Otterbox

Lasers - Applying a Blow Torch

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post-98269-0-61323600-1468452335_thumb.jpg post-98269-0-61323600-1468452335_thumb.jpg post-98269-0-61323600-1468452335_thumb.jpg

 

We have a winner!

 

Thank you Wess for your post.

 

 

In the following paragraph (immediately after stating that you would not engage further), you make mention of the idea that the sale was not completed as if it is untrue. In 2001, when the rule change was proposed and in 2003, when Kirby started his legal action, the ISAF Agreement was in place. I do not believe that Global Sailing was ever made to be a party to the ISAF Agreement. For the rights to be transferred, this change was necessary.

 

I don't believe they even got that far, I believe that negotiations between LP and GS for a new builder's contract broke down.

 

All that Wess presented is that in his opinion that what I have said above is delusional, ..

 


I'm good to keep arguing each time anyone posts here ..


I'm happy to be trolled, as it keeps me motivated to check and recheck facts and repost them here.

 

I'm very happy to reveal false accusations or statements for what they are: false.

 

I'm more happy to discuss this case as it develops, and look at some of the details in great focus, ...

 

 

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Sorry Gannt IPL will be proven correct, there is no caae here. GS overplayed their hand, the Kirby rule is toast. It will never, ever, ever come back. It's over.

Just to be clear on my views:-

 

1. Based on the facts available I don't have a view on the outcome on the contractual dispute between BK+ BKI+ GS vs LP and LPE. This is the nexus of the case and yet is the aspect of the case least discussed on this forum.

 

2. Based on the facts available, I have a strong opinion that the tortious interference suit brought by BKI vs ILCA will fail. If there is anyone who still thinks this claim could succeed I would be happy to summarize (Again!) why in my opinion, this claim is DOA.

 

3. RMK is correct that the fundamental class rule that purported to allow the entity BKI to terminate Class approved builders without cause and without the consent of the Class Association or ISAF is as he puts it "toast" .

 

I have not said there is "no case here". I could offer up some of the issues that I think could arise in the contractual dispute...but it would be partially speculative because we have so few of the facts.

 

 

Sorry fellas. I have been away. Nothing of note seems to have happened.

 

I looked at my last substantive post and I kind of agree with what I said:

 

1. Based on the facts available We don't have much insight on the outcome on the contractual dispute between BK+ BKI+ GS vs LP and LPE. This is the nexus of the case. We havent discussed these issues much. I am guessing it will settle because both sides have flaws in their position and it just makes sense to settle.

 

2. Based on the facts available, I have a strong opinion that the tortious interference suit brought by BKI vs ILCA will fail.

 

3. The fundemenatal rule that purported to allow the entity BKI to terminate Class approved builders without cause and without the consent of the Class Association or ISAF is gone. The Class will not reintroduce it and I dont see any legal precedent that would allow a court to force the Class to reintroduce it.

 

Happy to bounce around a couple of the issues in #1. I think we have flogged #2 and #3 to death.

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I think everyone HAS FINISHED discussing the 2025 date except Gantt

 

"Five years ago, Bruce Kirby had a set of reasonably iron clad contracts guaranteeing him a royalty on the Laser until 2025" - This is correct. The North American contract provided him a guaranteed royalty until 2025. There is no guarantee beyond 2025. After 2025 both contracts would be on renewal and that renewal would depend to a large extent on the Class Association. Of course, the contract could have been renewed but the point we were making was that the North American royalty income ran until 2025 based on the contract independent of the class rule.

 

This was why I picked this date for my settlement proposal.

 

This was the point that Wess was making and everyone else understood.

 

Yes IPLore, everyone did understand what you said.

 

Even a dim witted casual reader like me who is not really following this thread on a daily basis understood what Wess and IPLore were saying. As I understood it, Wess was saying that after the contracts expired, the only incentive for a builder to renew the contract was the class rule.

IPL was saying Bruce was being paid when the contracts were sold to Global sailing and had a contract that guaranteed some royalties until 2025. But Global sailing did something to damage the contractual relationship. I thought I understood Wess and IPL until you jumped in.

 

 

IPLore, please outline where the contract guaranteed royalties until 2025.

 

I believe you are in error.

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Maybe if we leave him alone here to post whatever he wants for whomever wants to believe him, he would leave us alone to start another boring thread based in reality for adults to discuss the topic and he would stay away.

 

A bit like a haitian divorce...

 

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The European contract is more important because LP no longer builds in North America.

Grief.

 

That wins at least one "Smart Like Lawn Mower" award

 

attachicon.giflawnmower.jpg

 

IT DOES NOT MATTER WHERE THE BOAT IS BUILT. THE BUILDERS CONTRACTS ARE BASED ON TERRITORIES WHERE THE BOATS ARE SOLD. The North American contract applies to boats sold in North America

 

 

 

IPLore is mistaken. Here's how:

 

From the Builder's Agreement (Page 111 of the Linked PDF)

9.2 Licensee agrees to comply with and be bound by each of the terms and conditions of the IYRU Agreement to the same extent as if the Licensee was a party thereto.
From the ISAF Agreement (Page 57 of the linked PDF)

9.2 It is expressly understood that nothing shall preclude a Builder from establishing additional manufacturing facilities within its Licensed Territory subject only to the prior written approval of the IYRU, Holdings, Kirby Inc. and Trade Mark Owner, which approval shall not be unreasonably withheld. Sub-licenses are neither contemplated nor permitted.

 

 

And royalties, in section 8.1 of the builder's agreement page 110 of the PDF:

 

8.1 Inconsideration of the grant of the license herein, subject to Article 8.2 hereof, Licensee shall pay

a ) to Kirby Inc. a royalty payment in United States Dollars equal to a percentage of Licensee's Dealer Wholesale Price for each Kirby Sailboat manufactured and sold or otherwise disposed of by Licensee after deducting the value of any returns or credits as follows:

1. for each of the first 300 boats in each calendar year - 2.0%

2. for each boat from number 301 to 1100 in each calendar year - 1.25%

3. for each boat above number 1101 in each calendar year - 2.0%

4. for each boat built by a sublicensee in each calendar year - 2.0%

b ) to IYRU Holdings a IYRU a fee of such amount as is established from time to time.

c ) to ILCA a fee of such amount as is established from time to time.

-ref: https://www.docdroid.net/J1xCef9/kirby-first-amended-complaint-final1-with-appendices.pdf.html

 

 

Licenses were issued to builders. The license is issued to a specific builder for a territory. Royalties apply "...for each Kirby Sailboat manufactured and sold or otherwise disposed of by Licensee...".

 

IPLore's statement: "It does not matter where the boat is built. The builders contracts are based on territories where the boats are sold. The North American contract applies to boats sold in North America" - is false.

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Canntt - How much money did Kirby take from GS to completely abandon the Laser class, his boat, and ride off into the sunset (i.e. go away)? Was it $2.8 million? Do I have that right?

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Maybe if we leave him alone here to post whatever he wants for whomever wants to believe him, he would leave us alone to start another boring thread based in reality for adults to discuss the topic and he would stay away.

 

Amazing that I can quote exact parts of the contact, which are 100% contrary to claims that you Wess and IPLore have made, yet you appear to consider my posts are not based in reality. Again and again you have posted BS here Wess, your claims are false.

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Canntt - How much money did Kirby take from GS to completely abandon the Laser class, his boat, and ride off into the sunset (i.e. go away)? Was it $2.8 million? Do I have that right?

 

Kirby did not ride off into the sunset, nor has abandoned the Laser class. Kirby is suing the ILCA for issuing plaques to builders which were not licensed, and interfering with his contract.

 

The figure for Kirby's agreement to sell his design rights for the laser sounds about right, but I have not seen a document that verifies it.

 

Wess, do you still deny that the ILCA made false statements when soliciting ILCA members to vote for the fundamental rule change in 2011?

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Canntt - How much money did Kirby take from GS to completely abandon the Laser class, his boat, and ride off into the sunset (i.e. go away)? Was it $2.8 million? Do I have that right?

 

Kirby did not ride off into the sunset, nor has abandoned the Laser class.

 

The figure for Kirby's agreement to sell his design rights for the laser sounds about right, but I have not seen a document that verifies it.

 

Oh so you think he retained rights and obligations after collecting the $2.8 million? Could you be so kind to list them?

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Oh so you think he retained rights and obligations after collecting the $2.8 million? Could you be so kind to list them?

 

Thank you Wess. Was the payment made Wess? Was the payment refunded when the agreement to sell was reversed? What evidence have you seen Wess? Or are you basing it on heresay? Or Laser Performance's counterclaim? Do the payments change other agreements made? How?

 

I hear you Wess, you are saying that my statement that Kirby's agreement to sell his rights to GS does not in itself change other agreements is a fantasy. Except it's not. Kirby's agreement to sell to GS did not negate existing agreements.

 

Here's a list of the agreements which outline Kirby's rights and obligations which remained in effect until the parties agreed otherwise:

  • Various builder's contract (two are now in public record)
  • The ISAF agreement

There are some changes to the agreements outlined in the following PDF, and it is possible that there are other agreements.

 

Copies of the agreements can be found here: https://www.docdroid.net/J1xCef9/kirby-first-amended-complaint-final1-with-appendices.pdf.html

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Canntt you please stop ducking the question Ganntt?

 

You already agreed he sold out to GS for $2.8 million. Even Kirby said he sold.

 

List his rights and obligations the next day.

 

Is it that you don't know or that you canntt?

 

You claimed he still had rights and obligations. Put them in writing. Go ahead. Spell them out...

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Canntt you please stop ducking the question Ganntt?

 

You already agreed he sold out to GS for $2.8 million. Even Kirby said he sold.

 

List his rights and obligations the next day.

 

Is it that you don't know or that you canntt?

 

You claimed he still had rights and obligations. Put them in writing. Go ahead. Spell them out...

 

I already have answered this Wess.

 

The agreement for Kirby to sell his rights to GS did not change the two agreements that Kirby had with LP, or for that matter the ISAF Agreement.

 

I hear that you are saying that it did. Can you please explain how?

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Wess, if change of ownership impacts the builder's license agreement, how did the purchase of Laser Performance by Farzad Rastegar in 2007 affect the Kirby Sailboat builders license agreement?

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Just got clued into the other thread. Believe what you want and good luck Gantt.

 

I am happy to discuss Kirby suing Laser Performance and the ILCA, plus related information.

 

Your above posts do not show that an agreement between Kirby and Global Sailing affects the agreement between Kirby and Laser Performance in any way.

 

 

I doubt that you Wess can comprehend what I am saying on the other thread. On Facebook, Tiller Man gave me information that indicated that he didn't either, instead said (in black, my responses are in green):

 

What's that post about suicide all about then?

Suicide and cyberbullying is one of several examples where it can be demonstrated that online activities impact real life. Other examples are cited, so don't get hung up on suicide.

So are you saying that our "vigorous debate" is affecting you in real life in some way? I can't work out whether you are saying you are feeling suicidal or you are afraid I am going to see you for libel.
Seriously if the debate is bothering you, take a break, go sailing, SA is not reality. You can love without it.
LOL. Sorry about typos. See=sue. Love =live.

Tiller Man, you are getting hung up on suicide. I am not afraid if you "see" me for libel, or sue me for libel.
I have no intention in taking a break.
Tiller Man, your posts constituted around 30% of all posts. I will continue to respond to your escalation in kind. In the end, you may feel the need to sue me for libel, and good luck to you.
We don't need to be attacking each other so much.
If you stopped telling lies about me I wouldn't feel the need to respond.

Actually, I can't seem to find much evidence of me attacking you. Please tell me what lies I am telling about you and I would be happy to retract them.
OK

Here's an example of a personal attack.
"Although Gantt makes stuff up, and tells lies about everyone else on the thread, and has extremely poor reading comprehension and written communication skills, I would just like to clarify that I don't agree that IPLore's lawnmower knows more about the law than Gantt. I think Gantt knows just as much about the law as IPLore's lawnmower."

 

OK - here are some examples of your lies about me.. "When it became apparent that two ILCA officials had made false statements in relation to a rule change in 2011, rather than accept that and move forward, Tiller Man increased personal attacks against Gantt " It is not apparent that ILCA officials made false statements so I had nothing to accept.

 

"Note that I have said several times that Kirby agreed to sell his design rights. It reflects poorly on Tiller Man and Wess that they think it's the first time"
I never said that I thought this was the first time you said this.

1) Can you please show me where the patents are that the ILCA specifically said had expired.
2) The ILCA was a party to a "Kirby agreement".
"Let's draw up a list and compare facts.
I'd nominate Farzad Rastegar. I can see that Tiller man thinks it is Chris Spencer."
I have given you there examples of where you lied about me, I am not going to argue with you about them. They are some of the many reasons that I felt provoked to make fun of you.

Those are not lies Tiller Man.
The look like lies to me.

Wes said that it was the first time. You agreed with him.
They are personal attacks on me. I believe them to be untrue.

Ok. Stay in denial. I have tried to reach out to you and explain ho you provoked me time and time and time again.
and all you do is argue argue argue,

At the core is your denial of the false statements made by the ILCA.
If you want me to desist from personal attacks on you then please listen to what I am saying.

Yes. And I'm happy to continue.

I do listen Tiller Man, and I respond
Please respond by stopping the lies.
Then I will stop the jokes against you.

You even told lies about Sara Winther

You lying about me lying is just plain fucked up. Do you know what a lie is?
OK. I have done my best. I reached out to you to friend you on FB.

OK. Let's take Sara . Explain further.
how it is a lie?
I have tried to explain why you piss people off on SA.
I am tryoin got help you.
But you are in denial.

You are helping me by calling me a liar? Most times when you do, you don't say how.
You asked for examples of your lies.

Let's talk about how you think I lied about Sara.
I have given you four from the last couple of days.
How may more do you want?

Sara. I did not lie about Sara.
Tiller Man, you are lying about me lying.
LOL.

How did I lie about Sara?
Goodnight. I have done my best.

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Sorry Gannt IPL will be proven correct, there is no caae here. GS overplayed their hand, the Kirby rule is toast. It will never, ever, ever come back. It's over.

Just to be clear on my views:-

 

1. Based on the facts available I don't have a view on the outcome on the contractual dispute between BK+ BKI+ GS vs LP and LPE. This is the nexus of the case and yet is the aspect of the case least discussed on this forum.

 

2. Based on the facts available, I have a strong opinion that the tortious interference suit brought by BKI vs ILCA will fail. If there is anyone who still thinks this claim could succeed I would be happy to summarize (Again!) why in my opinion, this claim is DOA.

 

3. RMK is correct that the fundamental class rule that purported to allow the entity BKI to terminate Class approved builders without cause and without the consent of the Class Association or ISAF is as he puts it "toast" .

 

I have not said there is "no case here". I could offer up some of the issues that I think could arise in the contractual dispute...but it would be partially speculative because we have so few of the facts.

 

 

Sorry fellas. I have been away. Nothing of note seems to have happened.

 

I looked at my last substantive post and I kind of agree with what I said:

 

1. Based on the facts available We don't have much insight on the outcome on the contractual dispute between BK+ BKI+ GS vs LP and LPE. This is the nexus of the case. We havent discussed these issues much. I am guessing it will settle because both sides have flaws in their position and it just makes sense to settle.

 

2. Based on the facts available, I have a strong opinion that the tortious interference suit brought by BKI vs ILCA will fail.

 

3. The fundemenatal rule that purported to allow the entity BKI to terminate Class approved builders without cause and without the consent of the Class Association or ISAF is gone. The Class will not reintroduce it and I dont see any legal precedent that would allow a court to force the Class to reintroduce it.

 

Happy to bounce around a couple of the issues in #1. I think we have flogged #2 and #3 to death.

 

 

Agree on #2 and 3.

 

Agree #1 is interesting and also drives any settlement. Actually have some recent potential insights to that and it would be interesting to consider/debate around your settlement ideas but really don't want to post it now and continue to engage here while an individual on the other thread drops references to suicide. Assuming its just a sick stupid joke but have seen friend's lose kids to this and take even the slightest hint seriously. I don't care how F-ed up his legal views are, this case (good grief all over a pittance at $2.8MM) and the thread(s) are small potatoes to anything that extreme. I'm going to sit back and see if it/he chills. Or maybe the group that does actually just want to discuss the case logically can find can find a quiet corner in a new thread in GA or someplace he does not go if the insanity continues here.

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If the case is be discussed logically, that will necessarily include the ILCA.

 

 

1) The action against ILCA does not hinge on tortious interference alone

 

From the case:

73. Notwithstanding the notification provided by Kirby to ISAF and ILCA as set out in paragraphs 66-67, ISAF and ILCA have continued to issue ISAF Plaques to terminated builder Quarter Moon/QM Vanguard, as evidenced by a copy of the shipping notification attached as Exhibit 17.

74. ISAF and ILCA have told Kirby that they will continue to issue ISAF Plaques to terminated builders Quarter Moon/QM Vanguard and PSE/LP Europe until a court tells ILCA and ISAF not to issue plaques or tells the terminated builders not to make and sell Kirby Sailboats.

 

and
Claim VI
Default The Builder Agreements
120. Kirby repeats the allegations contained in Paragraphs 1-119.
121. ISAF and ILCA have continued to issue ISAF Plaques to Quarter Moon/QM Vanguard and PSE/LP Europe after they stopped paying royalties and providing written reports of their sales to Kirby. As a result, Quarter Moon/QM Vanguard and PSE/LP Europe were able to manufacture and sell unauthorized Kirby Sailboats bearing ISAF Plaques without fulfilling their obligations to Kirby under the 1983 and 1989 Builder Agreements. ISAF and ILCA’s actions induced Quarter Moon/QM Vanguard and PSE/LP Europe to default on those Agreements.
122. As a result of Quarter Moon/QM Vanguard and PSE/LP Europe’s failure to pay royalties or provide written reports, Kirby notified them of their default and subsequently terminated the 1983 and 1989 Builder Agreements.
123. Subsequent to termination, ILCA and ISAF have continued to issue ISAF Plaques to the terminated builders. As a result, the terminated builders have been able to continue to manufacture and sell unauthorized Kirby Sailboats, in violation of the termination provisions of the 1983 and 1989 Builder Agreements. ISAF and ILCA’s actions induced Quarter Moon/QM Vanguard and PSE/LP Europe to default on the termination provisions of the 1983 and 1989 Builder Agreements.
124. Upon information and belief, ISAF and ILCA’s inducement of PSE/LP Europe and Quarter Moon/QM Vanguard’s to default on the Builder Agreements was intentional.
125. The induced default of the 1983 and 1989 Builder Agreements have materially damaged Kirby for at least the reason that they have deprived him of royalties, interest, and post termination rights to which he is entitled.
126. Kirby has suffered and will continue to suffer irreparable harm as a result of the induced default of the 1983 and 1989 Builder Agreements and has no adequate remedy at law.
Note that the above claim is not based on tortious interference. IPLore's statement that the Kirby's claim based on tortious interference will fail of his opinion relates to only one claim being made by Kirby against the ILCA.
__________________________________________________________________________________
2) Royalties do not stop in 2025, or are not guaranteed until that date
Wess made the statement:
I think we agree the Kirby fight is less about pre-2025, and more about post 2025... and likely about something other than 2% because as IPL and others have pointed out that royalty is not material even long term and if it was just that, this case would have settled long ago or never happened. http://forums.sailinganarchy.com/index.php?showtopic=145562&view=findpost&p=5378669
This is based on Wess's idea that the contracts expired in 2025. IPLore attempted to explain this by saying:
"Five years ago, Bruce Kirby had a set of reasonably iron clad contracts guaranteeing him a royalty on the Laser until 2025" - This is correct. The North American contract provided him a guaranteed royalty until 2025. There is no guarantee beyond 2025. After 2025 both contracts would be on renewal and that renewal would depend to a large extent on the Class Association. Of course, the contract could have been renewed but the point we were making was that the North American royalty income ran until 2025 based on the contract independent of the class rule. http://forums.sailinganarchy.com/index.php?showtopic=145562&view=findpost&p=5384297
Both are contradicted by the 1983 and 1989 builder's contract which do not expire or terminate in 2025.
_______________________________________________________________________________________
3) It matters where a boat is built
IPLore made the statement:
It does not matter where the boat is built. The builders contracts are based on territories where the boats are sold. The North American contract applies to boats sold in North America http://forums.sailinganarchy.com/index.php?showtopic=145562&view=findpost&p=5384260

This is inconsistent with the builder's contract which says:

 

From the Builder's Agreement (Page 111 of the Linked PDF)

9.2 Licensee agrees to comply with and be bound by each of the terms and conditions of the IYRU Agreement to the same extent as if the Licensee was a party thereto.

 

 

From the ISAF Agreement (Page 57 of the linked PDF)

9.2 It is expressly understood that nothing shall preclude a Builder from establishing additional manufacturing facilities within its Licensed Territory subject only to the prior written approval of the IYRU, Holdings, Kirby Inc. and Trade Mark Owner, which approval shall not be unreasonably withheld. Sub-licenses are neither contemplated nor permitted.

 

 

And royalties, in section 8.1 of the builder's agreement page 110 of the PDF:

 

8.1 Inconsideration of the grant of the license herein, subject to Article 8.2 hereof, Licensee shall pay
a ) to Kirby Inc. a royalty payment in United States Dollars equal to a percentage of Licensee's Dealer Wholesale Price for each Kirby Sailboat manufactured and sold or otherwise disposed of by Licensee after deducting the value of any returns or credits as follows:
1. for each of the first 300 boats in each calendar year - 2.0%
2. for each boat from number 301 to 1100 in each calendar year - 1.25%
3. for each boat above number 1101 in each calendar year - 2.0%
4. for each boat built by a sublicensee in each calendar year - 2.0%
b ) to IYRU Holdings a IYRU a fee of such amount as is established from time to time.
c ) to ILCA a fee of such amount as is established from time to time.

 

_______________________________________________________________________________________
References to the contracts

Copies of the contracts can be found here: https://www.docdroid...ndices.pdf.html

 

_______________________________________________________________________________________

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If the case is be discussed logically, that will necessarily include the ILCA. The rest of us have finished discussing the case against the ILCA. We have moved on

 

1) The action against ILCA does not hinge on tortious interference alone

 

The case against the ILCA does not hinge on much at all. It is pretty much DOA. The primary claim is tortious interference but as previously explained, the claim is very weak. There are also claims of publicity rights and trademark for issuing plaques with Bruce Kirby's name on it. ISAF produced the plaques and LP affixed the plaques. ISAF has been dismissed from the case. We discussed this earlier. Please go back and read the relevant posts, where I explained publicity rights and how this might play a role in the case. However it will not provide a meaningful basis for a claim vs the ILCA because of (a) Acquiescence and ( B) When BK complained about his trademark ISAF removed his name. Prior to that the ISAF agreement required his name on the plaque.

 

From the case:

73. Notwithstanding the notification provided by Kirby to ISAF and ILCA as set out in paragraphs 66-67, ISAF and ILCA have continued to issue ISAF Plaques to terminated builder Quarter Moon/QM Vanguard, as evidenced by a copy of the shipping notification attached as Exhibit 17.

74. ISAF and ILCA have told Kirby that they will continue to issue ISAF Plaques to terminated builders Quarter Moon/QM Vanguard and PSE/LP Europe until a court tells ILCA and ISAF not to issue plaques or tells the terminated builders not to make and sell Kirby Sailboats. This is a statement of alleged facts not a claim.

 

 

and
Claim VI

Default The Builder Agreements

120. Kirby repeats the allegations contained in Paragraphs 1-119.
121. ISAF and ILCA have continued to issue ISAF Plaques to Quarter Moon/QM Vanguard and PSE/LP Europe after they stopped paying royalties and providing written reports of their sales to Kirby. As a result, Quarter Moon/QM Vanguard and PSE/LP Europe were able to manufacture and sell unauthorized Kirby Sailboats bearing ISAF Plaques without fulfilling their obligations to Kirby under the 1983 and 1989 Builder Agreements. ISAF and ILCA’s actions induced Quarter Moon/QM Vanguard and PSE/LP Europe to default on those Agreements.
122. As a result of Quarter Moon/QM Vanguard and PSE/LP Europe’s failure to pay royalties or provide written reports, Kirby notified them of their default and subsequently terminated the 1983 and 1989 Builder Agreements.
123. Subsequent to termination, ILCA and ISAF have continued to issue ISAF Plaques to the terminated builders. As a result, the terminated builders have been able to continue to manufacture and sell unauthorized Kirby Sailboats, in violation of the termination provisions of the 1983 and 1989 Builder Agreements. ISAF and ILCA’s actions induced Quarter Moon/QM Vanguard and PSE/LP Europe to default on the termination provisions of the 1983 and 1989 Builder Agreements.
124. Upon information and belief, ISAF and ILCA’s inducement of PSE/LP Europe and Quarter Moon/QM Vanguard’s to default on the Builder Agreements was intentional.
125. The induced default of the 1983 and 1989 Builder Agreements have materially damaged Kirby for at least the reason that they have deprived him of royalties, interest, and post termination rights to which he is entitled.
126. Kirby has suffered and will continue to suffer irreparable harm as a result of the induced default of the 1983 and 1989 Builder Agreements and has no adequate remedy at law.
Note that the above claim is not based on tortious interference. IPLore's statement that the Kirby's claim based on tortious interference will fail of his opinion relates to only one claim being made by Kirby against the ILCA.
I have to award you another three "smart as lawn mower" awards for that paragraph. The above claim is a claim of tortious interference. "Inducement to default on a contract" aka "tortious interference" !!!!!!
post-98269-0-02195200-1468534608_thumb.jpg post-98269-0-02195200-1468534608_thumb.jpg post-98269-0-02195200-1468534608_thumb.jpg
__________________________________________________________________________________
2) Royalties do not stop in 2025, or are not guaranteed until that date
Wess made the statement:
I think we agree the Kirby fight is less about pre-2025, and more about post 2025... and likely about something other than 2% because as IPL and others have pointed out that royalty is not material even long term and if it was just that, this case would have settled long ago or never happened. http://forums.sailinganarchy.com/index.php?showtopic=145562&view=findpost&p=5378669
This is based on Wess's idea that the contracts expired in 2025. IPLore attempted to explain this by saying:
"Five years ago, Bruce Kirby had a set of reasonably iron clad contracts guaranteeing him a royalty on the Laser until 2025" - This is correct. The North American contract provided him a guaranteed royalty until 2025. There is no guarantee beyond 2025. After 2025 both contracts would be on renewal and that renewal would depend to a large extent on the Class Association. Of course, the contract could have been renewed but the point we were making was that the North American royalty income ran until 2025 based on the contract independent of the class rule. http://forums.sailinganarchy.com/index.php?showtopic=145562&view=findpost&p=5384297
Both are contradicted by the 1983 and 1989 builder's contract which do not expire or terminate in 2025. I completely give up on you. The 1989 contract has an initial term which expires in 2025. There after it relies on renewal. You are beyond repetitive and probably beyond redemption.
_______________________________________________________________________________________
3) It matters where a boat is built Aaargh. Only LP North America was licensed to sell Lasers in North America. The agreement was with the predecessor of LPNA. It would not have mattered where LPNA made the boats. If LPNA got permission to make boats in Kuala Lumpa, LPNA would still have been obliged to pay its contractual obligation on each boat.
YOU NEED TO STOP GETTING BOGGED DOWN IN IRRELEVANT DETAIL WHERE YOU THINK YOU HAVE A "GOTCHA" ON ONE OF THE SENSIBLE CONTRIBUTORS TO THIS THREAD. YOU ARE USUALLY WRONG AND ALWAYS ANNOYING.

 

 

_______________________________________________________________________________________
References to the contracts

Copies of the contracts can be found here: https://www.docdroid...ndices.pdf.html

 

_______________________________________________________________________________________

 

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You know, it's more than a little annoying that a small group of you have posted so much noise that trying to find the signal is impossible. Have a week off and try and get laid.

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Wess, Tillerman, SimonN, Dogwatch, Eye, Otterbox, JimC, RMK, PhilS, Gouv, sosoomii and others,

 

It is utterly pointless to have a sensible discussion of the case and the possible outcomes with Gantt's participation. Whatever his motives, whether unethical, prejudiced or merely incompetent....he sabotages the discussion by turning a simple one page discussion into 10 pages of drivel. He has succeeded in driving away most of the interesting contributors from both sides of the debate. Those that support Kirby are embarrassed. Neutral but interested participants cannot follow the pages and pages of irrelevancy. Those who take a contrary view are insulted and respond with music to soothe their souls. The thread descends a series of music videos.

 

You have to wonder if Gantt has succeeded in his objectives.

 

So, for those who wonder about the contractual dispute...the very core and meat of the case. We dont have enough public information.

HOWEVER, it is my educated guess that a great part of the case...and the lines that will be drawn in settlement discussions ...will revolve around post termination obligations of the builders agreements.

That can be affected by a great deal of factual discovery and is never as simple as simply referring to the agreement.

 

Here are some of the issues that may be at play:

 

1. What type of termination? " Termination for Cause". Notice not to renew after expiry (a subset of "termination for convenience") or even "Wrongful Termination". BKI will be arguing that it was Termination for Cause. LP might be arguing (from gist of counterclaim) that it was wrongful termination.

They will both be arguing over the implications of termination for convenience....and there is a lot to argue about.

 

(It will be an important fact whether Global Sailing terminated the 1983 agreement and its extensions)

 

2. Clean Hands vs Unclean Hands. . My guess is that each will be arguing that the other had unclean hands.

 

3. The language and the representations in the amendments (extending the original agreements) and whether the representations and the corresponding termination clauses survived those amendments. I have previously commented that the language in those amendments was IMO, sloppy. This creates further uncertainty.

 

 

But I think it best to wait and see, because frankly, who wants or needs to deal with lawnmowers

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You know, it's more than a little annoying that a small group of you have posted so much noise that trying to find the signal is impossible. Have a week off and try and get laid.

 

 

That's my plan!

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If the case is be discussed logically, that will necessarily include the ILCA. The rest of us have finished discussing the case against the ILCA. We have moved on with errors, and incomplete discussions interlaced with many irrelevant posts. That is not a satisfactory conclusion by any measure. Independent of SA I am corresponding with others who think there is more to explore about the ILCA.

 

1) The action against ILCA does not hinge on tortious interference alone

 

The case against the ILCA does not hinge on much at all. It is pretty much DOA. The primary claim is tortious interference but as previously explained, the claim is very weak.

 

It is IPLore's opinion that the case does not hinge on much at all. It's easy to forget that the title here is how the case against the ILCA does not hinge on tortious interference alone.

There are also claims of publicity rights and trademark for issuing plaques with Bruce Kirby's name on it. ISAF produced the plaques and LP affixed the plaques. ISAF has been dismissed from the case. We discussed this earlier. ISAF being dismissed from the case is irrelevant to whether or not Kirby case hinges on tortious interference alone. Please go back and read the relevant posts, where I explained publicity rights and how this might play a role in the case. However it will not provide a meaningful basis for a claim vs the ILCA because of (a) Acquiescence and ( B) When BK complained about his trademark ISAF removed his name. Prior to that the ISAF agreement required his name on the plaque. This is not relevant to the point being discussed.

 

From the case:

73. Notwithstanding the notification provided by Kirby to ISAF and ILCA as set out in paragraphs 66-67, ISAF and ILCA have continued to issue ISAF Plaques to terminated builder Quarter Moon/QM Vanguard, as evidenced by a copy of the shipping notification attached as Exhibit 17.

74. ISAF and ILCA have told Kirby that they will continue to issue ISAF Plaques to terminated builders Quarter Moon/QM Vanguard and PSE/LP Europe until a court tells ILCA and ISAF not to issue plaques or tells the terminated builders not to make and sell Kirby Sailboats. This is a statement of alleged facts not a claim. This is a very small point IPLore is making. Actually, the claims state "...repeats the allegations made 1-119..." and it is relevant to the subsequent points - which is why I included it. I'm unclear why IPLore is keen to make the statement that these are not claims or alleged facts. Exhibit 17 makes them compelling.

 

 

and

Claim VI
Default The Builder Agreements
120. Kirby repeats the allegations contained in Paragraphs 1-119.
121. ISAF and ILCA have continued to issue ISAF Plaques to Quarter Moon/QM Vanguard and PSE/LP Europe after they stopped paying royalties and providing written reports of their sales to Kirby. As a result, Quarter Moon/QM Vanguard and PSE/LP Europe were able to manufacture and sell unauthorized Kirby Sailboats bearing ISAF Plaques without fulfilling their obligations to Kirby under the 1983 and 1989 Builder Agreements. ISAF and ILCA’s actions induced Quarter Moon/QM Vanguard and PSE/LP Europe to default on those Agreements.
122. As a result of Quarter Moon/QM Vanguard and PSE/LP Europe’s failure to pay royalties or provide written reports, Kirby notified them of their default and subsequently terminated the 1983 and 1989 Builder Agreements.
123. Subsequent to termination, ILCA and ISAF have continued to issue ISAF Plaques to the terminated builders. As a result, the terminated builders have been able to continue to manufacture and sell unauthorized Kirby Sailboats, in violation of the termination provisions of the 1983 and 1989 Builder Agreements. ISAF and ILCA’s actions induced Quarter Moon/QM Vanguard and PSE/LP Europe to default on the termination provisions of the 1983 and 1989 Builder Agreements.
124. Upon information and belief, ISAF and ILCA’s inducement of PSE/LP Europe and Quarter Moon/QM Vanguard’s to default on the Builder Agreements was intentional.
125. The induced default of the 1983 and 1989 Builder Agreements have materially damaged Kirby for at least the reason that they have deprived him of royalties, interest, and post termination rights to which he is entitled.
126. Kirby has suffered and will continue to suffer irreparable harm as a result of the induced default of the 1983 and 1989 Builder Agreements and has no adequate remedy at law.
Note that the above claim is not based on tortious interference. IPLore's statement that the Kirby's claim based on tortious interference will fail of his opinion relates to only one claim being made by Kirby against the ILCA.
I have to award you another three "smart as lawn mower" awards for that paragraph. The above claim is a claim of tortious interference. "Inducement to default on a contract" aka "tortious interference" !!!!!!
No.

We are discussing whether this is tortious interference alone. It's not. IPLore seems to be saying that the only interpretation is tortious interference, and necessary to that is proof of malice.
Is it possible that this will be seen by the court as anything beyond tortious interference? Of course it is!
Why is it that there is a specific claim for tortuous interference separate to this one? It's clear that Kirby's lawyer thinks it important to make this claim separately, without mention of tortious interference.
One clue is in the remedies that Kirby asks for. If this was tortious interference alone, then the Kirby Action would read very differently, and may concentrate on damages alone. Instead, Kirby asks for an order for the ILCA to no longer issue plaques to terminated builders.
__________________________________________________________________________________
2) Royalties do not stop in 2025, or are not guaranteed until that date
Wess made the statement:
I think we agree the Kirby fight is less about pre-2025, and more about post 2025... and likely about something other than 2% because as IPL and others have pointed out that royalty is not material even long term and if it was just that, this case would have settled long ago or never happened. http://forums.sailin...dpost&p=5378669
This is based on Wess's idea that the contracts expired in 2025. IPLore attempted to explain this by saying:
"Five years ago, Bruce Kirby had a set of reasonably iron clad contracts guaranteeing him a royalty on the Laser until 2025" - This is correct. The North American contract provided him a guaranteed royalty until 2025. There is no guarantee beyond 2025. After 2025 both contracts would be on renewal and that renewal would depend to a large extent on the Class Association. Of course, the contract could have been renewed but the point we were making was that the North American royalty income ran until 2025 based on the contract independent of the class rule. http://forums.sailin...dpost&p=5384297
Both are contradicted by the 1983 and 1989 builder's contract which do not expire or terminate in 2025. I completely give up on you. The 1989 contract has an initial term which expires in 2025. There after it relies on renewal. You are beyond repetitive and probably beyond redemption.
I understand that you have changed what you are saying IPLore, though frustratingly, without acknowledging that you mislead Wess and others to think that royalties were guaranteed until 2025 - or expired then (as he interpreted it).

Further, the contracts do not rely on renewal. The contract automatically renews annually unless otherwise agreed. In attempting to state 'case closed', and in so doing have repeated your mistake.
_______________________________________________________________________________________
3) It matters where a boat is built Aaargh. Only LP North America was licensed to sell Lasers in North America. The agreement was with the predecessor of LPNA. It would not have mattered where LPNA made the boats. If LPNA got permission to make boats in Kuala Lumpa, LPNA would still have been obliged to pay its contractual obligation on each boat.

LPNA did not get permission to build in "Kuala Lumpa" (or Kuala Lumpur).

Yes, LPNA are obligated to pay royalties on each boat manufactures and sold as per the contract. Raising this does not address the error you made.

It's clear from the clauses which you have deleted how the agreements work, and that permission must be granted before building commences in other locations. Specifically, there are clauses that outline why builder a cannot build anywhere.
IT IS CRYSTAL CLEAR THAT YOU ARE WRONG IPLORE IN STATING THAT LOCATION OF LASER BUILDERS DOES NOT MATTER.
YOU NEED TO STOP GETTING BOGGED DOWN IN IRRELEVANT DETAIL WHERE YOU THINK YOU HAVE A "GOTCHA" ON ONE OF THE SENSIBLE CONTRIBUTORS TO THIS THREAD. YOU ARE USUALLY WRONG AND ALWAYS ANNOYING.

I bet it is very annoying to have someone check what you are saying against facts, then respond to you.
Whether or not you judge me as sensible is not relevant. I have attempted in good faith to outline where you have made errors IPLore. I have done so without the making of personal attacks. I would welcome you doing the same, so we can increase the signal and decrease the noise.

May I suggest that IPLore you are more thorough in checking your own facts before posting information in error, which has been demonstrated to mislead other readers as in the case of Wess with 2025 above.
_______________________________________________________________________________________
References to the contracts

Copies of the contracts can be found here: https://www.docdroid...ndices.pdf.html

 

 

_______________________________________________________________________________________

 

 

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It is utterly pointless to have a sensible discussion of the case and the possible outcomes with Gantt's participation.

 

Just put him on ignore and do not reply to his posts. Simple as that. ;)

 

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It is utterly pointless to have a sensible discussion of the case and the possible outcomes with Gantt's participation. Whatever his motives, whether unethical, prejudiced or merely incompetent....he sabotages the discussion by turning a simple one page discussion into 10 pages of drivel. He has succeeded in driving away most of the interesting contributors from both sides of the debate. Those that support Kirby are embarrassed. Neutral but interested participants cannot follow the pages and pages of irrelevancy. Those who take a contrary view are insulted and respond with music to soothe their souls. The thread descends a series of music videos.

 

I take full responsibility for my part for posting in response to personal attacks and general harassment, the latest personal attack evidenced in the above rhetoric from IPLore.

 

IPLore has never conceded to making a mistake on this thread. There are ample examples of errors made by IPLore. I am not the only person who has pointed out IPLore's errors, though I am the most recent.

 

IPLore has posted consistently in the favor of the ILCA. It would seem that the biggest error I have made has been to question the ILCAs actions. This has seen IPLore consistently attempt to drive the discussion away from the ILCA while personally attacking me. Most recently, IPLore has announced that "The rest of us have finished discussing the case against the ILCA. We have moved on".

 

IPLore has lied blatently about what I said, in an attempt to discredit me. http://forums.sailinganarchy.com/index.php?showtopic=145562&view=findpost&p=5366870

 

_______________________________________________

 

I had a choice.

 

Either back down or fight back.

 

I made a decision not to back down.

 

I will continue to check IPLore's facts, and post where it is plain to me then IPLore is attempting to spread misinformation, or making untrue statements.

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It is utterly pointless to have a sensible discussion of the case and the possible outcomes with Gantt's participation.

 

Just put him on ignore and do not reply to his posts. Simple as that. ;)

 

 

 

 

IPL - See above. OJFD has it exactly right. Use the block function for PMs and the ignore function for the forums. Don't quote him. Its not like anyone else is supporting him. The noise goes away going forward if you do this.

 

If you really want a more serious discussion without any noise, take it off line. I dropped you a PM; chat there.

 

Better yet take the conversation off SA so other rational folks can participate. There are various other moderated forums or chat groups discussing this where you don't have to deal with the insanity and lies here.

 

This thread used to just be funny. He lied and had so much so wrong I assumed it had to be a joke or game. But its become clear he not only believes but is perhaps a bit unstable (or really desperate) given the suicide references. Either way, at that point its not funny any more. This can be professionally interesting from a deal structure standpoint around IP if you are into that kinda thing, but beyond that lets be serious, it does not really matter... well other than to one individual who seems more invested than is healthy and I don't see any point to contributing to his downward spiral.

 

Life is much more peaceful and intelligent when you block and ignore him and better yet if nobody quotes him.

 

Its not like you are saving the world. All he is going to do is cut and paste the same wrong answer over and over again. Anyone with the slightest intelligence can judge his input on the merits.

 

Anyway, he wants the last word. Let him have it. Put him on ignore, start another thread for settlement discussions and pray he does not follow there. If so just go to any moderated forum where they would toss him instantly.

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This thread used to just be funny. He lied and had so much so wrong I assumed it had to be a joke or game. But its become clear he not only believes but is perhaps a bit unstable (or really desperate) given the suicide references. Either way, at that point its not funny any more. This can be professionally interesting from a deal structure standpoint around IP if you are into that kinda thing, but beyond that lets be serious, it does not really matter... well other than to one individual who seems more invested than is healthy and I don't see any point to contributing to his downward

 

I guess Wess's idea of a joke is repeating over and over that I lie, but not saying how I lie or providing me a chance to retract.

 

When people personally attack and generally harass others, it's called cyberbullying. When this was pointed out to Wess that this practice often spills over to real life (In another thread - I cited research), suddenly it's no longer funny?

 

I've got news for you Wess, it never was funny.

 

Again you have called me a liar - which appears to be a baseless accusation which has me responding again.

 

Take a good look in the mirror Wess. Shame on you.

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It seems utterly pointless to attempt a sensible discussion of the case and the possible outcomes with Gantt, IPlore, Wess and Tiller man's participation.

 

Put the 4 of them on ignore, as I just have, and the last few pages just disappear into hidden boxes. Its a shame because the topic is important, but what with the spamming with stupid videos, the endless repetition, the deliberate trolling - Wess being a particular culprit - the thread is now worthless. Should the judge ever decide to do his job it will probably be best to start a new thread. Tiller man I would have expected better from, that's disappointing.

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Its all good JimC. You are of course free to ignore whomever you like or even the whole thread. Regardless I promise I will continue to carefully consider your insights such as "your legal system is broken" and "the judge is not doing his job" (paraphrase not intended as a direct quote) for the how many times...

 

* I am curious if you would you feel the same way if there were active settlement discussions and the parties themselves wanted the delay?

 

I would suggest you don't ignore IPLore. He may be the only one who has not cracked under the weight of all the BS and while joking on rare occasion and posting a music video (once) his input is rock solid. Take it for what its worth but I do participate in some moderated profession chat groups/forums that are having serious discussions about the topic and I gotta say there is a lot posted that aligns with IPL's views and nobody is posting anything of any kind that supports the views of HWCBN.

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It seems utterly pointless to attempt a sensible discussion of the case and the possible outcomes with Gantt, IPlore, Wess and Tiller man's participation.

 

Put the 4 of them on ignore, as I just have, and the last few pages just disappear into hidden boxes. Its a shame because the topic is important, but what with the spamming with stupid videos, the endless repetition, the deliberate trolling - Wess being a particular culprit - the thread is now worthless. Should the judge ever decide to do his job it will probably be best to start a new thread. Tiller man I would have expected better from, that's disappointing.

 

+1

I agree that a new thread should be started.

 

And that all four (including me) should be 'put on ignore'. The issue may become one of identifying the same user's sock puppets.

 

I was surprised and disappointed with Tiller Man as well. FYI, Tillerman is now liking and commenting on comments I have placed on friend's Facebook posts.

 

My intention with the ILCA was always to ask tough questions which were not being asked. Many of those questions still need to be dealt with by the ILCA, who appear to be preparing to defend themselves against Kirby.

 

What's a shame is that 'the other three' have to some extent, successfully created the false impression that I am 'anti ILCA'. I am not. A trigger point for me was IPLore asking me to apologize to Jeff and Heini. If anyone cares look at what I have said regarding both, compare it with the allegations of me using hateful language against either, they will understand what I am saying.

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Looks like this thread has blown itself up.

Everybody is ignoring everybody else.

 

Well done HWCBN.

 

So it's time to say goodbye.

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I don't ignore anyone but I am trying to figure out which of you is Fred's sock puppet.

 

Love the holiday colors earlier. Very cute. You boys decorated the place for me like its Christmas in July.

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If you are in a Laser discussion and don't know who Fred is, and that he outed himself years ago, you are the lame minded idiot.

 

It does appear you would fit in nicely with some expressing opinion on this topic.

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​Maybe sock puppets are the answer. If Wes, Tillerman, Gouv could post their answers to Gannt and their videos under a sock puppet and their real comments under their regular id then those that don't want to read all that "stuff" could put the sock puppets on ignore and still see stuff that's related to the topic?

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Is this appropriate?

 

Not my favorite music!

 

​Maybe sock puppets are the answer. If Wes, Tillerman, Gouv could post their answers to Gannt and their videos under a sock puppet and their real comments under their regular id then those that don't want to read all that "stuff" could put the sock puppets on ignore and still see stuff that's related to the topic?

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Can't answer what I cann't see but I don't need a sock-puppets to do it regardless; I always post my own videos, LOL. And though I have been accused of being them (which I guess makes one of us a sock puppet) and others, I don't think IPL or TM have puppets here either. And hey, I like the music. Even HWCBN's (though I can't see it/listen anymore). Gouv's music on the other hand was really bad and I applaud him for deleting it :P but I don't want to ignore him.

 

Most of the serious discussion I am aware of is now on PMs or other non-SA moderated forums. No lawn mower noise and folks who understand what sold, and paid for, means.

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Gouv's music on the other hand was really bad and I applaud him for deleting it ...

 

Wess, to be honest, your and TM's tracks are not in any way better, btw. ;) We have year 2016 now. If you absolutely must post some videos, post at least some fresh stuff.

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Gouv's music on the other hand was really bad and I applaud him for deleting it ...

 

Wess, to be honest, your and TM's tracks are not in any way better, btw. ;) We have year 2016 now. If you absolutely must post some videos, post at least some fresh stuff.

 

 

Yea, my kids would agree with you. I am old and my taste in music shows it but I thought TM has posted some more recent stuff.

 

But mine were no better than Gouv's?

 

#Harsh!

 

They ain't much but at least my internet lawyering skills are superior to his. ;)

 

And that other dude's BS and hype...

 

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“Once I rose above the noise and confusion just to get a glimpse beyond this illusion.”

 

Without all the lies, noise, confusion, and worries over the uh... stability of HWCBN, there was a chance to re-read some of the public filings.

 

Much noise was made of initial term dates or which or the contracts even matter. Having had a chance to look at them again I agree w IPL’s assessment of what the scope of each agreement is (83 agreement covering per Kirby filing, “Europe and elsewhere,” and the 89 agreement per Kirby covering “North America and elsewhere”). Though the parties appear to have maybe done some funky things re amendments and extensions, I opt to ignore the rants from the lunatic and instead defer to Kirby’s legal filings. Kirby’s filings cite “termination” of both the 89 and 83 agreements in “`2012” and claims of default against each. Basically I pick Bruce’s view over the resident idiot’s ramblings.

 

Now as to dates, and again, directly from the filings, with regards to the 83 agreement executed in July, 1983 and having an “initial term of 21 years” before entering an “annual renewal” cycle, the date appears to be July 2004 for the annual renewal cycle to begin. With regards the 89 agreement, executed in March, 1989 and having an “initial term” “terminating on July 11, 2025” before entering an annual renewal cycle, the critical date appears to be July 2025 as IPL noted.

 

That is actually kind of important because regardless of what you might feel about what IP rights Kirby held (or didn’t hold, other than the leverage from a class rule) to enter into a contract, I believe – and suspect most others do as well – that if Kirby has/had a valid contract he ought to be paid for the term until such time as parties could legally exit assuming Kirby had not defaulted/breached. Finally, don't be fooled by HWCBN. The automatic annual renewal is maybe less a shield much more of a sword but more on that in later posts. There is no obligation to renew; in fact with the old class rules this was a one sided provision.

 

Note please I did a pretty quick read so could have missed things but generally what I saw agrees completely with what IPL was posting. Doubt the insanity stops but yea, like others said we should move past this.

 

“Carry on my wayward son.”

 

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Noted a few other things on re-reading that others such as IPL would be better informed to comment on.

 

There was a lot of talk about termination provisions being effective non-competes and how non-competes are sometimes structured. Oddly enough, in the 89 agreement, there actually is a mutually restrictive covenant (form of non-compete) in Article 15. It expired 5 years in so has no effect on any of the parties today other than to show that they actually did know how to draft such provisions – rather than rely on termination provisions which are not the same thing – way back in the day when these agreement were drafted.

 

On re-reading I found something else I forgot. Kirby appears to have filed for prejudgment remedy in May 2013. If I recall correctly that motion referenced language directly out of the termination clauses. He seems to have been trying to use these clause essentially as some here argue. I think the filing cited that it would have required a “mere showing of probable cause” as the legal standard to succeed but I could be wrong so check for yourself.

 

But did it succeed? No. If the termination clause really are as black and white as some here say and make an effective and never ending non-compete tat would block LPE from using the Laser trademark it owns, then I think its fair to say that Kirby’s prejudgment remedy would have carried the day. But like the case against ISAF and the case against the trademark, this too did not succeed.

 

Maybe that’s informative. Maybe not. Decide for yourself!

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Wess,

 

The contractual claims and counter claims between BKI and LP will depend a great deal on what has been unearthed during discovery. Honestly, it is not very productive to speculate on the outcome without some facts in front of us.

From what little we know, both sides have problems.

 

For example, it might be interesting to know if Global Sailing really did terminate the contract (or give notice that the contract was not being renewed) with LPE on behalf of BKI. Did the facts support a termination for cause? Was it termination for convenience? Will it be deemed a good faith termination? These will affect the application of obligations post-termination. The remedy available to BKI would be damaged if GS had terminated the contract in bad faith and when determining if a termination was in good faith, the US courts look closely at situations where there is unequal bargaining power when the contract was established or "when a contract affords one party discretion with respect to the right to terminate a contract" .

 

When did LPNA stop paying license fees? As discussed earlier, the North American contract seems pretty solid until 2025 so even if Global Sailing terminated the European and ROW contract, LP should have continued paying the fee under the NA agreement. Did they? When did they stop?

 

What will be the implications of some of the contract extensions. In particular the wording of the European contract extension might present different problems for each side. In legal terms, it is not clear what the consideration was, and exactly what they were agreeing to. I vaguely recall a term suggesting that all the terms of the previous contract still applied. Ugh! The warranties and representations from the original contract cannot still be valid....and if the parties were representing that they were...then mucho problemo. BKI certainly cannot warrant that they owned copyright in the design. But LP has problems as well.

 

 

CONCLUSION: So much that we don't know. I think it settles (or maybe has settled).

 

IPL's forecast/guess

1. BKI's claim for tortious interference vs Class Association will be dismissed.

2. BKI's contractual suit vs LP and the counter claim by LP vs BKI and Global Sailing will be settled accompanied by a confidentiality clause.

3. The Easter Laser regatta will continue as planned.

 

:)

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Yes. The Easter Laser Regatta will continue. I really would love to host fifty of them and then be alive to consider continuing.

 

I cannot control much of anything about the world of sailing but I can invite everybody to come play and visit with old friends and make new friends.

I can set a time and place and do my best to make it as easy as possible to come join the fun.

Friends do help every year to make the event as survival as together we can make it.

 

Please come sail with us and share lunches and dinner and whatever else it is friends do.

 

Please host otherveventsbon other weekends all over the wildcats let us know about them so we can all play with each other as often as possible!!

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Any results on this?

 

 

Recently added a carbon top section to the Laser with the square head (Intensity Power Head) sail which also saw the boat introduced as the new Flamingo Class (my boat is called Torched Flamingo). Took it to Ware River for the VA Guv Cup and WRYC puts on an excellent event with good people, RC, racing, and social. Never been before and the old school lodge styled club is well appointed and maintained and has wide fields for large visiting fleets, a large water front area, and friendly hosts. Such an excellent place to sail, I will be going back. I had brought my standard rig and sail in case a Laser OD opened up but only 1 other Laser showed up and was put into Portsmouth so I rigged the Flamingo and went for a sail. The gentlemen on the Laser was quick with a strong read on the shifty conditions and was overall extremely well sailed so he deservedly won 1st, I snatched defeat out of the jaws of victory by sailing into a massive wind hole on the last race but the Flamingo and its silly amount of sail area still claimed 2nd, 2 Aero's followed up with a a mixed bag of boats including a freshly restored Mutineer sailed by two young men who had just finished their boat on Friday, some things I didn't recognize, and a Prindle 16 that would either go crazy fast or sit like a nice swim platform.

 

If you haven't been to WYSC's VA Guv Cup I would highly recommend it. The Portsmouth fleet lets you race what you want if you have a D-PN, and otherwise the fleets were healthy with 3 Opti classes, jr. Laser Radial, Hampton OD, Buccaneer 18, and the Albacore with Barney getting his name on The Cup for the 5th time. I wish a club like this was located closer to where I live.

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Hum... I see your point. Could also mean Men At Work - Down Under

 

 

Are monkeys jumping off ledges, typing their own version of Shakespeare, or both?

 

I like this game you play TM. How to make a point by just posting the video.

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There will be an official announcement coming soon from ILCA, but here is an excerpt from the Conclusion section of US District Court Judge Meyer's August 12th Order on the Kirby case:

 

"For the foregoing reasons, the motion for summary judgement by LPE and GPI, and the motion for summary judgement by ILCA are GRANTED in light of my conclusions that Bruce Kirby and Bruce Kirby, Inc., have no standing to maintain their claims."

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There will be an official announcement coming soon from ILCA, but here is an excerpt from the Conclusion section of US District Court Judge Meyer's August 12th Order on the Kirby case:

 

"For the foregoing reasons, the motion for summary judgement by LPE and GPI, and the motion for summary judgement by ILCA are GRANTED in light of my conclusions that Bruce Kirby and Bruce Kirby, Inc., have no standing to maintain their claims."

Ah rats. I was hoping that the motion being granted AND the silence from all parties was a good sign that a comprehensive settlement was around the corner.

 

It seems that sold really does mean sold despite many protestations from HWCBN. Hey TM, he might like this little spin on clueless:

 

 

I wonder if he will get it?

 

But like I said off line, I don't think this is over until there is a comprehensive settlement. I am hanging onto my Torch T-shirts, belt and class membership. TM you really, REALLY need to get yourself one.

 

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So does this mean the

Laser gets dropped from the Olys & Torch goes in or that the victorious shysters can retain the Laser branding?

It means its a summary judgement. Its not over. But it was not a good day for BK and the Torch.

 

187740 said it best quoting the judge: "For the foregoing reasons, the motion for summary judgement by LPE and GPI, and the motion for summary judgement by ILCA are GRANTED in light of my conclusions that Bruce Kirby and Bruce Kirby, Inc., have no standing to maintain their claims."

 

Let see what the class statement is. Lets hope it includes a comprehensive settlement. Lets hope round 2 is not GSA applying the Blow Torch...

 

Anybody got any good NZ classic rock band videos?

 

Does Gouv like Canadians (I do)?

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So does this mean the

Laser gets dropped from the Olys & Torch goes in or that the victorious shysters can retain the Laser branding?

It means its a summary judgement. Its not over. But it was not a good day for BK and the Torch.

 

187740 said it best quoting the judge: "For the foregoing reasons, the motion for summary judgement by LPE and GPI, and the motion for summary judgement by ILCA are GRANTED in light of my conclusions that Bruce Kirby and Bruce Kirby, Inc., have no standing to maintain their claims."

 

Let see what the class statement is. Lets hope it includes a comprehensive settlement. Lets hope round 2 is not GSA applying the Blow Torch...

 

Anybody got any good NZ classic rock band videos?

 

Does Gouv like Canadians (I do)?

 

 

 

I think that should be QMI, not GPI. That's what it says in the actual judgement. QMI refers to Quarter Moon Inc. which is the subsidiary of Laser Performance that used to manufacture Lasers in Rhode Island.

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I'd like to be first to say that the judge is wrong :D

No way. I got HWCBN blocked but assumed he has some multi post, ever repeating book length spin about how the judge don't know law...

 

"He said it was sold but he really didn't sell it because it wasn't consummated and then he bought it back kinda sorta but not really and those Torches are real but their not... I mean geeze its like being kinda pregnant but not really because we only sorta did it but we didn't."

 

"And oh that Comanche thing... what a POS.. don't they know who I am!"

 

Not even JimC saying the judge should have gone slower to get it right? You beat them all!!

 

I really do hope its over for the classes sake but somehow I think not...

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sorry for the typo. QMI not GPI.

Yea but do you think its really over... not that I think you can answer that on a public forum.

 

Let me be the first to say nice job to get it to this stage. A class association and management that actually worked hard for the sailors. My hat is off to you. Have a Molson or 10!

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Thanks! Hats off to Tracy and Eric, they did the heavy lifting. Do I think it's over? I'm no legal expert, but I do think ILCA is out of it.

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Yes, big thanks to all the Laser class officers and executives who steered the class through this storm. They have had to put up with all sorts of shit from some people on this forum, and elsewhere, but all the time they were the only ones involved in this dispute who were really on the side of the sailors.

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Thanks! Hats off to Tracy and Eric, they did the heavy lifting. Do I think it's over? I'm no legal expert, but I do think ILCA is out of it.

 

Yes the entire ILCA team did a great job with this. Not what anyone working in that organization signed on for I gather - dealing with such a complicated legal (IP and contracts) dispute between historic designer and current builders - but well done. Good news in the middle of a good Olympics cycle. Hope this can be put in the past and allow a refocus on the basics as they relate to sailing and the class.

 

That none/neither of the builders or designer has yet said word one in public despite very clear winners and loser at least at this stage, I can only hope means they are hard at work on a comprehensive settlement. Even if BK and GS (hopefully) don't clean up their mess and refile or appeal, there still are loose ends that all would benefit from tying up. But only time will tell! Good luck to them. That it got this far suggests there are some really big egos in the room!

 

Oh, and did just crack a "Beau's" (an Ontario craft beer)

 

Just one? :D

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The decision doc is linked from today's scuttlebutt. Skimmed it, looks like judge didn't buy the reversal of the Kirby rights to GS sale and ruled that Kirby didn't have standing to sue without Global Sailing as a co-plaintiff.

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no standing? Ha ha ha That's awesome! I guess if you sell the whole mess to someone else you can't sue like you still own it even if you sorta lease it back? ha ha ha...

 

Thank you to the Class Assoc, Well done! Despite all the crap on the web you did the right thing w/class no pun intended.

 

Thanks IPL for giving all the informed info be interested in your take on this too

 

I think I've seen enough videos to last at least until GS sues...

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http://www.sailingscuttlebutt.com/2016/08/17/court-rules-kirby-dispute/

 

For those who keep asking "could someone please summarize...", the first three pages actually do a good job of doing just that in fairly plain language.

 

I haven't read the whole thing, but this is how I assess the situation. LP/QMI and the ILCA asked the judge to settle the case by summary judgement - i.e. the judge decides the outcome, not a jury. The judge has agreed to their request for summary judgement, but he hasn't made that judgement yet. So the case isn't settled, the judge still has to rule on the actual outcome. However the judge doesn't seem too impressed with what Kirby and GS did, so it doesn't bode well for them.

 

What say you, internet attorneys? Is my assessment of the situation correct?

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http://www.sailingscuttlebutt.com/2016/08/17/court-rules-kirby-dispute/

 

For those who keep asking "could someone please summarize...", the first three pages actually do a good job of doing just that in fairly plain language.

 

I haven't read the whole thing, but this is how I assess the situation. LP/QMI and the ILCA asked the judge to settle the case by summary judgement - i.e. the judge decides the outcome, not a jury. The judge has agreed to their request for summary judgement, but he hasn't made that judgement yet. So the case isn't settled, the judge still has to rule on the actual outcome. However the judge doesn't seem too impressed with what Kirby and GS did, so it doesn't bode well for them.

 

What say you, internet attorneys? Is my assessment of the situation correct?

No, its not in my opinion (#YMMV).

 

With regards to the case brought, ISAF, ILCA, LPE and QMI are free and clear. Done and dusted. Over and out. Some of their counterclaims against BK, BKI, and GS, that these parties asked be rejected, were, and others were not. So all that is left - for now - are claims against BK/BKI, and GS as best I can recall from a quick read a while back (#decideforyourself).

 

What really surprises me is:

 

1.) Nobody has picked up and commented on the language suggesting all is not peaches and cream between BK/BKI, and GS. The attempted 2011 roll back was apparently in part to avoid GS suing BK/BKI. You guys are getting slow in your old age. But I guess its official; they ALL hate each other, LOL. (#whoknew!)

 

2.) Being curious, I even unblocked him to see what insanity he had to offer up. But I am surprised to see that the resident idiot lawnmower who Canntt be named has not offered up some spirited inane defense. My gosh after 41 pages of lies and BS why stop now? There was so much in the latest judgement that could be spun. I am tempted to open an SA sock named Canntt and start posting defense strategies myself. (#after40pagesyougotnothing?) (#notevenhisothercronnies?) (#weak)

 

3.) That all parties are silent but ILCA seems to suggest they would have a statement. That all parties are (STILL... almost a week now) silent is good news to me in signalling a settlement might be reached in the near term. Because while this party is largely over there may well be an after-party that is even wilder with all the same folks. I was actually slightly bummer by the prospect of just an ILCA statement as to me it maybe signaled all the parties (builders, designer) were not ready to settle (#SETTLEALREADY!!)

 

https://vimeo.com/85724118

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No way TM. You gotta do better than that! We are wanting them to settle - not disagree!!

 

You need to come up w a music video to encourage the parties to settle!

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Isn't summary judgment a final decision; IE case closed and appeal or GTFO?

 

Still haven't done a careful read of the document. Looked like judge planted a seed that GS v. LPE et al might have legs? (could be my prejudice reading that in where it isn't)

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No way TM. You gotta do better than that! We are wanting them to settle - not disagree!! You need to come up w a music video to encourage the parties to settle!

 

 

Maybe Wess would prefer this shit video.

 

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Isn't summary judgment a final decision; IE case closed and appeal or GTFO?

 

Still haven't done a careful read of the document. Looked like judge planted a seed that GS v. LPE et al might have legs? (could be my prejudice reading that in where it isn't)

Yes.

 

And there is the rub. GS vs LPE. Sure. But for that the BKI transfer to GS needs to be completed. But for that they need permission (not unreasonably withheld) they apparently never got. Given the current state of happiness between all the various players and the rather obvious outcome of such permission being given, I am guessing that permission would not be given... or rather it would not be unreasonable to withhold for many reasons. Stranger things have happened but I am guessing this is less likely. The other option is to truly and completely unwind the sale of BKI to GS and have BKI have a go all over again. He gives back all the money to GS, and GS gives back all the rights to BKI and Bruce pays legal fees to sue (unless GS wants to pay his fees under the table.) Or BKI could appeal this SJ. Either way it could be one heck of an after-party with all the same players! Or they could just settle. For gosh sakes he walked away from the boat he designed and into the sunset, selling the whole shooting match for $2.6MM. That is all the various so called existing to whatever extent they may or may not exist rights are actually worth. All this over a 2% royalty or $2.6MM. How many years and how many millions in legal fees? I think I know who really won. Wes

 

#SETTLEALREADY!

 

PS - we should all take the Torch and Laser sticker off our sails and apply that in its place.

 

PPS - your settlement videos are still weak. Geeze, Gouv could do better.

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It was always about money.

It was always about contracts between commercial parties.

ILCA acted in the best interest of its members by imposing the status quo as far as builders and tell them to take their respective claims to court.

 

In hindsight, when GSL threatened to "pursue Kirby for specific performance of Kirby's obligation to transfer all of the Contracts and the remaining Kirby Sailboat Rights to Global Sailing", Kirby should have told them to "take a hike.....caveat emptor! ".

 

In hindsight, GSL was not in a very strong position to force the reversal of the sale. (1) The ISAF agreement does not invalidate the 2008 sale (we discussed this many pages ago. I gave up trying to explain this to Gantt). Both parties knew about the ISAF agreement. (2) The sale agreement was not conditional upon subsequently getting consent per the ISAF agreement.You will recall that I pondered why BK bought back the rights and I wondered aloud on this thread if there had been conditions in the sale agreement. I argued that even if there had been conditions, there might be legal reasons why there was a constructive waiver of those conditions. It turns out there were no conditions precedent provided for in the contract.

 

The CT court has ruled that it was a valid sale.

 

But rather than fight that battle, Kirby agreed to settle on returning $1 million and keeping $1.6 million (coincidentally, not an unfair price for the royalty stream). I would have advised him to "take a deal".... and its only my conceit that thinks I could have got slightly better terms.

 

I would not have advised BK to agree to sue LP, even if it was funded by GSL..

 

1) Kirby's case is gone in the district court . Summary judgements can be appealed and GSL/Kirby lawyers will immediately start talking appeal as part of the negotiation process....but.....its not worth it. We are only talking about $1.6 million.

 

2) GSL would face an uphill battle suing LP for any European license fees post 2010 in any court, because GSL terminated the agreement in 2010, and BK terminated the NA agreement on behalf of GS in 2012 .

 

3) GSL might have a good claim to the license fees held in escrow between 2008 and 2010.....(and 2012 in the NA)

 

4) There remains LP counterclaim vs Kirby and GSL for tortuous interference.

 

There is enough grit still in the wheels for a good lawyer with good mediation skills to knock everyone's heads together and sort this out.

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OK, finally read the whole thing. Here's my take.

 

Judge said the 2008 sale of the rights to Global Sailing was valid, but that the 2011 return of the rights are not. The rights belong to Global Sailing, not Bruce Kirby. He has no standing to sue LPE, QMI, or the ILCA. Done.

 

As far as the counterclaims LPE and QMI filed against Bruce Kirby seeking damages, the judge dismissed two of them. However he left others open, so Kirby may still be on the hook here.

 

Then there are counterclaims filed by LPE and QMI against Global Sailing relating to overpayment of royalties. LPE/QMI said they shouldn't have paid royalties on Laser Radials and 4.7s. This is silly, and the judge rightfully tossed it. LPE/QMI also claimed they paid royalties on packing costs when this is specifically excluded in the contracts. The judge left this one open. However my math tells me this is $2 per boat, so there is no huge amount of money to be gained here.

 

I see two other open issues that are not currently being addressed by the court case. Global Sailing IS the valid owner of the design rights, and LPE/QMI have not paid royalties for several years. Global Sailing may have a claim here against LPE/QMI, but they would have to file a new case.

 

Finally, it seems like there is unsettled business between Global Sailing and Kirby in regards to the apparently invalid 2011 rights transfer agreement. Either the rights exclusively belong to Global Sailing and they need to give Kirby back his $1 million, or they need to sue him for the remaining $1.6 million for selling them worthless design rights.

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Finally, it seems like there is unsettled business between Global Sailing and Kirby in regards to the apparently invalid 2011 rights transfer agreement. Either the rights exclusively belong to Global Sailing and they need to give Kirby back his $1 million, or they need to sue him for the remaining $1.6 million for selling them worthless design rights.

 

 

GSL cant sue BK:-

1. They knew exactly what they were buying in 2008.

2. They damaged the rights in 2010 when they terminated the agreement with LPE.

3. Even if I am wrong and they did have a claim...in the 2011 agreement they agreed not to sue BK.

 

BK cant sue GSL for the refund of the $1m he paid in the 2011 agreement. He got two things (aka consideration) for the $1 million:

1. He licensed the rights to build Kirby sailboats. The fact that he chooses not to build Kirby sailboats is up to him.

2. He got an agreement not to be sued for the remaining $1.6 million.

 

In his own words..."Bruce is out of the Laser Business".....and hopefully enjoys many happy and fulfilling years and is with us for a long time. Perhaps he will draw something startling on a napkin which we will all look at and say "Why didnt I think of that".

 

Nobody will forget that he designed the single most successful one design sailboat of all time.

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GSL cant sue BK:-

1. They knew exactly what they were buying in 2008.

2. They damaged the rights in 2010 when they terminated the agreement with LPE.

3. Even if I am wrong and they did have a claim...in the 2011 agreement they agreed not to sue BK.

 

BK cant sue GSL for the refund of the $1m he paid in the 2011 agreement. He got two things (aka consideration) for the $1 million:

1. He licensed the rights to build Kirby sailboats. The fact that he chooses not to build Kirby sailboats is up to him.

2. He got an agreement not to be sued for the remaining $1.6 million.

 

In his own words..."Bruce is out of the Laser Business".....and hopefully enjoys many happy and fulfilling years and is with us for a long time. Perhaps he will draw something startling on a napkin which we will all look at and say "Why didnt I think of that".

 

Nobody will forget that he designed the single most successful one design sailboat of all time.

 

 

So if he had ever gotten to the point of building Kirby Torches (that was never going to happen), he would have actually been building them under license from Global Sailing?

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