3847 replies to this topic

[dogwatch]

There is nothing, not a word, about anyone submitting to be a defense candidate for the holder of the Cup. Therefor there cannot be a BoFD case against the trustee for not following the DoG.

The BoFD claim relates to complaints about SF property handling. The claim to be allowed to compete in ACWS is an allegation of breach of contract and breach of trust related to the protocol and has nothing to do with BoFD.

If you read counts 1-3 starting p28 in the summons this should become clearer.

[pjfranks]

SR, I agree with some of your arguments, we don't know much about ADM, but where does the Deed, or even the protocol mention that a defender selects a competitor depending on his assessment of finance of the competitor ? Clearly any competitors of the defenders country has right to participate if they follow the proper process. All ADM is asking is GGYC to respect his duties.

Amusing too that GGYC refused the 25 000 $ because fees were not mentioned and lack of a signatures. Pretty much the same scenario when they refused to select TNZ as CoR.

I just find it strange that they did not attack the deal with CNR as a BOFD.

I think you'll find they has a pretty good crack at VO's "sponsors" uniform.

[pjfranks]

[quote name='Surf City Racing' timestamp='1323910958' post='3507773']
Ask yourself who's really behind the lawsuit. This whole thing reeks of a sham! This is the same law firm that was involved in the last GGYC lawsuit, I believe. Same MO, sneaky lawyer trick serving papers right before the holidays.

Really, there are only two possibilities, and they've both been mentioned in this thread...one back on page two. Wait until we find out who it is.

[quote]
What? You mean like GGYC writing to ADM only last Friday? Disgraceful.

[~Stingray~]

This is the same law firm that was involved in the last GGYC lawsuit, I believe.

Don't think so. I think you'll find the "connection", such as it is, is that the lawyer previously worked for a firm which previously worked for SNG.

HHN is correct that this guy did work for a law firm who worked for SNG during the AC33 litigation; but I think he left that firm just prior to them getting the case.

Agreed that the fact does not suggest anything EB; but it is of course ~possible~ that something else will.

The AC is a smallish world and of that circle, the guys willing, able or keen to try f*ck with Larry probably even smaller, right? It's not all ~that~ far out of the realm of possibilities.

[ccruiser]

^ How does your bold have anything to do with ADM?

GGYC, "the Club holding the Cup," will for certain use "one yacht or vessel" to Defend the Cup.. it just won't be one built and sailed by ADM, unless there's a great effing deal more behind that effort than is apparent so far.

Think about it: It is in GGYC's and OR's best interests for there to be a strong Defender Selection Series. I expect they wish that there ~had been~ something, almost anything, to suggest ADM could step up and be competitive to the OR campaign. But all we can find is a non-profit company behind it, registered in only October. The suit filed mentions almost nobody by name and doesn't even quote them. Couldn't the supposed designer guy have at least vetted for their potential?

Since I think the SF real estate stuff is barely palatable even to an LE, and since ADM is not asking or offering to take on a long term share of the risks in it, then: it's hard to know what on earth ADM is even trying to accomplish. Is it the 'boat park' in North Carolina they mention? Someone should get hold of that NC public official for comment; presumably he has nothing to hide and can talk freely about wth that part is all about? edit:could be this guy, 'Secretary J. Keith Crisco NC Department of Commerce' seen here.

Looks like the same cast of characters from the last litigation commenting again, with some additions. I have been blissfully avoiding this forum, for what are obvious reasons. Since reason and the terms of the deed of gift had little or no effect then, I must assume it will have none at this point. So I fear you are wasting your time and breath. I wish you luck.

Prediction though the lawsuit is thrown out, in its entirety. Under the Protocol the defender candidate is defined as "Defender Candidate means a team selected by GGYC to participate in the America’s Cup Defender Series, if any." and "GGYC will review Defender Candidate applications and will accept those it is satisfied have the necessary resources (including but not limited to financial, human, and technological) and experience to have a reasonable chance of winning the America’s Cup Defender Series." There is a very good argument that this is a "personal" standard, (it always was with the New York Yacht Club), but even on an "objective" standard the Plaintiff has a substantial uphill battle. Finally look at the fee/bond schedule, we are not talking about $2,500 here, and they do not allege that they could have posted the $1,500,000 performance bond on April 30, 2011 - surely they must have had this lined up when they submitted the application, they only had 60 days to post it. Finally the lawsuit confuses challenger from defender, DofG challenge and mutual consent challenge, (both for this event and the last event - alleging that Oracle only won its way into the finals "by litigating" and was untested by preliminary racing. Of course there were no finals last time, as it was a pure deed of gift challenge, the litigation was to require SNG to accept the Challenge at is start, and neither club used a sailing series to select its boat, there were just the America's Cup races); as well as the duties of the Holder to a challenger, as compared to the lack of any duty to any one who wants to defend; and that anyone they chose is defending for the Holder. Under the deed GGYC must accept any complying challenge, i.e. foreign yacht club. The deed places no responsibility on the holder to make the defense available to anyone who feels like defending, and as the defender has to be given wide latitude to select who it wishes to represent it. Anyway enough - I cannot tell you how many of these upside down complaints I have seen in many decades of litigating.

This BOFD assertion about the real estate is a little puzzling, perhaps you can give me a reasonable statement of the assertion. Seems like the only fiduciary duty of the Defender under the DofG is to accept a legitimate challenge for the Cup, and to comply with the deed provisions sets out the rules for the challenge/races, when they are not arrived at by mutual consent. As we know from last time there is, and can be no required mutual consent. In this iteration of the Cup we have mutual consent. While the Protocol exempts real estate revenues from sharing - that misses an even more significant point - revenue sharing is not a part of the deed of gift. The Defender is not required under the DofG to share its revenues from whatever source with the Challenger - the deed of gift relates solely to yacht racing. So explain to me how GGYC or Oracle retaining its revenues is a breach of fiduciary duty under the DofG - does Larry have to share his income, does GGYC have to put in their yearly dues, parking fees? So please tell me where this argument comes from. Thanks.

[pjfranks]

This BOFD assertion about the real estate is a little puzzling, perhaps you can give me a reasonable statement of the assertion. Seems like the only fiduciary duty of the Defender is to accept a legitimate challenge for the cup, and to comply with the deed provisions sets out the rules for the challenge, when they are not arrived at by mutual consent. As we know from last time there is, and can be no required mutual consent. In this iteration of the Cup we have mutual consent. While the Protocol exempts real estate revenues from sharing - we miss an even more significant point - revenue sharing is not a part of the deed of gift. The Defender is not required under the DofG to share its revenues from whatever source with the Challenger - the deed of gift relates solely to yacht racing. So explain to me how GGYC or Oracle retaining its revenues is a breach of fiduciary duty under the DofG - does Larry have to share his income, does GGYC have to in their yearly dues, parking fees? So please tell me where this argument comes from. Thanks

I may be wrong but I believe this point is raised under US law rather than the deed.

[Surf City Racing]

This is the same law firm that was involved in the last GGYC lawsuit, I believe.

Don't think so. I think you'll find the "connection", such as it is, is that the lawyer previously worked for a firm which previously worked for SNG.

I know there are those who like to see EB lurking in every shadow but so far there is not evidence of that.

Possibly, but I think there is some evidence. I can't research it until later.

The other theory that I just heard is completely and utterly tinfoil-hat conspiracy theory. I need to research that one a bit, but it's the one that I alluded to earlier.

There's some weird stuff coming along with this one, I tell ya.

The face value doesn't make much sense to me.

[~Stingray~]

Ccruiser ^ Well said on revenues and I happen to agree.

This 'Trust' - unlike what most people think of as Trusts - is not one in a financial sense; more, it is a perpetual commitment to defend the Cup as you say. Challenging yacht clubs are beneficiaries ~only~ in their right to make a Challenge in a Match for that Cup.

This trust's Deed, as you say, says nothing at all about finances.

[ccruiser]

This BOFD assertion about the real estate is a little puzzling, perhaps you can give me a reasonable statement of the assertion. Seems like the only fiduciary duty of the Defender is to accept a legitimate challenge for the cup, and to comply with the deed provisions sets out the rules for the challenge, when they are not arrived at by mutual consent. As we know from last time there is, and can be no required mutual consent. In this iteration of the Cup we have mutual consent. While the Protocol exempts real estate revenues from sharing - we miss an even more significant point - revenue sharing is not a part of the deed of gift. The Defender is not required under the DofG to share its revenues from whatever source with the Challenger - the deed of gift relates solely to yacht racing. So explain to me how GGYC or Oracle retaining its revenues is a breach of fiduciary duty under the DofG - does Larry have to share his income, does GGYC have to in their yearly dues, parking fees? So please tell me where this argument comes from. Thanks

I may be wrong but I believe this point is raised under US law rather than the deed.

[pjfranks]

This is the same law firm that was involved in the last GGYC lawsuit, I believe.

Don't think so. I think you'll find the "connection", such as it is, is that the lawyer previously worked for a firm which previously worked for SNG.

I know there are those who like to see EB lurking in every shadow but so far there is not evidence of that.

Possibly, but I think there is some evidence. I can't research it until later.

The other theory that I just heard is completely and utterly tinfoil-hat conspiracy theory. I need to research that one a bit, but it's the one that I alluded to earlier.

There's some weird stuff coming along with this one, I tell ya.

The face value doesn't make much sense to me.

Sounds like there's some serious concern at GGYC?

[sunseeker]

HHN and CCruiser make excellent points about the differentiation between the Defender and Challenger selection process. Moreover, the plaintiff discussing "raising the money" for the entry fee. That on its face is enough to tell GGYC they were not then a viable candidate to serve as a defense trial horse. Is Capt. Kithcart serious? He thinks just be getting an entry accepted that will allow him to gain sponsorship to be an effective and credible defender? Look how few new sponsors have signed up with rock solid teams, hardly any. If Capt Kitchart did raise the $25,000 entry fee, from whom did he raise it?

Moreover, how is it that a company which was just recently formed can have standing to sue for entry, when that entity was not formed even prior to the entry deadline?

This case isn't going anywhere, but it sure would be interesting to know who is behind it. With all the focus on the real estate, maybe it is someone in San Francisco who just wants to derail the event, for whatever reason.

[ccruiser]

Pjfranks - I am unaware of any law that requires revenue sharing. Under US law there has to be a duty created by some legal mechanism - 1. in the tort area it is created by the duty to not engage in intentional or negligent conduct under certain circumstances; 2. under contract law under the terms of an enforceable contract - here as I point out the Protocol, (the only contract in this instance),exempts real estate revenues generated by any participant from the contractually provided for sharing, and there is of course no legal requirement that GGYC or anyone else agree to share revenue. So you are stuck with the fiduciary duty claim. This can arise in two ways an express trust - as asserted here and an implied trust, not applicable IMHO as at its heart it requires that a party have received a benefit it was not entitled to, e.g. by misappropriating someone elses' property.

So your statement is circular - under US law you have to have a legal basis for a claim - a breach of fiduciary duty can only arise from 1. the existence of a fiduciary relationship, here the deed of gift; and 2. a breach of that duty. Where is the duty under the DofG - in short where does the DofG require that the Holder share its revenues?

[~Stingray~]

With all the focus on the real estate, maybe it is someone in San Francisco who just wants to derail the event, for whatever reason.

Been wondering the same. This Kithcart guy, and a friend of his, worked for a ferry company from off the SF waterfront, that was later purchased by a much larger shipping company, that is privately owned by a third generation guy named Crowley; I forget the details that I fast-flipped thru last night but he's probably a billionaire and has also, I think, had some waterfront real estate legal disputes in SF. It's a long shot, but I suppose another possibility given the real estate angle. edit: fwiw, this Crowley http://www.crowley.c...s-B.-Crowley-Jr

[ccruiser]

HHN and CCruiser make excellent points about the differentiation between the Defender and Challenger selection process. Moreover, the plaintiff discussing "raising the money" for the entry fee. That on its face is enough to tell GGYC they were not then a viable candidate to serve as a defense trial horse. Is Capt. Kithcart serious? He thinks just be getting an entry accepted that will allow him to gain sponsorship to be an effective and credible defender? Look how few new sponsors have signed up with rock solid teams, hardly any. If Capt Kitchart did raise the $25,000 entry fee, from whom did he raise it?

Moreover, how is it that a company which was just recently formed can have standing to sue for entry, when that entity was not formed even prior to the entry deadline?

This case isn't going anywhere, but it sure would be interesting to know who is behind it. With all the focus on the real estate, maybe it is someone in San Francisco who just wants to derail the event, for whatever reason.

The standing issue is a substantial roadblock. Hard to imagine that there would be folks in SanFran that would want to derail this event These are the folks who argued about the repair of the Bay Bridge for almost 20 years.

[pjfranks]

Pjfranks - I am unaware of any law that requires revenue sharing. Under US law there has to be a duty created by some legal mechanism - 1. in the tort area it is created by the duty to not engage in intentional or negligent conduct under certain circumstances; 2. under contract law under the terms of an enforceable contract - here as I point out the Protocol, (the only contract in this instance),exempts real estate revenues generated by any participant from the contractually provided for sharing, and there is of course no legal requirement that GGYC or anyone else agree to share revenue. So you are stuck with the fiduciary duty claim. This can arise in two ways an express trust - as asserted here and an implied trust, not applicable IMHO as at its heart it requires that a party have received a benefit it was not entitled to, e.g. by misappropriating someone elses' property.

So your statement is circular - under US law you have to have a legal basis for a claim - a breach of fiduciary duty can only arise from 1. the existence of a fiduciary relationship, here the deed of gift; and 2. a breach of that duty. Where is the duty under the DofG - in short where does the DofG require that the Holder share its revenues?

ADM have a bunch of good lawyers by all accounts.

[jorgensen-online]

Busy with work for over a year, and return to wade through this....


I cannot help to notice the confusion between what a candidate defender is and a challenger in the complaint.

The AC34 Protocol from what I remember has an outline of sorts for possible alternate defender candidates, but it assumed that they would be viable ones.
The Deed does not care how the defending Club select the defending Boat, if I recall in concert with the selection the skipper if not previously became a member of the Defending Club?
I remember that the NYYC was teased in print about admitting Ted Turner at the time of his selection as the Defending Skipper long ago.

Does an AC34 Defender or candidate even Need to race in the ACWS? And if they do, does that encroach into the Defender's entry quantity in the ACWS?

This suit will have to be handled adroitly by GGYC, primarily with respect to PR as others have mentioned.

I too agree there must be something else behind the actual paperwork.

[~Stingray~]

^ Pjf, remember EB's famous last words?

"We will win because we have the best lawyers!"

3 law firms and 13 out of 14 losses later, he got beaten on the water too. My overall sense of it was a pretty bad misunderstanding of the Deed, and so therefore what the lawyers were ordered to try argue. This suit here is problematic in that respect too.

Again, will be interesting to see CF's take on it. Could be he will find serious threat in the suit but it will surprise me if he does, at least in 'Part 1' of this new series.

[Surf City Racing]

This is the same law firm that was involved in the last GGYC lawsuit, I believe.

Don't think so. I think you'll find the "connection", such as it is, is that the lawyer previously worked for a firm which previously worked for SNG.

I know there are those who like to see EB lurking in every shadow but so far there is not evidence of that.

Possibly, but I think there is some evidence. I can't research it until later.

The other theory that I just heard is completely and utterly tinfoil-hat conspiracy theory. I need to research that one a bit, but it's the one that I alluded to earlier.

There's some weird stuff coming along with this one, I tell ya.

The face value doesn't make much sense to me.

Sounds like there's some serious concern at GGYC?

Some concern, absolutely. Whither it's new lawsuit concern or "serious concern" remains to be seen.

So who's behind it? A small African American wannabe AC Team that established their corporate status mere months ago and had to have their 25 G entry paid by a SFBay local sailor? Is the owner that much of a "dreamer" that he can't see what actually takes to run an AC team, and now he feels slighted by the AC machine?

It's not adding up to me.

I'm all for dreaming, BTW. I'm a big dreamer myself.

[pjfranks]

This is the same law firm that was involved in the last GGYC lawsuit, I believe.

Don't think so. I think you'll find the "connection", such as it is, is that the lawyer previously worked for a firm which previously worked for SNG.

I know there are those who like to see EB lurking in every shadow but so far there is not evidence of that.

Possibly, but I think there is some evidence. I can't research it until later.

The other theory that I just heard is completely and utterly tinfoil-hat conspiracy theory. I need to research that one a bit, but it's the one that I alluded to earlier.

There's some weird stuff coming along with this one, I tell ya.

The face value doesn't make much sense to me.

Sounds like there's some serious concern at GGYC?

Some concern, absolutely. Whither it's new lawsuit concern or "serious concern" remains to be seen.

So who's behind it? A small African American wannabe AC Team that established their corporate status mere months ago and had to have their 25 G entry paid by a SFBay local sailor? Is the owner that much of a "dreamer" that he can't see what actually takes to run an AC team, and now he feels slighted by the AC machine?

It's not adding up to me.

I'm all for dreaming, BTW. I'm a big dreamer myself.

Is SW the mystery local sailor?

[~Stingray~]

Does an AC34 Defender or candidate even Need to race in the ACWS? And if they do, does that encroach into the Defender's entry quantity in the ACWS?

This suit will have to be handled adroitly by GGYC, primarily with respect to PR as others have mentioned.

I too agree there must be something else behind the actual paperwork.

For some things including the ACWS all syndicates are treated equally, be they Challengers or Defense candidates. And that is team based, not club based, so GGYC's defense candidate teams could all, hypothetically, race up to 2 boats in the ACWS; and would be required to compete with at least one AC45.

PR wise it has been amazingly quiet so far; almost as if nobody cares. But you'd think that will change in time.

The 'who is behind the lawsuit' is definitely intriguing; the original ADM application, probably one of the fifteen originally received, is kind of understandable on the surface; even appealing in some sense. But whoever waited until late December to step into it, must be quite a character. I am guessing Kithcart, or more likely whoever did the K25 for him, that GGYC returned, eventually got somebody big's ear. It appeals to them for some reason.

[~Stingray~]

Batten Down the Hatches! New Litigation Storm Brewing Over America's Cup

Jan WolfeContactAll Articles

December 14, 2011

--

In the run-up to the last edition of the America's Cup sailing race, contestants seemed to spend more time in court than on the water. Now there's new trouble on the high seas. A new lawsuit accuses the defending champion and current race organizer of favoritism and self-dealing.

A non-profit called African Diaspora Maritime filed a complaint in New York state court on Monday accusing the Golden Gate Yacht Club, which is the current America's Cup holder and is organizing the next race, of breaching its fiduciary duties as a trustee. ADM and its lawyers at McDermott Will & Emery claim GGYC invented "sham reasons" for rejecting its application to field a team in the race, slated for 2013 in San Francisco. ADM also claims that GGYC used its status as race host to ink lucrative waterfront real estate deals and then excluded other America's Cup participants from sharing the benefits.

GGYC is the home port of the Oracle Racing team, bankrolled by Oracle CEO and yachting enthusiast Larry Ellison. When Oracle Racing won a controversy-mired 33rd edition of the race in 2010, GGYC, per tradition, took control of a trust called the America's Cup Deed of Gift. As trustee, GGYC gets to lay down the rules for picking a U.S.-based "defender" team that competes for the title against a foreign "challenger." ADM alleges that GGYC, which has long partnership with Oracle Racing, told other U.S. teams they could compete against Oracle Racing for the defender spot.

ADM, a North Carolina non-profit aimed at getting young African-Americans involved in competitive sailing, claims it organized a team of award-winning sailors and filed a timely defender application. That application was rejected, ADM says, on the grounds that it hadn't raised enough money. Meanwhile, GGYC allegedly accepted bids by teams with less funding. "There is little doubt that Team Oracle Racing wishes to be the Defender and little doubt that GGYC wants Team Oracle Racing to be the Defender," ADM's lawyers at McDermott Will alleged in Monday's complaint.

We reached out to ADM counsel Banks Brown at McMermott. He didn't get back to us, but he did put us in touch with skipper Charles Kitchcart, ADM's founder and one of the few African-Americans to ever compete in the America's Cup. He told us that GGYC would be wise to allow his nonprofit to field a team, because its mission will attract new fans and corporate sponsors. "We can break the country club mentality of competitive sailing, just like Arhur Ashe did with tennis," Kitchcart said.

As in previous America's Cup litigation, GGYC has called upon Boies Schiller & Flexner to represent it in the case. Boies Schiller partner Philip Bowman declined to comment.

"We believe the lawsuit is utterly without merit and that GGYC will prevail," GGYC said in an e-mailed statement. "You only have to read the last paragraph of the complaint to realize what this is really about," a GGYC spokesman added, referring, we think, to ADM's request for relief. ADM proposed a race for the "defender" title in which a time or point penalty is placed on GGYC's yacht and ADM would be furnished with at least two high-tech yachts. ADM also proposes relief in the form of money damages in excess of $1 million.

--

[Tornado-Cat]

1. There is nothing, not a word, about anyone submitting to be a defense candidate for the holder of the Cup.
2.Therefor there cannot be a BoFD case against the trustee for not following the DoG.
3. Selecting the defender yacht is at the descretion of the defending club.

1. Not really: "against any one yacht or vessel constructed in the country of the Club holding the Cup". The Deed does not specifies what club the boat is belonging. The boat could also come from another YC and racing under GGYC.

2. Yes, as the Deed says nothing about the selection process there no reason why a defense competitor can be exluded.

3 Amusing, where did your read that ? Nothing is specified and I don't think it has been validated in a court before.

Conclusion, as the Deed does not specifies that you select a competitor on his wealth, nothing forbids a competitor that feels cheated to go to courts. The results ? who knows?... but is it even important ?

I allways said that I am happy to have exciting races with fast boats, but that basing the circus on the AC was innapropriate and dumb.

[Tornado-Cat]

...
It is going to be interesting.

But my bet says that they are going to spend more than they get out of this. Larry will just sail them out past the lay line.

+1 to that, they must surely be underestimating Larry's ability to bring frightening legal fire-power to bear.

^
Do you really think the person behind is not aware of that ?

unless Koch or Turner or Bertarelli joined the ADM team.

Well, do you think any of them would really be willing to present himself now ?

[MR.CLEAN]

Back to trying to connect dots.. and quite possibly another strikeout...

Remember the (since failed) ARGO challenge and the effort to put a handicapped team into AC34? The lady who was pushing for it was a Lynn Fitzpatrick. That (the Argo effort) is unremarkable as a link to this African Diaspora effort; except for them both being about representing the 'under-represented' in AC sailing, and perhaps also for them both having applied but having been rejected. Curiously (I'm sure nobody else watched the whole darn thing back when I posted it) - Lynn F specifically mentioned African Americans (among others) in a fundraising appeal she gave in San Diego. Video, at 7:00

"There are 40 million African Americans in the United States. Probably a billion on the continent and half a billion as part of the diaspora."

Seems entirely possible that Lynn (a San Francisco resident involved in sailing circles, just as was apparently Kithcart until recently) may be in support of, or even already behind, the ADM syndicate effort. Would be interesting her take on it, although she's expressed some fairly wild ideas at times regarding AC34 - some of them also included in that video. Iirc there's a couple other, more complete recordings of her talk out there somewhere too in case anyone cares to find them. I think Dixie also interviewed her at some point, and in that one she talked about wanting to postpone the ACWS, and the AC34 until 2014 or even 2015?

I think you are over-thinking this. Occam's Razor can apply here.

No - as usual, Stinger is a very astute observer. Lynn was helping out Kithcart for a while after the Argo thing because she believed in the cause, and they are still in contact though I don't think she's doing anything for him now.

[ccruiser]

Ccruiser ^ Well said on revenues and I happen to agree.

This 'Trust' - unlike what most people think of as Trusts - is not one in a financial sense; more, it is a perpetual commitment to defend the Cup as you say. Challenging yacht clubs are beneficiaries ~only~ in their right to make a Challenge in a Match for that Cup.

This trust's Deed, as you say, says nothing at all about finances.

I knew you did, just thought you could bring me up to speed on how some of the group seems to have arrived at the idea that the DofG leads to a fiduciary duty to split revenues.

[ccruiser]

Pjfranks - I am unaware of any law that requires revenue sharing. Under US law there has to be a duty created by some legal mechanism - 1. in the tort area it is created by the duty to not engage in intentional or negligent conduct under certain circumstances; 2. under contract law under the terms of an enforceable contract - here as I point out the Protocol, (the only contract in this instance),exempts real estate revenues generated by any participant from the contractually provided for sharing, and there is of course no legal requirement that GGYC or anyone else agree to share revenue. So you are stuck with the fiduciary duty claim. This can arise in two ways an express trust - as asserted here and an implied trust, not applicable IMHO as at its heart it requires that a party have received a benefit it was not entitled to, e.g. by misappropriating someone elses' property.

So your statement is circular - under US law you have to have a legal basis for a claim - a breach of fiduciary duty can only arise from 1. the existence of a fiduciary relationship, here the deed of gift; and 2. a breach of that duty. Where is the duty under the DofG - in short where does the DofG require that the Holder share its revenues?

ADM have a bunch of good lawyers by all accounts.

I am a lawyer, have practiced for 40 years doing business and real estate litigation - during that period I have seen some remarkable claims, e.g. those raised by the very good, expensive lawyers representing SNG last time, such as Sullivan and Cromwell, who spent millions of dollars pursuing them. You have to understand lawyers are paid to present a claim, not believe in it, and they do their best to put it in the best light. The better they are the better they present it - but a sow's ear is still a sow's ear. To paraphrase Bertrand Russel- the fact that a good lawyer said something does not mean its not wrong. You need only to look at the litigation leading up to the last Cup to confirm that.

[Dixie]

Back to trying to connect dots.. and quite possibly another strikeout...

Remember the (since failed) ARGO challenge and the effort to put a handicapped team into AC34? The lady who was pushing for it was a Lynn Fitzpatrick. That (the Argo effort) is unremarkable as a link to this African Diaspora effort; except for them both being about representing the 'under-represented' in AC sailing, and perhaps also for them both having applied but having been rejected. Curiously (I'm sure nobody else watched the whole darn thing back when I posted it) - Lynn F specifically mentioned African Americans (among others) in a fundraising appeal she gave in San Diego. Video, at 7:00

"There are 40 million African Americans in the United States. Probably a billion on the continent and half a billion as part of the diaspora."

Seems entirely possible that Lynn (a San Francisco resident involved in sailing circles, just as was apparently Kithcart until recently) may be in support of, or even already behind, the ADM syndicate effort. Would be interesting her take on it, although she's expressed some fairly wild ideas at times regarding AC34 - some of them also included in that video. Iirc there's a couple other, more complete recordings of her talk out there somewhere too in case anyone cares to find them. I think Dixie also interviewed her at some point, and in that one she talked about wanting to postpone the ACWS, and the AC34 until 2014 or even 2015?

I think you are over-thinking this. Occam's Razor can apply here.

No - as usual, Stinger is a very astute observer. Lynn was helping out Kithcart for a while after the Argo thing because she believed in the cause, and they are still in contact though I don't think she's doing anything for him now.

Yes SR is close on with this one and Lynn ultimately felt it unfair that both Argo and this North Carolina based team weren't worthy of the same aid that she felt the other teams were getting. My understanding is that she's pursuing other endeavors now (and is no longer in SF), but it wouldn't surprise me if her passions weren't behind this. However, if they were coming in as Defenders (she hedged with me about whether Argo would be a defender or challenger) , then I would expect LE Alphabet would be less inclined to fund in the same fashion they minght a Challenger.

[rmalott]

I was reading the complaint while watching television and have a new theory: Steven Colbert is Mr Big here. He sails often out of the Carolinas, he grew up in Charlotte NC and lives in New York. He also has a personal history of adopting bizarre causes and this one is right up his alley-at the very least will make a great interview on his show. The Colbert connection is a lot more credible than Crowley or BE, as neither of whom would want to make such a bad first impression.

In its present form the complaint will not last through the first round of pleadings, as necessary parties would include NYYC, LE, Oracle, City of San Francisco, State of CA, US government and all the other actual or putative competitors. Probably even the ed. I don't think anybody wants to sue the ed, look what happened to that poor loan shark guy a while back who though the ed was mean. My guess is the strategy was to name just one party, get the point across, and back off. This is great fun and all and does raise an important point about the lack of minority participation in the sport, but the case in its present form isn't serious. Looking forward to seeing it on TV and hope to see a positive impact on increased participation in the sport.

Good stuff..

[MAHGUAH_SCALPS_PILGRIMS]

Nonprofit sailing group sues Golden Gate Yacht Club for denying ...

A nonprofit sailing group from North Carolina is suing America's Cup holder Golden Gate Yacht Club for denying its application to be a defense candidate.
espn.go.com/.../non-profit-sailing-group-sues-golden-gate-yac...

[MAHGUAH_SCALPS_PILGRIMS]

NC nonprofit group asks court to remove GGYC as America's Cup trustee



The Republic
A nonprofit sailing group from North Carolina is suing America's Cup holder Golden Gate Yacht Club for denying its application to be a defense candidate. ...

[pjfranks]

You have to understand lawyers are paid to present a claim, not believe in it, and they do their best to put it in the best light.

Unless they are working pro bono which is the consistent suggestion here.

[MAHGUAH_SCALPS_PILGRIMS]

Group sues America's Cup trustee GGYC


Wall Street Journal
AP A nonprofit sailing group from North Carolina is suing America's Cup holder Golden Gate Yacht Club for denying its application to be a defense candidate. African Diaspora Maritime Corp. is asking the Supreme Court of the State of New York to force ...

[MR.CLEAN]

I was reading the complaint while watching television and have a new theory: Steven Colbert is Mr Big here. He sails often out of the Carolinas, he grew up in Charlotte NC and lives in New York. He also has a personal history of adopting bizarre causes and this one is right up his alley-at the very least will make a great interview on his show. The Colbert connection is a lot more credible than Crowley or BE, as neither of whom would want to make such a bad first impression.

In its present form the complaint will not last through the first round of pleadings, as necessary parties would include NYYC, LE, Oracle, City of San Francisco, State of CA, US government and all the other actual or putative competitors. Probably even the ed. I don't think anybody wants to sue the ed, look what happened to that poor loan shark guy a while back who though the ed was mean. My guess is the strategy was to name just one party, get the point across, and back off. This is great fun and all and does raise an important point about the lack of minority participation in the sport, but the case in its present form isn't serious. Looking forward to seeing it on TV and hope to see a positive impact on increased participation in the sport.

Good stuff..

I bet Colbert would happily put Kithcart on the show in a bit. That has some serious potential -I'm sending it to Colbert's handler.

[~Stingray~]

Colbert did a sailing segment about two months ago; lasted several nights iirc. i posted one of the vids to here, it was quite damn funny. May even have included a 'Lilly white' comment. Will look for it again, tomorrow.

[~Stingray~]

On the AP wire now, 24 hours late to the game compared to us, all over the place

http://espn.go.com/o...ate-application

[DA-WOODY]

demanding that the name of the 2013 venue

be changed to"

San FransAfro

[Sailabout]

great!

[Tony-F18]

How many African American amateur/pro sailors are there in the US? I only know Donald Lawson really.

[SimonN]

Pjfranks - I am unaware of any law that requires revenue sharing. Under US law there has to be a duty created by some legal mechanism - 1. in the tort area it is created by the duty to not engage in intentional or negligent conduct under certain circumstances; 2. under contract law under the terms of an enforceable contract - here as I point out the Protocol, (the only contract in this instance),exempts real estate revenues generated by any participant from the contractually provided for sharing, and there is of course no legal requirement that GGYC or anyone else agree to share revenue. So you are stuck with the fiduciary duty claim. This can arise in two ways an express trust - as asserted here and an implied trust, not applicable IMHO as at its heart it requires that a party have received a benefit it was not entitled to, e.g. by misappropriating someone elses' property.

So your statement is circular - under US law you have to have a legal basis for a claim - a breach of fiduciary duty can only arise from 1. the existence of a fiduciary relationship, here the deed of gift; and 2. a breach of that duty. Where is the duty under the DofG - in short where does the DofG require that the Holder share its revenues?

OK. Serious question. Does US trust law allow the trustee to make or even attempt to make large amounts of money out of the trust? GGYC isn't just the defender but they are also the trustee. I know that in the UK, a trustee cannot profit from a trust (other than professional fees, expences etc.) unless they are a beneficiary of the trust and then they must be treated equally to all other beneficiaries.

[Alpha FB]

...

OK. Serious question. Does US trust law allow the trustee to make or even attempt to make large amounts of money out of the trust? GGYC isn't just the defender but they are also the trustee. I know that in the UK, a trustee cannot profit from a trust (other than professional fees, expences etc.) unless they are a beneficiary of the trust and then they must be treated equally to all other beneficiaries.

This does appear to be the basic question

I just re-read the complaint, but there is no reference whatsoever to either specific statutes or case law supporting the allegation - any US lawyers out there who can enlighten us on the legalities?

[porthos]

Back to trying to connect dots.. and quite possibly another strikeout...

Remember the (since failed) ARGO challenge and the effort to put a handicapped team into AC34? The lady who was pushing for it was a Lynn Fitzpatrick. That (the Argo effort) is unremarkable as a link to this African Diaspora effort; except for them both being about representing the 'under-represented' in AC sailing, and perhaps also for them both having applied but having been rejected. Curiously (I'm sure nobody else watched the whole darn thing back when I posted it) - Lynn F specifically mentioned African Americans (among others) in a fundraising appeal she gave in San Diego. Video, at 7:00

"There are 40 million African Americans in the United States. Probably a billion on the continent and half a billion as part of the diaspora."

Seems entirely possible that Lynn (a San Francisco resident involved in sailing circles, just as was apparently Kithcart until recently) may be in support of, or even already behind, the ADM syndicate effort. Would be interesting her take on it, although she's expressed some fairly wild ideas at times regarding AC34 - some of them also included in that video. Iirc there's a couple other, more complete recordings of her talk out there somewhere too in case anyone cares to find them. I think Dixie also interviewed her at some point, and in that one she talked about wanting to postpone the ACWS, and the AC34 until 2014 or even 2015?

I think you are over-thinking this. Occam's Razor can apply here.

No - as usual, Stinger is a very astute observer. Lynn was helping out Kithcart for a while after the Argo thing because she believed in the cause, and they are still in contact though I don't think she's doing anything for him now.

Yes SR is close on with this one and Lynn ultimately felt it unfair that both Argo and this North Carolina based team weren't worthy of the same aid that she felt the other teams were getting. My understanding is that she's pursuing other endeavors now (and is no longer in SF), but it wouldn't surprise me if her passions weren't behind this. However, if they were coming in as Defenders (she hedged with me about whether Argo would be a defender or challenger) , then I would expect LE Alphabet would be less inclined to fund in the same fashion they minght a Challenger.

I was reacting more to SR's somewhat quixotic attempt to "connect the dots," particularly to SNG. Social groups often times seek to interject themselves at various levels into major events to further their cause. Having read the Complaint, which reads much more like a persuasion piece than a short and plain statement of facts as required by the court rules, that's what this is and nothing more. Perhaps some wealthy syndicate is paying MW&E in the background -- and I've seen that happen in somewhat analogous cases -- but the more simple explanation is that MW&E has it on a pro bono basis.

[entropy]

These guys are not trying to be a challenger. The deed doesn't say much about the Defender, except the defender has to pick a boat before the start of the first race. The NYYC's trials were: You guys race some races, and we'll motor over and tell you when you are done. As I recall, back in the day, the Yacht Club Cruise was even considered.

The deed gives challengers some rights... the Defender is selected by the defending club. Unless NC is a different country all of a sudden, quit referring to ADM as a potential challenger. They aren't and cannot be.

Wrong.

How so?

[porthos]

You have to understand lawyers are paid to present a claim, not believe in it, and they do their best to put it in the best light.

Unless they are working pro bono which is the consistent suggestion here.

Incorrect. If an attorney agrees to take on a client, that attorney has an obligation to zealously advocate for that client regardless of whether the attorney believes in the client's claim or is being paid by the client. In other words, pay has nothing to do with it.

[Tornado-Cat]

Well it's in the Protocol, that they rely on as being legit for other arguments, and they even try emphasize it for some reason.



The 'modern' Deed says nothing about alternate defender boats so it is left to MC to define by a 'Protocol' - like in as above. It's much the same as dealing with multiple challengers but less 'problematic' in some ways.

Can't wait to see Friedman's take on it, cause after a third reading it still looks a little bizarre to me. What are they really asking for at this stage? They can't be serious about some of it - I mean 'Geez' - lol. Where is that guy anyway?

You right to say that the present protocol allows GGYC to check financial credentials of a new competitor.
However ADM argues that:

- they did not have an equal treatment vs other teams and claim a breach of contract (protocol)

- GGYC excluded them for the wrong reasons which is a Breech of Trust (Deed)

I am not a lawyer and I don't care whether it is pro bono or not but it looks like it is pretty well done, at least for this part.

[Tornado-Cat]

I see 3 possible motivations:

- Winning the Cup: then who is the US billionnaire behind who knows that Larry won the cup though the courts and wants to do the same ? Larry Page ? or any other one?

- Revenge from a billionnaire. Three names have already been given: Koch, Turner,Bertarelli, but I am sure there are plenty of other billionnaire who do not like Larry.

- Keeping the Circus outside of SF and the bay: could be a group of rich people who don't want to have the super yachts in front of their house, or an environmental group supporting it. Better, one of this group could also be helped by one billionnaire without even knowing it. Do you remember what PH had told us one day regarding the MSP story? Well the same scenario could be repeating itself.

[PeterHuston]

One of the things I can't get my head around is the whole pro-bono aspect of this. Sure, any lawyer can take any case he believes in for a "cause". There are alot of firms that do alot of really great pro bono work for alot of really worthy causes.

But seriously, pro bono work to shake down the 3rd richest guy in the country so a guy with no money can enter the America's Cup. This firm is proud of that work? What's their new corporate tag line going to be for pro bono work - "we help the 99% immediately vault past the 1% and into the .0000000000000000001%"

Pro bono cases are usually about the abuse of rights, or something really tragic. Sailing in the America's Cup is a privilege, not a right.

Besides, a pro bono case against the likes of Larry Ellison? I don't care how good this lawyer is, if they want to go to trial, this lawyer and a bunch of associates are going to spend hundreds of hours on this case. All to help a guy with no money, and no obvious racing experience, sail in the America's Cup.

Don't most big firms like this have some sort of approval mechanism for pro cases that they take on? Some senior partner who probably oversees pro bono work approved this?

While the simple solution would suggest a pro bono case, to me, that just doesn't pass the smell test.

[porthos]

One of the things I can't get my head around is the whole pro-bono aspect of this. Sure, any lawyer can take any case he believes in for a "cause". There are alot of firms that do alot of really great pro bono work for alot of really worthy causes.

But seriously, pro bono work to shake down the 3rd richest guy in the country so a guy with no money can enter the America's Cup. This firm is proud of that work? What's their new corporate tag line going to be for pro bono work - "we help the 99% immediately vault past the 1% and into the .0000000000000000001%"

Pro bono cases are usually about the abuse of rights, or something really tragic. Sailing in the America's Cup is a privilege, not a right.

Besides, a pro bono case against the likes of Larry Ellison? I don't care how good this lawyer is, if they want to go to trial, this lawyer and a bunch of associates are going to spend hundreds of hours on this case. All to help a guy with no money, and no obvious racing experience, sail in the America's Cup.

Don't most big firms like this have some sort of approval mechanism for pro cases that they take on? Some senior partner who probably oversees pro bono work approved this?

While the simple solution would suggest a pro bono case, to me, that just doesn't pass the smell test.

This case is exactly the kind of pro bono case that a larger firm like MW&E would take. At a root level, this Complaint involves a perceived social injustice -- the lily white majority of the America's Cup intentionally and wrongfully precluding an insular minority from invading their sailing race. Those kind of cases tend to get pro bono interest. Moreover, this is a higher profile case that will get MW&E's name out there and will also provide good training for the attorneys on the case, as they are guaranteed to face highly competent opposing counsel. Another possible factor (and it is a minor one) is that as a general matter, billable hours are down presently for most firms. As a result, you may have some lawyers sitting around without as much to do as they normally would (or would like to), and filling that time with a pro bono case is a common response. And, yes, every large firm usually has a partner who coordinates pro bono work.

Another factor that points to a pro bono case is the fact that the suit has little chance of success. Pro bono cases often times can be longshots -- cases other firms wouldn't take.

I have seen a competitor secretly fund a lawsuit against another competitor through the use of a social justice group, but that suit was about market share and economical at its core by seeking to prevent a competitor from gaining a foothold in the market. This lawsuit does not appear to fit that model. That said, it is certainly possible that some individual or syndicate is funding this lawsuit just to make GGYC's life more difficult (and LE's by proxy).

[PeterHuston]

One of the things I can't get my head around is the whole pro-bono aspect of this. Sure, any lawyer can take any case he believes in for a "cause". There are alot of firms that do alot of really great pro bono work for alot of really worthy causes.

But seriously, pro bono work to shake down the 3rd richest guy in the country so a guy with no money can enter the America's Cup. This firm is proud of that work? What's their new corporate tag line going to be for pro bono work - "we help the 99% immediately vault past the 1% and into the .0000000000000000001%"

Pro bono cases are usually about the abuse of rights, or something really tragic. Sailing in the America's Cup is a privilege, not a right.

Besides, a pro bono case against the likes of Larry Ellison? I don't care how good this lawyer is, if they want to go to trial, this lawyer and a bunch of associates are going to spend hundreds of hours on this case. All to help a guy with no money, and no obvious racing experience, sail in the America's Cup.

Don't most big firms like this have some sort of approval mechanism for pro cases that they take on? Some senior partner who probably oversees pro bono work approved this?

While the simple solution would suggest a pro bono case, to me, that just doesn't pass the smell test.

This case is exactly the kind of pro bono case that a larger firm like MW&E would take. At a root level, this Complaint involves a perceived social injustice -- the lily white majority of the America's Cup intentionally and wrongfully precluding an insular minority from invading their sailing race. Those kind of cases tend to get pro bono interest. Moreover, this is a higher profile case that will get MW&E's name out there and will also provide good training for the attorneys on the case, as they are guaranteed to face highly competent opposing counsel. Another possible factor (and it is a minor one) is that as a general matter, billable hours are down presently for most firms. As a result, you may have some lawyers sitting around without as much to do as they normally would (or would like to), and filling that time with a pro bono case is a common response. And, yes, every large firm usually has a partner who coordinates pro bono work.

Another factor that points to a pro bono case is the fact that the suit has little chance of success. Pro bono cases often times can be longshots -- cases other firms wouldn't take.

I have seen a competitor secretly fund a lawsuit against another competitor through the use of a social justice group, but that suit was about market share and economical at its core by seeking to prevent a competitor from gaining a foothold in the market. This lawsuit does not appear to fit that model. That said, it is certainly possible that some individual or syndicate is funding this lawsuit just to make GGYC's life more difficult (and LE's by proxy).

Thanks. The way you put it makes sense.

[ccruiser]

Pjfranks - I am unaware of any law that requires revenue sharing. Under US law there has to be a duty created by some legal mechanism - 1. in the tort area it is created by the duty to not engage in intentional or negligent conduct under certain circumstances; 2. under contract law under the terms of an enforceable contract - here as I point out the Protocol, (the only contract in this instance),exempts real estate revenues generated by any participant from the contractually provided for sharing, and there is of course no legal requirement that GGYC or anyone else agree to share revenue. So you are stuck with the fiduciary duty claim. This can arise in two ways an express trust - as asserted here and an implied trust, not applicable IMHO as at its heart it requires that a party have received a benefit it was not entitled to, e.g. by misappropriating someone elses' property.

So your statement is circular - under US law you have to have a legal basis for a claim - a breach of fiduciary duty can only arise from 1. the existence of a fiduciary relationship, here the deed of gift; and 2. a breach of that duty. Where is the duty under the DofG - in short where does the DofG require that the Holder share its revenues?

OK. Serious question. Does US trust law allow the trustee to make or even attempt to make large amounts of money out of the trust? GGYC isn't just the defender but they are also the trustee. I know that in the UK, a trustee cannot profit from a trust (other than professional fees, expences etc.) unless they are a beneficiary of the trust and then they must be treated equally to all other beneficiaries.

A serious response. I take it the BofFD assertion is that GGYC will be "making" money out of the real estate it, (I assume but do not know that GGYC or an entity it created for the purpose, is the lessee - if it is not, say Oracle Racing is, then there is no issue, as Oracle Racing is not the trustee), has arranged to lease from the City and County of SF to use in connection with the event, and that this constitutes a BofFD? If that is correct I believe that the correct legal analysis is as follows:

Let me re-phrase your assertion - in the US a trustee cannot use trust property, nor can it take an "opportunity" available to the trust and use it for its personal benefit, (e.g. acquiring an asset, and then selling or leasing it to the trust for a profit, or retaining it), such conduct would be improper. But the issue is does this rule cover what is happening here.

What trust property or trust "opportunity" is being used/misused? First, the only property of the Trust is the Cup, and its related intellectual property, e.g. copyrights. Therefore, the real property is not an asset of the Trust, and is not being misappropriated by the trustee. Secondly, the Trust is not a normal commercial trust, in the sense that it holds substantial financial assets for a specific purpose, the only duty of the trustee is to accept a compliant challenge and hold a yacht race, consistent with the terms of the DofG, or as mutually agreed. Under the DofG it does not have the duty to provide berthing or any other facilities to competitors, nor to make arrangements for public viewing of the racing, at least I do not see any such obligations in the wording of the DofG, or historically. Finally, I also doubt the trust,(as opposed to the trustee - although I doubt GGYC has the ability as well), has the ability to develop the real property for either of these purposes, and GGYC not proposing to subleasing the property to the Trust at a profit, thereby generating a profit for the trustee from a trust activity. So I do not see a trust "opportunity" being misused by the trustee - 1. The DofG does not provide a duty to supply the subject amenities to competitors or the public, and 2. the trust does not have the financial ability to do so. (Before we go there - Oracle has no duty to do this either. It may be the chosen defender for GGYC, but does not have any obligation to supply it with real estate financing)

The closest you can get to a BofFD argument is that the trustee is making money off the event, and those funds should go to the Trust, assuming that for purposes of this discussion the activity, real estate development will make money. The difficulty with this is two fold. First, the Trust does not provide for the activity, and the Trust does not have the assets to perform this function, and there is a very serious argument that were the trustee to engage in the activity and burden the Trust with this lease and debt, (we can agree I assume that the trustee does not have an obligation to provide the trust with funds for such an activity), that this would constitute a BofFD. Secondly, assuming that GGYC has leased the facilities, (which makes little or no sense to me, taking on a long term obligation for what may be a short term event - it could lose this time and the Cup go elsewhere), would you assert that if GGYC were to burden the Trust with the lease, (I am assuming a long term lease, as a short term lease would be an even more flagrant BofFD), of the premises, and then have the Trust borrow all or substantially all of funds required to develop these properties for what can only be described as a very limited, special use, that the next holder of the Cup, another yacht club, could not assert a BofFD when having won the Cup it found itself saddled with land it could not use for trust purposes, unless it wanted to keep holding the Cup in SF, and a substantial debt it would have to repay from future Cup revenue? Under the short term lease scenario, it would just end up with the debts, without the land. An even worse result.

If one were to assert that the Trustee had an obligation as a part of the Trust to acquire and make available for the event land for dockage etc and for the public, or even that having chosen to do so it must do so inside the Trust,(something the trustee has never done before as a part of the trust), potentially the Trust would end up with land in several jurisdictions where it would be of limited if any value to by the Trust for trust purposes, with substantial debts. This would distract from its purpose - to provide a challenge cup among foreign nations. Would not the existence of these land holdings and associated debts in the trust have a chilling effect on the willingness of Clubs to challenge?

If you assert that the trustee has the duty to provide at its own expense these types of facilities, then does that not have a chilling effect on the willingness of clubs to challenge? Are we not better able to fulfill the purposes of the Trust by allowing each club who may win the Cup to make whatever arrangements it deems best to hold the races, without burdening the trust with extraneous assets and debts. That is certainly what has occurred in the past. The trust does not hold any land in Valencia, Auckland, San Diego, Perth/Freemantle or Newport, nor does is it indebted for any liabilities related to the facilities provided in those jurisdictions. Each trustee made whatever arrangements it deemed best for holding the event - usually at the expense of taxpayers, and/or the competitors, who arranged for their own facilities.

Given the above it seems to me that the answer is that this trustee has not committed a BofFD assuming is has taken in its own name the lease, and is advancing its own funds for development purposes.

I hope you take this as a serious attempt to answer your question, it was meant as such.

[ccruiser]

I see 3 possible motivations:

- Winning the Cup: then who is the US billionnaire behind who knows that Larry won the cup though the courts and wants to do the same ? Larry Page ? or any other one?

Sorry Larry won the Cup on the race course - his boat beat Bertarelli's boat. The point of the litigation was to get SNG to race, under the rules set out in the DofG.

- Revenge from a billionnaire. Three names have already been given: Koch, Turner,Bertarelli, but I am sure there are plenty of other billionnaire who do not like Larry.

Why would a billionaire such a Koch or Turner want to spend a bunch of money on litigation, (unless blowing away good money for no reason is considered rational), when all they had to do if they wanted to be the defending boat was fund a defender syndicate. All the litigation does is increase the cost of putting a possible defender on the line, assuming it's successful, a long shot at best. If a Koch or Turner wanted to defend they could have easily qualified to do so. If they wanted revenge, do they want to spend a whole bunch of money, just to make Larry spend some money - is that anything but silly. Berterelli on the other hand only need to submit a challenge. Why fund almost certainly losing litigation? In both cases they are "cutting off your nose to spit your face."

- Keeping the Circus outside of SF and the bay: could be a group of rich people who don't want to have the super yachts in front of their house, or an environmental group supporting it. Better, one of this group could also be helped by one billionnaire without even knowing it. Do you remember what PH had told us one day regarding the MSP story? Well the same scenario could be repeating itself.

This is the best of the suggestions. But again, these people did not get rich funding losing causes, which would not have the effect they desire. Environmental groups would have to report there financial support for this litigation, and they also are not in the business of funding non environmental litigation, which even if successful will not stop the event, just put another boat on the water.

[~Stingray~]

This could be germane to the discussion, seen at CupInfo :

--

The situation of an unsolicited and unaccepted would-be defender candidate is not unprecedented in the America's Cup. In 1901 Thomas Lawson, despite being unaffiliated with the New York YC, built a radical but uninvited boat, Independence, which he intended would defend the America's Cup. The NYYC saw it otherwise. Then, as now, under the Deed of Gift it was the domain of the defending yacht club to select their representative.

See article at CupInfo: Lawson, Rockefeller, and the America's Cup for more background

[Peelman]

OK. Serious question. Does US trust law allow the trustee to make or even attempt to make large amounts of money out of the trust? GGYC isn't just the defender but they are also the trustee. I know that in the UK, a trustee cannot profit from a trust (other than professional fees, expences etc.) unless they are a beneficiary of the trust and then they must be treated equally to all other beneficiaries.

Simon, you have hit the nail on the head. IMO this lawsuit mirrors a lot of the past where someone wants to leverage the unknown legal aspects of the Deed and US trust law to get some sort of strategic position in the AC. Further there are similarities between how ADMC has written their complaint to what others have done in the past. With what went on with GGYC and SNG there are tons of articles and legal documents (docs) out there to look at that reveal small similar strategies between the 33rd and 34th legal actions.

Merry Christmas to all here and best wishes for the New Year.

Cheers,

Neil

Attached Files

•  Oct%2026%202009%20%20GGYC%20Press%20Release%20FINAL.pdf   37.52K   13 downloads

[DA-WOODY]

what one guy would most likely be behind the effort as laid out

obama !

all clear now ...eh

[WetHog]

My guess is this guy has something to do with this crap:



He has moved on from Happy Meals and Housing.

WetHog

[Tornado-Cat]

I see 3 possible motivations:

- Winning the Cup: then who is the US billionnaire behind who knows that Larry won the cup though the courts and wants to do the same ? Larry Page ? or any other one?

Sorry Larry won the Cup on the race course - his boat beat Bertarelli's boat. The point of the litigation was to get SNG to race, under the rules set out in the DofG.

- Revenge from a billionnaire. Three names have already been given: Koch, Turner,Bertarelli, but I am sure there are plenty of other billionnaire who do not like Larry.

Why would a billionaire such a Koch or Turner want to spend a bunch of money on litigation, (unless blowing away good money for no reason is considered rational), when all they had to do if they wanted to be the defending boat was fund a defender syndicate. All the litigation does is increase the cost of putting a possible defender on the line, assuming it's successful, a long shot at best. If a Koch or Turner wanted to defend they could have easily qualified to do so. If they wanted revenge, do they want to spend a whole bunch of money, just to make Larry spend some money - is that anything but silly. Berterelli on the other hand only need to submit a challenge. Why fund almost certainly losing litigation? In both cases they are "cutting off your nose to spit your face."

- Keeping the Circus outside of SF and the bay: could be a group of rich people who don't want to have the super yachts in front of their house, or an environmental group supporting it. Better, one of this group could also be helped by one billionnaire without even knowing it. Do you remember what PH had told us one day regarding the MSP story? Well the same scenario could be repeating itself.

This is the best of the suggestions. But again, these people did not get rich funding losing causes, which would not have the effect they desire. Environmental groups would have to report there financial support for this litigation, and they also are not in the business of funding non environmental litigation, which even if successful will not stop the event, just put another boat on the water.

Larry won by eminitating other competitors through the court process and then eliminating A5 through the choice of a venue she was not designed for.

Let us come back on the 3 motivations:

1. A US billionnaire willing to win the cup: I am not sure, not for you argument, but because the billionaire would have presented himself

2. A revenge: why do you say it will be expensive ? choosing the support a minority and with a pro bono is quite a good choice. The best to put the mess, scare the sponsors, makes Larry look bad, stop the land deals and the circus. They got rich because of their ego and their capacity to spend money where it pleases them. It could be Larry Page who was sent personnally in court by LE.

3. No Circus in SF: it could be a group of rich people or, more possibly, a coalition of tree huggers.

IMO, only one seems to be the good one here, seems pretty clear.

[WetHog]

IMO, only one seems to be the good one here, seems pretty clear.

Care to clarify because I stopped reading after the "eminitating other competitors" part.

WetHog

[SimonN]

Given the above it seems to me that the answer is that this trustee has not committed a BofFD assuming is has taken in its own name the lease, and is advancing its own funds for development purposes.

I hope you take this as a serious attempt to answer your question, it was meant as such.

Thanks for a great answer. I think the line I have left is the key. AFAIK, the lease isn't in the name of GGYC and the "profit" won't go to them. It will go to an entity owned by LE.

[ccruiser]

Larry won by eminitating other competitors through the court process and then eliminating A5 through the choice of a venue she was not designed for.

Sorry not true - GGYC's lawsuit sought to require SNG to recognize its challenge, asserting that the CNEV challenge was not DofG compliant. The court agreed on the later point and required SNG to accept the challenge or forfeit the Cup. No one was eliminated here. Given that the parties where then unable to arrive at a mutual consent challenge - at best you can only blame them both for that, not just Larry - there could only be one challenger. Finally as to the venue the games SNG played with this were monumental. It attempted to "rig" the event for a venue favorable to its boat, a venue it designed for before it was agreed to or accepted by the court, big mistake; and unfavorable to GGYC. Under the terms of the DofG it arguably had the right to pick a deed compliant venue that favored it. However, it designed for and chose a non compliant venue. Hard to blame Larry for that unless you think it was his duty to just roll over and let SNG obtain an advantage by violating the DofG. Finally, GGYC did not make that determination, the court determined the issue. So your argument is with the court, not GGYC.

So you can continue to run around and try to remake the past, but it don't change a thing. This event is a mutual consent event, with an agreed upon Protocol, being held in a deed compliant venue, with all parties aware of the venue well in advance, and able to design their boats to that venue, so each competitor has a fair shot at it from a design venue point of view. So I guess the best I can come up with is you need to get over it.

Let us come back on the 3 motivations:

1. A US billionnaire willing to win the cup: I am not sure, not for you argument, but because the billionaire would have presented himself

I have no idea what you mean by this.

2. A revenge: why do you say it will be expensive ? choosing the support a minority and with a pro bono is quite a good choice. The best to put the mess, scare the sponsors, makes Larry look bad, stop the land deals and the circus. They got rich because of their ego and their capacity to spend money where it pleases them. It could be Larry Page who was sent personnally in court by LE.

You are assuming the attorneys are acting pro bono - not if there is a billionaire sponsor for ADM, and how is the billionaire supporting them if he is not putting up any money, and the attorneys do not know of his involvement. Attorneys do not do pro bono work for billionaires. Also billionaires became billionaires by spending their money wisely. So sure it could be for revenge, but really - spend a lot of money for a losing cause. I wonder how much effect this will have on the event - my bet is little or none.

3. No Circus in SF: it could be a group of rich people or, more possibly, a coalition of tree huggers.

If they win there is another boat in the event, the event goes on - what is their motivation again?

IMO, only one seems to be the good one here, seems pretty clear.

Which one is that one, seems anything but clear to me - a billionaire wants to challenge so he throws in with a group that does not have a chance rather than just challenge intially; revenge by a billionaire who dislikes Larry; or disgruntled SF'ers who want to stop the event by filing a lawsuit that will have it go on with more competitors? Please enlighten me.

[Rennmaus]

FB for all who are asking for C.Friedman:

"Scuttlebutt
The Golden Gate YC is back in court. Look for Cory Friedman to explain the situation in Scuttlebutt on Monday."

[ccruiser]

Given the above it seems to me that the answer is that this trustee has not committed a BofFD assuming is has taken in its own name the lease, and is advancing its own funds for development purposes.

I hope you take this as a serious attempt to answer your question, it was meant as such.

Thanks for a great answer. I think the line I have left is the key. AFAIK, the lease isn't in the name of GGYC and the "profit" won't go to them. It will go to an entity owned by LE.

That makes sense me - GGYC does not have the financial wherewithal, either as a club or as trustee to, to take on this kind of project, with the associated risks.

For comparison if you look at Valencia, the governmental authorities expended the funds necessary to set up the infrastructure for the event. That is the best answer for the trustee - avoids all the issues. But this is the US not Spain, and SF at that. So it was almost certainly inevitable that taxpayers where not going to fund this type of makeover of portions of the Bay front - that would have caused an "elitist" scream, why are we funding an event for billionaires. This is a godsend to them IMHO - it gets these areas updated and on hopefully a better economic footing, (which they badly need), at someone else' expense, and with the someone else taking all the risk.

[DA-WOODY]

my feelings .............

when The CUP left San Diego in 1995 I knew it would never return to my home waters

I have enjoyed the trials, training and perfection of DoGZilla for the nearly 2 years it was here

as well as the AC-45's


All the Rattling and Shaking that's intended to upset the AC/SF event

is only cracking open the unlocked door with the Big Welcome Mat that is "San Diego" as host for the 2013 event

if denver can win a playoff spot with tebow, San Diego can win hosting the next CUP by just Not Fucking it up (and SD won't Fuck it up)

Every one had a Great Time in San Diego in 1988, 1992, 1996, with DoGZilla and the RC-44's & AC-45's


What are the Odds

[Tornado-Cat]

CCruiser,

History
You are partly right with your facts but wrong regarding the intent and the end result. GGYC by passed the selection process with excuses.
As for the venue, the judge decided the challenger venue in the Northern Emisphere in winter. Completely against the Deed. Would you like to see TNZ doing the same, could be amusing.
I don't pretend to make you change your mind but it is now part of history.

ADM
What I say is that a billionnaire could very well manipulate a association of tree huggers for a few bucks, they would not even know, it and could get a pro bono from an honorable firm. As a former lawyer we should know that, isn't it? But we don't even know if it is a pro bono, so this point does not tell us much.
Now, aftert you refuting all hypothesis, maybe you could enlighten us with........................... yours. It looks like that you are a specialist of billionaire psychology.

[~Stingray~]

^ Well geez, TC, he brings a whole lot more logic to the discussion than what you do..

CF on Monday (thanks, Rennie) could bring more light to the discussion, looking forward to it. I doubt he will make guesses about possible B's behind it, but it's certainly possible as part of the larger 'Why?' of ADM. Or perhaps he will just take it at face value, it being about really just Capt Kithcart; which could make the Why? a touch, ahem, amusing!

But don't let me stop your legal meanderings

[Tornado-Cat]

This could be germane to the discussion, seen at CupInfo :

--

The situation of an unsolicited and unaccepted would-be defender candidate is not unprecedented in the America's Cup. In 1901 Thomas Lawson, despite being unaffiliated with the New York YC, built a radical but uninvited boat, Independence, which he intended would defend the America's Cup. The NYYC saw it otherwise. Then, as now, under the Deed of Gift it was the domain of the defending yacht club to select their representative.

See article at CupInfo: Lawson, Rockefeller, and the America's Cup for more background

Thanks for this interesting article.
However, was NYYC refusal to accept of another boat validated by court ? it does not appear to be so.

The problem began because the owner refused to be part of the NYYC. However he was granted the possibility to compete with other defenders.
So I don't see how this case could set a precedent for the defending club to be the only one proposing a representative boat.

Maybe ADM is right to ask for an independant trustee. Has GGYC changed his mind since AC33 ?

[Tornado-Cat]

^ Well geez, TC, he brings a whole lot more logic to the discussion than what you do..

CF on Monday (thanks, Rennie) could bring more light to the discussion, looking forward to it. I doubt he will make guesses about possible B's behind it, but it's certainly possible as part of the larger 'Why?' of ADM. Or perhaps he will just take it at face value, it being about really just Capt Kithcart; which could make the Why? a touch, ahem, amusing!

But don't let me stop your legal meanderings

^^^^
Speaking of strong argument, hum, hum..try again.

So, what are your wild guess about Captain Kithcart ? were SWS pictures really representing ADM or did he put a foot in his mouth again ?

[ccruiser]

CCruiser,

History
You are partly right with your facts but wrong regarding the intent and the end result. GGYC by passed the selection process with excuses.
As for the venue, the judge decided the challenger venue in the Northern Emisphere in winter. Completely against the Deed. Would you like to see TNZ doing the same, could be amusing.
I don't pretend to make you change your mind but it is now part of history.

ADM
What I say is that a billionnaire could very well manipulate a association of tree huggers for a few bucks, they would not even know, it and could get a pro bono from an honorable firm. As a former lawyer we should know that, isn't it? But we don't even know if it is a pro bono, so this point does not tell us much.
Now, aftert you refuting all hypothesis, maybe you could enlighten us with........................... yours. It looks like that you are a specialist of billionaire psychology.

Frankly I find it a complete waste of time to speculate on who is doing what for/to whom. We have a complaint, it makes certain allegations, the question is: 1. do the allegations establish that the plaintiff has standing to assert the claim; 2. do the facts alleged establish the existence of a duty owed by the defendant to the plaintiff, and if so what is the duty; 3. do the facts alleged establish a breach of that duty, and 4. If so what relief is Plaintiff entitled to. There is little or no reason to speculate as to whether or not the plaintiff's firm is being paid or not, and if so by whom. Neither make any difference in the outcome of the litigation, and paid or not the attorneys, as has been earlier noted, owe their client a duty to vigorously proceed on its behalf.

I do not claim to be a specialist on billionaire psychology, they are a varied group to say the least. I was just trying to point out some of the problems with your various hypotheses. I thought I made clear that I was not ruling them out, just pointing out what seem to be difficulties they have.

As for the last Cup as you note it was the judge in his decision that set the venue, with an out for SNG which it foolishly did not take in all of the game playing. I thought that is what I said. Further in a deed of gift challenge there is no selection process - which I guess you blame on GGYC - the DofG made them do it. Or is it your position that no one since Micheal Faye has had the right to make a DofG challenge? Seems like the judge decided that one as well. But as you note what happened is a matter of record and history, no real point on bring it up as you did.

[~Stingray~]

TC.. The pics that SWS posted are from the Canadian branch of the ADM. They didn't look much like sailors to me either, but presumably it's some other people that CK apparently has in mind - referred to but unnamed in the suit.

The only connect the dots swing that I took that hit the ball out of the park, was on Lynn F. Her explicit mention of the 'African Diaspora' was almost a dead giveaway; with all the other parallels, it should be no surprise I was right.

There is no connection to any B, by any of the names, facts, indirect connections to surface so far. I'm thinking it really is just ADM, and pro bono, and the three junior lawyers (at least one of them graduated only this year) did a lot of copy/paste from other motions and affidavits since 2007, including the ETNZ one, but now with a SF HCA twist weaved in.

About the 'worst' I can see for GGYC so far is the possibility they actually get some of what they ask for; $1m, two AC45's, a free design, maybe even more than that. Thing is, it could somehow even benefit OR, and the event, if it gets done with some modicum of competitiveness and professionalism. The 'wider' cause is even pretty decent.

Could get interesting.

[MR.CLEAN]

Top Ten Conspiracy Theories For ADMC's Suit:

10) Oprah Winfrey heard about ADMC, and she figures funding a lawsuit is the best way to get back at Ellison for being richer than her while supporting an African American cause.
9) Stephen Colbert is funding the lawsuit to bring a sailing spotlight to the Carolinas, while guaranteeing a stream of yachting bits and jokes for at least two years.
8) A pro-Obama PAC is funding the lawsuit in an effort to increase support amongst yacht owners, his third-weakest demographic niche (after Christian fundamentalists and mercenaries).


Got more?

7)
6)
5)
4)
3)
2)
1)

[~Stingray~]

7) It's GD behind it all. So he can run his own independent website!

[K38BOB]

I see 3 possible motivations:

- Winning the Cup: then who is the US billionnaire behind who knows that Larry won the cup though the courts and wants to do the same ? Larry Page ? or any other one?

- Revenge from a billionnaire. Three names have already been given: Koch, Turner,Bertarelli, but I am sure there are plenty of other billionnaire who do not like Larry.

- Keeping the Circus outside of SF and the bay: could be a group of rich people who don't want to have the super yachts in front of their house, or an environmental group supporting it. Better, one of this group could also be helped by one billionnaire without even knowing it. Do you remember what PH had told us one day regarding the MSP story? Well the same scenario could be repeating itself.

weren't interested

[~HHN92~]

7) It's GD behind it all. So he can run his own independent website!

6) The Jesse Jackson/Al Sharpton/Jimmie Carter Syndicate

Always sticking their noses in where they do not need to.

[F-18 5150]

It's the NA"AC"P.

[~Stingray~]

On EB, well some at OR may be understandably suspicious that he's trying to throw an elbow back; there's certainly no love lost over what went down. But, especially remembering BB's description of EB's mindset recently when he spoke during the rugby WC, it seems EB is interested in getting into this again soon but definitely not this time. It was a quite upbeat, 'wait and see how this works' take on it. There was no suggestion at all of animosity, or any kind of involvement for AC34. And like ccruiser keeps pointing out, he could have challenged instead of engaging in this relatively nonsense approach.

Same basic thing for Koch and Turner. They could have, but aren't interested enough. Larry will be hard to beat unless you are up to the current 'big 3' challenger powers - something difficult to reach at this stage.

As a stepping stone for the next Cup, there is still a chance one or more syndicates will step up; IM has said to expect it. But that party won't be who's behind this suit either.. It's again nonsensical to their cause.

[Surf City Racing]

Top Ten Conspiracy Theories For ADMC's Suit:

Got more?

7)
6)
5)
4)
3)
2)
1)

Sheeeit. You know me, Clean. Tinfoil hat time, friends...

These aren't mine, but I heard them form some drunken bum that lives under that bush in back of StFYC:

9) Someone got pissed that they didn't get let into the real estate dealings in SF, mouthed off, and got canned from the ACAlphabet, but they know about the inner dealings with regards to real estate and ADM. They call up the good Cap'n Kithcart and offer him some cash to fire up a lawsuit as a front, and so the hammer doesn't fall on their own shady business dealings. It's a beautiful plan, with elements of whitey screwing the minorities.

10) ACOA, needs to gather $12M in private funding, they were only able to raise 2M thus far, but have all kinds of ways that they're going to be able to come up with it. San Diego scared them in a big way, and they realized that they need more time, so they're using this as a stall tactic.

BTW, if I go missing tonight, the black helicopters came and got me. I've seen them before over my house, they've got this red kind of computer-fonty logo on the bottom.

You know I'm messing with you, boys.You should've had more ACWS events, so we don't have to hash this for 6 months. It's surely going to turn into space aliens, and laser beams before too long.

[~HHN92~]

1. There is nothing, not a word, about anyone submitting to be a defense candidate for the holder of the Cup.
2.Therefor there cannot be a BoFD case against the trustee for not following the DoG.
3. Selecting the defender yacht is at the descretion of the defending club.

3 Amusing, where did your read that ? Nothing is specified and I don't think it has been validated in a court before.

As you noted, it is against any yacht from the defending club. So, if any yacht can be the defending yacht, then it is at the defenders descretion to chose that yacht.

Look at the 2nd defense, the NYYC had 3 boats to choose from, having to name the boat on the morning before each race. I would say that was at their descretion. (Columbia, Sappho actually raced)

So, there is nothing specified other than the defending club has to show-up on the starting line with a boat to race against the challenger.

[Tornado-Cat]

1. There is nothing, not a word, about anyone submitting to be a defense candidate for the holder of the Cup.
2.Therefor there cannot be a BoFD case against the trustee for not following the DoG.
3. Selecting the defender yacht is at the descretion of the defending club.

3 Amusing, where did your read that ? Nothing is specified and I don't think it has been validated in a court before.

As you noted, it is against any yacht from the defending club. So, if any yacht can be the defending yacht, then it is at the defenders descretion to chose that yacht.

Look at the 2nd defense, the NYYC had 3 boats to choose from, having to name the boat on the morning before each race. I would say that was at their descretion. (Columbia, Sappho actually raced)

So, there is nothing specified other than the defending club has to show-up on the starting line with a boat to race against the challenger.

It could be implied in the Deed but that is not what it says: "against any one yacht or vessel constructed in the country of the Club holding the Cup"

Did you see it at another place ? I think SR exemple was interesting too as the defenders proposed a race with the yacht who did not belong to NYYC.

[K38BOB]

On EB, well some at OR may be understandably suspicious that he's trying to throw an elbow back; there's certainly no love lost over what went down. But, especially remembering BB's description of EB's mindset recently when he spoke during the rugby WC, it seems EB is interested in getting into this again soon but definitely not this time. It was a quite upbeat, 'wait and see how this works' take on it. There was no suggestion at all of animosity, or any kind of involvement for AC34. And like ccruiser keeps pointing out, he could have challenged instead of engaging in this relatively nonsense approach.

Same basic thing for Koch and Turner. They could have, but aren't interested enough. Larry will be hard to beat unless you are up to the current 'big 3' challenger powers - something difficult to reach at this stage.

As a stepping stone for the next Cup, there is still a chance one or more syndicates will step up; IM has said to expect it. But that party won't be who's behind this suit either.. It's again nonsensical to their cause.

and even if they managed to win the challenge to defend, and the defense...it would be for GGYC- not their home clubs

[~HHN92~]

1. There is nothing, not a word, about anyone submitting to be a defense candidate for the holder of the Cup.
2.Therefor there cannot be a BoFD case against the trustee for not following the DoG.
3. Selecting the defender yacht is at the descretion of the defending club.

3 Amusing, where did your read that ? Nothing is specified and I don't think it has been validated in a court before.

As you noted, it is against any yacht from the defending club. So, if any yacht can be the defending yacht, then it is at the defenders descretion to chose that yacht.

Look at the 2nd defense, the NYYC had 3 boats to choose from, having to name the boat on the morning before each race. I would say that was at their descretion. (Columbia, Sappho actually raced)

So, there is nothing specified other than the defending club has to show-up on the starting line with a boat to race against the challenger.

It could be implied in the Deed but that is not what it says: "against any one yacht or vessel constructed in the country of the Club holding the Cup"

Did you see it at another place ? I think SR exemple was interesting too as the defenders proposed a race with the yacht who did not belong to NYYC.

Well, did the challenger make the decision, Columbia or Sappho?

Did the DoG make the call? Does the DoG stipulate how the YC is to determine the defending yacht?

Did the NYYC make the call on who defended numerous times through their selection series, when there was more than one boat?

Or did Bondy and AII say "hey, we want to race the slow red boat"?

Did Coutts say "put DC & PC in that Mermaid boat and let's get it on"?

So, according to the DoG, who's descretion is it to decide which defender boat is on the line come race one?

[MAHGUAH_SCALPS_PILGRIMS]

Would-Be America's Cup Competitor Sues Over Rejection
Forbes
He accused the Golden Gate Yacht Club in San Francisco, which technically holds the Cup as Ellison's sponsoring club, of “discrimatory treatment” in ...

[biff]

I miss the defender series with the "selection" of the defending yacht by the guys who looked like judge Smails from caddy shack.
It's sad the most public of sailing events gets reduced to a pissing match between billionaires and their lawyers. It makes our sport look bad.

For the record billionaires love their lawyers more than anyone else does

[SW Sailor]

FB for all who are asking for C.Friedman:

"Scuttlebutt
The Golden Gate YC is back in court. Look for Cory Friedman to explain the situation in Scuttlebutt on Monday."

Thanks Renn.

Cory is an experienced sailor and attorney and a colorful and prolific writer - I enjoy reading his perspective on AC legal matters, although this case barely qualifies as it looks like the complaint was drafted largely from SA threads.

I look forward to Cory's assessment.

[SW Sailor]

TC.. The pics that SWS posted are from the Canadian branch of the ADM. They didn't look much like sailors to me either, but presumably it's some other people that CK apparently has in mind - referred to but unnamed in the suit.

The only connect the dots swing that I took that hit the ball out of the park, was on Lynn F. Her explicit mention of the 'African Diaspora' was almost a dead giveaway; with all the other parallels, it should be no surprise I was right.

There is no connection to any B, by any of the names, facts, indirect connections to surface so far. I'm thinking it really is just ADM, and pro bono, and the three junior lawyers (at least one of them graduated only this year) did a lot of copy/paste from other motions and affidavits since 2007, including the ETNZ one, but now with a SF HCA twist weaved in.

About the 'worst' I can see for GGYC so far is the possibility they actually get some of what they ask for; $1m, two AC45's, a free design, maybe even more than that. Thing is, it could somehow even benefit OR, and the event, if it gets done with some modicum of competitiveness and professionalism. The 'wider' cause is even pretty decent.

Could get interesting.

The most they'll get out of this is one or two things;

1. Tossed out by the court, and/or

2 Ground up by LE's attorneys.

The complaint and the relief they seek are actually a pretty humorous read. If they were granted the relief requested, this would turn into a one design event totally funded by LE. Fat chance, they can't expect the court to take their complaint/relief seriously, at least not for very long, and I don't expect they think the court will. This is more like a fishing expedition for sailfish in a canoe with a bamboo pole using a bobber and a worm.

My guess is that more than just this flimsy non-profit are behind this - it appears to be more a harassment law suit than anything else, and I'm surprised a law firm with that stature would even put their name on it.

In terms of an actual sub-plot, some that run in AC circles are well known in their past business endeavors to get others to do their dirty work for them. They make it a practice to cover their tracks relatively well, but the motives are usually hard to conceal, which could well be the case here. If someone is pulling strings, I seriously doubt it's anyone from the States, as some have speculated.

At any rate I'd be surprised if this gets any traction with the NYSC, and in the odd chance that it does, I suspect it will be gunned down pretty easily.

[dogwatch]

What trust property or trust "opportunity" is being used/misused? First, the only property of the Trust is the Cup, and its related intellectual property, e.g. copyrights. Therefore, the real property is not an asset of the Trust, and is not being misappropriated by the trustee. Secondly, the Trust is not a normal commercial trust, in the sense that it holds substantial financial assets for a specific purpose, the only duty of the trustee is to accept a compliant challenge and hold a yacht race, consistent with the terms of the DofG, or as mutually agreed.

But that intellectual property is what enables the real property development to be pursued. It's the brand-value of the AC that differentiates the trustee and the complex of agents that surrounds it from any other property developer because it is the presumed economic benefits of an AC event in SF that persuaded the city of SF to grant benefits to the trustee and its associates that it would not have have granted to another real-estate developer.

The AC Trust is charitable and under British charity law trustees have a clear statutory obligation to maximise the financial return from their assets to apply to their charitable objectives. Does the same obligation exist under NY law and if so, could the trust be perceived to have failed in that objective by permitting other agencies to have benefited to such a large extent from the trust's intellectual property?

[Tornado-Cat]

Did the DoG make the call? Does the DoG stipulate how the YC is to determine the defending yacht?

This is my point, the DoG is not specific of how to chose the defending yacht, it specifies it is open to ANY yacht of the defending country. That is why ANY yacht of the defending country can claim for rights. What can the court decide? I don't think anybody can predict.

[Tornado-Cat]

TC.. The pics that SWS posted are from the Canadian branch of the ADM. They didn't look much like sailors to me either, but presumably it's some other people that CK apparently has in mind - referred to but unnamed in the suit.

The only connect the dots swing that I took that hit the ball out of the park, was on Lynn F. Her explicit mention of the 'African Diaspora' was almost a dead giveaway; with all the other parallels, it should be no surprise I was right.

There is no connection to any B, by any of the names, facts, indirect connections to surface so far. I'm thinking it really is just ADM, and pro bono, and the three junior lawyers (at least one of them graduated only this year) did a lot of copy/paste from other motions and affidavits since 2007, including the ETNZ one, but now with a SF HCA twist weaved in.

About the 'worst' I can see for GGYC so far is the possibility they actually get some of what they ask for; $1m, two AC45's, a free design, maybe even more than that. Thing is, it could somehow even benefit OR, and the event, if it gets done with some modicum of competitiveness and professionalism. The 'wider' cause is even pretty decent.

Could get interesting.

What is stange is that nobody here mentioned the strongest asset of ADM, David Pedrick.
http://pedrickyacht.com/
For sure, as an AC fan I would be happy to see more competitors, but we still have to find who is behind.

[Tornado-Cat]

TC.. The pics that SWS posted are from the Canadian branch of the ADM. They didn't look much like sailors to me either, but presumably it's some other people that CK apparently has in mind - referred to but unnamed in the suit.

The only connect the dots swing that I took that hit the ball out of the park, was on Lynn F. Her explicit mention of the 'African Diaspora' was almost a dead giveaway; with all the other parallels, it should be no surprise I was right.

There is no connection to any B, by any of the names, facts, indirect connections to surface so far. I'm thinking it really is just ADM, and pro bono, and the three junior lawyers (at least one of them graduated only this year) did a lot of copy/paste from other motions and affidavits since 2007, including the ETNZ one, but now with a SF HCA twist weaved in.

About the 'worst' I can see for GGYC so far is the possibility they actually get some of what they ask for; $1m, two AC45's, a free design, maybe even more than that. Thing is, it could somehow even benefit OR, and the event, if it gets done with some modicum of competitiveness and professionalism. The 'wider' cause is even pretty decent.

Could get interesting.

The most they'll get out of this is one or two things;

1. Tossed out by the court, and/or

2 Ground up by LE's attorneys.

The complaint and the relief they seek are actually a pretty humorous read. If they were granted the relief requested, this would turn into a one design event totally funded by LE. Fat chance, they can't expect the court to take their complaint/relief seriously, at least not for very long, and I don't expect they think the court will. This is more like a fishing expedition for sailfish in a canoe with a bamboo pole using a bobber and a worm.

My guess is that more than just this flimsy non-profit are behind this - it appears to be more a harassment law suit than anything else, and I'm surprised a law firm with that stature would even put their name on it.

In terms of an actual sub-plot, some that run in AC circles are well known in their past business endeavors to get others to do their dirty work for them. They make it a practice to cover their tracks relatively well, but the motives are usually hard to conceal, which could well be the case here. If someone is pulling strings, I seriously doubt it's anyone from the States, as some have speculated.

At any rate I'd be surprised if this gets any traction with the NYSC, and in the odd chance that it does, I suspect it will be gunned down pretty easily.

Hi SWS !

I think that you forget an important point: ADM is asking to remove GGYC as trustee. I could not say how much chance they have but who can predict the decision of a NY court.
And, if conspiration there is, no clue if that could be coming from the US or not.

[~Stingray~]

What is stange is that nobody here mentioned the strongest asset of ADM, David Pedrick.
http://pedrickyacht.com/

Yes, Pedrick's take on it would be interesting. I expect he will be summoned at some point, to ask him if he was engaged or just 'open to business, call me back if you ever get your act together.'

It's natural that designers will keep AC doors open for just in case, but did he expect ADM would drag his name, and almost nobody else's, into frikkin court? I somehow doubt it. He will just tell the truth when asked.

[Tornado-Cat]

What is stange is that nobody here mentioned the strongest asset of ADM, David Pedrick.
http://pedrickyacht.com/

Yes, Pedrick's take on it would be interesting. I expect he will be summoned at some point, to ask him if he was engaged or just 'open to business, call me back if you ever get your act together.'

It's natural that designers will keep AC doors open for just in case, but did he expect ADM would drag his name, and almost nobody else's, into frikkin court? I somehow doubt it. He will just tell the truth when asked.

As anybody in that kind of case I don't think Dave Pedrick has been happy to be drawn in a court. However he is a well respected designer, so I guess he had some reason to get involved in the project.
If we read ADM claims, GGYC tried to trash him regarding his relations with ADM.

[SW Sailor]

The racing yachts section of his web page is pretty revealing;

Link

I've not seen one Pedrick IRC boat in results anywhere, and L Bulbs went out of favor about 10 years ago. Seems really dated and no references to cats either.

I suppose he could draw anything, but how competitive would it be in today's world ?

I'm sure he's take your check, especially if it cleared the bank. I guess they're going to have to find more than 15 dues paying members - maybe Kiwi Jon will join.

[dogwatch]

I've not seen one Pedrick IRC boat in results anywhere

Not really the point, is it? Don't think this "defender" is about anything except ACWS. ACWS is certainly the focus of their document.

[~Stingray~]

.. it is the presumed economic benefits of an AC event in SF that persuaded the city of SF to grant benefits to the trustee and its associates that it would not have have granted to another real-estate developer.

Seems to me that LE was ~disadvantaged~ by his position rather than advantaged. The 'benefits' you assume are not at all obvious given that nobody else has been willing to step into almost that same piers quagmire; yet he did, and the Port is ecstatic they found someone to do something about the situation. He wanted it for the AC, yes. But other companies had rejected similar approaches; one even started into a P30/32 cruise terminal project, then bailed when the true cost became apparent.

So the city did try, hard, to 'grant' it to other developers - and the evidence shows they failed.

That all ignores the larger point anyway, which is that this Trust is not set up like a financial Will anyway. The beneficiary rights are explicitly, narrowly, defined by the Deed as being rights to Challenge. Nothing else is said.

So again, if an ETNZ or anyone else wants to pump the over $55M into what the HCA requires, instead of an LE company doing that; then I'm guessing they would be even bigger heroes since Larry would loudly applaud them too.

Avalos on the SFBOS came close to demanding ~charges~ from LE to the city for holding the races there, sensing that LE wanted it so badly. LE sure as shit did not get what he originally asked for, just some SF space to use for free for a few months. He's forced into a real estate boondoggle that will far, far outlast his own lifetime, let alone some pathetic ADM syndicate's imagined lifetime.

If real estate is what this is after, then there's a Crowley that could be an interested party, did I already post about him? Capt K and a close friend of his worked for that $B in SF, for years, captaining his ferries - a part of a far larger business, and one that has iirc already been involved in lawsuits over SF waterfront rights. Crowley Marine iirc.

[SW Sailor]

I've not seen one Pedrick IRC boat in results anywhere

Not really the point, is it? Don't think this "defender" is about anything except ACWS. ACWS is certainly the focus of their document.

Apparently it is. Why is he mentioned in the complaint ? Is he going to design an AC45 ?

If they aspire to be the defender, they'll need an AC 72, which by my understanding, would require a designer.

[dogwatch]

If they aspire to be the defender, they'll need an AC 72, which by my understanding, would require a designer.

True they mentioned Pedrick but I see no indication "they aspire to be the defender". Their aspirations are focussed on another objective, apparently.

As for needing a designer for an AC72, not in this shiny new AC.

[SW Sailor]

If they aspire to be the defender, they'll need an AC 72, which by my understanding, would require a designer.

True they mentioned Pedrick but I see no indication "they aspire to be the defender". Their aspirations are focussed on another objective, apparently.

As for needing a designer for an AC72, not in this shiny new AC.

Then maybe I missed the whole purpose of the complaint - why would they need a designer if they weren't trying to be the defender ?

Have you read the complaint and the request for relief ?

Please enlighten me.

[dogwatch]

Have you read the complaint and the request for relief ?

Yep, I have read it in its entirety. Unlike, apparently, many here.

[~Stingray~]

^ Am confused too.

As for needing a designer for an AC72, not in this shiny new AC.

?? wth does that 'not in this shiny new AC' idea/problem you have, have to do with the suit?

They specifically request entry to the ACWS, and AC, albeit on their own imagined timeline.

[dogwatch]

?? wth does that 'not in this shiny new AC' idea/problem you have, have to do with the suit?

Nothing. Was responding to the claim you need a designer to build an AC72 which (of course) in AC34 you do not since you can purchase an off-the-shelf design.

More generally, it seems reasonably clear that the aspiration (if anything aside from parting Larry with some of his money) is to promote African-American sailing through the ACWS which is (arguably) a realistic objective. Belief that the defender series could be won would clearly be delusional.

[2bad]

A few questions at first glance.
1. who is behind the suit ?
2.why referring to the protocol and not to the Deed in NY courts ?
3. Only one million $ ?

SW, any idea ?

TC, Captain Charles M Kithcart has LinkenIn and Facebook memberships.

Two of his LinkedIn connections are Kim Livingston and Vince Casalaina.

His Facebook page is private unless you ask to join.

The sole photo on the page is presumably CMK, but it is not captioned.

I take offense at being linked to Capt. Kithcart without a shred of evidence. I checked my Linkedin connections and according to Linkedin I'm not connected - I'm connected to someone who is connected (see attachment)  Linkedin CMK.png   70.87K   30 downloads.

You better get your facts straight before you post.

Vince

[Winged]

Seems origin of the name came from this origination that also looks to be just as questionable as the one in Carolina . Nigerian . origins, http://www.adamns.ca/

[Winged]

A few questions at first glance.
1. who is behind the suit ?
2.why referring to the protocol and not to the Deed in NY courts ?
3. Only one million $ ?

SW, any idea ?

TC, Captain Charles M Kithcart has LinkenIn and Facebook memberships.

Two of his LinkedIn connections are Kim Livingston and Vince Casalaina.

His Facebook page is private unless you ask to join.

The sole photo on the page is presumably CMK, but it is not captioned.

I take offense at being linked to Capt. Kithcart without a shred of evidence. I checked my Linkedin connections and according to Linkedin I'm not connected - I'm connected to someone who is connected (see attachment)  Linkedin CMK.png   70.87K   30 downloads.

You better get your facts straight before you post.

Vince

Think that pretty shitty posting that about Vince and Kim