Lasers - Applying a Blow Torch

redstar

Member
Gantt, a couple of questions for you.

You (along with plenty of others) insist on regarding any action of the ILCA as taking sides with LPE over BK. However, ILCA's role is to represent the interests of the class members, not any other party.

There is little dispute that BK is perceived as having the moral high ground in the affair as borne out by your survey. Whether he has the legal high ground is yet to be determined, and any speculation in this regard is pointless as there are way too many unknowns. It is evident though that he is following a pre-planned and well orchestrated strategy with the timing and content of his various claims - they are far from knee jerk reactions to changes in the situation. His end goal is obviously to own the Laser brand and licensing rights around the world, an outcome which is actually aligned with what the ILCA wants.

If you leave aside for a moment the moral consideration, what action do you think the ILCA should be taking to best serve the interests of the class members? Why do you think the ILCA should be putting the interests of Kirby ahead of the interests of the class members? Why do you think it is necessary for the ILCA to automatically fall into line with whatever Kirby proposes, without their own assessment of whether that best suits the interests of the class members?

 
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KiwiJoker

Super Anarchist
3,734
324
Auckland, NZ
Gantt, a couple of questions for you.

You (along with plenty of others) insist on regarding any action of the ILCA as taking sides with LPE over BK. However, ILCA's role is to represent the interests of the class members, not any other party.

There is little dispute that BK is perceived as having the moral high ground in the affair as borne out by your survey. Whether he has the legal high ground is yet to be determined, and any speculation in this regard is pointless as there are way too many unknowns. It is evident though that he is following a pre-planned and well orchestrated strategy with the timing and content of his various claims - they are far from knee jerk reactions to changes in the situation. His end goal is obviously to own the Laser brand and licensing rights around the world, an outcome which is actually aligned with what the ILCA wants.

If you leave aside for a moment the moral consideration, what action do you think the ILCA should be taking to best serve the interests of the class members? Why do you think the ILCA should be putting the interests of Kirby ahead of the interests of the class members? Why do you think it is necessary for the ILCA to automatically fall into line with whatever Kirby proposes, without their own assessment of whether that best suits the interests of the class members?
ILCA should be taking the long view regarding the future of the class. That includes carefully assessing the deteriorating business relationship over the last several years between the principal builder and the designer.

Did ILCA do that? Based on their own communications to members it's patently obvious (I just couldn't resist!) that the class association was ignorant of the contract situation. They went ahead, misled their membership and shut Kirby out of the deal. Kirby sued the builder and, because it's legal SOP, included ILCA as a defendant. Now they find themselves before da judge. Not in the members' best interests, I would think.

With new insights ILCA had the opportunity ... still has the opportunity ... to recant. They could plead no contest. They could negotiate with Kirby and ask to join him as plaintiff, or as Friend of the Court, if he will modify his Complaint. Of course that would need a class vote but given that this little imbroglio has the legs to endure for years that shouldn't be a problem.

 
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Otterbox

Member
93
17
London
Gouvernail said:
"What ILCA course of action would have best served CLASS MEMBERS???"

I find that to be a very interesting and perhaps difficult to answer question.

I know I am concerned our class is not doing the best thing for our members when their actions APPEAR to be helping LP to remain the exclusive supplier even though LP is not supporting our game to enjoy the lifestyle our game has grown accustomed to enjoying.

I have a ton of questions and every day there seem to be more of us with more questions.

When the ILCA managemt decided to abandon the Kitby trademark and allow generic boats called Lasers, I thought the best choice would have been to abandon the Laser trademark and allow genericly named boats built to abide by the rules necessary to use the Kirby trademark.

I am certain someone has a reason for the decision. I am wary of any decision whose justification is so weak people who made those decisions are afraid to publicly discuss those decisions

If you are afraid disclosure of your decision making process will cause you to lose a subsequent lawsuit, red flags instantly surround my view of your actions.
Absolutely agree.

If you go back to what BK was saying about the IPR rights, when he was called ILCA fundamental rule briefing notes bullshit, he has been proven right all the way along.

How ISAF can possibly explain themselves from this position

"On March 25th Legal Counsel for ISAF Jon Napier wrote to Jeff Martin the Executive Secretary of ILCA requesting that ILCA cease to issue ISAF plaques to LaserPerformance (Europe) Limited and Quarter Moon Inc. (the 'Builders') with immediate effect. The reason for this decision is that ISAF has concluded, based on the correspondence and court papers received from Bruce Kirby’s attorneys, that the Builders are no longer licensed by Bruce Kirby and/or Bruce Kirby Inc. to build the Laser class boat (as required by the 1983 ISAF Agreement and the 1992 Plaque Agreement)."

To move from that plainly factual conclusion to their very shaky, oh the 1983 agreement was invalidated because of the appointment of Torch builder’s decision, when there is NOT A WORD in that agreement (that anyone can find) which would prevent Kirby from building the boat under another name seems like a step onto the wild side.

It looks very much like ISAF is going to realise soon having reached the first conclusion, which was plainly the right one, their sudden reversal is just not going to have legs in court and with big doubts over the Laser Trademarks now, they have plainly backed the wrong horse.

At Event level and Race Management level, there is constant talk about Risk Management.

Surely Napier, who is now the newly appointed ISAF Competition Manager and ISAF Boss Jerome Pels need to look hard at the risks arising from the ongoing support of LPE, when they are already on record having agreed that Kirby´s position on LPE was right.

Neither LPE, ILCA or ISAF have been able to mount any public defence of their positions with any credibility at all. (as Gouvernail details)

Right now it looks like ISAF´s bank accounts are on a hiding to nothing and that does not seem like sensible Risk Management.

Any PRO of a major regatta who exposed the event to such risks would be rapidly cast loose and surely the ISAF Competition Manager, (and the ISAF in house legal counsel ) knows that.

 

redstar

Member
Neither LPE, ILCA or ISAF have been able to mount any public defence of their positions with any credibility at all. (as Gouvernail details)
Well none of them have actually tried to mount a public defence have they? Doesn't mean they don't have sound arguments. Their legal strategies are obviously about keeping quiet and waiting for the court date, while possibly negotiating behind closed doors.

Kirby's strategy is about carefully timed actions and releases of information, intended to put pressure on the other side while locking in support of the sailors. Note that virtually all info from Kirby has been pushed at a time that he chooses - it's not like he's giving interviews and responding to every Tom, Dick and Harry that wants a chat.

If ILCA and ISAF go responding to everything Kirby does, all they are doing is letting him set the agenda - they obviously have no interest in a public war of words before the court date. I have no idea why people expect that they should. When you're playing poker, does it help you to show the other players what cards you've been dealt?

 

Bruce Hudson

Super Anarchist
3,251
847
New Zealand
Gantt, a couple of questions for you.

You (along with plenty of others) insist on regarding any action of the ILCA as taking sides with LPE over BK. However, ILCA's role is to represent the interests of the class members, not any other party.
Kind of. I make a small but important distinction - I believe that the ISAF/ILCA by changing the class rules and removing Kirby's name from the plaque has EFFECTIVELY been the same as taking sides against Bruce Kirby. I'm not convinced that their actions are vindictive - however I am convinced their actions have been short-sighted. Their actions have resulted in legal action by Kirby because it would appear (it's my belief) that the ILCA and the ISAF are in breech of contract. I base this on my understanding of contract law, where a breech by one party (as the ILCA/ISAF say Kirby has done with the Torch) somehow invalidated their agreed obligations to Kirby. It don't believe one party's breech invalidates the other party's obligations.

In the same way that doing nothing now EFFECTIVELY means that you are supporting the status quo - with the ISAF effectively supporting LP.

There is little dispute that BK is perceived as having the moral high ground in the affair as borne out by your survey. Whether he has the legal high ground is yet to be determined, and any speculation in this regard is pointless as there are way too many unknowns. It is evident though that he is following a pre-planned and well orchestrated strategy with the timing and content of his various claims - they are far from knee jerk reactions to changes in the situation. His end goal is obviously to own the Laser brand and licensing rights around the world, an outcome which is actually aligned with what the ILCA wants.
It's important to realize that the rule change was proposed and voted upon prior to legal action that Kirby took. I take issue that it is "well orchestrated". ILCA lacked giving proper consideration to all concerned parties (eg other builders like PSA) - we all know that good communication from ILCA has been sadly lacking. It would seem that ILCA has been acting in the interests of the supply of boats for international regattas; and been focussed on dealing with one party: LP. We all know that Laser sailing is global, and ILCA need to juggle the interests of all builders, sailors at all levels and the interests of 'the system' which includes Kirby.

Posted here and in other places is about Performance Sailcraft wanting to to take over the world and that Kirby is somehow 'in' on this because he wanted to sell his rights to Global Sailing - a conspiracy theory. If that was so, then surely we would have seen Performance Sailcraft appointed as North American builders for the Torch? We know that Kirby did no such thing - invalidating this conspiracy theory.

I disagree that Kirby's intention is to own the Laser brand around the world. I believe his intention is to put and end to the issues that have plagued the European and North American markets through the involvement of LP. If Kirby can secure the Laser brand, I believe that he would reinstate 'the system' - at least that would be consistent with his previous actions. I believe that Kirby's involvement has been one of the key components that has lead to having such a great class. One of the ways he has is by holding us true to the original concept - he has periodically referred to himself as the Laser class 'watchdog'. (Ironically, its now more than ever that we need a watchdog. Sadly, the focus has become about more elite sailing - and selling new boats - this is flawed - true growth will come from more people sailing at club level - as witnessed by the growth with masters.) I believe that Kirby is 'old school' and is doing his best to make sure that the Laser is in good hands - I believe he is acting far more openly than the ILCA (and of course LP), and his actions appear to be consistent with the wishes of Laser sailors. (And no, I am NOT on Kirby's payroll in any way shape or form).

If you leave aside for a moment the moral consideration, what action do you think the ILCA should be taking to best serve the interests of the class members? Why do you think the ILCA should be putting the interests of Kirby ahead of the interests of the class members? Why do you think it is necessary for the ILCA to automatically fall into line with whatever Kirby proposes, without their own assessment of whether that best suits the interests of the class members?
In short the answer is no, that the ILCA should definitely not be putting Kirby ahead of their members. For me, I happen to be of the belief that the Kirby position is best for the ILCA membership. This includes honouring:

  • A system that is built on goodwill for the benefit of Laser sailors everywhere at all levels
  • Parties that honour their agreements
  • A system that is mutually beneficial for all.
Basically, the system that has served us well for several decades. Maybe there is a better system - but I am sure that the road to getting a better system is talking openly with all parties including ALL of the recognised builders, the sailors and yes, Kirby. The road to a worse system includes deals behind closed doors with a builder seeking to not meet contracted agreements. (What are the real back room deals that are being made with those who are meant to represent us?Why is McLaren advertising on the ISAF website? Do we want to be run by a select few?)

Interesting, the ILCA, ISAF and LP seem to be intent of changing 'the system' that for unknown reasons no longer suits them. They have been doing this by using bully tactics that has resulted in them finding Bruce Kirby's backbone. I fully support Bruce Kirby taking the legal action that he has, and refuse to stand by while the ISAF appears to act against the majority viewpoint of whom they are meant to represent. Some of you are saying that I don't know all the facts. While that's correct, I know sufficient facts to have reached my own conclusions - and that if ISAF are acting in some legitimate way - they have failed to put forward their case in a meaningful way.

Who's approach do you favour? ILCA (with misinformation and lack of consideration), ISAF (who have communicated poorly - and seem to be acting unilaterally) Laser Performance (with a poor track record, and silence); or Kirby (who hindsight would seem that he made a mistake with Global sailing and so has reversed it - but is holding fast to the very system that has worked well for decades - and being open)? One of Kirby's solution to the issue is to recreate 'the system' using a different name. That seems like a reasonable way forward. Ultimately - we all just want to race Kirby's Sailboat - and for me - that's

For my part of world, ILCA's actions for the first time has threatened our supply of Laser - as PSA currently feel they cannot produce the Laser without Kirby on the plaque - in their words it would be against their contracted obligations to Kirby.

The actions I believe that would serve the ILCA and their membership include:

  • to honour the agreements made, including those with Kirby, that sees a continuation of the system that has seen the Kirby Sailboat become the world's most popular adult one design sailboat
  • to not fear short term lack of supply of boats for regattas - we (the Laser community) will find a way
  • if Laser Performance continues to act in the way they have - we (the Laser community) will find a way
  • to communicate in and open and honest way with greater detail to it's membership what considerations are being made in relation to the stewardship of our class.
I believe that the ILCA are not acting in the interests of their membership, nor are their actions consistent with what I believe is the majority view. Plus I'm of their belief is that their action are in breach of contract. Their actions seem to be focussed on the short term and about expedient decision based on a relationship with a manufacturer who has not served the Laser class very well.

 
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ojfd

Anarchist
818
78
I believe that the ILCA are not acting in the interests of their membership, nor are their actions consistent with what I believe is the majority view.
So, Gantt, what is the majority view?

There are 95 countries listed in latest Laser class report and, most likely, over 100 districts world wide. Do you have any info on which district holds what position? Mind to share it with us?

 

Bruce Hudson

Super Anarchist
3,251
847
New Zealand
I believe the majority view that the majority of the ILCA membership takes are one of two positions that are inconsistent with ILCA's actions. These are:

1) Not taking sides.

2) Siding with the Kirby position.

I predict that if you ask each national association, the majority's official position will not be drawn into supporting either side - in other words the first position. It's striking to me the level of support Kirby has at the sailor level. Maybe those who oppose Kirby are hiding - where are they all?

What's clearly the minority view are those who say they support Laser Performance.

Even the ILCA themselves claim to have a neutral stance. Here's a statement from ILCA in April 2013: "To be clear, ILCA is not a judge or a court of law and takes no position on the relative merits of the claims made by either of the commercial entities involved in the law suit."

Yet the position that the ILCA have taken is clearly a change (the rule change, changes to plaques) that favours LP continuing to supply boats, and does not favour Kirby by removing his name from the rules and the plaque. They may justify it in many ways - but it's hardly a neutral position.

And as their actions favour one party over the other - is there any other way to read it?

This is my BELIEF, I don't claim to have more information. Are you trying to say that siding with LP is the majority view? Go on, ojfd, convince me!

 
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torrid

Super Anarchist
1,089
437
I'm thinking ILCA took the position they did for the short term to protect the supply of boats, but for the long term were gambling that LPE would just go away. The class association would emerge as more independent from the builders, which is what I believe the membership wants.

 

Bruce Hudson

Super Anarchist
3,251
847
New Zealand
Maybe torrid. Check this out:

[SIZE=small]The first part of the following is from the North American Laser Assn minutes:[/SIZE]

[SIZE=small]April 16, 2011[/SIZE]
[SIZE=small]1.Laser Performance contract: since notification of our intended deadline of March 31st to have a signed sponsorship contract, there has been some communication with Bill Crane at LP. Due to negotiation on other items with ILCA, our contract with LP is on hold. A decision of some kind is expected within the next couple weeks. Also a past due payment of $3,750 since 10/1/10 has now been paid. It was decided to postpone looking for an alternative sponsor until our next ExCom call.[/SIZE]

[SIZE=small]5.Update on ILCA/GS/LP: A rule change has been proposed by ILCA with voting open until September 2011. Approval will allow ILCA to continue to issue ISAF plaques to all approved builders and will force Global Sailing and Laser Performance to sort out their differences in court without the involvement of ILCA. Several members of the ExCom requested some guidelines about the best way to answer inquiries from ILCA-NA members about the situation. Tracy and Sherri agreed to put something together.[/SIZE]

[SIZE=small]September 13, 2011[/SIZE]
[SIZE=small]2a.Laser Performance contract: no payment has been received. Tracy has spoken with Bill Crane but he indicates that no action will be taken until after the rule change is formalized. Sherri will write to LP to ask them to provide the Grand Prix prizes for 2011.[/SIZE]

[SIZE=small]November 9, 2011[/SIZE]
[SIZE=small]2a.Laser Performance contract: no change. Tracy has spoken with Bill Crane but he indicates that no action will be taken until after the rule change is formalized. Sherri noted that LP has agreed to provide the Grand Prix prizes for 2011. They will ship all items to the class office for distribution.[/SIZE]

[SIZE=small]January 18, 2012[/SIZE]
[SIZE=small]2a. Laser Performance contract: no change. It was decided that this item should be dropped from the Action Items list as no further action is anticipated from LP in the foreseeable future.[/SIZE]

[SIZE=small]March 4, 2013[/SIZE]
[SIZE=small]Bruce Kirby lodges his civil action.[/SIZE]

[SIZE=small]March 4, 2013[/SIZE]
[SIZE=small]ILCA say "The decision to continue ISAF plaque sales (and continue to report them to Kirby, Inc.), taken only after consultation with ILCA's legal advisor and close discussion with ISAF, is seen to be in the best interest of the sailors as it maintains the flow of boats and equipment until such time as a resolution to the dispute is reached."[/SIZE]

[SIZE=small]April 23, 2013[/SIZE]
[SIZE=small]ILCA say "ISAF has confirmed that the Laser brand dinghy remains Olympic equipment and will be used for both the men’s and women’s one-person dinghy events at the 2016 Olympic Games in Brazil and remains the core equipment through the 2020 Olympics. ISAF informs us that supply contracts for the provision of the equipment for the 2016 Olympics were signed in 2012.[/SIZE]
ISAF has approved two changes to Part One of the ILCA Class Rules. These changes have been approved in accordance with the provisions of the ILCA Constitution and the ILCA Class Rules. All necessary votes and approvals have been conducted and are officially recorded. In the case of the member vote, votes were verified for membership validity by each District or Regional authority. The results were then audited by an independent audit firm, which reported 1017 ‘yes’ votes (89.3%) and 122 ‘no’ votes (10.7%), showing that over two-thirds of the voting members approved the rule change as required by the ILCA Class Rules, Part Five, article 30©.

[SIZE=small]April 30, 2013[/SIZE]
[SIZE=small]Kirby amends his civil action to include the rule change.[/SIZE]

 

Bruce Hudson

Super Anarchist
3,251
847
New Zealand
My name is Bruce Hudson. I started sailing in 1976 and Lasers in 1983 in New Zealand. I've sailed in a few nationals - but most of my sailing has been at club level. I have owned seven Lasers in total, only one of which was brand new. Though I have been a member of the NZLA previously, I am not currently. I intend to sail in the 2014 NZ nationals in Nelson so intend to rejoin the NZLA for next season. I am currently a member of Pupuke Boating Club. The interest I have is protecting the interests of a sport which I am passionate about.

Thought it might be a worthwhile exercise to haul out the 2011 vote explanation, now we have had time to get to grips with what actually happened. This has been done before, there is a little new information, though the intention is to present this information in one place.

In Kirby's civil action (which sadly, I am now familiar with), Kirby alleges "82. On information and belief, in order to gain the required support for the ILCA Rule Change, ILCA mislead its members as to the reasons for and implications of the ILCA Rule Change."

So how true is that? I decided to look at the explanation offered by the ILCA, look at the information that was going around at the time, add what we now know - and make my own conclusions. While the below represents my own opinions, I have attempted to be neutral as I can be.


[SIZE=x-large]2011 RULE CHANGES - VOTING ENDED 23RD SEPTEMBER 2011[/SIZE]

IMPORTANT Rule change
[SIZE=small]This rule change is very important for the future of the class. The change and the explanation have been approved by the Laser Class World Council and the Laser Class Advisory Council. Please do not delay your vote.[/SIZE]
[SIZE=small]For 40 years the ILCA Class Rules and associated agreements concerning the management of the class have given the sailing world the most successful youth and adult racing class in history with over 200,000 boats built and racing in over 125 countries.[/SIZE]
[SIZE=small]This success, we believe, is based fundamentally on the ILCA Class Rules, which requires that a builder of class-legal boats must (among other things) (i) manufacture the hull, equipment, fittings, spars, sails and battens in strict adherence to the Construction Manual and (ii) have the Laser trademark rights.[/SIZE]

[SIZE=small]No real issues worth mentioning above here.[/SIZE]

[SIZE=small]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.[/SIZE]
[SIZE=small]Issue #1 - there are current agreements and are therefore not historical. This fact is verified by Laser builder Performance Sailcraft based in Australia. It is also verified by ISAF, who referred to current agreements as reason not to approve the rule change. The agreements were originally signed in 1984 and 1988, though had several updates over time, the most recent appears to be "on or about June 16, 2005" with PSE.[/SIZE]

[SIZE=small]The ILCA is not a party to any of these “Kirby” agreements.[/SIZE]
[SIZE=small]Issue #2 - there are agreements that specifically name the ILCA as a party. The builder agreements say that changes must be made with the agreement of ILCA. PSA in their recent statement referred to agreements that they have with Kirby, ISAF and ILCA. Put plainly, ILCA was party to agreements with builders. While there were several agreements, and strictly speaking an agreement between the builder and the designer may not have the ILCA as a signatory, I believe that the ILCA to be named in the builder agreement (though as stated, the ILCA may not be a signatory). The big picture is that Kirby, LPE, ILCA and ISAF had a number of agreements are bound to each other by these agreements. Of course whether or not these agreements will be upheld is up to the courts.[/SIZE]

[SIZE=small]Unfortunately, a dispute has arisen between parties who claim to be representing Kirby’s interests: a New Zealand company called Global Sailing; and Laser Performance Europe (LPE), one of the manufacturers, which holds the Laser trademark rights for Europe, South America, Africa and Asia (excluding trademark rights owned by Performance Sailcraft Japan for Japan and South Korea).[/SIZE]
[SIZE=small]Unsure if the ownership of the Laser trademark is quite so extensive - though that has no influence on voting so will not count it as an issue.[/SIZE]

[SIZE=small]The dispute centers on whether a valid “design rights holder” agreement exists with LPE. Under the current ILCA Class Rules, if there is not a valid building agreement, then a manufacturer, even a trademark owner, would not meet the requirements to be an International Sailing Federation (ISAF) and International Laser Class Association (ILCA) approved builder.[/SIZE]

[SIZE=small]The issue, at least in part, was that LPE was not paying royalties - not upholding the agreement that it had with Bruce Kirby Inc., though the ILCA conclusion is correct. While I don't agree with this statement, (as a breach of contract does not release the parties obligations) I won't count this as an issue until this becomes clearer.[/SIZE]

[SIZE=small]Each of the parties to the conflict has threatened ILCA in various ways – Global Sailing has said it may form a new class association for a “Kirby Sailboat”. LPE informed the ILCA that it intends to form its own “Laser” class. We may therefore end up with three different classes and may lose the Olympic status. The “one design / out of the box principle” would also be threatened.[/SIZE]
[SIZE=small]Agree with the ILCA's conclusions. This is such a shame, as the class was built on a huge amount of goodwill. Threats like this are sad , and speak about the frustrations the parties were having.[/SIZE]

[SIZE=small]One other possible result of this conflict is that due to uncertainty over ISAF and ILCA approval, there may not be a sufficient quantity of new Laser boats compliant with the ILCA Class Rules available in Europe and other countries in 2011 and beyond to satisfy the demand of its current and future ILCA members.[/SIZE]
[SIZE=small]As it turned out, the Olympics were not compromised. Other major events have not been compromised. Though there is potential disruption in the future, most of parties, if asked, may simply put their differences aside for the good of the sport. Now it has progressed to legal action, the possibility for this may be fading.[/SIZE]

[SIZE=small]The class officers made numerous attempts to get the two conflicting parties to end their dispute: meetings were held in different parts of the world and written compromise proposals were made, unfortunately wth no success. While discussions between the two parties continue we are unsure of the outcome and running out of time.[/SIZE]
[SIZE=small]We can now say with hindsight that time wasn't really running out, though I sympathize with ILCA taking that view at that time (the year before the Olympics).[/SIZE]

[SIZE=small]We also took legal advice. The above rule changes were deemed the only possible solution in order to promote the uninterrupted supply of class legal Laser boats and to maintain ILCA in its current set-up.[/SIZE]
[SIZE=small]Issue #3 - That legal position places higher weight on the Trademark than on the signed contracts (or "design rights"), which sounds like the view that the ILCA held at the time of writing. Kirby, in his civil action talks about the contracts and agreements, and does not talk about "design rights" per se. For Kirby it's all about the agreements and signed contracts and now the defendants need to answer that. Of course the position held by the ILCA was disputed by Kirby at the time; and of course the proposed rule change was not the only remedy. It was (and still is), a position that favours LPE.[/SIZE]

[SIZE=small]The lawyers also informed us that the Kirby design patents had in fact expired.[/SIZE]
[SIZE=small]Issue #4 - Big issue and a mistruth. I believe that the lawyers may have said something like "any valid patents that Kirby may have had, have expired", so Jeff and Heini may have made a small mistake in their own minds. However the message to the members (voters) is clear - that according to legal advice, Kirby has no design rights. This of course is the position that LPE holds currently holds. In fact, there are contracts - now I'm not about to say whether or not they are binding, or what the legal outcome is. However, voters here were clearly mislead on this point. It's important to note that this position by the ILCA was based on poor information, and I want to believe that it was not malicious in any way.[/SIZE]

[SIZE=small]Therefore, we are proposing to change the rule to eliminate the “building agreement from Bruce Kirby or Bruce Kirby Inc” requirement. Manufacturers who have trademark rights and who build in strict adherence to the ILCA Rules and to the Construction Manual, which is controlled by ILCA, will continue to have the right to build Class legal boats. We believe that this change will eliminate uncertainty over ISAF and ILCA approval, give manufacturers continued reasons to support the class and satisfy the demands of current and future class members.[/SIZE]
[SIZE=small]Given the above issues, and in light of the disputes, is this still a valid conclusion?[/SIZE]

[SIZE=small]Why should you vote YES?[/SIZE]
  1. [SIZE=small]To promote the uninterrupted supply of class-legal Laser boats all over the world to meet the demands of current and future sailors.[/SIZE]
    [SIZE=small]It's possible that by eliminating Kirby technically is a solution, however remember that we sailed the Olympics with this dispute carrying on behind behind the scenes. It's difficult to understand that the ILCA was compelled to make this rule change and effectively take sides with LP. This from PSA's General manager Chris Caldecoat: "For ILCA and ISAF to attempt to change the rules regarding the manufacture of the Kirby designed boat (currently called a Laser) without due process and consideration of all stakeholders is contrary to the principles of our Class."[/SIZE]
  2. [SIZE=small]To maintain the International Laser Class Association in its current set-up.
    Issue #5 - (small issue) this rule change makes a change to the set-up, so is not maintaining the current ILCA set-up.
    [/SIZE]
  3. [SIZE=small]To preserve the “one design / out of the box” principle, which is assured by the mandatory adherence to the Laser Construction Manual by all builders as defined in the fundamental rule.
    All parties want this principle maintained, in spite of any threats made.
    [/SIZE]
  4. [SIZE=small]To maintain ISAF recognition and Olympic status.
    I struggle to imagine the Olympics without the Laser, or as an ISAF recognized class.
    [/SIZE]
[SIZE=small]Heini Wellmann,[/SIZE]
[SIZE=small]Laser Class President[/SIZE]
[SIZE=small]Jeff Martin,[/SIZE]
[SIZE=small]Laser Class World Executive Secretary[/SIZE]

[SIZE=small]__________________________________________________________________________[/SIZE]

[SIZE=small]Also, there was advice to wait for more information. The ILCA promised more information (Tillerman posted on this), then did not deliver it.[/SIZE]

[SIZE=small]This cautionary note from the UKLA:[/SIZE]
[SIZE=small]"You may already know of a proposed change to the Fundamental Rule of the ILCA Rules. The change might seem a minor one, but it may have profound implications for the future of our Class. You are being asked by ILCA to vote on this issue as soon as possible. However, you have until 23 September 2011 before you have to make up your mind and vote.[/SIZE]
[SIZE=small]There is a strong case in favour of waiting: information about the background to this Rule change is still emerging, and the argument has a long way to run. In such a fluid situation the advice of the UKLA Committee is to wait before casting your vote. We will remind you to vote on this website, and elsewhere, as the deadline approaches. The UKLA has not been involved in this case, and does not wish to be. At this early stage the UKLA knows as little as anyone not already involved, so we cannot advise you on which way to vote. Also, the prospect of legal action being joined between the disputing parties is high, which is why the UKLA is keeping its counsel: to avoid having to pay for it. If you wish to review the arguments posted so far in discussion forums, the Yachts &Yachting forum and the North-American Laser Association forum are good places to start.[/SIZE]
[SIZE=small]The rule change itself can be viewed at www.laserinternational.org . Read carefully, and only vote if you're certain of your decision.[/SIZE]

[SIZE=small]Unfortunately, while written with the best intentions, some ILCA members concerned with the proposal were put off from voting.[/SIZE]

[SIZE=small]There was a lot of talk of the ILCA keeping out of what was an issue between the commercial parties. The prediction that the UKLA made was correct, that there was legal action, and as a result of this rule change (and the plaque issues) the ILCA and ISAF are now named in the civil action - they (we) have joined the disputing parties.[/SIZE]

[SIZE=small]15 September 2011, Sailworld reported Kirby saying: "I’m expecting too that my resumption of responsibilities to the Class, ISAF and particularly to all Laser sailors, will make it unnecessary for the Class to proceed with the proposed (Fundamental) rule change."[/SIZE]

[SIZE=small]On September 23 at 9 AM, before voting had closed, Sailworld reported "As recent written advice from ISAF to the ILCA had according to informed sources, already rejected the proposed rule changes..."[/SIZE]
[SIZE=small]_____________________________________________________________________________________________________________________________________________________________________________________[/SIZE]

[SIZE=small]So now, having completed this exercise, what conclusions can be made? Remember, Kirby says in his civil action [/SIZE]"82. On information and belief, in order to gain the required support for the ILCA Rule Change, ILCA mislead its members as to the reasons for and implications of the ILCA Rule Change."

[SIZE=small]Sadly for the ILCA the answer is that yes, the voters were mislead. Not just by the ILCA, but by a variety of sources including Kirby himself.[/SIZE]

[SIZE=small]I maintain that the right thing to do, is repeal this rule change.[/SIZE]
 
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Otterbox

Member
93
17
London
Gantt/Bruce

Just found your second analysis dating back to the Fundamental Rule on the SailingForum. Can you please post it here too?

 

Bruce Hudson

Super Anarchist
3,251
847
New Zealand
No Problem Otterbox.

Some information about the ILCA's legal advice can be found in this rather large thread: http://sailingforums.com/threads/2011-rule-changes-fundamental-rule.21064/

I have read the thread in it's entirety and recommend that anyone wanting to understand the viewpoints the ILCA held in 2011 in more depth do so too. The following excerpts are best read in context, I have selected them to get a flavour of where the ILCA was at. They are best read in context. I have attempted to add my own meaningful opinions at the end of this post.
___________________________________________________________________________________________________
March 29, 2011 Tracy says (excerpt):
"I can try to answer questions that I know the answers to. The entire issue is very complex, there are agreements that ILCA is party to, there are agreements between the design rights holder and the builders that ILCA is not party too (and has no detailed knowledge of), etc. And, yes, it has required ILCA to seek legal advice in order to help guide what would be the best path forward for the Laser Class, and all Laser sailors."
___________________________________________________________________________________________________
On April 2, 2011 (page-5) in response to "RockHead", Tracy said (excerpt):

"The only thing I can add, or, really, reiterate, is that ILCA is not a part of the agreement between GS and LP and, additionally, is not priviliged to the details of that document. So, ILCA has no knowledge of what GS may or may not require of LP.

Obviously the proposed rule change benefits LP over Global Sailing and certainly gives the appearance that ILCA has "chosen a side." In effect, it has, but I can assure you that it is not out of love for LaserPerformance. As stated above, when push came to shove it was determined, through the best legal advice that ILCA could get, that if the goal was to preserve Laser sailing as we know it then the trademarks trumped all. If we, as sailors, want to continue to sail the same boats we have now, including calling them Lasers with a starburst logo, then the proposed modification of the Fundamental Rule was deemed the best course of action."
___________________________________________________________________________________________________
On April 8, 2011, Ottobox wrote (entire post):
"I dont normally care about Laser politics but this seems to be a tipping point. I guess you have the inside track on this whole deal.

What i do not understand is that Bruce Kirby who evidently sold Bruce Kirby Inc to Global Sailing, says there are no copyrights or patents - he seems to think he knows what is in the Kirby Inc agreements (you would figure he would).

But ILCA's case for voting Yes is based on the fact that their attorney's told them that patents have expired.

But the ILCA statements also says that ILCA has not seen the agreement/contracts.

Like I am a six year old, please explain, how do you know what you don't know?

If the guy who drew up the original docs says you are wrong and ILCA says we have not seen the docs, but we are right. - why should we believe you??"
___________________________________________________________________________________________________
On April 10, 2011, Tracy responded (excerpt):
"We could waste endless keyboard strokes debating the minutiae of various hypothetical situations. As I stated before, I am unaware of any contract/agreement between the IP rights holder and ILCA that has bearing on the proposed rule change. Until a convincing argument can be made to me of how ILCA can be subject to a builder's agreement that it is not party to (nor knows the details of) then I don't see the merits in wasting lots of time on irrelevant details."

The questioning by Otterbox in hindsight proved very pertinent. The agreements are outlined in Kirby's civil action.
___________________________________________________________________________________________________
On June 2, 2011 (http://sailingforums.com/threads/2011-rule-changes-fundamental-rule.21064/page-9), Tracy said (excerpt):
"I did not know there was a lawsuit either in progress or planned, can you give more details? Also, I have not been told that the legal bill was in the 6 figure range. Admittedly, the last accounting I saw was at the last World Council meeting this past February where it was still in the range of 4 figures, though by now I'm sure its passed into the 5 figure range. From my point of view, given that ILCA's annual budget on the order of $500,000, it would seem to be in line given the seriousness of the situation (and, as well, one of the reasons to have the surplus that ILCA has maintained over the years).

Anyway, having said the above, I am also disappointed that ILCA chose, in the end, to not directly address questions further. I generally believe that more information is always better than less information, when its possible to give accurate information and not just speculate. However, I can't say that if I were in their position, with the advice given them, I might not come to the same conclusion they did."
___________________________________________________________________________________________________
Whitfit, Jul 6, 2011 said (excerpt):
"I am a lawyer in Canada, so have some knowledge of the issues of commercial agreements and intellectual property rights."

"....The bottom line for me is that I want to know more. I want to know what the actual legal rights are, and what path they have taken from their inception. This is not information that I have been able to learn from reading various articles and discussions on the internet about this issue. And, I think that is the critical issue at play. This is about the use of design rights, and the contracts that have been made about those rights. My view is that the rest is window dressing."
___________________________________________________________________________________________________
Then September 1, 2011, Tracy wrote: (entire post)

"Apologies for the delay in getting this sorted out, in the midst of a week long series of meetings at work and had to put together a presentation for this morning.

During the recently completed Master Worlds in San Francisco, Heini Wellmann took the opportunity to hold a meeting to discuss class issues with those sailors interested in listening (I understand he has been regularly doing this at events he has been attending). A good fraction of that discussion centered around the proposed change to the Fundamental Rule. As this was a public meeting I assume that what was said can be summarized here, and I'll try to do to the best of my memory (I was plenty tired after racing that day!). This is from memory, its nearly three weeks old, I just sailed my last Masters' regatta in the Standard Masters (meaning I'm getting older and my memory isn't as good as it used to be), etc., etc. Anyway, the meeting was mostly a question and answer session, so here goes:

1) "Can the Laser Class be sued?" Heini's direct answer was no. The longer answer is as has been discussed here, mainly that ILCA is not party to the contracts between the design rights holder and the builders, has no knowledge of what is contained in those contracts and is not bound by them. ILCA, with its membership, has the fundamental right to change its Class Rules subject to the constraints of its constitution and approval by ISAF.

2) "What does ISAF think?"
a) Heini said that he had made a presentation he made to the ISAF Council at the last ISAF meeting. It sounds as if they had concerns over the proposed rule change similar to discussions here but those concerns were assuaged by Heini's presentation. Apparently Heini also made the conclusions of ILCA's attorney known to the ISAF attorney who concurred with them entirely (in fact even pointing out a strengthening of ILCA's position, the details of which are a bit murky in my memory so I don't want to mis-state them, perhaps another TLF'er who was also in attendance can remember?).
b ) Apparently it seems that ISAF must approve of the sale of the design rights to a new owner and it seems that they were not asked and, according to Heini, have not given this approval. Again, details are not clear enough in my memory to feel confident in recounting the exact wording here, but possibly this may be the source of what Fred alluded to in his post, regarding Bruce Kirby possibly being in discussions to regain his rights?

3) "What might happen?" It seems that is not a question of "might" anymore, the statement was that Global Sailing has terminated the contract with LaserPerformance Europe. By our current class rules, very soon LPE will run out of plaques (which are what determine whether a boat satisfies the class rules) and will not be able to produce new Lasers for Europe, Africa, South America and most of Asia. As far as I know, LP in North America still has a contract.

4) "What if the situation changes? (e.g. Bruce Kirby regains his rights)" The World Council could decide to not go forward with the results of the vote, presumably meaning the WC could decide to not adopt the rule.

Those are the main points that I remember (long day of sailing, I was very tired!). Hopefully someone else in attendance can add any missing details."

___________________________________________________________________________________________________
There is far more information in the thread - lots of opinion, here say and speculation. It's repetitive, and as I said it's best to read the whole thing in context.
___________________________________________________________________________________________________

Crucially, the ILCA said that they were not aware of the details in the agreements. It's fair to say that even the best lawyer if given the brief or having reached the conclusion that the ILCA was not party to any of the builders agreement (and that the dispute was limited to the builder's agreement), their conclusion looks a little more reasonable - even though we can now say with hindsight that was an incorrect position to hold - it's clearer from the above that Tracy (current ILCA President) was earnest in his attempts to share information in good faith.

It's my belief that Tracy did an outstanding job of trying to inform people what the situation was based on the information he knew at the time. While it would appear that Tracy had spoken about about the ILCA's legal advice, even seen it, for reasons unknown Tracy did not share information directly from any legal document. Instead we relied on Tracy's best efforts.

May 2013
We now have the benefit of more information, including the civil action lodged by Kirby and Co. Details of agreements that Kirby say that the ILCA are party to have been lodged with the court as part of the civil action. The civil action forms the most complete picture yet about the agreements that exist, though of course there is more detail to come. And the ILCA, now they have been sued, are compelled to answer as defendants a case based on the agreements that Kirby has presented.

Here it is in summary:
"19. On or about November 30, 1983, BKI and Bruce Kirby entered into an Agreement (“ISAF Agreement”) with Performance Sailcraft, Inc., Laser International Holdings Limited, ILCA, and the International Yacht Racing Union (“IYRU”), copy attached as Exhibit 3.

20. The ISAF Agreement governed the production, distribution, and management of Kirby Sailboats approved for officially sanctioned sailboat races worldwide. Section “Agreement 1” specifies that all authorized builders of Kirby Sailboats must have a license from Kirby.

21. Section 5.1 of the ISAF Agreement stipulates that all Kirby Sailboats must be built in accordance with the Construction Manual to receive accreditation from the IYRU. Section 5.1 further stipulates that all parties agree that all Kirby Sailboats shall be manufactured in accordance with the highest possible degree of uniformity in every respect.

22. Upon information and belief, ISAF is the successor in interest to the rights and obligations of the IYRU under the ISAF Agreement."

___________________________________________________________________________________________________

I maintain that the right thing for the ILCA to do in light of the above is to repeal the rule change and stop issuing plaques.

 
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KiwiJoker

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Good work Bruce. My own examination of the situation has been relatively superficial and far more recent. Still your posts have confirmed my understanding of how we got here.

For me the good news in this is that ILCA's situation is not dire. They still have an opportunity to recant and join Kirby in his Complaint. Of course that means choosing sides instead of trying to perch on the fence. And if they back Kirby it will be in the knowledge of the defendant's hardline position and deep pockets.

 

Otterbox

Member
93
17
London
Gantt/Bruce

Thanks for you posting.

You´ve reminded me of what I wrote last year and yes its very much the case.. I just don't see evidence of logical thinking in the ILCA. Or alternatively someone who has been a long time in the organisation has been misleading the World Council and continues to do so. Be interesting to see what happens within that group.

When you look at the obvious error made by the ILCA lawyer with the expired patents on the toy boat etc. it suggests ILCA and ISAF are keener to use an opinion from their lawyers that suits their purpose, rather than one that will stand the test of time and likely the Court system.

Additionally it seems the ILCA and ISAF thought Kirby´s lawyer Whitmyer was just another hired gun, not realising he is a long time sailor, a former Optimist NA Class President as well as running a serious Intellectual Property Rights legal firm.

Seems like its time that ISAF should sit down with Bruce and Whitmyer and actually see what they might be facing in Court and talk about alternatives, rather than just take a giant legal risk.

 

Otterbox

Member
93
17
London
No conspiracy, just a strong desire to protect the job or the position as you say.

Puzzled by Tracy Usher tho.. , had a few beers with him once over here, at a Masters event, he seems intelligent and has a Phd to prove it but he seems to have been suckered by the promised of rivers of gold from Farzad Rastegar, for ILCA, when the most cursory glance at the size of the industry shows you it is just not there.

 

JimC

Not actually an anarchist.
8,276
1,239
South East England
Its all very strange... there must surely be a lot of factors we aren't hearing about, but the blanket of silence from ILCA is no help at all. I really don't understand why they have this deliberate policy of non-communication with the people who they are supposed to be serving (and it is deliberate - its in the NA minutes), but it doesn't look good. As Gouv said the very least you should do is to say why you aren't talking...

 

jwlbrace

Super Anarchist
1,245
1
A34 - due south
rasty hasn't actually answered yet though... perhaps the ILCA are keeping their powder dry, saving it for the court, hiding under the skirts of whichever shell company are stumping up the fees for Turner and Hooch.

 

ojfd

Anarchist
818
78
Its all very strange... there must surely be a lot of factors we aren't hearing about, but the blanket of silence from ILCA is no help at all. I really don't understand why they have this deliberate policy of non-communication with the people who they are supposed to be serving (and it is deliberate - its in the NA minutes), but it doesn't look good. As Gouv said the very least you should do is to say why you aren't talking...
Is it a common practice for the head office of International association to report to the "ordinary" members of the class or to respond to rumors and/or various opinions expressed in the public space?

Talk to your district officers and let them handle this.

 
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