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Brian Weslake

Is Russell's bitterness clouding his judgement?

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Good article from Cory Friedman in Today's Scuttlebutt

 

Particularly interesting where Cory talks about why GGYC adopts a approach that is almost certainly going to be a loser and may even jeopardise their chances at a March date -

"Thus, it came as a shock when, halfway into its next brief, GGYC launched into an impassioned argument that Justice Cahn had erred when he set the March 2009 as the date, rather than October 2008. To further compound the surprise, GGYC went on at length in apocalyptic language about how anything other than October 2008 will destroy commercial law as we know it in New York. How construing the language of a sui generis Deed of Trust would work such horrors on commercial law, when the Appellate Division will almost certainly limit the decision to the Deed of Trust, is a little hard to follow. In any event, the argument for October 2008 remains extremely weak and unmoored to New York practice.

 

How attacking any part of Justice Cahn’s orders in any respect, thereby undermining the rest of the orders, makes sense is even harder to follow.
The only explanation is that someone overruled Tom Ehman’s sensible approach in the hope of securing a virtual forfeit in October
. It is unlikely that GGYC’s lawyers would have had a vested interest in that strategy, unless the issue of allowing SNG to divert the process with the motions to reargue and disqualify GGYC has arisen internally.
The likely guilty party is higher up on the GGYC client side
. In any event, by biting the hand that fed it, GGYC is playing with fire and may succeed in snatching defeat from the jaws of victory. The last thing in GGYC’s interest is forcing the Appellate Division to really dig into all the issues when it won all the important issues below. You never know what can happen"

 

Cory hints very strongly that someone above T.E. in the BMWO hierachy is very keen to force Alinghi into a forfeit. I'm sure Larry isn't spending all this money so his boat can sail around the course by itself and I'm sure he doesn't want to go down in history as the guy who won the AC by suing for it.

 

So that leaves Russell. Having Alinghi forfeit is not going to affect his reputation, he's already won 3 on the water and is the most successful AC helmsman in history. Similarly, its not his money being spent on the boat. But he is CEO of the team and if he wants to kick Ernie in the nuts by getting a forfeit in October he will.

 

Two questions -

 

1. Russell, don't you think it's time to grow up a bit and stop being such a crybaby?

 

2. Larry, don't you think it's time for some adult supervision?

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Good article from Cory Friedman in Today's Scuttlebutt

 

Particularly interesting where Cory talks about why GGYC adopts a approach that is almost certainly going to be a loser and may even jeopardise their chances at a March date -

"Cory hints very strongly that someone above T.E. in the BMWO hierachy is very keen to force Alinghi into a forfeit. I'm sure Larry isn't spending all this money so his boat can sail around the course by itself and I'm sure he doesn't want to go down in history as the guy who won the AC by suing for it.

 

So that leaves Russell. Having Alinghi forfeit is not going to affect his reputation, he's already won 3 on the water and is the most successful AC helmsman in history. Similarly, its not his money being spent on the boat. But he is CEO of the team and if he wants to kick Ernie in the nuts by getting a forfeit in October he will.

 

Mate ... until you have evidence Russell is the architect, it might be prudent to go gentle. You do not have evidence he is the one. If you do, we are happy to look at it.

 

Besides, there are numerous challengers going to church every Sunday and praying for a forfeit.

 

Imagine if SNG were to forfeit tomorrow ?

 

By next Monday, GGYC could have draft parameters for the next multiple-challenger AC regatta going out for discussion amongst likely challengers.

 

Within minutes, phones would be ringing and emails humming and lights burning late in challenge syndicates as people hurtle back to work.

 

Even Hastings might be recalled to the Battle !

 

Don't underestimate a forfeit.

 

Bring it on !

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WTF ?! :huh:

 

I think the more probable source of the invective & case quoting regarding Commercial Law aspects is... tada the Commercial Lawyers themselves.

 

Could be that Cahn sees AC stuff as not applying to other commercial matters so didn't think it mattered if he went against the precedent?

Does the trial judge get to submit to an appeal court regarding their reasons for ruling one way or the other?

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Mate ... until you have evidence Russell is the architect, it might be prudent to go gentle. You do not have evidence he is the one. If you do, we are happy to look at it.

 

Well it tallies quite well with something I heard from another source, that Russell was keen to force Alinghi to default if possible, so it is more credible to me than if it was an isolated opinion.

 

I think it is pretty well known in the AC world that Russell will do anything he can to screw Ernie over, so Cory might just be right.

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Well it tallies quite well with something I heard from another source, that Russell was keen to force Alinghi to default if possible, so it is more credible to me than if it was an isolated opinion.

 

I think it is pretty well known in the AC world that Russell will do anything he can to screw Ernie over, so Cory might just be right.

 

Good job blowing your cover, 007.

 

Marian has been trotting that little story around for a few days now and finally got somebody to post it.

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......

 

How attacking any part of Justice Cahn's orders in any respect, thereby undermining the rest of the orders, makes sense is even harder to follow.
The only explanation is that someone overruled Tom Ehman's sensible approach in the hope of securing a virtual forfeit in October
. It is unlikely that GGYC's lawyers would have had a vested interest in that strategy, unless the issue of allowing SNG to divert the process with the motions to reargue and disqualify GGYC has arisen internally.
The likely guilty party is higher up on the GGYC client side
. In any event, by biting the hand that fed it, GGYC is playing with fire and may succeed in snatching defeat from the jaws of victory. The last thing in GGYC's interest is forcing the Appellate Division to really dig into all the issues when it won all the important issues below. You never know what can happen"

 

Cory hints very strongly that someone above T.E. in the BMWO hierachy is very keen to force Alinghi into a forfeit. I'm sure Larry isn't spending all this money so his boat can sail around the course by itself and I'm sure he doesn't want to go down in history as the guy who won the AC by suing for it.

 

So that leaves Russell. Having Alinghi forfeit is not going to affect his reputation, he's already won 3 on the water and is the most successful AC helmsman in history. Similarly, its not his money being spent on the boat. But he is CEO of the team and if he wants to kick Ernie in the nuts by getting a forfeit in October he will.

 

Never over estimate the size of the ego's as people get further up the ladder

 

its possible that anybody senior may have the bloody hands on this one, its also possible that its actually BMWO as a team... after all it looks like they took on a specific strategy to defeat Alingi, and it looks as if their strategy may be falling apart (issuing the challenge, starting building). thats a lot of cash burn't and thats a lot of humble pie to be eaten, and no one at senior levels in corporate world likes doing that.

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Good job blowing your cover, 007.

 

Marian has been trotting that little story around for a few days now and finally got somebody to post it.

 

Go fuck yourself IDW2K, I don't know Marian, don't have anything to do with BYM, and believe it or not, thought of this all by my self.

 

And how can Marian have been trotting this around fro several days if Friedman only posted it today? I was commenting on Friedman's article and the fact that I have heard similar stuff from other sources that have nothing to do with Marian or anyone else who posts here only lends more credence to the opinion in my view.

 

Anyway, your so fucking close to Oracle, why don't you ask them yourself. Ask them if Russell is really that bitter and twisted that he is happy to hold an event on a date that Alinghi can't possibly get a competitive boat to. Ask Russell whether excluding Ernesto is payback for Ernesto excluding him from the last cup after Russell threw his toys out of the cot when he realised that the guy who pays the bills might want to call the shots.

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Go fuck yourself IDW2K, I don't know Marian, don't have anything to do with BYM, and believe it or not, thought of this all by my self.

 

And how can Marian have been trotting this around fro several days if Friedman only posted it today? I was commenting on Friedman's article and the fact that I have heard similar stuff from other sources that have nothing to do with Marian or anyone else who posts here only lends more credence to the opinion in my view.

 

Obviously Marian hasn't been talking about the Friedman piece, but she has been running around telling anyone who'll listen that RC was so eager to force a forfeit that he's been shaken by Cahn's decision and is now quaking in his boots because of all the multihull training Alinghi is doing. If your source wasn't Marian, I bet Marian or one of her Alinghi buddies is upstream of it somewhere, cause it's utter horseshit.

 

Anyway, your so fucking close to Oracle, why don't you ask them yourself. Ask them if Russell is really that bitter and twisted that he is happy to hold an event on a date that Alinghi can't possibly get a competitive boat to. Ask Russell whether excluding Ernesto is payback for Ernesto excluding him from the last cup after Russell threw his toys out of the cot when he realised that the guy who pays the bills might want to call the shots.

 

Where do I begin?

 

Let's see:

 

1) Alinghi had plenty of time to build a competitive boat. They chose not to. By your apparent standards of fair play, anybody who isn't "bitter and twisted" would allow Alinghi to sit around not building a boat until the end of time because it wouldn't be fair to force a match when they weren't ready. You're a fucking idiot if you don't realize that Alinghi chose not to start building a boat as a competitive tactic, hoping to gain more info about Oracle's boat. This nonsense that they couldn't be ready is horseshit...they tried to force delay for strategic advantage and BOR was and is right to fight it tooth and nail. If Alinghi is unprepared when the match date rolls around, it is their fucking fault, not Russell's for being a big meanie head.

 

2) You clearly don't know the first fucking thing about what happened between RC and Ernesto. The breaking point was not over the AC33 venue or boats, though they certainly disagreed over those things. RC acted to protect his future interests by refusing to sail in the Moet Cup(by the terms of the protocol, once you sailed for one team, you couldn't work for another) and Ernesto couldn't handle it. The spoiled little rich kid couldn't deal with the fact that the help wasn't following orders.

 

3) If you think, for even a second, that Larry is spending hundreds of millions of dollars so RC can engage in a schoolyard vendetta, you've totally lost touch with reality. It's absurd on the face of it. It's hilarious to me that Ernesto and his goons can put out press release after interview after legal brief calling Larry Ellison a loser trying to steal the cup in the courtroom and people like you will still try to accuse Oracle of being the one holding a grudge.

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Mate ... until you have evidence Russell is the architect, it might be prudent to go gentle. You do not have evidence he is the one. If you do, we are happy to look

 

A super response from the BMWO brainwashing, paid to post camp :lol:

 

BTW.. who are the royal WE :lol:

 

Mate looks as your hero Rusty is as much as a total fucking twat as Ernie is...;

 

Shame between them and their ego's they have jointly fucked the cup!..

 

Never mind at least we hopefully get something better than shite slow bathtubs! :P

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Obviously Marian hasn't been talking about the Friedman piece, but she has been running around telling anyone who'll listen that RC was so eager to force a forfeit that he's been shaken by Cahn's decision and is now quaking in his boots because of all the multihull training Alinghi is doing. If your source wasn't Marian, I bet Marian or one of her Alinghi buddies is upstream of it somewhere, cause it's utter horseshit.

 

It wasn't anyone at Alinghi that I spoke to, nor was it Marian or anyone to do with BYM, and it was actually some time ago, but the gist of it was that the person at Alinghi who is/was closest to Coutts believes that Coutts would prefer a forfeit to a match. Again, its heresay and probably 10th hand, but that was the consversation.

 

RC acted to protect his future interests by refusing to sail in the Moet Cup(by the terms of the protocol, once you sailed for one team, you couldn't work for another) and Ernesto couldn't handle it.

 

Don't shit me, Russell refused to do the job he was contracted and paid millions of dollars to do, and you think that's ok because he was protecting his right to work for another team. You have a wierd idea of what ethical behaviour is.

 

Russell is a control freak who happens to have the power to get that control because of his sailing skill. He has a history of walking out when he doesn't get his own way and its likely it will happen again in the future. It looks like he is already pushing Larry and T.E. into making dumb decisions to suit his twisted agenda, and its not going to be pretty when Larry realises he needs to take control again.

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............ RC was so eager to force a forfeit that he's been shaken by Cahn's decision and is now quaking in his boots because of all the multihull training Alinghi is doing........

 

Hold on I'm just closing my eyes and imagining this right now............hmmmm.......squeezing tighter.... Nah got nothing ;) ;)

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Well it tallies quite well with something I heard from another source, that Russell was keen to force Alinghi to default if possible, so it is more credible to me than if it was an isolated opinion.

 

I also believe that BOR would be fine with an Alinghi default/forfeit. A lot of other teams would be too, since it moves the ball forward faster for them.

 

The Deed of Gift is a Gift to the Challengers. The trust is that the Defender will accepr a valid Challenge and then, if they can't reach MC, they will race on the date selected by the Challenger, which has to be a date a minimum of just ten months out. BOR had every right to issue that Challenge, but Alinghi does not have the right, as trustee, to try circumvent that. In fact to do so is to behave directly against the intent of the trust.

 

That section you quoted by CF looks more to me like a legal strategy analysis where he is saying, if it were him, then he'd settle for the larger victory (CNEV out, GGYC in) and not force the date issue so hard:

 

How attacking any part of Justice Cahn’s orders in any respect, thereby undermining the rest of the orders, makes sense is even harder to follow.

 

It's a perfectly reasonable position to argue for, so far as court strategy goes, and that's why he goes on to muse about who may be behind the decision not to follow this line.

 

But to me the much larger issue is that - by doing so - you give in on the true nature of the default DoG Match as it is prescribed. Alinghi, if successful, will be degrading the default clause almost to the point of the Challenge period clause being useless. And if that's the case then there is little incentive for any Defender to negotiate a MC in the first place, which is basically what we already saw. They can look at a Challenge, and instead of accepting it on the terms, just sit on their asses, pretend to sit on their asses, or do whatever they like, ignore it for as along as possible, and posptpone it for as long as possible. It's thoroughly anti-DoGnarian. A Defender who corrupts the trust does not deserve to be Defender and really should default, or be forced to.

 

I think it is pretty well known in the AC world that Russell will do anything he can to screw Ernie over, so Cory might just be right.

 

As I argued above, there are higher principles involved. CF does mention names when trying to determine who chose the brief language, the more bold strategy than he would prescribe, but it's a real stretch to make the inferences that you leap to. And Cory is not making that same inference anyway.

 

I agree with idontwan2know that there's been a strong suggestion for a long time now, from very high up in the Alinghi stream, that RC is 'out to get them.'

 

Marian tried (again) to argue the same when she opened a thread recently, arguing that EB and LE reached an agreement by phone; that if EB let the displacement rule be set by the Challengers (by RC, in effect) then all the rest was settled too. And that everything was fine until RC poked his nose in, and made LE change his mind. Why? Well obviously it's because he just wants to screw Ernie.

 

There's also the scenario being bandied about where RC kept 'moving the goalposts' - why? Because he had no intention of settling. Why? Well obviously it's because he just wants to screw Ernie.

 

These arguments come not just from Marian, and from Seb in some ways, and from you and your sources; they come directly from Alinghi. Their characterisation of the phone conversation is depicted prominently in their own published 'timeline.' So are the (factually inaccurate, I will add) notions that the points kept changing, and new points kept getting added unreasonably, also included in their 'timeline.'

 

We have dealt with both these items; the phone call in as much detail as we can; and the points of negotiation is somewhat excruciating detail. Because of the transparency, we know exactly what the bottom lines were that neither would ultimately cross. They were concrete, serious, issues. They were not personal attacks. It was - essentially - legal verbage being argued for and against, to be included in the Protocol.

 

I am sure that Ernie and others feel screwed. That's natural - How would they not? They've gotten their asses kicked over it. Their plans, schemes, contracts, hidden deals, their 'vision' is toast. They were too stubborn. And now they have to face the default Challenge. It's easy to personify it, but that also oversimplifies the larger AC issues, detracts from the real negotiating points EB was unwilling to give ground on, and intentionally tries to deflect blame away by pointing the finger at RC.

 

Having said that, it's quite plausible that there was a group-think at BOR where RC convinced everyone else something along the lines of "Look, I know this guy Ernie well, and he's a stubborn SOB, and we better be ready to back this up in case he sticks hard to his Protocol." And so they executed on that backup plan, flawlessly, just in case it happened. That is DoG given their right. It's even their duty, considering the Challenge specification. It would have been a complete sham if they were just bluffing all along. They weren't. Good on them.

 

I don't place blame on BOR for this. I think RC, and whoever else is helping call the shots, have performed a lot better so far than the Defender has. This delay, delay, delay strategy is damaging to everyone - to BOR, to the other teams, and to the Deed's expressed ideal of it being a Gift, a Challenge Cup. And it's sure as hell not RC doing the delaying, even if CF may think he should be settling for that.

 

Me, I suspect the legal strategy is on advice from Kearney anyway. He has a lot of experience adjudicating big sporting events, including the Olympic Games. That's why those chose him. And I also think his argument is a lot more powerful than what CF believes it to be. It's hard to argue with CF, but read it for yourself.

 

Excerpt:

 

post-17804-1212064077_thumb.jpg

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Good article from Cory Friedman in Today's Scuttlebutt

 

This section is slightly amusing too:

 

--

 

Thus, it was hilarious when, tearing a page from the playbook of a certain multi-millionaire Wellesley/Yale Law graduate knocking down boilermakers at Bronko’s Bar, Simpson Thacher filed a brief for billionaire Ernesto Bertarelli’s SNG bewailing the attempt of a “billionaire ‘sportsman’ [Larry Ellison] utilizing Tonya Harding litigation tactics . . . .” It actually went downhill from there. You would think Ernesto Bertarelli was an impoverish worker out of a John Grisham novel injured by the kinds of interests Simpson Thatcher might represent in a Grisham novel. Asking the Court to allow SNG to proceed in forma pauperis (as a poor person relieved of filing fees) would have fit right in. The catalog of Ellison’s evil deeds even extended to teeing up a two boat match race – something unprecedented in AC history. Perhaps Barry Ostrager plans on offering to knock down boilermakers with the Justices of the Appellate Division at oral argument.

 

--

 

Me: Isn't every AC 'a two boat match race'?

 

'something unprecedented in AC history.' - That's clever by CF, it really is disingenuous by BO.

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Russell is a control freak who happens to have the power to get that control because of his sailing skill. He has a history of walking out when he doesn't get his own way and its likely it will happen again in the future.

This is the most lucid thing you've ever said. I don't agree with most of your stuff, but this is dead on the mark

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Interesting point in the CF piece here:

 

--

 

Amazingly, neither side devotes any reasoned argument to the hemisphere clause. For example, is the hemisphere clause an absolute prohibition, which cannot be waived, or is it subject to the consent clause? One would have thought that GGYC would have argued that it is subject to the consent clause and, therefore, SNG’s stated preference for Valencia, plus GGYC’s consent, equals March in Valencia. Similarly, although SNG treats the hemisphere clause as unwaivable, one would have expected some argument regard whether it is unwaivable or subject to the consent clause. The Appellate Division could easily decide the appeal on that issue, without either side weighing in at all.

 

--

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Good article from Cory Friedman in Today's Scuttlebutt

 

Particularly interesting where Cory talks about why GGYC adopts a approach that is almost certainly going to be a loser and may even jeopardise their chances at a March date -

"Thus, it came as a shock when, halfway into its next brief, GGYC launched into an impassioned argument that Justice Cahn had erred when he set the March 2009 as the date, rather than October 2008. To further compound the surprise, GGYC went on at length in apocalyptic language about how anything other than October 2008 will destroy commercial law as we know it in New York. How construing the language of a sui generis Deed of Trust would work such horrors on commercial law, when the Appellate Division will almost certainly limit the decision to the Deed of Trust, is a little hard to follow. In any event, the argument for October 2008 remains extremely weak and unmoored to New York practice.

 

How attacking any part of Justice Cahn’s orders in any respect, thereby undermining the rest of the orders, makes sense is even harder to follow.
The only explanation is that someone overruled Tom Ehman’s sensible approach in the hope of securing a virtual forfeit in October
. It is unlikely that GGYC’s lawyers would have had a vested interest in that strategy, unless the issue of allowing SNG to divert the process with the motions to reargue and disqualify GGYC has arisen internally.
The likely guilty party is higher up on the GGYC client side
. In any event, by biting the hand that fed it, GGYC is playing with fire and may succeed in snatching defeat from the jaws of victory. The last thing in GGYC’s interest is forcing the Appellate Division to really dig into all the issues when it won all the important issues below. You never know what can happen"

 

Cory hints very strongly that someone above T.E. in the BMWO hierachy is very keen to force Alinghi into a forfeit. I'm sure Larry isn't spending all this money so his boat can sail around the course by itself and I'm sure he doesn't want to go down in history as the guy who won the AC by suing for it.

 

So that leaves Russell.

 

 

Its not an unreasonable conclusion. Had similar thoughts.

 

2) You clearly don't know the first fucking thing about what happened between RC and Ernesto. The breaking point was not over the AC33 venue or boats, though they certainly disagreed over those things. RC acted to protect his future interests by refusing to sail in the Moet Cup(by the terms of the protocol, once you sailed for one team, you couldn't work for another) and Ernesto couldn't handle it. The spoiled little rich kid couldn't deal with the fact that the help wasn't following orders.

 

3) If you think, for even a second, that Larry is spending hundreds of millions of dollars so RC can engage in a schoolyard vendetta, you've totally lost touch with reality. It's absurd on the face of it. It's hilarious to me that Ernesto and his goons can put out press release after interview after legal brief calling Larry Ellison a loser trying to steal the cup in the courtroom and people like you will still try to accuse Oracle of being the one holding a grudge.

 

Dude, you always see things in such black and white terms. Come on; get real. Neither is likely a Saint. Most would agree one is a little worse than the other but let's not go overboard.

 

Interesting point in the CF piece here:

 

--

 

Amazingly, neither side devotes any reasoned argument to the hemisphere clause. For example, is the hemisphere clause an absolute prohibition, which cannot be waived, or is it subject to the consent clause? One would have thought that GGYC would have argued that it is subject to the consent clause and, therefore, SNG’s stated preference for Valencia, plus GGYC’s consent, equals March in Valencia. Similarly, although SNG treats the hemisphere clause as unwaivable, one would have expected some argument regard whether it is unwaivable or subject to the consent clause. The Appellate Division could easily decide the appeal on that issue, without either side weighing in at all.

 

--

 

Yea, this I really don't understand at all. I also would have thought the GGYC would want clarity on this and so push the issue.

 

Its interesting because this time around many are wondering why/what GGYC is doing. They are either much smarter than everyone expects (I hope so) or dropped the ball. At least, there does seem to have been a low risk, high probibility of modest victory strategy they could have chosen but opted not to for whatever reason.

 

Time will tell.

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To set the record straight. The statements in this thread:

Marian has been trotting that little story around for a few days now and finally got somebody to post it.

 

and

 

Obviously Marian hasn't been talking about the Friedman piece, but she has been running around telling anyone who'll listen that RC was so eager to force a forfeit that he's been shaken by Cahn's decision and is now quaking in his boots because of all the multihull training Alinghi is doing.
are malicious lies.

 

I have not mentioned Russell Coutts/BMWO’s views on a forfeit, nor on Alinghi multihull training to any third party – not verbally, not in writing – and neither has anyone else connected with BYM.

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If any of you really think Russell Coutts is engineering the legal strategy, legal tactics, argument submissions etc., you need to change the antennae on your tin hats.

 

I doubt seriously Grant Simmer and E B are crafting the SNG/Alinghi legal strategy, that's what they pay the big jedi lawyers to do.

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If any of you really think Russell Coutts is engineering the legal strategy, legal tactics, argument submissions etc., you need to change the antennae on your tin hats.

 

I doubt seriously Grant Simmer and E B are crafting the SNG/Alinghi legal strategy, that's what they pay the big jedi lawyers to do.

 

 

I think you are incorrect, its pretty obvious both teams have members of management involved at the highest level in the legal arguments. The lawyers know the law, but they are playing catchup when it comes to basic knowledge about yachts, yacht racing, yacht measurement, yacht clubs, the Deed, AC history and tradition that you and I take for granted.

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Well it tallies quite well with something I heard from another source, that Russell was keen to force Alinghi to default if possible, so it is more credible to me than if it was an isolated opinion.

 

I think it is pretty well known in the AC world that Russell will do anything he can to screw Ernie over, so Cory might just be right.

 

 

Yea, well, I have my own issues with Russell.

 

But, after being fired by the boss, the disgruntled employee is not going to go quietly.

 

As I said, Russell is motivated !

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If any of you really think Russell Coutts is engineering the legal strategy, legal tactics, argument submissions etc., you need to change the antennae on your tin hats.

 

I doubt seriously Grant Simmer and E B are crafting the SNG/Alinghi legal strategy, that's what they pay the big jedi lawyers to do.

 

Like your posts but think you missed it with this.

 

Organization and its leaders (like EB, LE or RC) set overall organization strategy and objectives. Lawyers then develop legal strategy to try to achieve same.

 

I gotta believe counsel was told to try to re-set the date versus the other way around. So, yea, I think LE and or RC is telling the lawyers what to try to get and what to not spend time on.

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I gotta believe counsel was told to try to re-set the date versus the other way around. So, yea, I think LE and or RC is telling the lawyers what to try to get and what to not spend time on.

 

Of course ... lawyers supposedly work for the client.

 

Not the other way round.

 

Although Kearney's "NY commercial law" gambit looks like a lawyer-initiated tack (or gybe)

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Like your posts but think you missed it with this.

 

Organization and its leaders (like EB, LE or RC) set overall organization strategy and objectives. Lawyers then develop legal strategy to try to achieve same.

 

I gotta believe counsel was told to try to re-set the date versus the other way around. So, yea, I think LE and or RC is telling the lawyers what to try to get and what to not spend time on.

 

Could it be that Kearney recommended this approach as the best way to make Cahn's overall ruling stick?

 

Alinghi is appealing the decision, based largely on the dates. Kearney may be providing the caselaw that the panel can rest its decision on.

 

He would surely have run it by BOR for their pemission to push for October. But it's entirely plausible to me that K is the one directing the legal strategy.

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It may be that RC or someone else at BMWO instigated the language in the Reply Brief, but if they had really intended to hang their hats on this issue, they would have cross-appealed, rather than taking their present position, which merely is to oppose SNG's appeal. Also, for such a sweeping recitation of legal principle, there is virtually no citation to legal authority, and the "c.f." reference to the equity hornbook is hardly likely to be considered binding authority by the Court of Appeal, or even as much of an attempt to persuade them. I think they are likely to consider the high-flown rhetoric as misplaced; for God's sake, were talking about a boat race here, not a commercial dispute that affects the livelihood of thousands of people.

 

I think this is more of a legal "run it up the flagpole and see if anyone salutes," than it is an attempt to change the date of the race. Coupled with a bit of table pounding (Remembering the fundamental rule of appellate advocacy: "If you win on the facts, pound on the facts, if you win on the law, pound on the law, if you don't win on the facts or the law, pound on the table.")

 

As such, it is not likely to undermine the authority of Judge Cohn's orders. It also shows the court that BMWO "lost" on at least one point.

 

We should also remember that LE may be providing the $$$, but he would save a lot if he is not required to complete construction of the DoG challenger, or buy sails and pay the crew.... So its not just RC who would benefit from a default.

 

Of course, any default is not likely to occur until the day of the race, so LE will still be forced to go the distance in any event.

 

I also think it is unfair to impute this to a particular person or motive, and especially to RC, even if EB did screw him over by putting him on a shelf for the 2007 AC. We all know that the earlier contest favors the team with the biggest headstart. I think the fact that BMWO did not file a cross appeal shows that they want to get on with it, but they couldn't quite give up on this issue.

 

I too am surprised by the lack of discussion of the venue issue, but it looks like the DoG provides for this to be addressed by mutual consent:

 

"The Club challenging for the Cup and the Club holding the same may, by mutual consent, make any arrangement satisfactory to both as to the dates, courses, number of trials, rules and sailing regulations, and any and all other conditions of the match, in which case also the ten months' notice may be waived.

 

I expect that if SNG selects Valencia, BMWO will "consent" to a contest in March '09, and then ask the Court to enforce the March date.

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Like your posts but think you missed it with this.

 

Organization and its leaders (like EB, LE or RC) set overall organization strategy and objectives. Lawyers then develop legal strategy to try to achieve same.

 

I gotta believe counsel was told to try to re-set the date versus the other way around. So, yea, I think LE and or RC is telling the lawyers what to try to get and what to not spend time on.

 

The thread was about Cory Friedman's analysis of the appeal doc's and strategy and whether Russell was driving it.

 

Naturally the top of the command chain has an overall vision and strategy (including dates they prefer...), I was referring to the execution portion, in particular, the execution portion of the construct of the appeal briefs - specifically the arguments, and case law.

 

Both parties have followed differing legal tactics, and those tactics are initiated by the attorneys. I seriously doubt Russell directed the attorneys to posit an argument that commercial law would be violated should Alinghi be rewarded for delays in their required actions they must take under the DoG by virtue of the legal strategy they have pursued of various legal exercises meant to purposefully delay.

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for God's sake, were talking about a boat race here, not a commercial dispute that affects the livelihood of thousands of people.

 

Hmmm. Let's see. In a traditional multi-challenger event, you have 10 or so teams each spending about $100 million and each probably employing a hundred or so people directly and maybe several hundred indirectly.

 

That means you have an event worth more than $1billion and thousands of people's livelihoods.

 

So, yes, it is a very important commercial dispute, you dimwit.

 

Think first, then post.

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It may be that RC or someone else at BMWO instigated the language in the Reply Brief, but if they had really intended to hang their hats on this issue, they would have cross-appealed, rather than taking their present position, which merely is to oppose SNG's appeal. Also, for such a sweeping recitation of legal principle, there is virtually no citation to legal authority, and the "c.f." reference to the equity hornbook is hardly likely to be considered binding authority by the Court of Appeal, or even as much of an attempt to persuade them. I think they are likely to consider the high-flown rhetoric as misplaced; for God's sake, were talking about a boat race here, not a commercial dispute that affects the livelihood of thousands of people.

 

Hard for any of us - least of all me - to know how they will rule on/after next Thursday but it's interesting to read and to speculate. Quoting from Kearney's brief again:

 

--

Under New York case law, the equitable relief of tolling a contractually imposed time period is only available to benefit the wronged party, here GGYC, not to alter the instrument's terms to benefit the party that breached those terms, here SNG. See eg (lists 2 decisions by the 1st department - from 2006 and 2004)

--

 

me: No idea how relevant these two cases are, but what he says certainly comes off as a compelling argument. And a few sentences later he argues:

 

--

Anyone who wants more time to perform a legal obligation need only find a reason to breach a legal duty and thus compel litigation to get more time to perform. That is what SNG asks this court to rule.

--

 

Isn't that the heart of his October argument?

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Good article from Cory Friedman in Today's Scuttlebutt

 

Particularly interesting where Cory talks about why GGYC adopts a approach that is almost certainly going to be a loser and may even jeopardise their chances at a March date -

"Thus, it came as a shock when, halfway into its next brief, GGYC launched into an impassioned argument that Justice Cahn had erred when he set the March 2009 as the date, rather than October 2008. To further compound the surprise, GGYC went on at length in apocalyptic language about how anything other than October 2008 will destroy commercial law as we know it in New York. How construing the language of a sui generis Deed of Trust would work such horrors on commercial law, when the Appellate Division will almost certainly limit the decision to the Deed of Trust, is a little hard to follow. In any event, the argument for October 2008 remains extremely weak and unmoored to New York practice.

 

How attacking any part of Justice Cahn’s orders in any respect, thereby undermining the rest of the orders, makes sense is even harder to follow.
The only explanation is that someone overruled Tom Ehman’s sensible approach in the hope of securing a virtual forfeit in October
. It is unlikely that GGYC’s lawyers would have had a vested interest in that strategy, unless the issue of allowing SNG to divert the process with the motions to reargue and disqualify GGYC has arisen internally.
The likely guilty party is higher up on the GGYC client side
. In any event, by biting the hand that fed it, GGYC is playing with fire and may succeed in snatching defeat from the jaws of victory. The last thing in GGYC’s interest is forcing the Appellate Division to really dig into all the issues when it won all the important issues below. You never know what can happen"

 

Cory hints very strongly that someone above T.E. in the BMWO hierachy is very keen to force Alinghi into a forfeit. I'm sure Larry isn't spending all this money so his boat can sail around the course by itself and I'm sure he doesn't want to go down in history as the guy who won the AC by suing for it.

So that leaves Russell. Having Alinghi forfeit is not going to affect his reputation, he's already won 3 on the water and is the most successful AC helmsman in history. Similarly, its not his money being spent on the boat. But he is CEO of the team and if he wants to kick Ernie in the nuts by getting a forfeit in October he will.

 

Two questions -

 

1. Russell, don't you think it's time to grow up a bit and stop being such a crybaby?

 

2. Larry, don't you think it's time for some adult supervision?

 

You are imagining a situation which does not exist.

 

What do you know about Russell ? He is not expecting forfeit from Alinghi. He is a focused guy alrighnt.

He would like to win on the water and in all probablity he would, agains all possible odds.

 

Deed favours defender and that factor alone will tip the scale in Alinghi's favour if it ever.

 

You call RC a crybaby. Wish you have a look at clippings from AC32 and see EB's behaviour after loosing races to TNZ.

 

EB is a biggest crybaby AC has ever seen.

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To clarify the point, I don't think RC is a saint. He has character flaws like everybody else and he bears his share of the blame for what happened in the aftermath of AC31. I was responding to a post which put all the blame on him being a "crybaby", which is ridiculous. It's further asinine to try and reduce everything that's going on to a personal grudge between RC and Ernesto. It's even more tragically ludicrous to think that RC is driving the legal strategy out of personal animosity without the express approval and knowledge of Larry. Larry may be hands off with the day to day running of affairs(and Ernesto would be a lot better off if he'd do the same), but he and RC talk on a daily basis and he is well aware of what's going on and why.

 

This thing has turned into a grudge match, but it didn't have to be one. The folks over at BOR are only human and when the other side constantly makes it personal and attacks you in the press, hearts are going to harden. Remember, it was Ernesto whose first response to this whole thing was to cry "bullshit" and storm out of a press conference (after having locked out reps from Victory, Luna Rossa and others) and issuing a release calling Larry Ellison a "corporate raider" trying to "win in the courtroom what he can't on the water".

 

One only has to talk with those who've worked with Russell and/or Ernesto to get a crystal clear picture of which one is likely to hold a grudge and abuse their power to further it. Remember the portraits of RC and the stache that mysteriously disappeared from the foredeck club? Broadcasters whose jobs were threatened when they talked about Alinghi's halyard lock problems? The head of the challenger commision's pass to the foredeck club being revoked? The PRO whose resignation he asked for after running a race in conditions Ernesto didn't like? The list goes on and on and on.

 

RC is no saint, but he's got a lot of work to do to catch up to Ernesto in the dickhead department.

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The PRO whose resignation he asked for after running a race in conditions Ernesto didn't like?

 

It is a very good thing for Ernesto that this conversation was private. If it had not been private, Ernesto would be banned on a Rule 69. Ernesto was smart enough to use the phone and dodged a bullet.

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The amount that RC is driving legal arguement is impossible to say but he has to be driving the overall strategy. We have seen a lot of evidence of that. It isn't unreasonable for him to be telling the lawyers to be pushing as hard as they can for October because that gives GGYC the best chance of winning, either through default or against an ill prepared team. It is RC's job to ensure they win by whatever legal means they can. I wonder if RC gets his win bonus if SNG forfeit!

 

There is lots of evidence that the high level BOR strategy is being driven by RC. We have pretty good evidence that LE and EB came to verbal settlements at least twice that RC later overuled. I accept that LE might not have fully apreciated what he was agreeing to and therefore it was the correct thing to do, but it is clear that RC is in the driving seat. However, the clearest indication of this was regarding the new rule when BOR stated that if they could be convinced that Alinghi did not have a lead in design because of the way the rule was devolp, there were no other barriers to an agreement. They did this believing that there was no way that Alinghi could prove it but they didn't count on all the other teams supporting Alinghi on this (one) matter. Once it was clear that they couldn't sustain the Alinghi design advantage arguement any more, RC added 4 new demands on top of the 8 point plan that had been agreed. This has never been denied and is certainly how other teams have seen it.

 

IF there is anybody who doesn't believe that RC is driving every key decision that BOR makes, they really don't understand the man. The reason he is so successful is he is a detail man and he needs to control every aspect of the campaign. RC is in control and the team will not go down a route that he hasn't agreed and/or planned.

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We have pretty good evidence that LE and EB came to verbal settlements at least twice that RC later overuled.

 

Cite your evidence, please.

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Once it was clear that they couldn't sustain the Alinghi design advantage arguement any more, RC added 4 new demands on top of the 8 point plan that had been agreed. This has never been denied and is certainly how other teams have seen it.

IIRC those points (the infamous moved goalposts) were not new points dealing with the protocol. They were in response to more happy crap in the competition regs etc. that came out just about the time the design shitfight was going on.

 

GGYC had to bring these up before signing, once they signed they would have been neutered (like the rest of the teams) and could nothing but advise through the 'competitors circle jerk and quilting club' that had no power to change their own underwear much less the protocol or the design rule or the other regulations.

 

Simon, I know you know that the 4 points were a response to more rules from SNG/ACM and could not have been on the original list. You just like to repeat that line in hopes that maybe someone will stop calling you on it.

 

I never seem to get an answer when I ask why the other teams haven't formed a united front behind their champion Challenger of Record CNEV and started a legal and PR war against GGYC's terrible, unjust, and self serving actions? Did ACM forget to give their balls back when the cancelled AC33?

 

If all the other teams wanted to go sailing in AC90's under the AC33 Protocol, why haven't we seen any sign of their outrage? Why haven't they petitioned the court in support of poor misunderstood SNG? Why haven't they formed a challengers association to respond with the truth every time that rotten GGYC tells lies? Why haven't they hired hookers to get the inside scoop on the big GGYC plot to get to the AC final alone and cut poor pitiful them out of the AC? Where is all this stuff?

 

The consensus has been teams standing behind or with GGYC in their effort to get a fair deal for all. If the damn AC33 Protocol was all good for everyone but big bad Larry and his hired gun, why aren't the other teams screaming for a mediator or appealing to the press and public?

 

They know the deal is rotten, and they are too afraid to support either side until one is a sure bet ... then watch these AC poodles come out and back whoever the winner is. If SNG wins, they will claim to be happy that GGYC has been foiled. If GGYC wins, they will say that the hated the AC33 protocol all along but were too afraid of Ernesto to speak up.

 

The very fact that only EB and LE are standing in the ring duking it out tells me that they are the only two worthy of a match for the Cup anyway. The rest ... well ... window dressing mostly. If other teams really cared about the future of the AC, they would pick a side, harden the fuck up, and say so publicly. Only ML and VO have done so, TNZ gets a small nod for standing up for themselves on the contract deal. All the rest can go fuck themselves, they don't have the balls to stand up, they shouldn't get to play.

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If anyone here thinks Larry Ellison isn't in charge of everything he owns and controls, they don't know very much about Larry. Likely that the choice to appeal on the date issue was proposed by the lawyers and approved in the end by all of BMO management including LE and TE and RC. Also, I think it is a close judgment call as to whether or not it was a good strategy to file this claim. Some attorney's would argue that giving an appeals court an opportunity to deny/grant something for each side is a very good thing. Don't think it is as big a mistake as Cory makes it out to be.

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If all the other teams wanted to go sailing in AC90's under the AC33 Protocol, why haven't we seen any sign of their outrage?
We did. The Brits, SA's and Germans all condemned the approach that BOR took, even after the Cup was called off.

 

Why haven't they petitioned the court in support of poor misunderstood SNG?
Because, as I have said many times, what is legally right and morally right aren't always the same thing. I have never suggested that GGYC have done anything that they weren't entitled to under law. However, it doesn't make it right.

 

Why haven't they formed a challengers association to respond with the truth every time that rotten GGYC tells lies? Why haven't they hired hookers to get the inside scoop on the big GGYC plot to get to the AC final alone and cut poor pitiful them out of the AC? Where is all this stuff?
But that is what they have been saying. Try reading it......Oh, I forgot. It is irrelevent if it comes from anybody but GGYC. They have to have been bought by Alinghi. Have you forgotten the Sarno interview, the Team Origin statements and more?

 

The consensus has been teams standing behind or with GGYC in their effort to get a fair deal for all.
They didn't. You seem to forget that when GGYC claimed that the teams supported their proposal, teams came out and denied that support, saying that they only found the proposal acceptable.

 

If the damn AC33 Protocol was all good for everyone but big bad Larry and his hired gun, why aren't the other teams screaming for a mediator or appealing to the press and public?
Nobody said it was so good but they did say they would rather sail under the renegotated terms that Alinghi agreed to than not. We all knew that there was a lot of behind the scenes attempts by teams to get a settlement but as they reported, nobody (on either side) was listening

 

The very fact that only EB and LE are standing in the ring duking it out tells me that they are the only two worthy of a match for the Cup anyway. The rest ... well ... window dressing mostly. If other teams really cared about the future of the AC, they would pick a side, harden the fuck up, and say so publicly. Only ML and VO have done so, TNZ gets a small nod for standing up for themselves on the contract deal. All the rest can go fuck themselves, they don't have the balls to stand up, they shouldn't get to play.
What a load of BS! Teams did stand up to EB and the protocol was substantially changed, as was the process of developing the new rule. People seem to forget that most were actually happy about where the protocol ended up. The final position was not unreasonable. Remember the biggest stumbling block was over such stupid matters as sail buttons, rather than the substantive issues of who employed officials (always a red herring) and whether CNEV was legit (something GGYC were prepared to conceed on).

 

None of what i post says that the protocol was a good one, but it was preferable to where we are now. And the best bit is that the chances are, we will see that protocol again.

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If anyone here thinks Larry Ellison isn't in charge of everything he owns and controls, they don't know very much about Larry. Likely that the choice to appeal on the date issue was proposed by the lawyers and approved in the end by all of BMO management including LE and TE and RC. Also, I think it is a close judgment call as to whether or not it was a good strategy to file this claim. Some attorney's would argue that giving an appeals court an opportunity to deny/grant something for each side is a very good thing. Don't think it is as big a mistake as Cory makes it out to be.

 

Corey does a good job of analyzing the particular issue before the court and analyzing the likely outcome. He usually fails to consider that the duelists are thinking several moves ahead all the time. Sometimes this means they don't necessarily take the tack most likely to win on the particular issue before the court.

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We did. The Brits, SA's and Germans all condemned the approach that BOR took, even after the Cup was called off.

 

Because, as I have said many times, what is legally right and morally right aren't always the same thing. I have never suggested that GGYC have done anything that they weren't entitled to under law. However, it doesn't make it right.

 

But that is what they have been saying. Try reading it......Oh, I forgot. It is irrelevent if it comes from anybody but GGYC. They have to have been bought by Alinghi. Have you forgotten the Sarno interview, the Team Origin statements and more?

 

They didn't. You seem to forget that when GGYC claimed that the teams supported their proposal, teams came out and denied that support, saying that they only found the proposal acceptable.

 

Nobody said it was so good but they did say they would rather sail under the renegotated terms that Alinghi agreed to than not. We all knew that there was a lot of behind the scenes attempts by teams to get a settlement but as they reported, nobody (on either side) was listening

 

What a load of BS! Teams did stand up to EB and the protocol was substantially changed, as was the process of developing the new rule. People seem to forget that most were actually happy about where the protocol ended up. The final position was not unreasonable. Remember the biggest stumbling block was over such stupid matters as sail buttons, rather than the substantive issues of who employed officials (always a red herring) and whether CNEV was legit (something GGYC were prepared to conceed on).

 

None of what i post says that the protocol was a good one, but it was preferable to where we are now. And the best bit is that the chances are, we will see that protocol again.

 

If none of what you post says the protocol is a good one, but it is preferable to where we are now - how does this make any sense at all?

 

You'd rather see the Defender - Erne$to, lie and cheat to create and then empower a sham yacht club, completely trash 150 years of the very basis of competition between Defender and Challenger for the sake of what? So a few also rans are able to get a paycheck because they want to say they sailed in the Challenger series, and got paid for it?

 

Who exactly is this "we" you are talking about being better off with an even slightly watered down version of ErnieVi$ion?

 

I am of the opinion that the beauty of the Cup is that it has lasted for more than 150 years. There is nothing like it in any sport anywhere on the planet. Leagues all start with a fresh slate each season in every sport. The Cup says "I'm baddest motherfucker on the water, you want to come get me, here's the rules. Man up bitch and try to beat me. Pimp your ride, see you in 10 months, or, lets talk and see if want to play it all another way."

 

You on the other hand, seem to be satisfied with a sailing parade based on "The Emperor's New Clothes".

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The amount that RC is driving legal arguement is impossible to say but he has to be driving the overall strategy. We have seen a lot of evidence of that. It isn't unreasonable for him to be telling the lawyers to be pushing as hard as they can for October because that gives GGYC the best chance of winning, either through default or against an ill prepared team. It is RC's job to ensure they win by whatever legal means they can. I wonder if RC gets his win bonus if SNG forfeit!

 

There is lots of evidence that the high level BOR strategy is being driven by RC. We have pretty good evidence that LE and EB came to verbal settlements at least twice that RC later overuled. I accept that LE might not have fully apreciated what he was agreeing to and therefore it was the correct thing to do, but it is clear that RC is in the driving seat. However, the clearest indication of this was regarding the new rule when BOR stated that if they could be convinced that Alinghi did not have a lead in design because of the way the rule was devolp, there were no other barriers to an agreement. They did this believing that there was no way that Alinghi could prove it but they didn't count on all the other teams supporting Alinghi on this (one) matter. Once it was clear that they couldn't sustain the Alinghi design advantage arguement any more, RC added 4 new demands on top of the 8 point plan that had been agreed. This has never been denied and is certainly how other teams have seen it.

 

IF there is anybody who doesn't believe that RC is driving every key decision that BOR makes, they really don't understand the man. The reason he is so successful is he is a detail man and he needs to control every aspect of the campaign. RC is in control and the team will not go down a route that he hasn't agreed and/or planned.

 

You are talking about evidence without giving one.

 

All of us know including the ones who don't like RC that any given time EB was scared of RC on lthe water, OTHERWISE WHY WOULD HE GO OUT OF HIS WAY TO KEEP RC

OUT OF AC32.

Not only this , going by the letters exchanged between TNZ and Alinghi, efforts were there to keep RC/LE out of AC33. What kind of sportsmanship are we talking about here.

What a way to win the cup? Keep best of the competition out, craft a lopsided protocol and keep the cup for ever and turn it into a commercial ciircus for own monetary gains.

 

EB has all the right to compete and win the cup by fair means but not the way he tried to play with the rules.

 

There is no point talking about Brits, SAs etc. They just fall into " Also Ran" category and would always favour the side where scale is tipped.

By the way, they also sided with the last letter sent by Oracle to Alinghi looking for a dignified end to the whole affair. Why aren't you talking about that?

 

Please give us one good reason for Alinghi rejecting that out of hand.

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We did. The Brits, SA's and Germans all condemned the approach that BOR took, even after the Cup was called off.

Two teams with an iceberg's chance in hell of winning the Cup and one speaking through the ex-ACM mouthpiece.

 

Because, as I have said many times, what is legally right and morally right aren't always the same thing. I have never suggested that GGYC have done anything that they weren't entitled to under law. However, it doesn't make it right.

It has been my experience that those that are morally outraged scream much louder than others, I invite everyone to read the posts here from early July from just before the first rumor of the GGYC court action was heard. Everyone was screaming bloody murder about the protocol and no one thought there was anything that could be done about it. When GGYC stepped up and filed the complaint, the reaction was nice try, but they won't win (even though we wanted them to). So it is my opinion that if the clubs/teams feel moral outrage at GGYC's actions that we would have heard from them loud and clear. Look at the air time Joe Fly got from inciting moral outrage, the poor wronged challengers should be able to do as well ... yet they are silent.

 

But that is what they have been saying. Try reading it......Oh, I forgot. It is irrelevent if it comes from anybody but GGYC. They have to have been bought by Alinghi. Have you forgotten the Sarno interview, the Team Origin statements and more?

Sarno is not a serious contender for the Cup. He bought the BS about cost reduction and may still believe it. Team Origin? They conspired with SNG to file a challenge to take GGYC's place. The only way they could challenge is to file the challenge and then go to court with SNG to have GGYC's challenge declared invalid. Where are their lawyers? Where is their complaint? Where is their brief in support of SNG's position? Talk is cheap, Team Origin is a non-event.

 

They didn't. You seem to forget that when GGYC claimed that the teams supported their proposal, teams came out and denied that support, saying that they only found the proposal acceptable.

That is more support than SNG got. If they think SNG's protocol was a good deal, why didn't they shun GGYC and go racing? Because they know that sailing in an event that is so rigged that GGYC won't sail at all would reduce their sponsorship income? GGYC is just one of 13 clubs (if you accept SNG's count) that wanted to sail for the Cup. Why does everyone think that they can't sail without GGYC? Why did they work with GGYC for a compromise and not CNEV? Why not work with SNG do make the event happen? Not having GGYC there dramatically improves the other team's chances of winning. Weak as water ... the whole lot.

 

Nobody said it was so good but they did say they would rather sail under the renegotated terms that Alinghi agreed to than not. We all knew that there was a lot of behind the scenes attempts by teams to get a settlement but as they reported, nobody (on either side) was listening

Yes the AC crack whores that need the AC more than the AC needs them would go sailing under any rules, they aren't going to win anyway. If they are lucky and ACM can get the people of Spain to cover expenses (in part), its all good. We get to strut around in our nifty team gear and try to hook up with AC groupies.

 

What a load of BS! Teams did stand up to EB and the protocol was substantially changed, as was the process of developing the new rule. People seem to forget that most were actually happy about where the protocol ended up. The final position was not unreasonable. Remember the biggest stumbling block was over such stupid matters as sail buttons, rather than the substantive issues of who employed officials (always a red herring) and whether CNEV was legit (something GGYC were prepared to conceed on).

The teams stood up? What power did they have to change anything? Sorry, you might get other people to read the before and after protocols and call the changes substantial, when I read them they look like a combination of a bit of common sense and minimum lip service to appease GGYC. They never changed the big things. I was almost willing to give SNG the benefit of the doubt that the protocol was hasty and poorly worded, then they continued on with the Comp Regs, the design panel charade, and the bogus arbitration. The comp regs were just as bad as the protocol. Only those with no hope or no choice would embrace them. GGYC gave them a choice and some hope for a better deal, so they talked to GGYC rather than CNEV or SNG.

 

None of what i post says that the protocol was a good one, but it was preferable to where we are now. And the best bit is that the chances are, we will see that protocol again.

I agree, if SNG is the trustee, we will likely see another version of the worst protocol in history.

 

I also agree that the way GGYC has pursued this matter leaves them open to criticism.

 

What will seal the deal is the anti-trust case to have SNG removed as trustee. If they don't fold their tent and go back to making cheese I'll be very surprised. GGYC should have pressed the breach of trust complaint. That is going to be a long, expensive, and messy road. However it is the right way to stop SNG and any future trustee from attempting wholesale changes to the Cup.

 

Not that anyone at the AC level cares what I think, but if SNG cannot be proved to be in breach and removed as trustee then two things will become true. The Cup will cease to be of any interest to me (who cares) and I'll have even less faith in the US legal system being able to create a just outcome.

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Looking back at Kearny's argument on the brief, I think it has not been proven that CNEV/Desafio's failure to meet the qualification standards of the deed of gift are attributable to SNG. That is to say, CNEV may not qualify as a challenger because it doesn't meet standards imposed by the DoG, but that is a far cry from a legal finding that CNEV's failure is attribuable to SNG. After all, they participated in the previous AC. SNG and CNEV are continuing to argue that CNEV meets the minimal standards imposed by the DoG and therefore they are obligated to respond to CNEV's challenge before they can consider the challenge from GGYC. Certainly, Judge Cohn hasn't found that CNEV's failures are attributable to SNG.

 

Therefore, I think that Kearny's high-flying rhetoric is misplaced because there is no finding from the court below that SNG was a "wrong-doer" when it accepted CNEV's challenge, and lacking that, there is no reason not to toll the race dates. (And if SNG had realized that CNEV didn't qualify, they surely would have gone to another club, GGYC would have been SOL on their summary judgement motion, andthey would be fighting a much more difficult battle about the fundamental fairness of the SNG/CNEV Protocol.)

 

However, as I suggested above (and to return to Cory Friedman's metaphorical quotation), losing on this point may give the court an opportunity to give each of the parties a part of the baby.

 

On the "employing thousands of people" issue from my previous post, no matter how you slice or dice the question, this lawsuit is about the toy box of life and rich guys fighting over who gets to be the pitcher on their own baseball team. And the court knows it.

 

In my experience, the loudest screamers are those who pretend to be morally outraged, often because they don't have a strong legal position.

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What are you talking about ? Everybody here knows that CNEV met all the standards required by the DoG.

 

Disagree entirely. I do not agree that CNEV can meet the debated clause in the deed by pointing to a spot on the water and saying "there's the course for the regatta we intend to have in the future". By that standard a club could challenge for, win, defend, lose, challenge again, etc. etc. without ever actually having had a regatta. It's absurd on the face of it. Schuyler's intent is obvious and the grammatic parsing that's been going on around here is ludicrous.

 

 

The only standards that it didn´t comply with were the extrinsic requirements (website , phone number , members etc) that OR foisted onto JC - extrinsic requirements that clearly run against the MB decision. Look at the four corners of the Deed and find where it bans a nascent yacht club from challenging.

 

GGYC didn't foist anything on JC. They provided additional evidence that CNEV was a sham club which JC called "convincing" but did not base his decision on. JC based his decision purely on CNEV's failure(in his opinion) to meet the annual regatta(or course for such, if you prefer) requirement of the deed. You're free to disagree with that decision, but it had nothing to do with the website, phone number, etc. points.

 

The interesting question is why nobody has heard from CNEV since ? (aside from the usual rant that IDW2K will doubtless serve up about no matter which way you cut it etc. etc. (yawn)) .

 

I love you, too, schnookums.

 

You know as well as I do why nobody has heard from CNEV. It doesn't exist except on paper and its architects have found themselves among the most unpopular men in Spanish sailing.

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Schuyler's intent is obvious and the grammatic parsing that's been going on around here is ludicrous.

 

 

Bullshit, and you know it. Schuyler's intent was to exclude challenges from the Great Lakes and that had nothing to do with how many regattas they had held and everything to do with the location of their clubs.

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Bullshit, and you know it. Schuyler's intent was to exclude challenges from the Great Lakes and that had nothing to do with how many regattas they had held and everything to do with the location of their clubs.

 

Yes, I agree that it was about excluding the freshwater clubs from challenging, but the need to have regattas is clearly implied in the course requirement. As I said above, reading it to refer exclusively to the course would allow a club on the sea to challenge again and again without ever having a regatta. Just a course for a regatta if they ever decide to have one.

 

In fact, if you combine it with the current en vogue idea that the club can defend wherever it wants, this would allow any Joe Schmoe to file papers in Kansas for the "Wichita Yacht Club, Inc." and challenge for the cup by pointing to a random spot in the ocean and saying "That's where our annual regatta will be held. If we hold one. Which we don't actually have to."

 

It's farcical.

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NO . Read the decision. JC based his decision on a phrase - and its´ interpretation - which JUST DOES NOT EXIST IN THE DEED. PERIOD.

 

Everything else is EXTRINSIC.

 

Mercury Bay doesn't prohibit extrinsic evidence from being considered on the bona fides of a challenging yacht club. Indeed, the requirements DEMAND that the trustee and the court do so.

 

It prohibits extrinsic evidence being considered as to the intent of the donor unless the language of the deed is unclear.

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Freshwater vs. Brine ? The historical record indicates that a correct interpretation would allow this clause to disqualify challenges that have blatantly inadequate financial or technical support. Unfortunately MB does not allow access to this line of reasoning. Under MB you can only consider the literal import - which is the the challenging yacht club MUST HAVE an arm of the sea on which they could have a regatta - and the first annual will suffice in this regard.

 

How does one "have" an arm of the sea? Does that indicate ownership? The club has to own the water on which its regatta will be run? By that reading no club on earth could challenge.

 

Doesn't my hypothetical Wichita Yacht Club (I wonder if there is one!) have just as much of a claim to "having" a suitable course if they can point out where it would be, how they would get there, buoys, committee boat, etc. ? The NYYC doesn't own the course it races on, and it doesn't race in the waters just off the beach (err...shore).

 

The only reasonable, enforcable test for the course requirement is for the club to have already held a regatta on the course that satisfies the deed requirement.

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The only reasonable, enforcable test for the course requirement is for the club to have already held a regatta on the course that satisfies the deed requirement.

 

 

Oh Nooooooo, are we back on the 'having' argument again??????

 

 

Please let's get some good juicy stuff from the appeals court tomorrow.

 

 

Sparbuilder, we're countin' on ya. We probably need a good six weeks worth of info to make sure we've got it covered for a while around here.

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The only reasonable, enforcable test for the course requirement is for the club to have already held a regatta on the course that satisfies the deed requirement.

 

Quite right ... *at the time they sail the match* ... don't need it to challenge.

 

The Deed is unclear on this and other points. The ultimate Catch-22 of the Deed is that the people that could make the intent clear, are the ones best served by it being vauge ... New York Lawyers.

 

Hint to Seb ... if you want to be entitled to a paycheck from the AC ... be a lawyer ... not a third rate tactician.

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Quite right ... *at the time they sail the match* ... don't need it to challenge.

 

According to SNG, yes. The deed itself doesn't really make it clear, however when you combine the yacht club requirements with the "no other challenges may be considered" portion, the only acceptable interpretation that doesn't create a ridiculous morass of confusion as to who is the rightful challenger is is to expect the requirements to be met at the time of the challenge and to act as if it never existed if they are not.

 

The alternative is so ridiculous...you don't even want to go down that road.

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The alternative is so ridiculous...you don't even want to go down that road.

 

Well, it seems that if you use the Deed as written for a chart ... you end up lost in the NY courts for years ... :)

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