Lasers - Applying a Blow Torch

[Wess]

I cant follow this, tried reading this thread start to finish, its all over the place. What I can gather is someone built some Lasers and didnt pay royalties to the designer, is that right? So how does the Torch tie into this, thats the confusing bit. Locally the class has stalled, lots of near new boats for sale at low prices, talking to the owners and searching the web results in many different stories.

Seems to be a few contributers on here who have some insight into whats going on, any chance of a couple of simple paragraphs that sum up the situation from the start through to now?

While its usually not a great source Wiki actually has a fairly non-biased summary here: http://en.wikipedia.org/wiki/Laser_(dinghy). Its a bit out of date but will give you an idea. The impact on the majority of sailors - other than providing an interesting debate topic over which to share some beers - has been close to zero thanks to some good work by the class association. Laser fleets on average appear to be doing quite well relative to the trends in the sport.

 

[redstar]

From the Wikipedia entry:

As a means of resolution, in July of 2010, Global Sailing offered to sell LaserPerformance the Laser Rights and their manufacturing company Performance Sailcraft Australia for $15,000,000 US, which LaserPerformance alleged was more than it was worth. In August of 2010, LaserPerformance offered to buy the Laser rights and Performance Sailcraft Australia’s trade mark rights for Australia and Oceania for $3,500,000.

I hadn't heard this bit of info before. Can anyone verify it?

Kirby has been quoted as saying that he sold the rights to GS as they had the best interests of the Laser at heart. GS then promptly offer the rights for sale to LP, for a probably decent profit.

Shows that despite all of the propaganda about people acting for the good of the class, all the players bar the class association are ultimately just interested in the money. Anyone who still believes that Kirby, GS, PSA or LP would ever put the good of the class ahead of the money is naive in the extreme. They're all playing us.

 

[torrid]

You don't think the $15 million number is a tad disinegenuous?

 

[redstar]

It's inflated, yes, but disingenuous? what would have been GS' motivation to name a price if they had not interest in selling?

 

[JimC]

Interesting. All that stuff has come from a user id which seems to have been solely used for posts which on the surface one might think are from a Laser performance company point of view. One might even be reminded of artificial grass...

See http://en.wikipedia.org/wiki/Special:Contributions/Sailnfish123

 

[redstar]

Yes, it does come across as authored from one particular point of view. Which is indeed interesting, because that side of the debate has said nothing publicly during the entire saga. It gives us a small insight into their version of events.

 

[torrid]

So maybe someone should update the wiki article to read "I am Bill Crane and I approved this message" at the end?

 

[Wess]

Silly me; I forgot where I was. Allow me to correct myself.

In my opinion and in fairytale told over and over…

There is a great and good website filled with individuals that are long standing members of the class and instilled with divine powers of observation such that offerings noted by ordinary mortals have no standing. Their hero is a kind poor white hair gentleman who was forced to take action to save the class from its officers who are evil to a degree perhaps only slightly less than that of the ultimate evil doer from a land across the sea. Said hero reaps a mere pittance of benefit from a napkin discovery so astounding and recent that family members for generations should suckle from its milk. So kind is he that pretty pink princess ponies emerge when he farts and he would never be associated with a Shark who would never issue threats to sailors over the interweb.

The action is going exactly to plan and our hero has won great victories at every turn. The class associations are about to be sanctioned into the stone ages for their bad deeds and the very starburst symbol upon which they gaze as they trim, will be stripped from the evil-doers, and evaporate into nothingness. It has been written and so it will be. It must be so.

The sailors themselves are panicked at their inability to worship at the alter upon their chosen steed but by the great light of a burning flame offered by our hero, they have found a better one and they are buying the new steed at such a great rate only equaled by the speed at which the new steed is being produced. To see those burning light factories hum is a sight they tell us. Oh what a grand sight it must be. I would order one if I could but such new steeds are not for mere mortal or class members grounded in the mundane. And the new cloth for the steed which will be a great improvement is being forever delayed by the same evil doers. So it was written so it must be. Our heros from lands very far away or very close would have nothing to do with such actions for they are pure as spun gold. At least until they had something to do with it but then it would only be for good reason for the heros are unfailing.

And I am Spartacus! Or Bill. That is about as true as anything else here. In fact, the best thing about this thread is there appears to be so little fact in it that it can provide a useful comic relief to the whole mess.

And then there is this one guy that if you spell his name wrong, and stir just little, that you can get him so wound up that he will actually believe you are somebody that matters in the mess and that they would actually post here in the land of fairytales.

Come on guys. Do you really believe in hero and fairytales? Go sailing already. The sky is not falling nor is it the color you make it out to be. Its grey. Many many shades of grey.

 

[ojfd]

The action is going exactly to plan and our hero has won great victories at every turn.

Absolutely!

 

[Bruce Hudson]

Yes, it does come across as authored from one particular point of view. Which is indeed interesting, because that side of the debate has said nothing publicly during the entire saga. It gives us a small insight into their version of events.

Agreed. You know it's strange really to say that, because you almost get a greater sense from the Wikipedia listing, than from the legal submissions.

I really like (sarcasm) the end paragraph: "On June 13, 2013, LaserPerformance answered Bruce Kirby’s claims and filed counterclaims against Bruce Kirby, Inc., Global Sailing Limited, (“Global Sailing”), and Performance Sailcraft Pty. Ltd. (“PSA”). The case is essentially a claim that LaserPerformance and Quarter Moon have breached post-termination obligations in the license agreements with Kirby and BKI. As set forth in detail in the Answer and Counterclaims, however, the defendants deny any such breach and deny that they have violated any federal statutes. The counterclaim argues that it is unclear as to which party owns the right to the “Kirby sailboat” design commonly referred to as the Laser. Nor do the defendants owe any unpaid royalties to Kirby, BKI, or Global Sailing."

And the end sentence seems stated with such belief.

The fact is, that a contract exists between Kirby and Laser Performance, and that contract includes among other things, the payment of royalties to the designer of the class: Kirby. We know that the royalties were reasonable, and have worked for many years with all of the other builders. The vast majority of Laser sailors who were aware of those royalties, were (and are) happy to see Kirby benefit. And Kirby has been a consistent figure in Laser sailing, turning up to countless regattas over the years.

If the reason that the royalties haven't been paid is because the contract was terminated, then all that may do is limit the amount of royalties that are / were due. Having said that, the contract is also very clear about who owns what, and what the terms are for release, and for selling the rights under the contract. My sincere hope is that the courts will see these aspects clearly, and that proper damages will be awarded to Kirby.

What is really annoying is that all Kirby wanted to do was retire. He as admitted botching the sale to Global Sailing, and that it wasn't completed according to the terms of the contracts. That being said, Rastegar / Crane (Laser Performance) did not need to take advantage of that, even though at that time I understand times were tough for the company and they were probably just trying to survive. Rather than deal with these issues openly and honestly, they appeared to have made a play for securing the world market for the production of the Laser (with the exception of Korea, Japan and Oceania), which they see as their right. That's why Bill Crane registered the Laser trademarks around the world a few years back - right Bill?

For sailors of Lasers (myself included) who have gained enormous benefit from sailing Laser, we also signed up to the system that Kirby created. I have come to a point where I now realise some of the flaws in the system (particularly trademark ownership), however Kirby, (originally a Finn sailor from Canada) got enough right to see the explosive growth of the class, something that Rastegar (a controversial figure who owned a pushchair / buggy company McLaren) bought into after previous Laser builders Vanguard went bust.

What's particularly annoying to me, is all of the effort that has gone into the legal case (including ILCA changing the fundamental rule, the badges etc in a successful attempt to support Laser Performance supply boats), is that these efforts could have been made making improvements to the class.

It's unacceptable that Kirby has been put in this position. It's completely understandable that he has opted to seek redress through the courts.

And it's understandable that he wants to see the continuation of his creation, even if it means adopting a new name.

 

[redstar]

Gotta wonder why:

1. People feel such a need to choose a side

2. Anyone believes posting an argument here eill away the opinion of others

3. There is such passion for either side

Again with the implication that someone must be either for BK or for LP. I really, honestly do not give a damn which of them is right or wrong, or which one ends up paying how much to whom. I know I'm far from alone, but reading this thread makes it seem like I am.

I do care about the class and the sailing. That's what the class association is protecting. Why anyone who sails lasers would do anything other than support the class is beyond me.

Why is is so difficult to understand that if the class had not taken the action it did, that there would not have been a new, class legal boat sold in Europe or NA in the past three years? Why do people (looking at you, Gantt) insist on reduction this to a pro-LP rather than a pro-class member action?

Neither LP or BK will put the class ahead of the money. Neither of them are the sailor's friend in this. You can argue that one is slightly more towards one side of the course than the other, but ultimately the money is by far the most important consideration to both of them.

The class doesn't care about the money. They care whether there are boats for people to sail, and events for people to sail them in. So please forget about supporting BK, or supporting LP. Just look after the class.

 

[Bruce Hudson]

I do care about the class and the sailing. That's what the class association is protecting. Why anyone who sails lasers would do anything other than support the class is beyond me.

Why is is so difficult to understand that if the class had not taken the action it did, that there would not have been a new, class legal boat sold in Europe or NA in the past three years? Why do people (looking at you, Gantt) insist on reduction this to a pro-LP rather than a pro-class member action?

Neither LP or BK will put the class ahead of the money. Neither of them are the sailor's friend in this. You can argue that one is slightly more towards one side of the course than the other, but ultimately the money is by far the most important consideration to both of them.

The class doesn't care about the money. They care whether there are boats for people to sail, and events for people to sail them in. So please forget about supporting BK, or supporting LP. Just look after the class.

I care more about sailing than I do about Lasers, though obviously I care about Laser as well. I also care about fair play.

Redstar, if Kirby's termination of Laser Performance was effected, there would have been a new Laser builder. Any supply issues would have temporary and certainly not lasted three years. When the Laser builders went bust previously, new builders were found quickly. When Vanguard went bust, new owners in the form of Rastegar stepped in. There have been supply issues when there were financial issues with LP which are fairly well documented.

The manner ILCA acted when they changed the fundamental rule has been widely criticized. When they made mistakes (and they did), they acted as if they were beyond reproach. When I discovered that the ILCA claimed that they had no knowledge to contracts that they were signatory to, that further turned me off the ILCA with respect to that. Issuing the plaques and the ISAF announcing that they had terminated their contract, merely highlighted the contracted agreement they had (or have). Don't get me wrong, there are top guys like Tracy Usher who contributed to forums prior to becoming ILCA president - but his election appears to have silenced him. A disruption to Laser Performance, may have meant a disruption to a big part of their income.

The ILCA definitely does care about money. They receive their contributions from selling plaques, member fees and that money goes towards paying salaries, travelling costs and organising regattas. The majority of work is volunteer work, however there are a select few where this financial tie is very significant. This is well documented in Laser World, though they have stopped putting complete financial statements there in the last couple of years.

It's a nonsense to say that Laser sailing is limited to just the members of the ILCA. There are in my estimation more than 40,000 people who race Lasers in any given year, yet only about 15,000 that join the ILCA. There are members of small clubs all around the world who choose not to belong to the national Laser association and therefore don't belong to the ILCA either. Some of them use club Lasers, like with college boats in the US, while others own their own boats and are weekend racers.

There was a significant period when Bruce Kirby put the class ahead of the the money. During the Laser's formative years, there is no doubt in my mind that he worked his ass off to make the Laser a success. There is some that say that is still true that he puts the class ahead of money. His many years of sailing, and even more years of turning up at regattas are beyond what was necessary - and certainly action that were not about money.

The contracts he put together binded same-minded enthusiasts - and it is striking that Farad Rastegar and Bill Crane are cut from a different cloth. They bought a failed Vanguard, probably at a greatly discounted price. When you dig, it's hard to avoid McLaren's challenges (How Farad Rastegar infamously forgot that his mother and sister owned a McLaren company), or the way that Bill Crane left the NA-ILCA hanging regarding their sponsorship. The legal documents lodged have underscored that Farad Rastegar and Bill Crane have treated Bruce Kirby poorly. In spite of what the ILCA claimed, the contracts were real, and Bruce Kirby is more than justified to use legal process to uphold the terms of those contracts. Win or lose in court, Bruce Kirby can hold his head high as the guy who created a boat that has given several hundred thousand people great enjoyment. There is a good chance, win or lose, that the Torch will become a reality. He has quite a few supporters, including some high level sailors who currently race Lasers. As I said previously, there are others who have been a big part of building Lasers, however this is not about their efforts - this is about addressing the allegation that Kirby is all about the money. I firmly do not believe that is (or ever was) the case.

Putting the class ahead of money is definitely true for the Spencer family. When they moved manufacturing from New Zealand (Henderson) to Australia, I'm pretty sure that move was inspired by losses that the builders made. Never the less, the Spencers stood by the class and persevered. So to them, at that time (the 1980s), it was more about maintaining a highly successful class than making big profits. The Spencers didn't need to generate profits, they had a highly successful business called Caxton Papers Mill that the family sold in the 1980s for many millions. Lasers are still incredibly popular in Australia and New Zealand - both countries have contributed a disproportionate number of top Laser sailors as a result. (The regional population is about 20 million). While it's not perfect, there's something that is very right about down-under when it comes to Lasers.

Yes PSA and LP have longstanding issues. but the above does not mean that Kirby, who made a few mistakes when he tried to retire, should be squeezed out of the contracts he set up. The court case is now going to verify if the the contracts were binding.

By pretending it's not about Kirby, that things will sort themselves out, that everything should continue as it is, is exactly what will benefit Laser Performance - and to do that is to screw Kirby out of the rights that he had contracted with builders and with the ILCA.

So don't go thinking it's reducing this down to making it pro Kirby or pro Laser Performance.

It already was.

 

[JimC]

Why anyone who sails lasers would do anything other than support the class is beyond me.

...

So please forget about supporting BK, or supporting LP. Just look after the class.

But how do you look after the class in the long term?The fundamental rule change seems to me like putting sawdust in your radiator. You might be able to limp home, but if you don't fix the problem properly in the medium term things are going to get much much worse.

Major involvement from designer and builders who also have an enthusiasm for the sport has been a big part of the success of the class, it's one of the things that is different.

 

[Bruce Hudson]

Vanguard did not go bust.

They sold a well oiled money making machine to an enthusiastic buyer who decided to run the company in a different manner.

Quite right, Vanguard didn't go bust - what I was referring to badly was the merged businesses of Sunfish / Laser, Vanguard and Performance Sailcraft Europe (Gavel) which were an entirely different animal to the Vanguard company formed by the Harken brothers. I wouldn't be the first that erroneously referred to them as Vanguard - partly because they were the most famous (at least in my mind). Farzad Rastegar acquired the company/ies sometime around 2007/8.

Checking the facts about Laser Performance's history (which I didn't do with my previous post), I looked at this on Wikipedia:

http://en.wikipedia.org/wiki/Laser_Performance

In it is a statement with presents a very one sided account of the legal proceedings, concluding with this gem:

"On June 13, 2013 LaserPerformance filed its Answer and Counter Claims in the United States District Court, District of Connecticut, alleging a scheme by Bruce Kirby, Inc., and their foreign co-conspirators Global Sailing Limited, and Performance Sailcraft Pty. Ltd. to force LaserPerformance out of business."

As it turns out, the evidence that supports that is that according to Bill Crane some guy once imported to the US about 20 foils from Australia without PSA's knowledge. That's based on the affidavits submitted by Bill Crane.

Perhaps my response to Redstar wasn't as clear, as well thought out as I intended. I agree with his sentiment "just look after the class". By simply rereading the proposal to change the rule back in 2011 (http://www.laserinternational.org/info/2011rulechangesvotingended23rdseptember2011) underscores why looking after the class should be with our eyes wide open, that blindly following the direction that the ILCA sets for sailors is dangerous - and that people within the ILCA are human, fallible and not beyond reproach. Specifically, when they made the following untrue statement as part of convincing the membership to change the rule:

"In addition, a builder also needs a building agreement from Bruce Kirby or Bruce Kirby Inc. This provision is mostly historical. The rule was instituted at a time when Bruce Kirby held certain design rights. The ILCA is not a party to any of these “Kirby” agreements."

This statement was cosigned by then president Heini Wellmann, and Jeff Martin (Laser Class World Executive Secretary).

The agreements are still poorly understood, as are the royalty payments. Most people don't acknowledge that the ILCA (along with Kirby and the ISAF) were also due royalty payments because of a clause (8.1) that Kirby put in the builder's contract. Note that the contract was amended as recently as 2005 - which speaks volumes to the historic nature of the contracts.

The ILCA were a beneficiary of the building contracts, and therefore a party. The ILCA formally acknowledged that fact, by being a signatory to the IYRU contract, which Jeff Martin personally signed.

JimC rightfully raises the question of how do you look after the class in the long term? In order to do that, the stakeholders need to agree and work together. Unfortunately, even who the stakeholders are is under question, which will hopefully be answered in part by Kirby's legal action. According to the ILCA, the stakeholders don't include Kirby and does include Farzad Rastegar and Bill Crane. That needs resolving before we can move forward.

Part of looking after the ILCA, is saving them from themselves.

For me and others, because of the above, moving forward will be with Kirby.

 

[torrid]

I still wonder how they will be able to explain all this shit to a jury.

 

[JimC]

I still wonder how they will be able to explain all this shit to a jury.

I think it unlikely they will have to. Most likely there will be some kind of out of court settlement once discovery is over and all the lawyers get to see what the evidence says.
It occurs to me, now I think of it, that the lawyers must be as ignorant of what really happened as the rest of us, and all they know is what their clients tell them, which must be coloured with the usual human failings, truth mixed with wishful thinking, second guessing on what they think the other guy thought, evasions, stuff left out because it's embarrassing or awkward, and maybe even lies and deceit.

It seems to me it must only be after the discovery phase is over that the lawyers can look at what both sides have got and figure out what they can prove in court, and also what the other side can prove, and get some idea of who is likely to win.

But maybe I 'm talking b******'s...

 

[Bruce Hudson]

I'd agree with you JimC, if it were all about the money, but that's not what it's all about. It would seem to me that there are few principals involved as well - like whether or not contracts have been breached.

I'm not sure about the other lawyers, but with Wesley W. Whitmyer, Jr., who has been Kirby's lawyer for at least a few years, is a sailor. I don't know if he is or was a Laser sailor, but he knows a few. I believe that as a sailor he is very well placed to understand the intricacies.

The issues include whether or not the contracts are valid, and whether or not Kirby has the right to terminate Laser Performance as a builder. If successful, then the question becomes who appoints new builders. So, given that Rastegar's company holds the Laser trademark for various countries, the discussions would be about renaming the boat and using a new builder, or reinstating Laser Performance. It will be interesting to see if Kirby and the ILCA can find agreement on how to move forward in this scenario. If they don't, Kirby has already indicated that a new association can be set up.

If Kirby loses the court case, then he (along with his supporters) will proceed with the Torch, which, as he indicated personally, is on hold until the courts make a ruling. This scenario is interesting as well, because although Rastegar holds the Laser Trademark for most regions, crucially he does not hold the trademark for Australia, Japan, Korea and New Zealand. It's even more interesting if PSA starts building the Torch, and retains ownership of the Laser Trademark. If Kirby loses the case and Rastegar continues to build, I can't see the class moving forward in the longer term with the same name - with or without Rastegar.

The issues that lead Kirby to court are not just about Rastegar not paying royalties. They include Kirby's contracted right to terminate Laser Performance as a builder, and the ILCA and the ISAF upholding their agreements with Kirby. It's also about several other terms and conditions set out in the contracts, including: the ownership of the moulds Laser Performance have used to make Lasers, through to the procedures (eg notification) that parties must follow when selling their contracted rights.

Let's look at the main defence and counterclaim. Aside from some technical argument that somehow invalidates the contracts, the most significant reasons put forward is that Kirby and the Spencers/PSA have a conspiracy to take over the world production of Lasers. If that's the case, then how come with the Torch, that the builders in Europe and North America are not related to PSA? That the only evidence presented is very very flimsy? My hope is that the jury will see this counterclaim for what it is.

I wonder too about a jury's capacity to understand this stuff, though am of course hopeful that they will. Even if they do find in favor of Kirby, there are still quite a few barriers in the way of resolution.

One of my recent realisations is what this is about is whether or not Kirby's voice should be heard. The ILCA have said that Kirby's role is historic. To simply forget about this stuff like others have suggested and just go sailing is to shut Kirby out. I can't say enough how I am disappointed in the ILCA in that they did not adhere to their agreements. They have said let's just go with the guys who are paying the ILCA money and supplying the boats - because supply is really important. To say that Kirby's role is historic offends on many levels. Let's not forget that Laser Performance are not the only boat builders with the capacity to build Kirby's boat - and yes - that might be with a different name. So let's forget about our values of fair play and what is right - of course forgetting about these things is wrong.

 

[Dex Sawash]

Is it definitely on track to go to a jury trial?

Isn't a lot of this contracts stuff done with just a judge/panel of judges hearing the case?

 

[Bruce Hudson]

Is it definitely on track to go to a jury trial?

Isn't a lot of this contracts stuff done with just a judge/panel of judges hearing the case?

I don't know for absolute sure, though the US District Court routinely try civil cases by jury. According to Judge Meyer's information, the normal number of jurors is 8. http://www.ctd.uscourts.gov/content/jeffrey-alker-meyer I recall one party requesting a jury.

 

[JimC]

Mmm, but anno domini can't be escaped. BK cannot play the role he's played in the past for ever, and indeed that was part of how this mess started. Eventually his role has to be historic.

But now you have me speculating, with no evidence whatsoever, whether there was a faction in ILCA that didn't altogether value the input from the designer, and was looking forward to his retirement. If so a passing of the baton on so that input continued from another party might have been a very unwelcome surprise.