulled back in or jumped back in or which it was. On your assumptions remember that ISAF sat on the rule change for a long time and there is some indication in the filings if I recall that ISAF may have had some question/concern about it (according to Kirby) so it might not have been viewed by Kirby or others as a slam dunk... or you could view it as ILCA and ISAF held off pulling the trigger on the rule change for so long to try to force a settlement. But there are some issues and inconsistencies here I think (again need to reread a bunch).

 

My view on Kirby is influenced by his suing the class plain and simple. Don't bite the hand that feeds you and in my book he did. It seems he could have sued LPE and obtained damages without suing the class the that drove the boats success and his financial windfall. Had he just sued LPE, I would have been close to neutral on Kirby though quite interested for this following reason... (so back to your earlier point about why is he back).

 

I am not sure if you agree or disagree this but it seems to me that the old class rule (and I think I recall Gouv and others wayyyy back saying Kirby set-up these class rules but I have no clue if that is true) gives Kirby almost unlimited power. So long as that rule is there it does not matter if he has IP. He can ask a billion dollars lump sum in 2025 renewal or demand royalties till the end of time under an arrangement with the old class rule. If correct I assume Kirby is not stupid and knew this. In theory (again not sure and need to reread) Kirby leveraged that class rule once before to get a new contract when all his IP was sold or expired. Possibly and allegedly by LPE (I think and need to reread) GS/PSA used that leverage to try to put them out of business No clue if that is true obviously. I am inclined to believe there is some fire around this smoke as it all blew up only then AND to your point if this was just about the 2% the parties should have settled long ago - it never even should have happened. This maybe suggests that Kirby is playing a longer/different game. Again I have no idea what if fact vs fiction here as its all buried. I find it really interesting because I do the deals not the contracts and its a really interesting deal structure for the reasons noted. It would also make owning the trademark almost pointless because Kirby could always come back and use the old class rule to get whatever he wanted or knock the trademark holder down and essentially stop them from using it. I do want to find time to reread because to me this is the really interesting part.

 

If there is any fire here I wonder if the class counsel would have approved the sale to GSA/PS without strong controls in place. Kirby sold without asking (as I think he stated?), and launched the Torch as another direct attack. Keep in mind that Kirby didn't just go after LPE. He went after the trademark, the ISAF, the ILCA, the sun, the moon and the stars. Swinging for the fences. Why do that if you just want your 2%? Seems to me he wants something more but could be wrong obviously. Its my best guess. Who knows? Only Kirby.

 

Hope this is semi-coherent as I am running between other stuff, sorry.

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Seriously!! Call Bruce and chat with him. He is a cantankerous old fella but my guess is each of you could enjoy a conversation.

You probably ought to offer to sign a "this conversation was entirely between us and never to be shared" agreement first.

But

 

I believe he would appreciate the fact you care and your insight on the matter

 

Perhaps we will know the conversation has taken place when you post here:

 

I chatted with Bruce Kirby and do not feel

I can continue to post in this thread until

After the judge rules and perhaps not even then

Gouv - Despite all the banter and BS that is SA, I do hope that BK gets whatever money he is legally entitled to (I would suspect most anyone would), and to that end the last thing he should be doing is talking to anyone about the case. About the only thing I agree with Canntt on is that Kirby and his lawyers are smart folks and they could not / should not do that much as it would be interesting to hear Kirby's views. Wess

 

PS - Thank God the disco phase ended fast

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When Kirby filed his lawsuits agains LP and ISAF and the Laser Class, his lawyers didn't seen to think the 1983 ISAF agreement was historic.

 

They cited that agreement several times in Kirby's Complaint in support of the their case.

 

Kirby can't have it both ways.

 

If his lawyers think the 1983 ISAF agreement is still current and enforceable , then they should have sought prior approval from ISAF and ILCA before assigning Kirby's rights under that agreement to Global Sailing.

 

 

Just to be precise. Kirby's lawyers have not made any claim under the 1983 ISAF agreement. They quote it as evidence and background but they have studiously avoided bringing a claim under the ISAF agreement.

 

 

 

True. Perhaps it's because they know the their client was in clear breach of the 1983 ISAF Agreement?

 

He should have asked for prior approval from ISAF and ILCA to sell his rights to GS.

 

Of course, if he had, the answer probably would have been... "You Cantt Do That."

 

There is no indication that the ILCA or ISAF would have opposed the sale of BKI to Global sailing. My guess is that, if asked, they would have approved it accompanied by certain obvious common sense provisions.

 

During the discovery process, in deposition, BK's lawyer is almost certainly going to ask the ILCA's rule 30 b 6 witness this question. (The ILCA will most likely be asked to produce a witness to represent the entity, ILCA .This witness is known as a 30 b 6 witness)

 

The obvious answer (because your client should give as little information as they can in deposition) is "I don't know"

But if I was prepping the ILCA witness, I might suggest that the answer is "Yes, subject to certain conditions"

BK lawyer now is forced to ask "What would those conditions be?"

Answer "Well obviously we would amend the requirement for BKI to approve builders because it would be nonsensical to have builders approve themselves and create a potential conflict of interest if one builder had the right to approve or disapprove other builders. Nor would we wish any third party to have the right to approve or disapprove a class approved builder. But subject to that obvious and implicit condition, we would have no problem with the royalty stream being sold to another entity and if Bruce Kirby had asked us to approve the sale, I think that we would have approved it."

 

 

This to me is the critical point. Bruce Kirby did sell his rights to one of the builders, and without ILCA or ISAF imposing the conditions you suggest, which did mean one builder had the right to approve or disapprove other builders. This gave GS enormous leverage over LP in any discussions about marketing territories, possible purchase of one builder by the other etc. And the same would be true in reverse if Bruce had sold the rights to LP.

 

 

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When Kirby filed his lawsuits agains LP and ISAF and the Laser Class, his lawyers didn't seen to think the 1983 ISAF agreement was historic.

 

They cited that agreement several times in Kirby's Complaint in support of the their case.

 

Kirby can't have it both ways.

 

If his lawyers think the 1983 ISAF agreement is still current and enforceable , then they should have sought prior approval from ISAF and ILCA before assigning Kirby's rights under that agreement to Global Sailing.

 

 

Just to be precise. Kirby's lawyers have not made any claim under the 1983 ISAF agreement. They quote it as evidence and background but they have studiously avoided bringing a claim under the ISAF agreement.

 

 

 

True. Perhaps it's because they know the their client was in clear breach of the 1983 ISAF Agreement?

 

He should have asked for prior approval from ISAF and ILCA to sell his rights to GS.

 

Of course, if he had, the answer probably would have been... "You Cantt Do That."

 

There is no indication that the ILCA or ISAF would have opposed the sale of BKI to Global sailing. My guess is that, if asked, they would have approved it accompanied by certain obvious common sense provisions.

 

During the discovery process, in deposition, BK's lawyer is almost certainly going to ask the ILCA's rule 30 b 6 witness this question. (The ILCA will most likely be asked to produce a witness to represent the entity, ILCA .This witness is known as a 30 b 6 witness)

 

The obvious answer (because your client should give as little information as they can in deposition) is "I don't know"

But if I was prepping the ILCA witness, I might suggest that the answer is "Yes, subject to certain conditions"

BK lawyer now is forced to ask "What would those conditions be?"

Answer "Well obviously we would amend the requirement for BKI to approve builders because it would be nonsensical to have builders approve themselves and create a potential conflict of interest if one builder had the right to approve or disapprove other builders. Nor would we wish any third party to have the right to approve or disapprove a class approved builder. But subject to that obvious and implicit condition, we would have no problem with the royalty stream being sold to another entity and if Bruce Kirby had asked us to approve the sale, I think that we would have approved it."

 

 

This to me is the critical point. Bruce Kirby did sell his rights to one of the builders, and without ILCA or ISAF imposing the conditions you suggest, which did mean one builder had the right to approve or disapprove other builders. This gave GS enormous leverage over LP in any discussions about marketing territories, possible purchase of one builder by the other etc. And the same would be true in reverse if Bruce had sold the rights to LP.

 

 

 

 

 

That leverage turned out to be illusory.

Caveat Emptor on Global Sailing.

 

Because, of course, the ILCA and ISAF did unilaterally impose those conditions!!

 

Bruce Kirby did not sell BKI for those rights to be abused in discussions regarding territory and purchase/sale negotiations. Bruce Kirby sold a royalty stream for estate planning purposes. That royalty stream ran until 2025. If Global Sailing tried to use the rights they acquired in order to muscle other builders, then clearly they would be exposed to a rule change (+ the ISAF agreement requires ISAF/ILCA approval for a change of builder). Thus, if that is true, Bruce Kirby would not be responsible for the damage to the contractual rights, so he should be entitled to keep whatever he was paid from GS.

 

If GS terminated the contract with LPE, then again, GS damaged the contractual rights, not Bruce Kirby.

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Geeze IPL, that is a pretty definitive statement to TM based on what exactly?

 

Hey don't bother with the Top Gear MG B segment. Just watched. First its obviously not got the lines of the A and second its a rebuild/upgrade. Third its the quickly departed Chris Evans. Stick with the original. Yuck. Bring back Captain Slow, the hamster and the ape.

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Bruce Kirby did not sell BKI for those rights to be abused in discussions regarding territory and purchase/sale negotiations. Bruce Kirby sold a royalty stream for estate planning purposes. That royalty stream ran until 2025. If Global Sailing tried to use the rights they acquired in order to muscle other builders, then clearly they would be exposed to a rule change (+ the ISAF agreement requires ISAF/ILCA approval for a change of builder). Thus, if that is true, Bruce Kirby would not be responsible for the damage to the contractual rights, so he should be entitled to keep whatever he was paid from GS.

 

If GS terminated the contract with LPE, then again, GS damaged the contractual rights, not Bruce Kirby.

 

 

 

I agree that Bruce Kirby sold his rights for very good reasons and probably never imagined that Global Sailing would use them to "muscle" Laser Performance. I think Bruce Kirby is a good guy who tried to act in a way that supports the sport of Laser sailing.

 

 

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Can we agree that the sale is completed when the goods are delivered or the services are delivered?

For intangibles, like Kirby's design rights, the transfer of these rights are controlled by the agreements that gives the rights - in this case the ISAF agreement.

 

So the agreement to have a sale was completed, but the sale itself was not completed, because the goods were never delivered.

 

Or in Kirby/GS's case, the rights were never transferred.

 

So if the rights were never transferred, what does that mean in terms of the builder's license??

 

That the agreement still exists between LP and Kirby, as the rights were never transferred.

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Can we agree that the sale is completed when the goods are delivered or the services are delivered?

 

For intangibles, like Kirby's design rights, the transfer of these rights are controlled by the agreements that gives the rights - in this case the ISAF agreement.

 

So the agreement to have a sale was completed, but the sale itself was not completed, because the goods were never delivered.

 

Or in Kirby/GS's case, the rights were never transferred.

 

So if the rights were never transferred, what does that mean in terms of the builder's license??

 

That the agreement still exists between LP and Kirby, as the rights were never transferred.

 

 

Welcome back Gantt.

 

You make a good point.

 

I have a question for you.

 

Kirby apparently could have just sued LP and gotten the damages he seeks based on all the boats LP made and sold, if the court found for Kirby.

Why did Kirby sue the class when he didn't have to in order to collect damages from LP?

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No, while I could be wrong, I don't think Kirby collects money directly on spare part. Yes, I do believe that ILCA gets money from me (directly and indirectly).

 

Specifically Wess, you complaint was because of the high prices for spare parts.

 

When you first told us the story, you blamed Kirby for high prices. This is what you said Wess:

Sailed an old boat in big breeze a few weeks ago and broke a bunch of stuff. Can't find official class parts and thought I was screwed until the nice man showed me all the replica replacement parts. OMG, fixed the boat good as new and saved tons of money since BK can't get his greedy fingers on that. Saved so much money that I bought a bunch of other replica parts, sails, etc... and brought a bunch of other older boats back to race condition. The local club fleets must be as sick of the BK squeeze as I am because nobody seems to have much if any issue with the replica parts, sails, etc... Heck, we likely get many more boats out racing by allowing them.

 

You have repeated many times that Kirby's is greedy. It seems to be a continuation of your gripe that parts cost to much.

 

The example you gave, it turns out that no royalties were paid to Kirby, and since you are located on the East Coast of the US, PSA was not involved either.

 

Further, when you discover that the only known royalties were paid to the ILCA for the sail, you have this complex justification that somehow makes it less bad because it's the ILCA? And then you go and buy replica parts?

 

Kirby's royalties are about 2% the value of a wholesale hull. This is less than 1% of the retail value of a complete boat. Kirby gets no royalties for any other parts.

 

Wess, you were wrong to blame Kirby for any part of the high costs for the Laser parts.

_____________________________________________________________________________

 

 

QUESTION (for Gantt): Kirby apparently could have just sued LPE and gotten the damages he seeks based on all the boats LPE made and sold, if the court found for Kirby.

 

* Why did Kirby sue the class when he didn't have to in order to collect damages from LPE against the builders contracts or in other words, why didn't Kirby sue just LPE?

 

I cannot speak for Kirby, so we go back to the legal action:

"80. ILCA purports to have lawfully changed its Constitution, By-Laws and/or Class Rules ("ILCA Rule Change") so as to grant itself the purported ability to authorize Kirby Sailboat builders whether or not those builders have a license from Kirby."
..and the ILCA responds:
"The defendant denies the allegations contained in this paragraph."
This seems to go against what the ILCA said back in 2011:
"Therefore, we are proposing to change the rule to eliminate the "building agreement from Bruce Kirby or Bruce Kirby Inc." requirement. Manufacturers who have trademark rights and who build in strict adherence to the ILCA Rules and to the Construction Manual, which is controlled by ILCA, will continue to have the right to build Class legal boats. We believe that this change will eliminate uncertainty over ISAF and ILCA approval, give manufacturers continued reasons to support the class and satisfy the demands of current and future class members."

 

Kirby is raising valid questions as to whether or not the ILCA has the right to interfere with his design rights. The court agrees, and the ILCA needs to face these questions.

 

To answer Wess's question specifically? The ILCA interfered with the contracts by changing the fundamental rule and issuing plaques. Kirby is using the the legal action as an opportunity to say please don't do that. The court agrees that there is a case to be heard against the ILCA.

 

The ISAF does not need to face these questions because they successfully argued they don't need to on the basis of jurisdiction.

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I have another question for you, Gantt.

 

Do you think it was a good thing for Laser sailing for the designer to attempt to sell his rights to approve or terminate builders to a family who owned one of the builders?

 

Could anyone have foreseen any possible problems with this scenario?

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This is what Kirby said 26 September 2011:

"There were a lot of mistakes and misunderstandings surrounding my attempt to transfer the 40-year-old design rights to Global Sailing in New Zealand."
I agree.

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This is what Kirby said 26 September 2011:

"There were a lot of mistakes and misunderstandings surrounding my attempt to transfer the 40-year-old design rights to Global Sailing in New Zealand."
I agree.

 

 

 

Great quote Gantt.

 

I have another question.

 

Please tell me what were the main "mistakes" made in Bruce Kirby's attempt to transfer his rights to Global Sailing.

 

And who was responsible for those mistakes?

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Can we agree that the sale is completed when the goods are delivered or the services are delivered?

 

For intangibles, like Kirby's design rights, the transfer of these rights are controlled by the agreements that gives the rights - in this case the ISAF agreement.

 

So the agreement to have a sale was completed, but the sale itself was not completed, because the goods were never delivered.

 

Or in Kirby/GS's case, the rights were never transferred.

 

So if the rights were never transferred, what does that mean in terms of the builder's license??

 

That the agreement still exists between LP and Kirby, as the rights were never transferred.

 

Oh No!!!!!

 

Kirby sold the company BKI to Global Sailing. The entity BKI was delivered to Global Sailing by Bruce Kirby. Global Sailing owned and operated BKI and enjoyed two years of royalty income.

 

Apparently , the rights were transferred without the approval of ISAF and ICLA. This does NOT void the transfer unless there was a specific condition in the contract of sale. Note that both Bruce and Global sailing will be presumed to be aware of the ISAF agreement. Neither ISAF or ICLA asked for the transfer to be rescinded. They merely revoked the ability for Global sailing to unilaterally dismiss Class approved builders. This does not affect the royalty income nor (unless BK's lawyers were total idiots) does it affect the sale.

 

Legally speaking the contractual rights were transferred to Global sailing.

 

BUT, as I pointed out over 30 pages ago. It does not even matter whether the rights were transferred or not. From a legal perspective both Bruce Kirby and Global sailing represented that the rights had been transferred. Thus under the legal doctine of "apparent authority" or "ostensible authority", the court will find that any acts or omissions that Global Sailing made on behalf of BKI during this period will be binding on BKI, whether it was in fact owned by GS or Bruce Kirby.

 

So Gantt, please (for once) believe me when I say that the court will never find that "the agreement still exists between LP and Kirby, as if the rights were never transferred". They will consider all the actions carried out by GS as if they were carried out by the owner of the rights.

 

The court will take account of BK's claim that he repurchased the rights. BUT , based on the limited information we have in front of us......those rights had already been materially damaged when under the control of Global Sailing.

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There were mistakes made by all parties. I believe that the mistakes you Tiller Man are referring to are Kirby's responsibility.
When friends make mistakes, they correct them, and move forward. Rastegar proved himself to be no friend.
Now the matter is in court, the relevant questions are - what are the agreements? What changed? How?
There was a huge amount of pressure put on the ISAF and ILCA at the time.

ISAF minutes back then included this statement "After the first refusal to supply boats for the event, Laser Performance finally agreed to send 50 to 55 boats. When we started the discussion about the contract, the situation radically changed and now it is out of our control. It affects not only the Youth Worlds but all events where Laser is selected as supplied equipment."
Looking back at what happened, this is my version of what is likely to have happened:
1) Kirby decided to retire
2) GS agreed to buy Kirby's rights
3) GS tried to renegotiate the builder's contract with LP
4) LP said maybe
5) LP paid some royalties to GS
6) LP said no
7) LP told ILCA/ISAF that they would not supply boats that were on order, but then said yes.
8) ILCA proposed the fundamental rule change

PS: The law IPLore refers to relates to whether or not LP believed that GS were acting as Kirby's agent. IPLore has a convoluted argument that GS acting with "apparent authority" is a valid reason that the contracts were somehow cancelled, that Kirby's rights in another agreement somehow evaporated. Go back to law school IPLore. Your notion of the law is all fucked up. You have proven yourself over three years to be no more than a troll.

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There were mistakes made by all parties. I believe that the mistakes you are referring to are Kirby's responsibility.
When friends make mistakes, they correct them, and move forward. Rastegar proved himself to be no friend.
Now the matter is in court, the relevant questions are - what are the agreements? What changed? How?

There was a huge amount of pressure put on the ISAF and ILCA at the time.

ISAF minutes back then included this statement "After the first refusal to supply boats for the event, Laser Performance finally agreed to send 50 to 55 boats. When we started the discussion about the contract, the situation radically changed and now it is out of our control. It affects not only the Youth Worlds but all events where Laser is selected as supplied equipment."

 

 

 

You didn't answer my question.

 

I didn't ask about the supply of boats for the Youth Worlds.

 

I asked what were the main "mistakes" made in Bruce Kirby's attempt to transfer his rights to Global Sailing.

 

 

 

Gannt, I am pleased to have you back on this thread, but one of the accepted rules of discussion is that when someone asks a question about something you wrote, that you actually make an honest attempt to answer that question. That is the way we learn to understand each other's point of view and maybe even change each other's minds. That is how Wess and IPLore and myself conduct our interactions. I welcome you to join in a serious debate about the issues but it's not going to work if you try and change the subject instead of answering straight questions with straight answers.

 

​Please have another shot at answering my question.

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The two key questions which we dont have full answers to are:-

 

1. What did Global Sailing do that caused LP Europe to stop paying the royalties? Apparently after the sale of BKI to Global sailing, LPE continued to pay royalties for two years. then something happened and those royalty payments ceased.

 

2. Why did Bruce Kirby purportedly reacquire those rights? Especially why would he reacquire those damaged rights after royalty payments ceased and 9/10 of the way of a rule change that removed the unilateral right of an entity called BKI to dismiss class approved builders? He was fully aware of the impending rule change when he reacquired the rights. So more specifically...Why is this not a contractual dispute between Global Sailing and Laser Performance?

 

Before we start blaming the Class, LPE, Jeff Martin etc etc for depriving Bruce of his royalties, perhaps we should direct our potential ire at Global Sailing and ask them why they felt morally OK with damaging the contractual rights and then putting them back to Bruce Kirby? We don't know if this happened but it is certainly more valid a suggestion than flaming Jeff Martin who adroitly fulfilled his duty to class members by assuring the continued supply of boats.

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The law IPLore refers to relates to whether or not LP believed that GS were acting as Kirby's agent. IPLore has a convoluted argument that GS acting with "apparent authority" is a valid reason that the contracts were somehow cancelled, that Kirby's rights in another agreement somehow evaporated. Go back to law school IPLore. Your notion of the law is all fucked up. You have proven yourself over three years to be no more than a troll.

 

 

 

Gantt - I see you have added some more to your post in reply to my simple question.

 

This paragraph doesn't answer my question either.

 

And the last three sentences are downright offensive.

 

Please, please, please stop the personal attacks.

 

And please, please, please stop accusing people who disagree with you of being "trolls."

 

 

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There were mistakes made by all parties. I believe that the mistakes you are referring to are Kirby's responsibility.
When friends make mistakes, they correct them, and move forward. Rastegar proved himself to be no friend.
Now the matter is in court, the relevant questions are - what are the agreements? What changed? How?

There was a huge amount of pressure put on the ISAF and ILCA at the time.

ISAF minutes back then included this statement "After the first refusal to supply boats for the event, Laser Performance finally agreed to send 50 to 55 boats. When we started the discussion about the contract, the situation radically changed and now it is out of our control. It affects not only the Youth Worlds but all events where Laser is selected as supplied equipment."

 

 

 

You didn't answer my question.

 

I didn't ask about the supply of boats for the Youth Worlds.

 

I asked what were the main "mistakes" made in Bruce Kirby's attempt to transfer his rights to Global Sailing.

 

 

 

Gannt, I am pleased to have you back on this thread, but one of the accepted rules of discussion is that when someone asks a question about something you wrote, that you actually make an honest attempt to answer that question. That is the way we learn to understand each other's point of view and maybe even change each other's minds. That is how Wess and IPLore and myself conduct our interactions. I welcome you to join in a serious debate about the issues but it's not going to work if you try and change the subject instead of answering straight questions with straight answers.

 

​Please have another shot at answering my question.

 

I cant's say what the main mistakes were Tiller Man, because I don't have the exact date when Kirby asked ISAF to approve of the sale to GS. All I have is a reference by Kirby in 2012 that when they were asked, they said no. For me, I would have made that change to the ISAF Agreement first, have that locked down, then looked at making the builders contract change. I think that's a mistake. Bit the ISAF agreement is dependent on the builder's license agreement, and the Builder's license agreement is dependent on the ISAF Agreement.

 

You would need to ask Kirby by what he meant by mistakes and misunderstandings.

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T

Looking back at what happened, this is my version of what is likely to have happened:
1) Kirby decided to retire
2) GS agreed to buy Kirby's rights
3) GS tried to renegotiate the builder's contract with LP

 

If that is true......then it would appear that GS owes some accountability for this .

 

Do you have any evidence that GS tried to renegotiate the builders agreement with LP?

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The two key questions which we dont have full answers to are:-

 

1. What did Global Sailing do that caused LP Europe to stop paying the royalties? Apparently after the sale of BKI to Global sailing, LPE continued to pay royalties for two years. then something happened and those royalty payments ceased.

 

2. Why did Bruce Kirby purportedly reacquire those rights? Especially why would he reacquire those damaged rights after royalty payments ceased and 9/10 of the way of a rule change that removed the unilateral right of an entity called BKI to dismiss class approved builders? He was fully aware of the impending rule change when he reacquired the rights. So more specifically...Why is this not a contractual dispute between Global Sailing and Laser Performance?

 

Before we start blaming the Class, LPE, Jeff Martin etc etc for depriving Bruce of his royalties, perhaps we should direct our potential ire at Global Sailing and ask them why they felt morally OK with damaging the contractual rights and then putting them back to Bruce Kirby? We don't know if this happened but it is certainly more valid a suggestion than flaming Jeff Martin who adroitly fulfilled his duty to class members by assuring the continued supply of boats.

 

These are fake questions designed to interfere with and redirect the discussion in a specific way. Note that I made a specific point about the type of information that IPLore put forward to do with GS's authority, and IPLore's response (again) is to change the subject. We have never 'resolved' this one point, despite it been raised again and again - magically - our attention gets diverted elsewhere. When called, the response is a personal attack.

 

So lets look at IPLore's 'really important questions'.

 

Question one: Why indeed? It's been asked many times by IPLore. Maybe we can revisit this unanswerable and leading question when there is new information.

 

Question two. Goody, a new question. I don't believe that GS have or had a written contract with LP.

 

The court has deemed that there is a case for LP to answer regarding their contract with Kirby.

 

The only thing confusing is that why would a real lawyer ask such a question? It's plain why a troll would.

 

Maybe a question could be - why would LP refuse to supply boats to the Youth Worlds?

 

How does that affect negotiations?

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I cant's say what the main mistakes were Tiller Man, because I don't have the exact date when Kirby asked ISAF to approve of the sale to GS. All I have is a reference by Kirby in 2012 that when they were asked, they said no. For me, I would have made that change to the ISAF Agreement first, have that locked down, then looked at making the builders contract change. I think that's a mistake. Bit the ISAF agreement is dependent on the builder's license agreement, and the Builder's license agreement is dependent on the ISAF Agreement.

 

You would need to ask Kirby by what he meant by mistakes and misunderstandings.

 

 

Gantt, thanks for confirming what I had thought I had read somewhere, that, at some point, Kirby did ask ISAF for permission to sell his rights to the owner of one of the Laser builders, and ISAF did not give him approval for that transfer.

 

Would you agree that it was a mistake if Kirby didn't seek ISAF approval before the transfer?

 

And would you also agree that it was also a mistake if Kirby did seek ISAF approval before the transfer and ISAF turned him down but he went ahead with the transfer anyway?

 

Simple yes or no answers would be preferred.

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The two key questions which we dont have full answers to are:-

 

1. What did Global Sailing do that caused LP Europe to stop paying the royalties? Apparently after the sale of BKI to Global sailing, LPE continued to pay royalties for two years. then something happened and those royalty payments ceased.

 

2. Why did Bruce Kirby purportedly reacquire those rights? Especially why would he reacquire those damaged rights after royalty payments ceased and 9/10 of the way of a rule change that removed the unilateral right of an entity called BKI to dismiss class approved builders? He was fully aware of the impending rule change when he reacquired the rights. So more specifically...Why is this not a contractual dispute between Global Sailing and Laser Performance?

 

Before we start blaming the Class, LPE, Jeff Martin etc etc for depriving Bruce of his royalties, perhaps we should direct our potential ire at Global Sailing and ask them why they felt morally OK with damaging the contractual rights and then putting them back to Bruce Kirby? We don't know if this happened but it is certainly more valid a suggestion than flaming Jeff Martin who adroitly fulfilled his duty to class members by assuring the continued supply of boats.

 

 

Excellent points IPLore.

 

I think these two questions go right to the heart of the issue.

 

We can only understand why this train wreck happened and why it has taken the course it did, if we can answer these two questions.

 

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The only thing confusing is that why would a real lawyer ask such a question? It's plain why a troll would.

 

 

 

 

There you go again!

 

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I cant's say what the main mistakes were Tiller Man, because I don't have the exact date when Kirby asked ISAF to approve of the sale to GS. All I have is a reference by Kirby in 2012 that when they were asked, they said no.

 

 

Gantt, thanks for confirming what I had thought I had read somewhere, that, at some point, Kirby did ask ISAF for permission to sell his rights to the owner of one of the Laser builders, and ISAF did not give him approval for that transfer.

 

 

 

 

Sadly I have learned to be more skeptical of Gantt's source material and would need to see a link.

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The law IPLore refers to relates to whether or not LP believed that GS were acting as Kirby's agent. IPLore has a convoluted argument that GS acting with "apparent authority" ... Go back to law school IPLore.

 

 

I explained the doctrine of "apparent authority" to SA readers. Because both Bruce Kirby and Global Sailing represented that Bruce had sold BKI to Global Sailing, any actions carried out by Global Sailing on behalf of BKI, acting as agent or owner of BKI will be deemed by a court of law in the USA to have been authorized by the owner of BKI.

 

Readers can choose whether to believe your legal expertise or mine. The choice is theirs.

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I cant's say what the main mistakes were Tiller Man, because I don't have the exact date when Kirby asked ISAF to approve of the sale to GS. All I have is a reference by Kirby in 2012 that when they were asked, they said no.

 

 

Gantt, thanks for confirming what I had thought I had read somewhere, that, at some point, Kirby did ask ISAF for permission to sell his rights to the owner of one of the Laser builders, and ISAF did not give him approval for that transfer.

 

 

 

 

Sadly I have learned to be more skeptical of Gantt's source material and would need to see a link.

 

IPL - I believe I read the same thing as Gantt and TM.

 

You keep asking why Kirby came back and lay this all at GS/PSA's feet. I too suspect GS/PSA had a significant role in this but the court did dismiss them as they did ISAF, no?

 

In any event laying all this at the feet of GS/ PSA seems inconsistent with what appears to have happened.

 

As you note, the contractual rights were sold by BK to GS/PSA and things seemed fine for a while until LPE appears to claim GS/PSA attempted to leveraged those rights and/or the old class rule in some predatory way. How both BK and GS/PSA could not know that that sale needed the approval of others is beyond comprehension but it is what it is.

 

At some stage, like others, I recall reading that Kirby did seek approval for the sale and was denied in theory because of the issues the sale had created. This may have forced BK back into the game.

 

* Question for ILP: Assuming the transfer was denied after the fact, what happens from legal perspective at this stage? Can the sale stand and the new rights holder (GS/PSA) simply be in breach... in other words could BK still have walked away? Or does the sale have to be reversed? It would be interesting to see the sale contract between BKI and GS/PSA especially the reps and warrants section.

 

You also keep asking about BK's motivation. To me this is like Gouv's moral obligation question... different strokes for different folks. That said this can maybe be summed up in one simple question for you.

 

* To get his 2% royalty did BK need to sue anyone other than LPE... in other words did he have to sue the class to get his 2% royalty from LPE?

 

Assuming the answer is no, then it seems pretty clear he is after more than the 2%. You make it sound like this was all peaches and cream till PSA/GS came along but if that was so and if the sale was forced to be reversed, then in theory BK could just make nice with everyone or just sue LPE if they would not play ball. But he didn't. Seems like maybe he wants the old class rule back with all the leverage the conveys. Cannt sure does! :D

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IP,

 

What is the problem with the BK Torch gambit? Seems to me it was just an FU move that could have added some pressure.

 

Maybe some sort of settlement is in the works since things have gone quiet? (outside of this thread)

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Dex - That move (launching the Torch), like the sale of rights to GS/PSA absent approval, appears to be potentially contrary to contractual obligations that various parties entered into. More than an FU move; a potential breach move apparently. Will have to wait for the court to rule to know. Wess

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IP,

 

What is the problem with the BK Torch gambit? Seems to me it was just an FU move that could have added some pressure.

 

Maybe some sort of settlement is in the works since things have gone quiet? (outside of this thread)

 

 

When i worked in IT, some vendors would pre-announce new products that did not exist and that they never intended to bring to market, mainly just to mess with the heads of the competition and/or to dissuade customers from buying competitors' products. We called it "vaporware."

 

Was the Torch vaporware?

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I cant's say what the main mistakes were Tiller Man, because I don't have the exact date when Kirby asked ISAF to approve of the sale to GS. All I have is a reference by Kirby in 2012 that when they were asked, they said no.

 

 

Gantt, thanks for confirming what I had thought I had read somewhere, that, at some point, Kirby did ask ISAF for permission to sell his rights to the owner of one of the Laser builders, and ISAF did not give him approval for that transfer.

 

 

 

 

Sadly I have learned to be more skeptical of Gantt's source material and would need to see a link.

 

IPL - I believe I read the same thing as Gantt and TM.

 

You keep asking why Kirby came back and lay this all at GS/PSA's feet. I too suspect GS/PSA had a significant role in this but the court did dismiss them as they did ISAF, no?

 

 

No. Global Sailing is still a party to the case via the counter claim.

 

PSA has been dismissed.

 

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I cant's say what the main mistakes were Tiller Man, because I don't have the exact date when Kirby asked ISAF to approve of the sale to GS. All I have is a reference by Kirby in 2012 that when they were asked, they said no.

 

 

Gantt, thanks for confirming what I had thought I had read somewhere, that, at some point, Kirby did ask ISAF for permission to sell his rights to the owner of one of the Laser builders, and ISAF did not give him approval for that transfer.

 

 

 

 

Sadly I have learned to be more skeptical of Gantt's source material and would need to see a link.

 

IPL - I believe I read the same thing as Gantt and TM.

 

You keep asking why Kirby came back and lay this all at GS/PSA's feet. I too suspect GS/PSA had a significant role in this but the court did dismiss them as they did ISAF, no?

 

 

No. Global Sailing is still a party to the case via the counter claim.

 

PSA has been dismissed.

 

 

Thanks. Missed that carve out/distinction. Interesting! What about the other Qs?

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I'm just not sure about that part, Wess. Laser-shaped objects not called Laser are not protected by any IP, except maybe copyright on builders manual and I assume BK would have knocked up a new Torch Builders Manual had the project actually launched.

 

I suppose the builders agreements may have some sort of non-compete restrictions on BK though.

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IP,

 

What is the problem with the BK Torch gambit? Seems to me it was just an FU move that could have added some pressure.

 

Maybe some sort of settlement is in the works since things have gone quiet? (outside of this thread)

 

 

 

Was the Torch vaporware?

Not a chance, I have a Torch tshirt ;-)

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I'm just not sure about that part, Wess. Laser-shaped objects not called Laser are not protected by any IP, except maybe copyright on builders manual and I assume BK would have knocked up a new Torch Builders Manual had the project actually launched.

 

I suppose the builders agreements may have some sort of non-compete restrictions on BK though.

Dex - Agree Dex and for sure its not for sure. Just saying that I recall one of the claims made vs Kirby was in launching the Torch there was a breach of contractual obligations. No doubt there is a Kirby defense position to say otherwise. Dig back a bit and look for IPL posts on this. Recalling he was thinking this was a big deal. Wess

 

PS - Yea and I gotta get me one of those shirts. I actually hoped the Torch would be launched as a more affordable options for grass root club level sailing. Can you still get em (shirts)?

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Looking back at what happened, this is my version of what is likely to have happened:

1) Kirby decided to retire
2) GS agreed to buy Kirby's rights
3) GS tried to renegotiate the builder's contract with LP

 

If that is true......then it would appear that GS owes some accountability for this .

 

Do you have any evidence that GS tried to renegotiate the builders agreement with LP?

 

It was an educated guess. That's why I said it was my version of what's likely.

 

As it turned out, negotiation took place according to Laser Performance who said:

 

Later, in July 2011, Global Sailing and PSA tried to force LaserPerformance to give up its lucrative China territory in exchange for a new contract for Europe and other territories or, alternatively, to purchase Global Sailing and PSA -- and all the rights Global Sailing had purchased from Kirby and BKI -- for the excessive sum of $15 million for a business worth no more than $2 million. LaserPerformance refused to be extorted.

- ref: page 7 http://www.sailingscuttlebutt.com/wp-content/uploads/2013/06/LP-response-061213.pdf

LP had the trademark rights for China. Global Sailing wanted the China Territory. As part of the negotiations, LP said that GS offered a new contract for Europe.

 

I think that the high price may have indicated a reluctance to sell, rather than an attempt to extort.

 

The way LP worded the above needs to be read in the broad context of its language used in its counterclaim. Lots of mention of conspiracies etc.

 

 

 

2. The Laser Class Association has not broken the ISAF Agreement. The parties to the case in CT have not suggested that The Class Association broke the ISAF agreement.

 

This, from Bruce Kirby, 18 June 2013:

"It was perhaps not widely understood at the time of the vote but the Rule Change, pushed through by ILCA and then recently approved by ISAF, attempted to eliminate the requirement that builders of the Laser must have an agreement with designer Bruce Kirby. This violates the 1983 Agreement which established the Laser as an International Class, the basis on which ISAF plaques are issued to builders of the Laser, and on which the Laser was chosen as equipment for use in the Olympics."

- ref: http://www.kirbytorch.com/news/kirbytorchclassmembershipcoulddefeatilcarulechange

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* Question for ILP: Assuming the transfer was denied after the fact, what happens from legal perspective at this stage? Can the sale stand and the new rights holder (GS/PSA) simply be in breach... in other words could BK still have walked away? Or does the sale have to be reversed? It would be interesting to see the sale contract between BKI and GS/PSA especially the reps and warrants section.

 

 

We would need to see the sale contract between Bruce Kirby and Global sailing to answer that question with any real insight.

 

However, unless there was a specific contingency condition, Global Sailing would face some hurdles cancelling the sale. Global Sailing and Bruce Kirby both knew or should have known about the ISAF agreement.

 

If we assume there was a contingency condition , then the normal wording (assuming reasonably competent lawyers acting in best interest of Bruce Kirby) would require that both parties use "best efforts", "reasonable efforts" or some such language to obtain the approval of ISAF and ILCA. Global Sailing's actions would unlikely meet that standard.

 

The worst case scenario for Bruce Kirby is that he had less than stellar legal advice at the time of the sale to Global Sailing.....and that Global Sailing damaged the contractual rights and then forced Bruce to repurchase them. I think it is unlikely but maybe that is wishful thinking on my part.

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Looking back at what happened, this is my version of what is likely to have happened:

1) Kirby decided to retire
2) GS agreed to buy Kirby's rights
3) GS tried to renegotiate the builder's contract with LP

 

If that is true......then it would appear that GS owes some accountability for this .

 

Do you have any evidence that GS tried to renegotiate the builders agreement with LP?

 

It was an educated guess. That's why I said it was my version of what's likely.

 

As it turned out, negotiation took place according to Laser Performance who said:

 

Later, in July 2011, Global Sailing and PSA tried to force LaserPerformance to give up its lucrative China territory in exchange for a new contract for Europe and other territories or, alternatively, to purchase Global Sailing and PSA -- and all the rights Global Sailing had purchased from Kirby and BKI -- for the excessive sum of $15 million for a business worth no more than $2 million. LaserPerformance refused to be extorted.

- ref: page 7 http://www.sailingscuttlebutt.com/wp-content/uploads/2013/06/LP-response-061213.pdf

LP had the trademark rights for China. Global Sailing wanted the China Territory. As part of the negotiations, LP said that GS offered a new contract for Europe.

 

I think that the high price may have indicated a reluctance to sell, rather than an attempt to extort.

 

The way LP worded the above needs to be read in the broad context of its language used in its counterclaim. Lots of mention of conspiracies etc.

 

 

 

2. The Laser Class Association has not broken the ISAF Agreement. The parties to the case in CT have not suggested that The Class Association broke the ISAF agreement.

 

This, from Bruce Kirby, 18 June 2013:

"It was perhaps not widely understood at the time of the vote but the Rule Change, pushed through by ILCA and then recently approved by ISAF, attempted to eliminate the requirement that builders of the Laser must have an agreement with designer Bruce Kirby. This violates the 1983 Agreement which established the Laser as an International Class, the basis on which ISAF plaques are issued to builders of the Laser, and on which the Laser was chosen as equipment for use in the Olympics."

- ref: http://www.kirbytorch.com/news/kirbytorchclassmembershipcoulddefeatilcarulechange

 

Wow, another Gantt post that has elements I can agree with.

 

Gantt - Just would add that obviously LPE might feel and claim differently than your bold/italics (my emphasis added) statement. On the latter part of your post note that there can be and apparently are instances where what was said in public statements are not the same as what is claimed in the litigation. If its not claimed in the litigation its kinda a mute point as it will not be considered by the court obviously. The ISAF is not even part of this litigation anymore so - and I am not attempting to flame you here - you and he can claim that over and over till the cows come home but it really does not matter at all in terms of the case.

 

Oh and thanks TM I gotta see if that link still works. I would love to get one of those for "historic" purposes, LOL.

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IP,

 

What is the problem with the BK Torch gambit? Seems to me it was just an FU move that could have added some pressure.

 

Maybe some sort of settlement is in the works since things have gone quiet? (outside of this thread)

 

It surely was an FU move. IMO, it was a "shoot first, think later" move.

 

From a legal point of view, it is my opinion that it was a dumb move. If I was BK's lawyer I think I could attempt to argue that BK rectified his breach of the ISAF agreement when he reacquired the rights (and even argue with some stretch that the original sale of the rights was not a material breach) but the launch of the Torch killed any chance of any claim under the ISAF agreement. It was the launch of the Torch that allowed ISAF to declare a material breach and approve the rule change without risk under the 1983 ISAF agreement. It is probably the single biggest reason why BK's lawyers have not brought any claims under the 1983 ISAF agreement.

 

Furthermore, I think it marginally hinders claims for tortuous interference but those claims are so weak anyway that it was merely the last shovel of dirt on the grave.

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IP,

 

 

 

Maybe some sort of settlement is in the works since things have gone quiet? (outside of this thread)

 

Yes.

 

I think this will settle.

 

1) GS and LP are hurting their own franchise.

2) Costs will be starting to hurt. Expert witnesses alone are going to cost in the hundreds of thousands.

3) IMO, there are common sense compromises.

4) During discovery each side will have gained a better sense of the respective strengths and weaknesses of their respective cases. Something that we do not have,

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This can't last. A friendly, cordial, informative discussion with no videos, typos, games, trolling, or name calling? And actual civil discourse with back and forth question and answers!!

 

What has this thread come to??!!

 

Somebody wake up Gouv!

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IP,

 

 

 

Maybe some sort of settlement is in the works since things have gone quiet? (outside of this thread)

 

Yes.

 

I think this will settle.

 

1) GS and LP are hurting their own franchise.

2) Costs will be starting to hurt. Expert witnesses alone are going to cost in the hundreds of thousands.

3) IMO, there are common sense compromises.

4) During discovery each side will have gained a better sense of the respective strengths and weaknesses of their respective cases. Something that we do not have,

 

 

 

ILP - I keep thinking the same thing. Even that it never should have started. But yet it started and does not settle.

 

Hey I got a question I am not sure you can answer in a public forum.

 

If I recall we are talking about $2 million or so worth of rights assuming a 2025 termination

 

* What would Kirby's legal costs be (using industry estimates/averages for IP contracts litigation) to carry this case to its current point (discovery complete and reviewed?)?

 

Are they all pushing up again the total value yet?

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This can't last. A friendly, cordial, informative discussion with no videos, typos, games, trolling, or name calling? And actual civil discourse with back and forth question and answers!!

 

What has this thread come to??!!

 

Somebody wake up Gouv!

 

 

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IP,

 

 

 

Maybe some sort of settlement is in the works since things have gone quiet? (outside of this thread)

 

Yes.

 

I think this will settle.

 

1) GS and LP are hurting their own franchise.

2) Costs will be starting to hurt. Expert witnesses alone are going to cost in the hundreds of thousands.

3) IMO, there are common sense compromises.

4) During discovery each side will have gained a better sense of the respective strengths and weaknesses of their respective cases. Something that we do not have,

 

 

 

ILP - I keep thinking the same thing. Even that it never should have started. But yet it started and does not settle.

 

Hey I got a question I am not sure you can answer in a public forum.

 

If I recall we are talking about $2 million or so worth of rights assuming a 2025 termination

 

* What would Kirby's legal costs be (using industry estimates/averages for IP contracts litigation) to carry this case to its current point (discovery complete and reviewed?)?

 

Are they all pushing up again the total value yet?

 

 

Only reason that I cannot answer is that it is because it is a bit like "How long is a piece of string?"

 

Variables include:-

Lawyers fees: A good IP lawyer can vary from $300-$1000 per hour .

# of depositions:

# of motions

Scale of document review

Expert witness

Size of Egos and wallets.

 

It would be easy to spend $400-750 k each to get to pre-trial motions but I literally have no idea.

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Would you agree that it was a mistake if Kirby didn't seek ISAF approval before the transfer?

And would you also agree that it was also a mistake if Kirby did seek ISAF approval before the transfer and ISAF turned him down but he went ahead with the transfer anyway?

 

Simple yes or no answers would be preferred.

 

First question is Yes, I think that it was a mistake of Kirby's to not seek approval of GS from ISAF and ILCA first - because that approval was required for that transfer to be effected. (That's probably what Kirby was saying too.) As GS was represented by Chris Spencer, who was then serving on the ILCA World Council, there was a good chance that GS would have been approved back in 2008.

 

For your second question, this could only happen if the rights being transferred were external to the ISAF Agreement. They weren't. The transfer was dependant on ISAF and ILCA approval "...in writing..." and "...approval shall not be unreasonably withheld.".

 

Transferring Kirby's rights was not possible without the approval.

 

Trademark rights were also meant to be subjected to ISAF and ILCA approval. But their rights are governed by laws external to the ISAF Agreement (ie government legislation). So while transferring the trademark was also meant to have written approval by ISAF and ILCA, those rights can be transferred without that because the rights are external. In this way a breach is possible.

 

So while an agreement for transfer can be made, actual transfer of rights (delivery) are dependant on the regulations that govern those rights.

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Would you agree that it was a mistake if Kirby didn't seek ISAF approval before the transfer?

And would you also agree that it was also a mistake if Kirby did seek ISAF approval before the transfer and ISAF turned him down but he went ahead with the transfer anyway?

 

Simple yes or no answers would be preferred.

 

First question is Yes, I think that it was a mistake of Kirby's to not seek approval of GS from ISAF and ILCA first - because that approval was required for that transfer to be effected. (That's probably what Kirby was saying too.) As GS was represented by Chris Spencer, who was then serving on the ILCA World Council, there was a good chance that GS would have been approved back in 2008.

 

For your second question, this could only happen if the rights being transferred were external to the ISAF Agreement. They weren't. The transfer was dependant on ISAF and ILCA approval "...in writing..." and "...approval shall not be unreasonably withheld.".

 

Transferring Kirby's rights was not possible without the approval.

 

Trademark rights were also meant to be subjected to ISAF and ILCA approval. But their rights are governed by laws external to the ISAF Agreement (ie government legislation). So while transferring the trademark was also meant to have written approval by ISAF and ILCA, those rights can be transferred without that because the rights are external. In this way a breach is possible.

 

So while an agreement for transfer can be made, actual transfer of rights (delivery) are dependant on the regulations that govern those rights.

 

 

 

Thank you Gantt. I appreciate the direct answers to my questions.

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Regarding the Question of "Why did Bruce Kirby reacquire the rights from GS?"

 

This snippet from the counterclaim is interesting:

 

38.
Subsequently, in September 2011, Kirby, BKI and Global Sailing set out on a new path. Without any notice to Laser Performance, Quarter Moon, ISAF or ILCA, they purported to enter into another agreement to “unwind” the sale of Kirby’s and BKI’s rights that had occurred three years earlier in 2008.
39.
The “unwinding” agreement between Global Sailing and Kirby and BKI does not alter Global Sailing’s controlling position. In fact, Global Sailing retains a security interest in all the assets and contracts Kirby earlier assigned to Global Sailing, purports to grants him no more than a “license back” of those rights and maintains control by precluding their transfer without Global Sailing’s permission.

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As it turned out, negotiation took place according to Laser Performance who said:

 

Later, in July 2011, Global Sailing and PSA tried to force LaserPerformance to give up its lucrative China territory in exchange for a new contract for Europe and other territories or, alternatively, to purchase Global Sailing and PSA -- and all the rights Global Sailing had purchased from Kirby and BKI -- for the excessive sum of $15 million for a business worth no more than $2 million. LaserPerformance refused to be extorted.

- ref: page 7 http://www.sailingscuttlebutt.com/wp-content/uploads/2013/06/LP-response-061213.pdf

LP had the trademark rights for China. Global Sailing wanted the China Territory. As part of the negotiations, LP said that GS offered a new contract for Europe.

 

I think that the high price may have indicated a reluctance to sell, rather than an attempt to extort.

 

The way LP worded the above needs to be read in the broad context of its language used in its counterclaim. Lots of mention of conspiracies etc.

 

2. The Laser Class Association has not broken the ISAF Agreement. The parties to the case in CT have not suggested that The Class Association broke the ISAF agreement.

 

This, from Bruce Kirby, 18 June 2013:

"It was perhaps not widely understood at the time of the vote but the Rule Change, pushed through by ILCA and then recently approved by ISAF, attempted to eliminate the requirement that builders of the Laser must have an agreement with designer Bruce Kirby. This violates the 1983 Agreement which established the Laser as an International Class, the basis on which ISAF plaques are issued to builders of the Laser, and on which the Laser was chosen as equipment for use in the Olympics."

- ref: http://www.kirbytorch.com/news/kirbytorchclassmembershipcoulddefeatilcarulechange

 

Wow, another Gantt post that has elements I can agree with.

 

Gantt - Just would add that obviously LPE might feel and claim differently than your bold/italics (my emphasis added) statement. On the latter part of your post note that there can be and apparently are instances where what was said in public statements are not the same as what is claimed in the litigation. If its not claimed in the litigation its kinda a mute point as it will not be considered by the court obviously. The ISAF is not even part of this litigation anymore so - and I am not attempting to flame you here - you and he can claim that over and over till the cows come home but it really does not matter at all in terms of the case.

 

Oh and thanks TM I gotta see if that link still works. I would love to get one of those for "historic" purposes, LOL.

 

 

Agreed Wess. LPE definitely wouldn't agree with what I said. Most of the references to conspiracies can be found in LP's unsuccessful counterclaim.

 

Also, IPLore was referring to what the parties to the case said, not where they said it.

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The key phrase is :

 

"Global Sailing retains a security interest in all the assets and contracts Kirby earlier assigned to Global Sailing, purports to grants him no more than a “license back” of those rights"

 

If this is true and based on LP's access to discovery, then this could be good news for Bruce Kirby fans.

 

The financial squabble and eventual settlement may be a two cornered fight between GS and LP.

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The key phrase is :

 

"Global Sailing retains a security interest in all the assets and contracts Kirby earlier assigned to Global Sailing, purports to grants him no more than a “license back” of those rights"

 

If this is true and based on LP's access to discovery, then this could be good news for Bruce Kirby fans.

 

The financial squabble and eventual settlement may be a two cornered fight between GS and LP.

 

 

But, it seems that Kirby and GS decided that the lawsuit would be Kirby vs LP (et al) - not GS vs LP.

 

Why is that?

 

I can see that it makes a lot of sense from the PR point of view for Bruce Kirby to be the public face of the dispute with LP.

 

But are there advantages for GS and BK to do it this way from the perspective of legal strategy?

 

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Looking back at what happened, this is my version of what is likely to have happened:

1) Kirby decided to retire
2) GS agreed to buy Kirby's rights
3) GS tried to renegotiate the builder's contract with LP

 

If that is true......then it would appear that GS owes some accountability for this .

 

Do you have any evidence that GS tried to renegotiate the builders agreement with LP?

 

It was an educated guess. That's why I said it was my version of what's likely.

 

As it turned out, negotiation took place according to Laser Performance who said:

 

Later, in July 2011, Global Sailing and PSA tried to force LaserPerformance to give up its lucrative China territory in exchange for a new contract for Europe and other territories or, alternatively, to purchase Global Sailing and PSA -- and all the rights Global Sailing had purchased from Kirby and BKI -- for the excessive sum of $15 million for a business worth no more than $2 million. LaserPerformance refused to be extorted.

- ref: page 7 http://www.sailingscuttlebutt.com/wp-content/uploads/2013/06/LP-response-061213.pdf

LP had the trademark rights for China. Global Sailing wanted the China Territory. As part of the negotiations, LP said that GS offered a new contract for Europe.

 

 

 

 

 

 

and also :

 

" On or about May 10, 2010, Wesley W. Whitmyer, Jr., Esq., Kirby’s and BKI’s counsel in this case but then purporting to represent Global Sailing, sent a notice to LaserPerformance stating that Global Sailing was terminating the 1983 Builder Agreement in lieu of renewing its term"

 

We don't have a copy of that notice. The suggestion is a bit ambiguous. Did GS terminate the builder's agreement with LPE as early as May 2010? or did they merely say that it would not be renewed at the next renewal date?

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The key phrase is :

 

"Global Sailing retains a security interest in all the assets and contracts Kirby earlier assigned to Global Sailing, purports to grants him no more than a “license back” of those rights"

 

If this is true and based on LP's access to discovery, then this could be good news for Bruce Kirby fans.

 

The financial squabble and eventual settlement may be a two cornered fight between GS and LP.

 

 

But, it seems that Kirby and GS decided that the lawsuit would be Kirby vs LP (et al) - not GS vs LP.

 

Why is that?

 

I can see that it makes a lot of sense from the PR point of view for Bruce Kirby to be the public face of the dispute with LP.

 

But are there advantages for GS and BK to do it this way from the perspective of legal strategy?

 

 

 

I am sure you can see the advantages for GS ......but not for BK who should instead be relaxing in his hammock.

So it still begs the question of why BK agreed to get involved. We will never find out. It will be settled.

 

and talking of hammocks......good day to you all.

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The key phrase is :

 

"Global Sailing retains a security interest in all the assets and contracts Kirby earlier assigned to Global Sailing, purports to grants him no more than a “license back” of those rights"

 

If this is true and based on LP's access to discovery, then this could be good news for Bruce Kirby fans.

 

The financial squabble and eventual settlement may be a two cornered fight between GS and LP.

 

 

But, it seems that Kirby and GS decided that the lawsuit would be Kirby vs LP (et al) - not GS vs LP.

 

Why is that?

 

I can see that it makes a lot of sense from the PR point of view for Bruce Kirby to be the public face of the dispute with LP.

 

But are there advantages for GS and BK to do it this way from the perspective of legal strategy?

 

 

 

I am sure you can see the advantages for GS ......but not for BK who should instead be relaxing in his hammock.

So it still begs the question of why BK agreed to get involved. We will never find out. It will be settled.

 

and talking of hammocks......good day to you all.

 

Slacker!

 

And it should settle but... they sure have spent a lot of time and money with no signs of settlement progress...

 

IPL - Maybe you are looking for something right in front of you.

 

As you note:

 

" On or about May 10, 2010, Wesley W. Whitmyer, Jr., Esq., Kirby’s and BKI’s counsel in this case but then purporting to represent Global Sailing, sent a notice to LaserPerformance stating that Global Sailing was terminating the 1983 Builder Agreement in lieu of renewing its term"

 

"Subsequently, in September 2011, Kirby, BKI and Global Sailing set out on a new path. Without any notice to Laser Performance, Quarter Moon, ISAF or ILCA, they purported to enter into another agreement to “unwind” the sale of Kirby’s and BKI’s rights that had occurred three years earlier in 2008."

 

"Global Sailing retains a security interest in all the assets and contracts Kirby earlier assigned to Global Sailing, purports to grants him no more than a “license back” of those rights"

 

"From a legal point of view, it is my opinion that it was a dumb move. [...] It was the launch of the Torch that allowed ISAF to declare a material breach and approve the rule change without risk under the 1983 ISAF agreement. It is probably the single biggest reason why BK's lawyers have not brought any claims under the 1983 ISAF agreement."

 

In this scenario its seems clear that GS/PSA is determined to terminate LPE as a builder for the class at some stage. At that point the LPE Laser trademark is largely worthless. LPE must fight to the death if this is accurate.

 

Kirby seems to have not stepped away to his hammock though he could in this scenario. Instead he appears to have retained a partnership (and even control according to the LPE counter complaint) in some form with GS/PSA. He also is opposed to the change in the class rule and sued ISAF and ILCA even though it makes no difference to his argument relative to his royalties till 2025. He attempted to take down the Laser trademark. He also suggested evolving the Laser class to the his Torch class despite the obviously risks you noted. Maybe he has very good and not obvious reasons for doing all that (when he could be in a hammock) but all this - if true and certainly nobody here knows if it is - would set him up for control and royalties well beyond 2025. This all seems like a home run swing; not a sacrifice bunt to bring my 2% royalty to 2025 home.

 

So its clear I am not suggesting this is his or anyone's intent... just that it could be given the scenario you have described. It would also explain what you described as the GS/PSA over-payment for the right. It would not be an overpayment in that scenario.

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So it still begs the question of why BK agreed to get involved. We will never find out. It will be settled.

 

Maybe we can get a sense of what Kirby was thinking by reading what he said.

 

Pretty sure that the answer won't be found by quoting LP's unsuccessful counterclaims.

 

Media quoted Kirby in September 2011, for example:

Breaking News - Bruce Kirby has now taken back the Laser Design rights. The ink is drying on the contract returning the Laser design rights to the 82 year old Laser designer.

He has just advised 'I signed the contract this morning. The design rights have reverted to me. I am hoping now that the ILCA will drop the whole idea of a rule change, and I will be taking steps immediately to get the confusion over builders and builders' plaques straightened away. I have confidence that I will have class and ISAF support with this.
'It's been a long drawn out hassle, but the door is now wide open for the class and builders to come together for the benefit of all concerned, and especially Laser sailors worldwide.'

- ref http://www.marinebusinessworld.com/n/Breaking-News--Laser-Class-%E2%80%93-Contracts-signed-and-Kirby-is-back/88802?source=twitter

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Why would you say unsuccessful counter claims? We don't know yet what will be successful or not for any of the parties (other than those dismissed) do we?

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Why would you say unsuccessful counter claims? We don't know yet what will be successful or not for any of the parties (other than those dismissed) do we?

 

I said unsuccessful claims because I was thinking that they were even less likely that the successful claims, but now that you raise it, I doubt that any of LP's claims will give insight into what Kirby was thinking.

 

For a moment I wondered if any of the counterclaims were left, so I took another look:

Counterclaims dismissed:
1) Declaratory Judgment That Kirby And BKI Have No Rights Under The Builder Agreements (Against Kirby And BKI)
2) Declaratory Judgment That Kirby And BKI Have No Rights In The “Bruce Kirby” Name Or Trademark (Against Kirby And BKI)
3) Tortious Interference With Business Relations (Against Kirby, BKI, Global Sailing And PSA)
4) Conspiracy To Tortiously Interfere With Business Relations (Against Kirby, BKI, Global Sailing And PSA)
5) Violation of the Connecticut Unfair Trade Practices Act (By Quarter Moon Against Kirby, BKI, Global Sailing And PSA)
8) Breach Of The November 2005 Agreement (Against Kirby And BKI)
Counterclaims retained:
6) Breach Of The 1983 Builder Agreement (By LaserPerformance Against Kirby, BKI And Global Sailing)
Note that this is the alleged BK's licensing of a builder in the Netherlands for which LP claims damages of in excess of $1 million.
7) Breach Of The 1989 Builder Agreement (By Quarter Moon Against Kirby, BKI And Global Sailing)
Note that this is the alleged BK's licensing of a builder in North America for which LP claims damages of in excess of $1 million
9) Unjust Enrichment (Against Kirby, BKI And Global Sailing)
Note that this is the alleged over payment of royalties by more than $250,000
Also, the appointments of new builders were made after the LP terminations, so I'm wondering if there was a breach of the builders' agreements, also, the appointment of builders, if licensed under the ISAF Agreement, must be approved by the ILCA and World Sailing (ISAF). I doubt that damages in excess of ONE MILLION DOLLARS could be proved... seems like a really big number, I wonder how Rastegar arrived at such a figure...

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Am still wondering if in 2011 the ISAF regulations concerning agreements (ISAF Agreement and builders license agreements) had any bearing on the ILCA's fundamental rule change.

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So its clear I am not suggesting this is his or anyone's intent... just that it could be given the scenario you have described. It would also explain what you described as the GS/PSA over-payment for the right. It would not be an overpayment in that scenario.

 

 

 

Financial analysts could place a value on what Kirby's royalty stream would be worth as a lump sum.

 

But Kirby's rights would be worth that - plus a hefty premium - to one of the Laser builders.

 

With the power to define terms necessary to review another builder's agreement and/or the ability to threaten not to renew another builder's agreement at all, a Laser builder owning the designer's rights could extract all kinds of concessions from the other builders. They could demand access to a Laser market owned by another builder. They could offer to buy the other builder at a low price. They could offer to sell themselves to the other builder at a high price.

 

And, in essence, that is exactly what appears to have happened.

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So it still begs the question of why BK agreed to get involved. We will never find out. It will be settled.

 

Maybe we can get a sense of what Kirby was thinking by reading what he said.

 

Pretty sure that the answer won't be found by quoting LP's unsuccessful counterclaims.

 

Media quoted Kirby in September 2011, for example:

Breaking News - Bruce Kirby has now taken back the Laser Design rights. The ink is drying on the contract returning the Laser design rights to the 82 year old Laser designer.

He has just advised 'I signed the contract this morning. The design rights have reverted to me. I am hoping now that the ILCA will drop the whole idea of a rule change, and I will be taking steps immediately to get the confusion over builders and builders' plaques straightened away. I have confidence that I will have class and ISAF support with this.
'It's been a long drawn out hassle, but the door is now wide open for the class and builders to come together for the benefit of all concerned, and especially Laser sailors worldwide.'

- ref http://www.marinebusinessworld.com/n/Breaking-News--Laser-Class-%E2%80%93-Contracts-signed-and-Kirby-is-back/88802?source=twitter

 

 

 

Was Kirby telling the whole story here? He didn't mention that Global Sailing retained a "security interest" in all the the assets and contracts he had earlier assigned to Global Sailing, or that he only had a “license back” of those rights.

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So it still begs the question of why BK agreed to get involved. We will never find out. It will be settled.

 

Maybe we can get a sense of what Kirby was thinking by reading what he said.

 

Pretty sure that the answer won't be found by quoting LP's unsuccessful counterclaims.

 

Media quoted Kirby in September 2011, for example:

Breaking News - Bruce Kirby has now taken back the Laser Design rights. The ink is drying on the contract returning the Laser design rights to the 82 year old Laser designer.

He has just advised 'I signed the contract this morning. The design rights have reverted to me. I am hoping now that the ILCA will drop the whole idea of a rule change, and I will be taking steps immediately to get the confusion over builders and builders' plaques straightened away. I have confidence that I will have class and ISAF support with this.
'It's been a long drawn out hassle, but the door is now wide open for the class and builders to come together for the benefit of all concerned, and especially Laser sailors worldwide.'

- ref http://www.marinebusinessworld.com/n/Breaking-News--Laser-Class-%E2%80%93-Contracts-signed-and-Kirby-is-back/88802?source=twitter

 

 

 

Was Kirby telling the whole story here? He didn't mention that Global Sailing retained a "security interest" in all the the assets and contracts he had earlier assigned to Global Sailing, or that he only had a “license back” of those rights.

 

 

Definitely Kirby was not telling the whole story. The above Kirby statement is one quote from a one article - put forward as an example of what Kirby was saying at the time.

 

The source for GS retaining a security interest is the LP counterclaim. Paragraphs 38 & 39 were put forward as "Factual Background" and were not accepted by Kirby. They formed in part the basis of rejected motions/counterclaims, for example, the first counterclaim "Declaratory Judgment That Kirby And BKI Have No Rights Under The Builder Agreements (Against Kirby And BKI)"

 

- ref pages 25 and 33 of this PDF: http://www.sailingscuttlebutt.com/wp-content/uploads/2013/06/LP-response-061213.pdf

 

Having said that, just because they were not accepted by Kirby or were part of a rejected motion doesn't mean that the statements are or are not true. Also, don't read too much into the above motion being rejected. That could be for example, because the court feels that question is already covered elsewhere in the legal action.

 

Bottom line, they are not a good indicator of what Kirby was thinking.

 

Kirby has been consistent in making statements that he cares for the sailing sport in general, one design and Lasers specifically. After all, he's a mad keen sailor himself. I believe there is a large volume of evidence that supports that he's one of the guys who gives a damn.

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Kirby has been consistent in making statements that he cares for the sailing sport in general, one design and Lasers specifically. After all, he's a mad keen sailor himself. I believe there is a large volume of evidence that supports that he's one of the guys who gives a damn.

s

 

I think that's true Gantt. I think Bruce Kirby does care a lot about sailing in general and Laser sailing in particular.

 

I have met Bruce Kirby. Some years ago I exchanged some friendly emails with him about the dispute. He seems like a decent man who sincerely wants to do what is right for the sport.

 

And I was one of the minority of Laser class members who voted the way Bruce wanted us to vote on the Fundamental Rule Change ballot.

 

But having said that, while I respect Bruce's wish to sell his design rights for a lump sum for estate planning purposes, I have serious reservations about the wisdom of selling those rights to a family who also controlled one of the Laser builders (for reasons discussed above.)

 

And I am sad to say, he lost my support when he decided to sue the Laser class. I still don't see why he needed to do that to recover royalties he thought LP owed him.

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And I am sad to say, he lost my support when he decided to sue the Laser class. I still don't see why he needed to do that to recover royalties he thought LP owed him.

 

Do you really think that royalties are the only reason Kirby is bringing the legal action?

 

Here's the claim against the ILCA:

 

C. That ILCA and ISAF, their officers, members, managers, affiliates, agents, employees, servants, representatives, and all persons acting under or in concert with them, be preliminarily and permanently enjoined from issuing ISAF Plaques to any entity not explicitly authorized by Kirby, including but not limited to the other named Defendants and their officers, members, managers, affiliates, agents, employees, servants, representatives, and all persons acting under or in concert with them;

 

He wants the court to compel the ILCA to issue plaques to licensed builders only.

 

It's not just about recovering unpaid royalties, its also about restoring his design rights.

 

Here is my estimation of what may be factors behind the legal action:

  • If Kirby keeps the cash, and GS has bought 'cancelled rights', then GS (a friend of Kirby), gets screwed. I believe Kirby has a strong sense of ethics which he feels give him no option to oppose the effective cancelling of his rights. Key to that is the ILCA's fundamental rule change. While that is not is directly part of the action, Kirby is using what he can to oppose the ILCA.
  • To Kirby, it's a matter of principle - Kirby didn't mince words regarding the fundamental rule, Kirby considered it theft.
  • Kirby will know about Rastegar's tactics which included refusing to supply boats. Simply, he does not like LP's apparent 'takeover' of the ILCA. The action supports the ILCA being compelled to act in Kirby's support, in which case LP tactics by refusing to supply boats will no longer work.
  • By suing the ILCA for interference, Kirby is wanting the courts to order the ILCA to recognize the termination (and stop supplying plaques)
  • The ILCA invited Kirby to go to court.
  • The system has worked well for several decades, Kirby may believe that restoring it is good for Laser sailing and therefore the ILCA.
  • Kirby believes that renaming the class gets around any trademark issues.

The above is not meant to be synonymous with the legal action, rather my guess of the possible thinking Kirby has behind it.

 

I believe that members can choose to support the ILCA and still oppose the new fundamental rule. Others can choose not to renew their ILCA membership in protest.

 

What's interesting is that the ILCA appears to be defending it's position. If they were positioning themselves as neutral, wouldn't the ILCA offer no defense? I mean it's no big deal to repeal the rule, right?

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Thanks Gantt and Gouvernail. I understand your points of view on Kirby's suit against the Laser class. I guess we will just have to agree to disagree.

 

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Hell with that crap!!!! We have thousands of posts invested in this banter. The best you can hope for is disagreeing to be confused.

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BTW:

I won all five races tonight. 63 year old fat guy in big breeze rounds sll but two marks first.

These boats are fun for all ages and fleets and friends make for nirvana!!!

 

A good point well made Gouv. It's a shame that Tille man feels the need to agree to disagree with it.

 

If it wasn't for the fact it is Tiller Man's birthday, I'd post the following:

 

 

HAPPY BIRTHDAY TILLER MAN!

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HAPPY BIRTHDAY TILLER MAN!

 

 

 

Thanks Gantt but I have to disagree with you (again.) :)

 

My birthday was actually yesterday.

 

I went sailing on my birthday - two of us in RS Aeros and two of us in Lasers. Just blasting around and playing in the waves at the mouth of the Sakonnet.

 

After sailing we all went out to dinner together and sat at a table by the water and had chowder and beer and other good stuff.

 

Laser and RS Aero sailors don't have to disagree.

 

Why do Laser sailors have to disagree? :angry:

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And I am sad to say, he lost my support when he decided to sue the Laser class. I still don't see why he needed to do that to recover royalties he thought LP owed him.

 

Thanks Gantt and Gouvernail. I understand your points of view on Kirby's suit against the Laser class. I guess we will just have to agree to disagree.

 

Hell with that crap!!!! We have thousands of posts invested in this banter. The best you can hope for is disagreeing to be confused.

 

I understand why he is doing it

 

 

 

Hey Gouv - I'll play while trying to keep it to the civil tone we all seem to be enjoying here for a change.

 

With respect... no you don't. None of us truly know why he is doing it; only Kirby does. We all have our best guesses but this (why) is an inflammatory topic. Besides that, its completely irrelevant to your earlier point (you didn't want to talk about royalties beyond 2025 or renewal leverage) and your hero's interest as you and he described them. In fact with your view you are making Kirby's job much harder. The relevant question to BK's ability to collect his 2% royalty till 2025 - which is what you claim you want - is:

 

* Does BK need to sue the class to collect his 2% royalty on Kirby sailboats made and sold by the licensed builders over the term of the builders agreement?

 

What TM, I, and others are saying is that the answer to that question is no, he does not.

 

* Do you disagree that the answer is no?

 

I believe TM's (and my and others) view is that he can lose all claims against the class and still get his 2% he claims owed by the builder under the builders contracts (and I think everyone would agree should if the court find its owed). Why this matters to your argument is because if you think he has to win against the class to collect his 2% from the builders you are raising the bar and challenge for Kirby significantly and good luck to you. IPL has repeatedly described why the suit against the class will likely fail before it starts.

 

Kirby's rights are embodied in the builders contract and the 2% royalty till 2025 covered there. If Kirby hasn't breached as LPE appears to claim he does not need the old class rule, or the class involvement at all - in fact no class action action can take away that legal right Kirby has under a valid builders contract - to collect that royalty from LPE as described in the builders contract over the term for Kirby sailboats produced and sold. And if he has breached the class can't save him. We don't need to do the things you note in your post for Kirby to get paid and doing them does not get Kirby paid. A court order for Kirby against LPE for breach of the builders contract is the only thing that gets Kirby paid. Well other than you sending him a check directly if you wish... :P

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Regarding the Question of "Why did Bruce Kirby reacquire the rights from GS?"

 

This snippet from the counterclaim is interesting:

 

38.
Subsequently, in September 2011, Kirby, BKI and Global Sailing set out on a new path. Without any notice to Laser Performance, Quarter Moon, ISAF or ILCA, they purported to enter into another agreement to “unwind” the sale of Kirby’s and BKI’s rights that had occurred three years earlier in 2008.
39.
The “unwinding” agreement between Global Sailing and Kirby and BKI does not alter Global Sailing’s controlling position. In fact, Global Sailing retains a security interest in all the assets and contracts Kirby earlier assigned to Global Sailing, purports to grants him no more than a “license back” of those rights and maintains control by precluding their transfer without Global Sailing’s permission.

 

 

What does it mean that Global Sailing retains a "security interest" in all the assets and contracts Kirby earlier assigned to Global Sailing.

 

If the court does award back royalties to Kirby, does it mean that GS has a claim on that money?

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HAPPY BIRTHDAY TILLER MAN!

 

 

 

Thanks Gantt but I have to disagree with you (again.) :)

 

My birthday was actually yesterday.

 

I went sailing on my birthday - two of us in RS Aeros and two of us in Lasers. Just blasting around and playing in the waves at the mouth of the Sakonnet.

 

After sailing we all went out to dinner together and sat at a table by the water and had chowder and beer and other good stuff.

 

Laser and RS Aero sailors don't have to disagree.

 

Why do Laser sailors have to disagree? :angry:

 

 

TM - I have to agree with Gantt on this one. Its quite reasonable for Laser sailors to disagree on Kirby's motives and intentions. None of us can know for sure and we might learn something from each others views. I am all for trolling and fun - it is SA after all and much of this thread has been more entertainment than reality but these last 2 pages have been pretty fact based (as much as anyone can guess what the facts are) and civil and actually kinda interesting. I think we learn more when folks disagree and express an alternate POV in a civil rationale way. Now I admit that SA ain't usually the place for that but hey, who knows... The thread finally got interesting instead of just stupid funny. Let it go... Wess

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TM - I have to agree with Gantt on this one. Its quite reasonable for Laser sailors to disagree on Kirby's motives and intentions. None of us can know for sure and we might learn something from each others views. I am all for trolling and fun - it is SA after all and much of this thread has been more entertainment than reality but these last 2 pages have been pretty fact based (as much as anyone can guess what the facts are) and civil and actually kinda interesting. I think we learn more when folks disagree and express an alternate POV in a civil rationale way. Now I admit that SA ain't usually the place for that but hey, who knows... The thread finally got interesting instead of just stupid funny. Let it go... Wess

 

 

 

Well, I was tempted to respond to Gantt's and Gouvernail's views on the Kirby lawsuit against the class in my usual way and point out all the errors and inconsistencies in their arguments and accuse them of incoherent rambling and maybe even trolling (whatever that is) for good measure... but I guess I was still feeling mellow after sailing with friends on my birthday.

 

I expect I will get back to my old opinionated and argumentative self in a day or two.

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Happy Birthday!

 

I see it the way you do. Maybe even further to the right. I can't even think of another logical reason consistent with all the events (Kirby selling to and still being tied up with PSA/GS, the amount of the sale relative to the royalty, Kirby coming back when he could have walked away, his suit again ISAF, his suit against ILCA, his attempt to take down the Laser trademark - which would even hurt PSA/GS, the launch of the Torch, etc...) other than Kirby playing a long game for much more than 2% till 2025... but even IPL ascribes altruistic, pure as driven snow motives to Kirby and you respect his views right? I may not agree presently but I am curious to hear his and others thoughts if we really are doing the civil discourse thing.

 

Or we can go back to lies, rumors, BS, videos and typos. I have a good set of Kirby litigation themed disco lined up for Gouv that should drive the Texan mad! It was entertaining for sure and always made me smile reading it with my morning coffee.

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Happy Birthday!

 

I see it the way you do. Maybe even further to the right. I can't even think of another logical reason consistent with all the events (Kirby selling to and still being tied up with PSA/GS, the amount of the sale relative to the royalty, Kirby coming back when he could have walked away, his suit again ISAF, his suit against ILCA, his attempt to take down the Laser trademark - which would even hurt PSA/GS, the launch of the Torch, etc...) other than Kirby playing a long game for much more than 2% till 2025... but even IPL ascribes altruistic, pure as driven snow motives to Kirby and you respect his views right? I may not agree presently but I am curious to hear his and others thoughts if we really are doing the civil discourse thing.

 

 

Do I "respect" Kirby's views?

 

I guess I probably said that, but it's hard to work out exactly what his views and motivations are these days.

 

I guess I used the word "respect" in the same way that I would if I had a disagreement with an elderly relative. I could be very opposed to what they say and what they do, but would still respect them as a person and respect their right to think what they think.

 

Thanks for the birthday wishes.

 

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