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      Abbreviated rules   07/28/2017

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Otterbox

Lasers - Applying a Blow Torch

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On November 20, 2017 at 11:37 PM, Team_GBR said:

1. I am not sure this is correct. The judge admitted he should not have dismissed the case and reinstated it

2, They didn't leave it so late. it was in response to the judge reinstating the case. Until he did that, the court had ruled that there was no case. Once it was reinstated, they then filed the new suit. How can you file a new suit if the judge has ruled that you have no standing?

1. The judge dismissed Global Sailing's request to reinstate their counter claim because it was not filed on a timely basis. The court has only reinstated the narrow claim from Bruce Kirby relating to the use of the name "Bruce Kirby" . The case as a whole has not been reinstated.

2. Global Sailing filed their new suit prior to the judge in the CT court ruling on the reinstatement of Bruce Kirby's claim. I don't know why they left it so late. They were in settlement negotiations with LP for 9 months but during that time they should have either (I) signed a tolling agreement with LP or (II) if LP refused to sign a tolling agreement, then GS should have filed their suit.  

There was nothing in the prior ruling to stop GS filing a suit.

But I don't know the dates exactly when the alleged breach of contract occurred. The statute of limitations for breach of contract is typically 3 - 6 years (but varies from state to state)and for tortious interference is less.

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2 hours ago, Wess said:

How exactly is the Laser class destroyed? Seems to be rolling along pretty fine...

Is it? I hear that supply issues have still not been sorted out and that LP still isn't really investing in the class. In other words, all the complaints that were there before this all blew up are still valid. Dogwatch said he was using a metaphor, so he didn't literally mean the class was destroyed, but I think it is hard to say the class is rolling along pretty fine.

 

On 25/11/2017 at 2:38 AM, IPLore said:

1. The judge dismissed Global Sailing's request to reinstate their counter claim because it was not filed on a timely basis. The court has only reinstated the narrow claim from Bruce Kirby relating to the use of the name "Bruce Kirby" . The case as a whole has not been reinstated.

2. Global Sailing filed their new suit prior to the judge in the CT court ruling on the reinstatement of Bruce Kirby's claim. I don't know why they left it so late. They were in settlement negotiations with LP for 9 months but during that time they should have either (I) signed a tolling agreement with LP or (II) if LP refused to sign a tolling agreement, then GS should have filed their suit.  

There was nothing in the prior ruling to stop GS filing a suit.

But I don't know the dates exactly when the alleged breach of contract occurred. The statute of limitations for breach of contract is typically 3 - 6 years (but varies from state to state)and for tortious interference is less.

I don't know about dates etc, but I find it highly unlikely that GS's lawyers would make a rookie mistake of being outside the statute of limitations and if they were, why hasn't LP's lawyers simply asked for the case to be dismissed? From what I hear, the case is moving ahead and LP has their back against the wall this time. Time will tell, but it certainly isn't over.

With where we are now, with a straight contractual dispute between LP and GS, plus the claim by BK for the unauthorised use of his name, what are the implications of the 2 different potential outcomes. If GS and BK loses, I see no change, but if both win, what would that mean? Would it simply force LP to pay money to either or both, or could it result in LP no longer being able to build the design in accordance with the builders manual meaning they couldn't build class legal boats any more. Is the definition of a Laser whatever boat the trademark owner wants to attach his trademark to or is it only a boat that complies with class rules and builders manual? Forget predicting the result for a minute. What happens if LP loses?

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2 hours ago, Team_GBR said:

I think it is hard to say the class is rolling along pretty fine.

Really? Name me any single handed class that consistently has more and larger fleets the world over and attracts sailors ranging from juniors to masters. Name me any single handed class that has had more new sailors join each year? Name me a class with his many (and this large) fleets that a sailor can access more affordably given the availability of used boats (and generic sails) everywhere. Come on man. It ain't perfect but it's held up remarkably well when many fleets and sailing in general is in decline and especially considering the litigation and supply issues I would say it's rolling along in damn fine fashion!

You can't keep a good class down! :)

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Just think what it could be with a supportive builder and a class organization dedicated to inviting folks out to play who enthusiastically facilitate participation

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1 hour ago, Wess said:

Really? Name me any single handed class that consistently has more and larger fleets the world over and attracts sailors ranging from juniors to masters. Name me any single handed class that has had more new sailors join each year? Name me a class with his many (and this large) fleets that a sailor can access more affordably given the availability of used boats (and generic sails) everywhere. Come on man. It ain't perfect but it's held up remarkably well when many fleets and sailing in general is in decline and especially considering the litigation and supply issues I would say it's rolling along in damn fine fashion!

You can't keep a good class down! :)

You really do have some rose tinted glasses. The Laser might be the largest singlehander and do all the things you say, but it has been in decline for almost the whole time Rastegar has been involve with LP and I don't think that is a coincidence. You see it as a positive that there are generic sails available for a strict one design. I see it as a real problem. You fob off the challenges of poor supply of new boats and parts. I see it as a long term problem that is limiting the class.

I believe that the Laser is vulnerable to new classes coming through, maybe not globally initially but certainly locally. Look at the success of the Aero which has eaten into the Laser base big time in the UK. The problem is that when you bury your head in the sand and say all is well or "rolling along in pretty fine fashion" the class a class is at most risk.

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5 hours ago, Team_GBR said:

Is it? I hear that supply issues have still not been sorted out and that LP still isn't really investing in the class. In other words, all the complaints that were there before this all blew up are still valid. Dogwatch said he was using a metaphor, so he didn't literally mean the class was destroyed, but I think it is hard to say the class is rolling along pretty fine.

 

I don't know about dates etc, but I find it highly unlikely that GS's lawyers would make a rookie mistake of being outside the statute of limitations and if they were, why hasn't LP's lawyers simply asked for the case to be dismissed? From what I hear, the case is moving ahead and LP has their back against the wall this time. Time will tell, but it certainly isn't over.

With where we are now, with a straight contractual dispute between LP and GS, plus the claim by BK for the unauthorised use of his name, what are the implications of the 2 different potential outcomes. If GS and BK loses, I see no change, but if both win, what would that mean? Would it simply force LP to pay money to either or both, or could it result in LP no longer being able to build the design in accordance with the builders manual meaning they couldn't build class legal boats any more. Is the definition of a Laser whatever boat the trademark owner wants to attach his trademark to or is it only a boat that complies with class rules and builders manual? Forget predicting the result for a minute. What happens if LP loses?

GS and/or their lawyers seem to have made some mistakes so far.

I counted back assuming a 6 year jurisdiction and I think they are okay.....but there are plenty of 3 year jurisdictions. I haven't heard which jurisdiction they filed the new case. Have you? 

One reason I queried the limitation issue is that their late filing to reinstate their counterclaim struck me as a move of desperation. Why would they do this? It is much simpler to file a new suit  in their own name. Why would they want to get back in front of a court that has previously ruled against them each step of the way and a court that seems to have sent a message that the court disliked GS's scheme to hide behind BK by purporting to sell back the rights to BK without actually selling them back. Now, if they had missed the statutory filing date fir a new claim, then their only recourse would have been to reopen their counter claim. So since they had already shown they are adept at missing deadlines, I couldn't help but wonder if they missed the big one.

on reflection I don't think this is the explanation. I think a more likely explanation is that the BKI contracts specify CT as governing law and perhaps this was an attempt to speed up the docket.  I can't remember this from our prior review of those docs but since BK lives in CT, it seems a reasonable guess.

Will LPs lawyers ask for summary dismissal of the new case? Of Course!   Welcome to our litigation process.

During a 9 month settlement negotiation, both sides will have clearly articulated their legal positions. As the settlement discussions reached an impasse, both would have got ready. It is way too early to tell whose back is against the wall so I suspect wishful thinking on your part.

what happens if LP loses?

That is about as speculative as guessing who will win. But here goes.

If Bk wins his name trademark case LP will be enjoined from using his name in future. There may be some monetary damages but it will be very small.

If GS proves that they did not terminate the BKI  contract with LP and that LP willfully was in breach of contract, then there will be some hefty contractual damages due to GS. It is likely (and we are really entering the realm of speculation here) that LP will be able to continue as builder of the Laser .  I'm not sure if Rastergar could pull a Maclaren USa manouver by allowing LP Europe to go bankrupt and then have Velum, the trademark owner appoint a new builder. There is so much we don't know.

The hurdle for GS's contractual claim is that LP claimed in their defense in the BKI case  that they have correspondence that purports to show that GS terminated the contract. GS would not be bothering to file this claim if they haven't got a strategy around this , for example that the termination was a result of a prior breach by LP or that the correspondence was never formal notification of termination.

anyway, after 9 months of arguing, they both seem to feel they have a strong enough case to go back to court over a stupidly small amount of money.

Good luck to them both.

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13 hours ago, Wess said:

How exactly is the Laser class destroyed? Seems to be rolling along pretty fine...

There are plenty of references around to supply problems. Also see the proposed changes some would like World Sailing to make regarding qualification as an Olympic class, which are clearly aimed at the ongoing Laser fiasco. Someone is going to emerge from these lawsuits in full control of the shrivelled remains of what used to be.

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9 hours ago, IPLore said:

GS and/or their lawyers seem to have made some mistakes so far.

I counted back assuming a 6 year jurisdiction and I think they are okay.....but there are plenty of 3 year jurisdictions. I haven't heard which jurisdiction they filed the new case. Have you? 

 

If I understand correctly what Pam of Improper Course is saying at http://www.impropercourse.com/2017/11/lp-at-it-again.html the Kirby and Global Sailing cases against LP and Rastegar have been joined and the joint case is being heard in US District Court in Connecticut.

Doc+321+-+Joining+Related+Cases.jpg

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@Dog Watch and @Team_GBR - Some see the glass half empty and some see it half full.  Both are valid and accurate.  I am not saying things are perfect especially re supply.  But if you just look at numbers and compare to other classes Laser has done and continues to do well. Great boat and class both for high caliber Olympic level sailors as well as for junior sailors.  Generic sails...yes GBR, I see that as a huge positive and the class look the other way attitude at the club level a great thing for access... and all.  Not saying its perfect.  But come on.  It ain't nearly dead and it ain't nearly dying (nowhere near as fast as many other classes are).  Don't know how to more fairly describe it than to say it just keeps rolling along...

 

 

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Thanks.

In June judge rejects GS's motion to amend (aka reinstate) their counterclaim...so GS files a new suit ..in October it is consolidated with the Kirby case and it is back in front of their favorite judge again,  the honorable Jeffrey Alker Meyer. http://www.ctd.uscourts.gov/biography-district-judge-jeffrey-alker-meyer

It is worth quoting JAM's ruling on GS's motion to amend

 

Quote

 

GSL's Motion to Amend

As to GSL's motion to amend its answer to add counterclaims (Doc. #298), I conclude that the motion is manifestly untimely and that GSL has not shown good cause for its late filing. The "good cause" inquiry turns on whether the moving party displayed some degree of diligence in moving to amend his or her complaint. See, e.g., Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007) (noting that "the primary consideration is whether the moving party can demonstrate diligence"). "A party fails to show good cause when the proposed amendment rests on information that the party knew, or should have known, in advance of the deadline." Scott v. Chipotle Mexican Grill, Inc., 300 F.R.D. 193, 197 (S.D.N.Y. 2014).

GSL argues that it did not attempt to bring claims for royalties earlier because, until the Court's summary judgment ruling, "it believed that the Kirby Plaintiffs were the appropriate party to do so." Doc. #298-1 at 3. But defendants asserted the standing defense—arguing that the Kirby plaintiffs had transferred their contract rights to GSL—from the start of this case. Therefore, even if GSL believed that the Kirby plaintiffs were the ones who had standing, GSL was certainly on notice in 2013 of the possibility that the Court might ultimately agree with defendants, and thus GSL could have preserved these claims by asserting them four years ago in 2013.

But even assuming that GSL was justified in waiting until after the Court ruled on whether the Kirby plaintiffs had transferred their rights to GSL, nine months elapsed between my summary judgment ruling and GSL's motion for leave to amend. GSL has not demonstrated good cause for this delay. The fact that the parties were engaged in settlement discussions does not excuse GSL's lack of diligence. See Gullo v. City of N.Y., 540 Fed. App'x 45, 47 (2d Cir. 2013) (affirming district court's denial of motion to amend complaint that was untimely filed three months after plaintiffs learned facts that warranted amendment and notwithstanding plaintiffs' claim that their delay was justified by ongoing settlement discussions and would not prejudice defendants).

Moreover, according to GSL's reply, the parties were attempting to settle the case "until at least late February of this year." Doc. #310 at 8. GSL offers no explanation for the time that elapsed between the end of settlement attempts in late February and the filing of the motion to amend the complaint almost three months later in May. Moreover, in addition to finding that GSL did not act diligently, I find that the proposed amendment would prejudice defendants in this case, largely for the reasons indicated by defendants in their opposition briefing and at oral argument. Accordingly, I will deny GSL's motion for leave to amend its answer to add counterclaims.

 

I can just visualize the judge welcoming counsel back into his court room.  GS's counsel is James Grogan

"Mr. Grogan , it is a pleasure to see you back again....again"

5a1c4fd3166e6_Jeffrey_Alker_Meyer_professor_of_Law_a-Article-201607261908.jpg.17f7aab2067e15830ddba945e60c407c.jpg

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 JAM seems like a really smart and younger judge.  So the case will get a careful and thoughtful hearing.

Frankly it is a waste of taxpayers money.

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I wonder what Scott v. Chipotle Mexican Grill was about.  Food poisoning?  The victim was too sick from E. coli and salmonella to file suit in a timely manner?

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2 hours ago, torrid said:

I wonder what Scott v. Chipotle Mexican Grill was about.  Food poisoning?  The victim was too sick from E. coli and salmonella to file suit in a timely manner?

It was actually a class action lawsuit about whether management trainees - called "apprentices" by the employer - were exempt or non-exempt workers. The case hinged on whether the class was really a class or not, and the court decided it was not a class. Is this an omen?

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2 hours ago, tillerman said:

It was actually a class action lawsuit about whether management trainees - called "apprentices" by the employer - were exempt or non-exempt workers. The case hinged on whether the class was really a class or not, and the court decided it was not a class. Is this an omen?

LOL.  Tillerson strikes again!!

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6 minutes ago, Wavedancer II said:

LP will have to defend itself in other ways as well:

The (One Person Dinghy)  Olympic events will be reviewed according to World Sailing's Antitrust Policy.

 



 

And this part of the WS Antitrust Policy may give LP some difficulties...

  1. 2.5.2  Via its contracts with Olympic Classes and their manufacturers, World Sailing monitors production quality and prices of manufacturers, in particular sole manufacturers, to ensure that the supplier(s) is satisfying demand at acceptable quality and service levels. In the event of a breach of the contracts (e.g. consistent failure by the supplier to maintain acceptable quality and service levels), World Sailing has the right to require re-tendering for the production of equipment of the Class. 

     

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2 hours ago, tillerman said:

And this part of the WS Antitrust Policy may give LP some difficulties...

  1. 2.5.2  Via its contracts with Olympic Classes and their manufacturers, World Sailing monitors production quality and prices of manufacturers, in particular sole manufacturers, to ensure that the supplier(s) is satisfying demand at acceptable quality and service levels. In the event of a breach of the contracts (e.g. consistent failure by the supplier to maintain acceptable quality and service levels), World Sailing has the right to require re-tendering for the production of equipment of the Class. 

     

There's a bit to unpack there. It infers that World Sailing (WS) has contracts with Olympic Class associations and with manufacturers of equipment for Olympic Classes. Presumably the contracts are only in regard to supply of equipment for WS events.

As far as I'm aware (which isn't saying much I guess), WS can't change who is allowed to produce Laser equipment under various licencing deals, so they'd have to work with  existing manufacturers. If a particular manufacturer is found to be in breach of their obligations, WS's can either:

  1. Source equipment from another manufacturer, or
  2. Change to another class that meets WS's rules 

Option 1 may well breech commercial licencing agreements that restrict who can supply equipment in particular geographic regions. Likely WS has no control over these agreements and any breech would very likely end up in a court somewhere. Alternatively, they could only hold events in regions where their favoured manufacturers have supply rights, but that might open an even larger can of worms and punishes 3rd parties that have nothing to do with the original complaint.

Option 2 seems to punish compliant manufacturers, so possibly not politically acceptable. It would also hurt Olympic Laser hopefuls, but that's likely a minor consideration given the changes to sailing classes in the last few Olympics.

A 3rd option is that WS may have agreements to source equipment from whichever manufacturer they wish regardless of regional licencing deals. For the sake of the Laser Class and compliant manufacturers, I hope that's the case. But there may be a few wannabe Olympic Classes that are hoping otherwise.

In the bigger picture, there is also the relationship between the International Olympic Committee (IOC) and WS. A manufacturer that is unhappy with WS may well appeal directly to the IOC, possibly affecting all Olympic Classes in the process.

Fun times ahead.

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My two cents.

This isn't about finding a replacement builder for Lasers to use in the Olympics, but a replacement class for the single-handed events.  I was never a fan of the Laser being an Olympic class to start with, but now I wonder what will happen to the class if it is dropped.

I don't imagine the IOC giving two shits about how WS conducts the Olympic sailing events as long as the go off without a hitch, on budget, with increased female and smaller country representation.

 

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Snipped below from Tillerman's post in the "Huh? New Sunfish Class?" blog. Seems to me Bruce Kirby lives in Rowayton. Looks like that is a couple miles away from the new shop. You don't suppose LP knew this...

New SailLaser Center Planned for SONO district of Norwalk, Connecticut

LaserPerformance is pleased to announce it will be opening a SailLaser Center in the SONO district of Norwalk, Connecticut. The Center will reach out to the southern Connecticut community to help make sailing as easy and enjoyable as possible regardless of means or ability. Sailing lessons will be offered for all skill levels and, for more experienced sailors, rigged dinghy boats will be available for rent or seasonal lease. Summer fun activities are planned for children, while families will be invited to participate in regattas and social events. Those interested in improving the environment in their community will be encouraged to join one of our LaserPerformance Handprint initiatives to keep our water and environment sustainable. Finally, the SailLaser Center will provide maintenance services for dinghy boats, as well as offer a wide range of LaserPerformance boats, parts and accessories which can presently be viewed and purchased at www.LaserPerformance.com. The SailLaser Center will welcome the community commencing May 2018 at 10 Marshall Street, South Norwalk, CT.

 

 

 


 

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3 minutes ago, bill4 said:

Snipped below from Tillerman's post in the "Huh? New Sunfish Class?" blog. Seems to me Bruce Kirby lives in Rowayton. Looks like that is a couple miles away from the new shop. I wonder if LP knew this?

New SailLaser Center Planned for SONO district of Norwalk, Connecticut

LaserPerformance is pleased to announce it will be opening a SailLaser Center in the SONO district of Norwalk, Connecticut. The Center will reach out to the southern Connecticut community to help make sailing as easy and enjoyable as possible regardless of means or ability. Sailing lessons will be offered for all skill levels and, for more experienced sailors, rigged dinghy boats will be available for rent or seasonal lease. Summer fun activities are planned for children, while families will be invited to participate in regattas and social events. Those interested in improving the environment in their community will be encouraged to join one of our LaserPerformance Handprint initiatives to keep our water and environment sustainable. Finally, the SailLaser Center will provide maintenance services for dinghy boats, as well as offer a wide range of LaserPerformance boats, parts and accessories which can presently be viewed and purchased at www.LaserPerformance.com. The SailLaser Center will welcome the community commencing May 2018 at 10 Marshall Street, South Norwalk, CT.
 

 

Probably more significant that the offices of LaserPerformance and Dory Ventures are in Norwalk.
 

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Looking at Google maps, 10 Marshall Street is a building that is a couple blocks from the water but doesn't look too convenient for boat launching.  It does say "Maclaren" on the door.

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22 minutes ago, tillerman said:

 

Probably more significant that the offices of LaserPerformance and Dory Ventures are in Norwalk.
 

Damn. That's no fun.

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1 hour ago, bill4 said:

. Seems to me Bruce Kirby lives in Rowayton. Looks like that is a couple miles away from the new shop. You don't suppose LP knew this...

 

LP is headquartered in Norwalk. Rowayton is the upmarket suburb of Norwalk.

Its reasonably well known in CT that Bruce Kirby and Bill Crane are both members of the same yacht club, race Sonars against each other, and have known each other for decades. 

It is said that all business matters stop at the YC gate.

I think Rastegar also lives in Rowayton but I dont  believe that he was invited to join the club.:)

 

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